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Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the current good manufacturing practice (CGMP) regulations for human drugs, including biological products, to exempt most phase 1 investigational drugs from complying with the regulatory CGMP requirements. FDA will continue to exercise oversight of the manufacture of these drugs under FDA's general statutory CGMP authority and through review of the investigational new drug applications (IND).
In addition, elsewhere in this issue of the
FDA is taking this action to focus a manufacturer's effort on applying CGMP that is appropriate and meaningful for the manufacture of the earliest stage investigational drug products intended for use in phase 1 clinical trials while ensuring safety and quality. This action will also streamline and promote the drug development process.
This rule is effective September 15, 2008.
Monica Caphart, Center for Drug Evaluation and Research (HFD-320), Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 301-796-3248, or
Christopher Joneckis, Center for Biologics Evaluation and Research (HFM-1), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852, 301-827-5000.
In the
We received 14 comments on the proposed rule, of which several were considered to be significant adverse comments. Therefore, in the
Together with the companion guidance, this final rule will assist the drug development process by streamlining the application of CGMP that is more appropriate to the manufacture of the earliest stage investigational drug products—those intended for use in phase 1 clinical trials.
A phase 1 clinical trial includes the initial introduction of an investigational new drug product, including biological drug products, into humans. Such studies are conducted to establish the basic safety of the drug, and are designed to determine the metabolism and pharmacologic actions of the drug in humans. The total number of subjects in a phase 1 clinical trial is limited generally to no more than 80 subjects. This is in contrast to phase 2 and phase 3 clinical trials when a substantially greater number of subjects are involved, more subjects are exposed to the drug product, and the effectiveness of the drug product is also tested in addition to safety. During phase 2 or phase 3, drug products may also be made available for treatment use through one of several mechanisms for expanded access to investigational drugs.
FDA's general CGMP regulations for human drugs are set forth in parts 210 and 211. Although the preamble to a final rule published in the
On February 21, 1991, FDA issued a guidance document entitled “Preparation of Investigational New Drug Products (Human and Animal)” (56 FR 7048) (the 1991 guidance). That document, however, did not discuss all manufacturing scenarios, and did not clearly address small- or laboratory-scale production of drug products for use in phase 1 clinical trials. Additionally, the 1991 guidance did not fully discuss FDA's expectations on appropriate approaches to manufacturing controls for batches produced during drug development.
For several reasons, FDA believes that production of human drug products, including biological drug products, intended for use in phase 1 clinical trials (phase 1 investigational drugs) should be exempted from complying with the specific regulatory requirements set forth in parts 210 and 211. First, even if exempted from the requirements of parts 210 and 211, investigational drugs remain subject to the statutory requirement that deems a drug adulterated if “* * * the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practices to assure that such drug meets the requirements of this chapter [of the Federal Food, Drug, and Cosmetic Act (the act)] as to safety and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess” (section 501(a)(2)(B) of the act (21 U.S.C. 351(a)(2)(B))). Second, FDA oversees drugs for use in phase 1 trials through its existing IND authority. Every IND must contain, among other things, a section on chemistry, manufacturing, and control information that describes the composition, manufacture, and control of the investigational drug product (§ 312.23(a)(7) (21 CFR 312.23(a)(7))). Submission of this information, along with other information required in the IND, informs FDA of the steps that the manufacturer is taking to ensure the safety and quality of the investigational drug. Under this IND authority, FDA has the option to place an IND on clinical hold if the study subjects would be exposed to unreasonable and significant risk or if the IND does not contain sufficient information to assess the risks to subjects (21 CFR 312.42). FDA also may terminate an IND if the methods, facilities, and controls used for the manufacturing, processing, and packing of the investigational drug are inadequate to establish and maintain appropriate standards of identity, strength, quality, and purity as needed for subject safety (21 CFR 312.44(b)(1)(iii)).
Thus, even though FDA is exempting phase 1 drug products from compliance with the specific requirements of the CGMP regulations, FDA retains the ability to take appropriate actions to address manufacturing issues. For example, in addition to the authority to put an IND on clinical hold or terminate an IND, FDA may initiate an action to seize an investigational drug or enjoin its production if its production does not occur under conditions sufficient to ensure the identity, strength, quality, and purity of the drug, which may adversely affect its safety.
FDA believes this change in the CGMP regulations (parts 210 and 211) is appropriate because many of the issues presented by the production of investigational drugs intended for use in the relatively small phase 1 clinical trials are different from issues presented by the production of drug products for use in the larger phase 2 and phase 3 clinical trials or for commercial marketing. We are considering additional guidance and regulations to clarify FDA's expectations with regard to fulfilling CGMP requirements when producing investigational drugs for phase 2 and phase 3 clinical trials.
Additionally, many of the specific requirements in the regulations in part 211 do not apply to the conditions under which many drugs for use in phase 1 clinical trials are produced. For example, the concerns underlying the regulations' requirement for fully validated manufacturing processes, rotation of the stock for drug product containers, the repackaging and relabeling of drug products, and separate packaging and production areas are generally not concerns for these very limited production investigational drug products used in phase 1 clinical trials.
Consequently, in this final rule, FDA is amending the scope section of the drug CGMP regulations in part 210 to make clear that production of investigational drugs for use in phase 1 clinical trials conducted under an IND does not need to comply with the regulations in part 211. However, once an investigational drug product has been manufactured by, or for, a sponsor and is available for use in a phase 2 or phase 3 study, thus demonstrating an intent to expose more subjects to the investigational drug and requiring that the regulations' CGMP requirements be met, the same investigational drug product used in any subsequent phase 1 study by the same sponsor must be manufactured in compliance with part 211. In addition to drug products that, if eventually approved, would be approved under section 505 of the act (21 U.S.C. 355), this rule applies to investigational biological products that are subject to the CGMP requirements of section 501(a)(2)(B) of the act. Examples of such products include recombinant and non-recombinant therapeutic products, vaccine products, allergenic products, in vivo diagnostics, plasma derivative products, blood and blood products, gene therapy products, and somatic cellular therapy products (including xenotransplantation products) that are subject to the CGMP requirements of section 501(a)(2)(B) of the act. Therefore, this final rule exempts the production of phase 1 investigational drugs from complying with the regulatory requirements set forth in parts 210 and 211.
Under section 501(a)(2)(B) of the act, a drug is deemed adulterated if the methods used in, or the facilities, or controls used for, its manufacture, processing, packing or holding do not conform to, or are not operated in conformity with, CGMPs to ensure that such drug meets the requirements of the act as to safety, and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess. The rulemaking authority conferred on FDA by Congress under the act permits FDA to amend its regulations as contemplated by this final rule. Section 701(a) of the act (21 U.S.C. 371(a)) gives FDA, through delegation from the Secretary of the Department of Health and Human Services, general rulemaking authority to issue regulations for the efficient enforcement of the act. We refer readers to section V of the preamble of the 1978 final rule for a fuller discussion of our CGMP rulemaking authority (43 FR 45014 at 45020-45026).
This final rule adds paragraph (c) to § 210.2, exempting certain investigational drugs for use in a phase 1 clinical trial (including biological drugs) from compliance with part 211. However, these drugs remain subject to the statutory requirements under section 501(a)(2)(B) of the act, i.e., CGMP. The regulation also explains that the exemption from compliance with part 211 does not apply to an investigational drug that a sponsor has made available
We have also changed the term “defined” to “described” for clarification.
We received approximately 14 comments on the proposed rule. Several comments were duplicate submissions by the same entity; several other comments submitted to the docket pertained to the draft guidance under a separate docket number. These comments were also considered in revising the draft guidance. The following responses are specific to the comments on the proposed rule.
(Comment 1) Several comments welcome the proposed changes and commend FDA for revising the regulations to exempt phase 1 investigational drugs from regulatory CGMP under part 211. One comment adds that, because most products do not proceed beyond the clinical trial phase of development, the burden of full compliance with CGMP at the phase 1 stage far outweighs any perceived benefit and suggests that FDA devise a progressive scale for CGMP compliance beginning with phase 1 clinical trials through approval to market the product.
(Response) We appreciate these supportive comments. Our expectation in issuing this final rule is that sponsors will take an appropriate approach to instituting manufacturing controls appropriate for the stage of investigational drug development.
(Comment 2) Some comments oppose exempting phase 1 investigational drugs from compliance with part 211 because they are concerned that there could be an effect on product safety and human subject protection. Another comment believes that FDA's proposed approach to exempt phase 1 investigational drugs from the applicability of part 211 not only invites greatly reduced product standards, but affects FDA's ability to take remedial action. One reason given was that FDA does not have the personnel to monitor the manufacture of phase 1 investigational drugs during clinical trials. Another comment believes that if the phase 1 investigational drugs are not reproducible, not well-documented, or not well-controlled, the results of the trial will be meaningless and delay availability of new drugs for commercial use. The comment continued to state that an establishment could interpret FDA's proposal as loosening the basic requirements needed for phase 1 material, which would not only jeopardize patients and the results of the phase 1 clinical trial, but also the investigational stages of development that follow.
(Response) We are confident that exempting phase 1 investigational drugs from the CGMP regulations in part 211 will not jeopardize product safety or human subject protection. This action is intended to focus a manufacturer's effort on applying CGMP that is appropriate and meaningful for the manufacture of the earliest stage investigational drug products intended for use in phase 1 clinical trials, while also ensuring the products' safety and quality. An additional consequence of this action is to streamline and promote the drug development process. The companion guidance provides our current thinking on ways to comply, through the use of specified quality controls, with statutory CGMP for the production of phase 1 investigational drugs. As previously described, we will continue to oversee product safety and human subject protection through articulation of statutory CGMP requirements, clarified in the companion guidance, and a thorough review of the chemistry, manufacturing, and control information submitted in the IND application for identity, quality, purity, strength, and potency of the investigational drug necessary to ensure the safety of the subjects in the phase 1 clinical trial. We believe that this exemption does not “loosen” the requirements, but establishes quality control principles that are appropriate and comprehensive for the manufacture of phase 1 investigational drugs, i.e., interpreting and implementing CGMP consistent with good scientific methodology.
We also believe that the exemption will not affect or change our ability to take remedial action if necessary, or to monitor the manufacture of such investigational drugs; nor do we believe that this action will delay availability of new drugs for commercial use. As stated elsewhere in this document and in the proposed rule, compliance with CGMP is required by section 501(a)(2)(B) of the act and a drug can be deemed adulterated by FDA for failure to comply with statutorily mandated CGMP.
(Comment 3) One comment states that the proposed rule was misleading and unclear. The comment asserts, correctly, that a phase 1 investigational drug used in phase 2 and phase 3 clinical trials must comply with part 211, but argues that the progression of the study to phase 2 and phase 3 is unknown at the time of the phase 1 investigational drug production. Therefore, the sponsor will most likely produce the phase 1 investigational drug in compliance with part 211 in lieu of not being able to use data from the phase 1 study for phase 2 and phase 3.
(Response) We disagree that the proposed rule was misleading and unclear. In the preamble to the direct final rule (71 FR 2458 at 2459), we explained that we believe the exemption for phase 1 investigational drugs “is appropriate because many of the issues presented by the production of investigational drugs intended for use in the relatively small Phase 1 clinical trials are different from issues presented by the production of drug products for use in the larger Phase 2 and Phase 3 clinical trials or for commercial marketing.” Given the differences between phase 1 clinical trials and phase 2 and phase 3 clinical trials discussed in section II of this document, we believe compliance with the particular regulations in part 211 is not appropriate for phase 1 investigational drugs because many of the specific requirements in part 211 do not apply to the manufacture of phase 1 investigational drugs in the same manner because they were intended to apply to commercial drug manufacture. For example, rotation of the stock for drug product containers, the repackaging and relabeling of drug products, and separate packaging and manufacturing areas are generally not of concern for the limited production of phase 1 investigational drugs. Additionally, the requirement for fully validated manufacturing processes may not be appropriate for this early stage of development. We believe that recommending approaches and considerations, and allowing the manufacturer to develop specific controls appropriate for the particular product, manufacturing process, and facility in order to comply with statutory CGMP requirement is less burdensome and more efficient for the sponsor. We agree that drug products used in phase 2 and phase 3 clinical trials may be improved or refined (i.e., manufacturing process and/or product) based on the results of the phase 1 clinical trial. However, limiting the exemption from compliance with the regulations in part 211 to drugs for use in phase 1 clinical trials (and not extending it to drugs that a sponsor has made available for a phase 2 or phase 3 clinical trial, or has lawfully marketed) does not preclude the use of
(Comment 4) One comment states that FDA is ignoring past reports of phase 1 clinical trial failure, i.e., the two subject deaths in phase 1 clinical trials conducted at Johns Hopkins University and the University of Pennsylvania, and the six subjects who experienced major organ failure in a phase 1 clinical trial in England. The comment also adds that there have been several deaths and recalls due to drugs compounded by pharmacists and an increase of recalls of medical devices due to CGMP noncompliance. The comment also makes the statement that FDA should not assume that a medical researcher or other employee would be able to make safe phase 1 materials following guidance.
(Response) We disagree with the comment highlighting the cases as a reason for not issuing this final rule. Investigations of the referenced cases found no evidence to suggest that the adverse events were caused by the manufacturing of the phase 1 investigational drug (Refs. 1, 2, and 3), and neither the British not the Johns Hopkins studies had been submitted to FDA under IND, and so had consequently not been prospectively reviewed by FDA (See
With regard to the comment on pharmacy compounding errors, the reported instances of recalls due to drugs compounded by pharmacists are not analogous to producing drugs for phase 1 clinical trials, which is the subject of this rulemaking. Moreover, the comment concerning an increase of medical device recalls due to CGMP noncompliance apparently assumes that this final rule relieves phase 1 investigational drugs of compliance with any CGMP requirements. However, as previously discussed, this final rule exempts phase 1 investigational drugs only from regulatory CGMP requirements in parts 210 and 211. The statutory requirement to comply with CGMP still applies. We note that, in addition to the considerations described in the guidance, reference to technical information and appropriate training are necessary to comply with statutory CGMP.
(Comment 5) Several comments request that FDA engage stakeholders and issue a new rulemaking for CGMP specific to phase 1 investigational drugs. One comment suggests that FDA apply the comments submitted to the docket on the proposed rule and draft guidance in proposing a new rule. Another comment suggests that FDA amend only the relevant requirements, e.g., on the repackaging and relabeling of drug products, retaining the oversight in all phases of a clinical trial of a drug.
(Response) We appreciate the comments and will consider the appropriateness of such a proposed rule. For current purposes, however, we intend to proceed directly from the statute, and direct the public to the companion guidance that is being issued concurrently with this rule, suggesting some approaches to comply with statutory CGMP for phase 1 investigational drugs.
(Comment 6) One comment requests FDA to clarify the scope of the rulemaking, i.e., that the scope does not include active pharmaceutical ingredients (API).
(Response) The scope of the exemption from compliance with part 211 includes investigational new human drug and biological products, including finished dosage forms used as placebos, for human use in a phase 1 study or trial. Examples of such investigational drugs include, but are not limited to, the following:
• Investigational recombinant and non-recombinant therapeutic products,
• Vaccine products,
• Allergenic products,
• In vivo diagnostic products,
• Plasma derivative products,
• Blood and blood components
• Gene therapy products, and
• Somatic cellular therapy products (including xenotransplantation products).
However, if such products have already been manufactured by an IND sponsor for use during phase 2 or phase 3 clinical trials or have been lawfully marketed, the manufacture of such a product must comply with the appropriate requirements of part 211 for the product to be used in any subsequent phase 1 clinical trial, irrespective of the trial size or duration of dosing.
Manufacturers of new active pharmaceutical ingredients (also referred to as “API” or “drug substance”) are already exempt from compliance with part 211 and must also conform with CGMP as required in section 501(a)(2)(B) of the act. Thus, this rule does not change in any way how APIs are regulated with regard to CGMP. As stated in the companion guidance, limited guidance on CGMP for the manufacture of new API for some IND products used in clinical trials is also available (see International Conference on Harmonisation (ICH) Q7A GMP Guide for API (ICH Q7A guidance)). Manufacturers of APIs should implement controls appropriate to the stage of development and, thus, should also consider the recommendations described in the companion guidance for manufacture of API used in investigational drug products for phase 1 clinical trials.
(Comment 7) In the direct final rule, FDA makes the statement “[T]his action is intended to streamline and promote the drug development process” (71 FR 2458 at 2459). One comment believes that this proposal is outside the scope of FDA's mission mandated by Congress, i.e., to “promote the public health by promptly and efficiently reviewing clinical research and taking appropriate action on the marketing of regulated products in a timely manner” and “with respect to such products, protect the public health by ensuring that * * * human and veterinary drugs are safe and effective.” The comment
(Response) As section III of this document notes, CGMP is required by section 501(a)(2)(B) of the act, and FDA has been given the general authority to issue regulations for the efficient enforcement of the act. We note here as well that, under section 505(i) of the act, FDA is directed to issue regulations for exempting from the requirements of section 505 “drugs intended solely for investigational use by experts qualified by scientific training and experience to investigation the safety and effectiveness of drugs,” which include drugs for use in phase 1 clinical trials. While we agree that FDA is an agency whose public health mission demands an emphasis on safety, we note that this does not require us to impose burdens on drug development that do not have a commensurate public health benefit. We believe that this final rule is appropriate because many of the regulatory requirements in part 211 simply are not applicable to the manufacture of products intended for use in phase 1 clinical trials, and that the agency can continue to protect human subjects via interpretation of statutory CGMP and the IND process.
(Comment 8) A couple of comments object to the direct final rule/companion proposed rule approach (rulemaking approach). One comment believes that the process did not allow for a discussion regarding the quality of clinical trial material, i.e., the establishment of meaningful, consistent standards that balance patient protection with speed of development. The comment then suggests that FDA work with industry to address industry-wide questions about quality for clinical trial materials, e.g., equipment qualification, water quality, method validation or qualification, sterility assurance, control of contractors, complaints, cleaning, and specifications.
(Response) We disagree with the assertion that we did not allow for a discussion regarding the quality of clinical trial material. In developing the companion guidance, we utilized our experience with IND submissions and facility inspections. In addition, comments submitted to the docket were considered in finalizing the rule and the companion guidance, as well as stakeholder comments provided in multiple venues where FDA representatives discussed the proposed rule and draft guidance. Both the companion guidance and relevant IND regulations emphasize safety as the primary focus of phase 1 clinical trials. The companion guidance is written to allow for flexibility in utilizing appropriate CGMP controls for the product, manufacturing process, and facility to assure product safety. We will continue to work with stakeholders to refine appropriate standards as needed through continued discussions and meetings in various venues with stakeholders.
(Comment 9) One comment states that FDA does not have the expertise to issue guidance or regulation without stakeholder input and adds that the manufacture of clinical supplies is a complex matter in which FDA has almost no experience. The comment also states that FDA lacks expertise in clinical GMP compliance because FDA has performed few inspections of early clinical supply material.
(Response) We disagree with this comment. The decision to generate guidance for this early phase of clinical trial manufacture was due primarily to the constant requests for guidance in this area from the pharmaceutical industry, academia, and other research organizations. The publication of the draft guidance and the direct final and proposed rules in January 2006 was to address this apparent need, and to seek broader stakeholder input. Additionally, we have experience from numerous sources, such as participation with stakeholders in related workshops and conferences, facility inspections, and other interactions that result in sufficient understanding necessary to issue rulemaking and companion guidance. Contrary to the suggestion of the comment, conducting inspections of early clinical trial material is not the exclusive source of FDA expertise in this area.
(Comment 10) One comment believes that FDA's finding that the subject is suitable for this rulemaking approach is based on assumptions, not data, such as the results of “for cause” inspections, treatment IND inspections, or reports of adverse drug events occurring during phase 1 clinical trials.
(Response) We disagree with the comment. In the direct final rule, we stated that the rulemaking approach is appropriate because many of the issues present in the manufacture of phase 1 investigational drugs are different from those issues presented by the manufacture of drugs for later investigational phases or for commercial marketing, and that many of the specific requirements in part 211 are not applicable in the manufacture of the smaller batches of investigational drugs usually used in phase 1. These statements are not based on assumptions, as the comment suggests, but on the knowledge of, and experience with, good manufacturing practice for phase 1 investigational drugs.
(Comment 11) One comment states that the proponents of the rulemaking approach cite the successful use of ICH Q7A guidance and its use during inspections without the need for a regulation. The comment suggests that the possible reason for the successful use is that the ICH Q7A guidance is more detailed than the draft guidance and is used to manufacture material that is further processed before being delivered to patients.
(Response) We disagree with the comment. Due to the more defined routes of manufacture of APIs, and the general application of CGMP to APIs in the companion guidance, the ICH Q7A guidance was able to provide more detail for the commercial manufacture of APIs. Early phase clinical trial material may use many different routes of manufacture, some of which may be new and innovative. In addition, the recommendations or expectations contained in the ICH Q7A guidance (see section XIX of that guidance, on APIs for use in clinical trials) utilize an approach to CGMP similar to that outlined in the companion guidance. For the reason stated in response to comment 4, we believe that the companion guidance provides adequate considerations when supplemented with additional technical information and appropriate training to comply with CGMP.
(Comment 12) One comment believes that compliance with statutory CGMP requirements and exemption of phase 1 investigational drugs from the requirements in part 211 subjects phase 1 investigational drugs to unwritten standards, developed case-by-case without any input from the public or industry. The comment also states that unwritten standards would lead to differing interpretations within FDA, e.g., by individual investigators, district offices, and review divisions. Inconsistency, non-transparency, and uncertainty slow product development as the industry tries to comply on a shifting landscape of uncertain legal basis.
(Response) We disagree with the comment. We believe that we have provided sufficient opportunity for the public and industry to comment on the proposed exemption of phase 1 investigational drugs from compliance
(Comment 13) One comment states that unclear rules erode quality. For example, financially strapped companies will not be able to justify expenses based on recommendations in a draft guidance. Inevitably, some companies will stumble, and quality will drop.
(Response) Industry is not obligated to implement draft guidance. Draft guidance is for the purpose of soliciting comments on FDA's current thinking on a subject.
In § 10.115(d)(1) (21 CFR 10.115(d)(1)), we explain that guidance does not legally bind the public or FDA. Therefore, a financially strapped company may choose to use a less expensive approach other than the one recommended in a guidance, but the alternative approach must comply with the relevant statutes and regulations in assuring patient safety, and the company would be prudent to consult FDA before using the alternative approach. As previously stated in our response to comment 12, we believe this rule maximizes flexibility and minimizes burden without diminishing safety protections.
(Comment 14) One comment believes that regulatory CGMP provides minimum, legal requirements to safely make drugs or biologics made for use in humans. Another comment states that, instead of the detailed, enforceable standards laid out in part 211, FDA proposes to rely upon three sources of authority that are variously lacking in detail and/or enforceability, i.e., the statutory authority (section 501(a)(2)(B) of the act), the IND submission requirements in § 312.23, and the draft guidance.
(Response) We disagree with this comment, and believe the comment confuses the requirements of the statute and the regulations. Many of the regulatory requirements in part 211 are not readily applicable to the manufacture of investigational drugs for use in phase I clinical trials. As previously stated, because such products still must comply with statutory CGMP, and because FDA has offered suggestions for acceptable methods for complying with statutory CGMP, we believe that manufacturers will have sufficient guidance to know what they must do to safely make drugs or biologics for such early stage clinical trial use in humans. We dispute the assertion that we are eschewing detailed, enforceable standards in favor of relying upon three sources of authority that are variously lacking in detail and/or enforceability. Statutory CGMP remains enforceable and we are issuing a companion guidance that details acceptable approaches for complying with statutory CGMP, and FDA's authority to place clinical trials on hold (under its IND authority) remains unchanged.
(Comment 15) One comment states that FDA assumes that, once this rulemaking is final and phase 1 investigational drugs are exempt from complying with part 211, new sponsors would keep proper records, perform necessary testing, or keep retention samples for later investigations, or that they would take the time to learn and follow CGMP if there were no regulations requiring them to do so. Another comment states that FDA, without evidence, claims that having to actually produce drug or biological products according to accepted international standards is a barrier too high for entry into phase 1 studies. The comment continues to say that such barriers do serve a social purpose, i.e., preventing those incapable of following or unwilling to follow CGMP from administering investigational products to humans.
(Response) As mentioned in the preamble to the proposed rule and draft companion guidance, application of part 211 is not appropriate to the production of IND products used in phase 1 studies. The type and extent of CGMP for investigational studies differs from those typically employed for routine commercial manufacturing, and in some cases may even include more stringent controls for certain manufacturing operations of investigational products. We believe that the proposed rule and the draft companion guidance better communicate FDA expectations and facilitates compliance with CGMP for the production of phase 1 investigational drugs rather than trying to apply existing part 211 regulations. Our expectation that phase 1 investigational drugs be manufactured following appropriate CGMP in adequate manufacturing facilities has not diminished with the adoption of this approach.
FDA is not claiming that the manufacture of a drug or biological product for use in phase 1 studies according to international standards presents too high a barrier. FDA's position is that the United States' good manufacturing practice regulations were written primarily to address commercial manufacturing and do not consider the differences between early clinical supply manufacture and commercial manufacture. The final rule and companion guidance are intended to address these differences, while still requiring all drugs for human consumption, including those used in clinical trials, to be manufactured in accordance with CGMP as required by section 501(a)(2)(B) of the act.
(Comment 16) One comment maintains that FDA understates the risk to patients. The comment continues to say that the CGMP regulations are designed to protect patients from mishaps that would have major impact on the clinical subject, e.g., contamination with bacteria, penicillin, or industrial cleaning agents; and product mix-ups. Another comment believes that § 312.23, which requires companies to submit information about the clinical material, has nonexistent patient protections, and that submitting general information is no substitute for compliance with CGMP.
(Response) We disagree with the assertion that we understated the risk to subjects (patients). We believe that there is no additional risk to subjects with this exemption, and have provided recommendations that interpret and implement CGMP consistent with good scientific methodology. In complying with section 501(a)(2)(B) of the act, a manufacturer must manufacture the drug in conformity with good manufacturing practice to assure that the drug meets the requirements of the act as to safety and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess. If the drug does not meet these criteria, the drug is considered adulterated and therefore a possible risk to subjects. Because the statutory requirements allow for flexibility in describing CGMP, we have issued the companion guidance to recommend CGMP for phase 1 investigational drugs. These recommended quality controls for
(Comment 17) One comment believes that the exemption of phase 1 investigational drugs from part 211 puts patients at risk because it is difficult to prove what CGMP is, and makes it difficult for FDA to investigate or prosecute serious cases. The comment also states that a quality assurance (QA) unit is required for preclinical studies and a quality control (QC) unit is required for phase 2 and phase 3 studies. However, the new approach does not provide for a QA or QC unit for phase 1 studies.
(Response) We disagree with this comment. As previously discussed in section II of this document, CGMP consists of steps that a manufacturer takes to ensure the safety and quality of the investigational drug. This information is submitted to FDA in the IND. Through FDA's IND authority, FDA has the ability to take appropriate actions to address manufacturing issues if there is a safety risk to subjects, i.e., place an IND on clinical hold, terminate an IND, seize an investigational drug, or prohibit its production.
The functions performed by QA and/or QC unit(s) appropriate for this early phase of clinical trial material manufacture were clearly spelled out in the draft companion guidance. We describe in the companion guidance the QC functions that should be in effect to manufacture in compliance with CGMP for phase 1 clinical trials. It is at the discretion of the manufacturer if it wishes to implement these responsibilities through separate QA and QC groups.
(Comment 18) One comment asserts that if the study subjects are exposed to unreasonable and significant risk or if the IND does not contain sufficient information to assess risk to patients, any action by FDA, i.e., placing a clinical hold or terminating an IND, would occur after the fact and well after patients are injured in the trial.
(Response) Sponsors must inform the subjects of clinical trials of inherent, unknown risks (21 CFR 50.25). FDA will typically place a clinical hold or terminate an IND as a result of evaluating safety information provided as part of the IND review. Such evaluations are conducted prior to the initiation of the clinical trial. Therefore, we can and will, when appropriate, take such actions before the clinical trial proceeds. In addition to taking action before the clinical trial begins, we also have the ability under statutory CGMP to take enforcement actions once the phase 1 clinical trial begins.
(Comment 19) One comment points out that FDA recognizes that, although part 211 applies to phase 2 and phase 3 investigational drugs, the extent of the controls varies based on the phase of the clinical study. The comments also state that FDA agrees that not all sections of part 211 may apply to phase 2 and phase 3 investigational drugs. For this reason, the comment suggests revising the last sentence of proposed § 210.2(c) to require that the drug for use in phase 1 study comply with the appropriate sections of part 211. Another comment also provided alternative language to § 210.2(c) stating that if the investigational drug has been made available for a phase 2 or phase 3 study or the drug has been lawfully marketed, and the manufacturer needs to conduct further phase 1 studies to generate data to support the registration of the clinical indication being developed, the drug used in the phase 1 clinical trial need not comply with part 211.
(Response) We disagree with the comment. Because of the wide variability in the possible manufacturing processes used to produce early phase clinical trial material, it is not feasible to specify what parts of part 211 are appropriate in a companion guidance, because what may be appropriate for one manufacturing situation may be inappropriate for another.
We decline to use the alternative codified language proposed by the comment, which would exempt from the requirements of parts 210 and 211 investigational drugs used in phase 1 clinical trials where the drugs have been lawfully marketed or used in phase 2 or phase 3 clinical trials. Because the drug products in question have already been manufactured using CGMP as indicated in part 211, the manufacturing knowledge is already available and should be fully utilized.
(Comment 20) One comment reiterates the proposal that phase 1 investigational drugs would be manufactured following statutory requirements and recommendations through guidance for CGMP, and if used for a phase 1 clinical trial after available for phase 2 and phase 3 clinical trials or marketed, the phase 1 material would be manufactured using regulatory CGMP. The comment raises the question of the possibility that the phase 1 investigational drugs not manufactured per the same standard and used on human subjects is unethical. Another comment suggests that if only certain phase 1 investigational drugs follow CGMP while others are exempt it promotes a situation where subject safety may be at risk.
(Response) We believe that the comment fails to recognize that the scope of the specific recommendations for CGMP in support of the statutory requirements provides the same, if not additional, protection of the phase 1 clinical trial subject. Given that FDA retains oversight over these part 211-exempt phase 1 products via the IND mechanism, and that the agency is issuing guidance on ways to comply with statutory CGMP in the manufacture of such products, we firmly believe that this rule presents no safety or ethical issue. However, as discussed elsewhere in this preamble, we are requiring that phase 1 investigational drugs that the sponsor makes available for phase 2 and phase 3 clinical trials or as lawfully marketed drugs comply with part 211. This is because, given the manufacturing scale of a product that will be administered beyond a phase 1 trial, such products are more like products manufactured for use in phase 2 and phase 3 clinical trials or lawfully marketed drugs. The fact that we are requiring investigational drugs manufactured in significant enough quantities that they are available for phase 2 or phase 3 testing or lawful marketing to comply with regulatory CGMP, does not mean that product that is manufactured only for use in a phase 1 trial, and is thus exempt from complying with regulatory CGMP, is unsafe. The current rulemaking exempting products from compliance with part 211 is limited to products manufactured exclusively for use in a phase 1 trial and the fact that some products used in phase 1 trials will be manufactured in compliance with the requirements of part 211 does not mean that products that are not so manufactured in compliance with statutory CGMP are unsafe.
(Comment 21) One comment believes that FDA should not use guidance in place of minimum CGMP requirements for the safe manufacture of drugs or biologics for human beings. Another comment requests that FDA not exempt the manufacture of phase 1 investigational drugs from part 211, but instead issue guidance to help manufacturers find innovative, simple, and inexpensive approaches to comply with CGMP regulations and keep their products safe for the trial subjects.
(Response) We are not issuing the companion guidance in place of minimum CGMP requirements. CGMP is required by statute, and the companion guidance provides our current thinking on complying with statutory CGMP. As previously stated, this action is
(Comment 22) Several comments express concern that guidance is not legally binding and therefore, not enforceable. One of the comments states that relying on guidance invites misunderstandings and inconsistencies, while another comment believes that if not required under part 211, manufacturers may not take the time to read or familiarize themselves with guidance related to CGMP, i.e., testing, manufacturing sterile or aseptic dosage forms, and employee qualification/training. A comment also believes that guidances do not undergo the same level of notice and comment, and lacks the complete input of interested parties.
(Response) We agree with the comment that the companion guidance is not legally binding and not enforceable. However, the statutory requirement that drugs, including investigational drugs for use in phase 1 trials, comply with CGMP is legally binding and enforceable. We believe that a sponsor, guided by its knowledge, experience, and technical information applying good scientific methodology, following FDA recommendations, and undertaking appropriate activities (e.g., training), can adequately and appropriately comply with statutory CGMP. We disagree that relying on guidance invites misunderstandings and inconsistencies. In fact, to the contrary, we believe that guidance reduces misunderstandings and inconsistencies because guidance provides FDA's interpretation of or policy on a regulatory issue, while still allowing for flexibility and innovation.
With regard to adequate notice to, and comment by, interested parties on guidance documents, the public can participate in the development and issuance of guidance documents as described in § 10.115(f) and (g), i.e., provide comment on issued draft guidance documents, suggest areas for guidance document development, submit drafts of proposed guidance documents for FDA to consider, suggest that FDA revise or withdraw an already existing guidance document, or comment on FDA's annually published list of possible topics for future guidance document development or revision. Therefore, we disagree with the comment that guidance does not undergo sufficient notice and comment, and lacks the complete input of interested parties. Moreover, we received extensive comments on the draft companion guidance from numerous entities and have considered these comments in preparing the companion guidance.
(Comment 23) Two comments express concern regarding the effect of the companion guidance on the 1991 guidance on preparation of INDs, which recommends the application of certain sections of parts 210 and 211 to phase 2 and phase 3 clinical trials. The comments also request that FDA clarify the status of the 1991 guidance for phase 2 and phase 3 materials with regard to complying with CGMP requirements. Another comment asks if FDA expects an incremental application of CGMP for the production and testing of phase 2 and phase 3 clinical supplies, or if the 1991 guidance will remain in effect for phase 2 and phase 3 materials until the new phase 2 and phase 3 guidance document is available.
(Response) As stated in the introduction of the companion guidance, the companion guidance will replace the 1991 guidance only as it applies to phase 1 investigational drugs. This action does not affect the scope of the 1991 guidance as it applies to phase 2 and phase 3 investigational drugs, which remains in effect until superseded by a subsequent guidance document.
(Comment 24) One comment states that the guidance would allow the same person manufacturing the material (a non-QC unit employee) to also release the material to the clinic. The comment further states that the release of material by a non-member of the QC unit violates United States CGMP and a non-Qualified Person violates European Union CGMP, and does not appear to recognize the importance of having an experienced and knowledgeable unit or person to safely release the materials.
(Response) We agree with this comment in part. The companion guidance recognizes the need to have quality control in this early phase of clinical trial material manufacture and has provided recommendations for the quality control procedures that should be used. We provide flexibility for operations where a very small amount of clinical material is produced. While we agree that release of material by an untrained person violates United States CGMP, this is not what is recommended in the companion guidance, which indicates that, under very limited circumstances and where justified, only a person trained in CGMP and quality control functions should be given the dual responsibility of manufacture and release. The interpretation in the companion guidance is consistent with the quality unit functions under part 211 and the nature of commercial and investigational products.
(Comment 25) FDA makes the following statement in the direct final rule (71 FR 2458 at 2461). “For drug manufacturers that produce Phase 1 drug products in-house and also produce approved drug products, this direct final rule is expected to reduce the amount of documentation they produce and maintain when they manufacture a Phase 1 drug. In some cases, it should also reduce the amount of component and product testing.” Two comments state that because it is unknown at the time of clinical manufacture if a phase 1 drug will continue to phase 2, manufacturers will likely elect to take a conservative approach and manufacture a drug to phase 2 requirements (part 211) to allow the phase 1 drug to be used in future phase 2 studies. Because of availability concerns in the clinical phase, manufacturers would most likely elect to not discard phase 1 material that could be used in phase 2. Therefore, the statement regarding savings is questionable.
(Response) We agree with the comment that some manufacturers may decide to follow part 211 when manufacturing phase 1 investigational drugs. However, the saving estimate was intended to be an estimate of incremental savings should manufacturers chose to follow the companion guidance, as some manufacturers will.
(Comment 26) One comment requests that FDA evaluate the cost of compliance against the hypothetical public health risk of a product that did not reach the market and the likelihood and severity of risks to volunteers. Another comment states that the additional risk to patients in a phase 1 clinical trial does not justify the proposed savings of $1,440 per IND in documentation, training, and other “reduced” requirements. The comment also states that the potential costs of $810 per IND is a gross underestimation
(Response) In section V.F of this document, the responses to comments 16 through 20 state that there will be no change in the risk to patients in phase 1 clinical trials as a result of the final rule. The cost estimate was intended to capture the incremental cost of complying with the proposed rule given current practice under part 211; it does not reflect total costs. A cost-benefit analysis of phase 1 clinical trials or clinical trials in general is beyond the scope of this document.
(Comment 27) One comment believes that the expense is not for compliance with CGMP, especially if systems and procedures are simple, but for the training of personnel.
(Response) Training personnel is a cost of complying with the current CGMP regulation; the estimate in the proposed rule captured the incremental increase in training costs to comply with the proposed rule.
FDA has examined the impacts of this final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of the rule on small entities. Because exempting production of drugs for use in phase 1 clinical trials from compliance with specific regulatory requirements does not add to the compliance burden of small entities, and in most cases reduces it, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127 million, using the most current (2006) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
The purpose of this final rule is to amend our current CGMP regulations to exempt the manufacture of investigational drugs used in phase 1 clinical trials from compliance with the requirements in part 211. The rule affects drug manufacturers, chemical manufacturers, and laboratories that manufacture drugs on a small scale for use in phase 1 clinical trials.
For drug manufacturers that produce in-house investigational drugs for use in phase 1 clinical trials and also produce approved drug products for marketing, this final rule is expected to reduce the amount of documentation they produce and maintain when they manufacture an investigational drug for use in a phase 1 clinical trial. In some cases, it should also reduce the amount of component and product testing.
Because they currently may not supply the pharmaceutical industry, some chemical manufacturers and laboratories may experience a slight increase in documentation if they do not have written standard operating procedures (SOPs) or if they need to modify existing methods of documentation. Although formats may be different, the rule should not require more information than is already collected as part of standard laboratory practices.
Because the actual SOPs and manufacturing requirements are different for each new drug product and manufacturing facility, the procedures to comply with the statutory CGMP requirements for phase 1 manufacturing are generated as part of product development. The savings or costs would be incurred on a per-IND and not per-facility basis.
This rule is intended to clarify compliance with the statutory CGMPs that are necessary in the manufacture of investigational drugs used in phase 1 clinical trials, and to exempt certain drugs produced under IND and used for phase 1 clinical trials from regulatory CGMP requirements under part 211. Some manufacturers may realize savings because they no longer must meet certain requirements. The savings to drug manufacturers that manufacture in-house the investigational drugs used in phase 1 clinical trials will vary greatly from product to product. FDA lacks data to estimate where the cost savings will occur in the manufacture of investigational drugs. Some substantial savings may be realized in testing and analyzing components and in-process materials. These costs can typically range from $50 to $1,200 per component tested. The extent of the need for SOPs and methods validation may also be greatly reduced. We estimate that large drug manufacturers that manufacture in-house investigational drugs used in phase 1 clinical trials could potentially save between 24 to 40 hours per IND
For previously described chemical manufacturers and laboratories, the requirements in this rule may increase the time required for developing SOPs for quality, process, and procedural controls and will be incurred on a recurring basis for each new product manufactured. There may also be an incremental increase in training costs to educate employees on the CGMP requirements. We estimate that an additional 12 to 24 hours may be required for these activities depending on the experience of the entity and its employees with our current CGMP rule.
The facility that manufactures the investigational drugs used in phase 1 clinical trials is identified in the IND. We do not keep a database of these facilities and, therefore, we do not have a precise number of entities that might be affected by this final rule. To estimate the economic impact, we derived an estimate of the number affected annually based on the number of INDs we receive.
We receive an average of 1,410 INDs each year.
The Small Business Administration (SBA) defines manufacturers of biologic drugs as small entities if they employ fewer than 500 people and other drug manufacturers as small if they employ fewer than 750 people. FDA estimates that about 65 percent of the entities that submit NDAs and biologics license applications to the agency meet SBA's definition of a small entity. We assume that the distribution of large to small entities that submit INDs would be about the same. Although many of the entities that produce investigational drugs used in phase 1 clinical trials are laboratories, they are usually part of much larger institutions and are not considered small under SBA's definition. All of the entities affected by this rule have personnel with the skills necessary to comply with the requirements.
Because we do not know the experience levels the affected entities have with our current CGMP requirements, we used the midpoint of the estimated ranges to estimate the potential recurring savings or costs.
Savings to large manufacturers from reduced SOP and validation requirements for phase 1 drug manufacturing in-house, assuming a time savings of 32 hours per application, a fully loaded wage rate of $46,
The incremental average annual cost to chemical manufacturers and laboratories, assuming all would incur costs and assuming an average increase of 18 hours per application for writing SOPs and training, a fully loaded wage rate of $46, and 275 INDs (approximately 65 percent of 425) affected per year, would total $227,700 per year or $828 per IND.
Although we do not know the number and size distribution of the entities affected by this rule, the impact on them will be negligible and should actually reduce the compliance burden for some. Manufacturers of drug products for phase 1 clinical trials are currently required to manufacturer them using CGMP, but some of the requirements in part 211 are not applicable for the manufacture of small quantities used in phase 1 clinical trials. While exempting these products from part 211, the companion guidance clarifies FDA's thinking on how to manufacture phase 1 investigational drugs under CGMP and does not include recommendations that would increase the burden of compliance.
This final rule contains no new information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Under the final rule, the production of human drug products, including biological drug products, intended for use in phase 1 clinical trials are exempted from complying with the requirements under part 211. Part 211 contains information collection requirements that are approved by OMB under control number 0910-0139. As explained in the following paragraph, the information collection requirements in part 211 are reduced in this final rule.
The OMB-approved hourly burden to comply with the information collection requirements in part 211 (OMB control number 0910-0139) is 848,625 hours. FDA estimates that, under the final rule, approximately 425 investigational drugs are exempted from complying with the requirements under part 211. Based on this number and the total number of drugs that are subject to part 211 (122,795), FDA estimates that the burden hours approved under OMB control number 0910-0139 will be reduced by approximately 2,936 hours (425/122,795 x 848,625). Thus, as a result of the final rule, the amended burden hours in OMB control number 0910-0139 are approximately 845,689 hours.
The agency has determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
The following references have been placed on display in the Division of Dockets Management (see
1. Wood, A.J.J., J. Darbyshire, “Injury to Research Volunteers—The Clinical-Research Nightmare,”
2. Steinbrook, R., “Protecting Research Subjects—The Crisis at Johns Hopkins,”
3. Savulescu, J., “Harm, Ethics Committees and the Gene Therapy Death,”
Drugs, Packaging and containers.
21 U.S.C. 321, 351, 352, 355, 360b, 371, 374; 42 U.S.C. 216, 262, 263a, 264.
(c) An investigational drug for use in a phase 1 study, as described in § 312.21(a) of this chapter, is subject to the statutory requirements set forth in 21 U.S.C. 351(a)(2)(B). The production of such drug is exempt from compliance with the regulations in part 211 of this chapter. However, this exemption does not apply to an investigational drug for use in a phase 1 study once the investigational drug has been made available for use by or for the sponsor in a phase 2 or phase 3 study, as described in § 312.21(b) and (c) of this chapter, or the drug has been lawfully marketed. If the investigational drug has been made available in a phase 2 or phase 3 study or the drug has been lawfully marketed, the drug for use in the phase 1 study must comply with part 211.
Drug Enforcement Administration, Department of Justice.
Final rule.
This rule makes one revision to the Drug Enforcement Administration's (DEA) regulations concerning agency management. Additional personnel are authorized to sign and issue administrative subpoenas.
Wendy H. Goggin, Chief Counsel, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152, Telephone (202) 307-1000.
This Final Rule implements one change to Title 28, Code of Federal Regulations (CFR), Part 0 by adding three officials to the list of officials who may sign and issue administrative subpoenas pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970, Public Law No. 91-513, 84 Stat. 1236 (1970), as amended (the Act), codified at 21 U.S.C. 801-971. In addition to the Attorney General and the DEA Administrator, the current list of such officials is set forth at 28 CFR, Chapter I, part 0, Appendix to Subpart R, Section 4. Title 21, U.S.C. 875 and 876, provide the authority to issue such subpoenas. By 28 CFR 0.100, the Attorney General has delegated this authority to issue administrative subpoenas in support of his functions and duties under the Act to the DEA Administrator. The DEA Administrator is permitted by 28 CFR 0.104 to redelegate this authority “to any of [her] subordinates[.]”
By this Final Rule, DEA now extends this administrative subpoena authority to its senior officials overseas who often supervise investigations with leads back in the United States,
Title 28 CFR, Chapter I, Part 0, Appendix to Subpart R, Section 4 currently lists twelve categories of DEA and FBI officials who are empowered to sign and issue administrative subpoenas under 21 U.S.C. 875 and 876. To this list of senior officials DEA now adds its Regional Directors, Assistant Regional Directors, and Country Attachés. This is being done to rectify an oversight. While both DEA Resident Agents in Charge and Special Agent Group Supervisors posted outside the U.S. have authority to sign and issue such administrative subpoenas, unlike the case of Resident Agents in Charge and Special Agent Group Supervisors within the U.S., the superior officials (Regional Directors, Assistant Regional Directors, and Country Attachés) of such Resident Agents in Charge and Group Supervisors serving overseas have not heretofore been listed at Title 28 CFR, Chapter I, Part 0, Appendix to Subpart R, Section 4, as officials to whom the Administrator has redelegated her authority to sign and issue administrative subpoenas.
This rule relates to a matter of agency management or personnel and is a rule of agency organization, procedure, and practice. As such, this rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date.
The Acting Administrator, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612, has reviewed this rule, and by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Drug Enforcement Administration. Further, a Regulatory Flexibility Analysis was not required to be prepared for this final rule because the Drug Enforcement Administration was not required to publish a general notice of proposed rulemaking for this matter.
This rule has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. This rule is limited to agency organization, management and personnel as described by Executive Order 12866 section (3)(d)(3) and, therefore, is not a “regulation” or “rule” as defined by that Executive Order. Accordingly, this rule has not been reviewed by the Office of Management and Budget.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, Federalism, the Drug Enforcement Administration has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120 million or more (adjusted for inflation) in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804 (Congressional Review Act). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The Drug Enforcement Administration has determined that this action is a rule relating to agency organization, procedure or practice that does not substantially affect the rights or obligation of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1966). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Authority delegations (Government agencies), Government employees, Organization and functions (Government agencies), Privacy, Reporting and recordkeeping requirements, Whistleblowing.
5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
Pension Benefit Guaranty Corporation.
Final rule.
The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in August 2008. Interest assumptions are also published on the PBGC's Web site (
Effective August 1, 2008.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.
Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to part 4022).
This amendment (1) adds to Appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during August 2008, (2) adds to Appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during August 2008, and (3) adds to Appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during August 2008.
For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 6.05 percent for the first 20 years following the valuation date and 5.12 percent thereafter. These interest assumptions represent an increase (from those in effect for July 2008) of 0.10 percent for the first 20 years following the valuation date and 0.10 percent for all years thereafter.
The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent a decrease (from those in effect for July 2008) of 0.25 percent in the immediate annuity rate and are otherwise unchanged. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).
The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during August 2008, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance, Pensions.
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
29 U.S.C. 1301(a), 1320(b)(3), 1341, 1344, 1362.
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs (VA) adjudication regulations regarding eligibility verification reports for certain parents receiving dependency and indemnity compensation. This amendment is necessary to conform the regulation to statutory provisions.
This amendment is effective July 15, 2008.
Maya Ferrandino, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits
VA has two income-based benefit programs: pension and parents' dependency and indemnity compensation (DIC). VA may require a beneficiary of these programs to submit an eligibility verification report (EVR) in order to determine or verify entitlement under these programs.
In the past, VA has interpreted section 1315(e) as allowing VA the discretion to continue requiring EVRs from this category of parents' DIC beneficiaries.
This final rule is an interpretative rule and the changes made by this rule merely reflect VA's interpretation of statutory requirements. The primary purpose of the amendment is to implement VA's statutory interpretation of 38 U.S.C. 1315 and to align § 3.256 to the statute. Section 553(b) of title 5, U.S. Code, does not apply to interpretive rules. Accordingly, there is a basis for dispensing with prior notice and opportunity to comment. Moreover, under section 553(d), interpretive rules do not require 30 days prior notice before they may become effective. Therefore, because the amendment to § 3.256 is an interpretive rule, the amendment may have an immediate effect. Accordingly, there is a basis for dispensing with the delayed effective date provisions of 5 U.S.C. 553(d).
This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) assigns a control number for each collection of information it approves. VA may not sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Control number 2900-0101 has been assigned for the collection of information under § 3.256.
The amendments to § 3.256 in this final rule remain within the scope of the approved collections of information. This document will not increase the information burden, nor is it a complete discontinuance because VA will continue to request EVRs from individuals who do not meet the exception requirements under section 1315(e). The amendments are a slight modification that applies to the narrow group of people who meet the exception. Any reduction in the burdens imposed by this approved collection will be identified and addressed in the extension request that VA must submit to OMB before July 31, 2008.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule would not affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by OMB unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam.
38 U.S.C. 501(a), unless otherwise noted.
(b) * * *
(3) Except for a parent who has attained 72 years of age and has been
Environmental Protection Agency.
Withdrawal of direct final Notice of Deletion.
On June 13, 2008 EPA published a Notice of Intent to Delete (73 FR 33758) and a direct final Notice of Deletion (73 FR 33721) for the Fourth Street Abandoned Refinery Superfund Site from the National Priorities List. The EPA is withdrawing the Final Notice of Deletion due to adverse comments that were received during the public comment period. After consideration of the comments received, if appropriate, EPA will publish a Notice of Deletion in the
This withdrawal of the direct final action is effective as of
Bartolome Canellas, Remedial Project Manager, U.S. Environmental Protection Agency, Region 6, 6SF-RL, 1445 Ross Avenue, Dallas, Texas 75202-2733,
Environmental protection, Air pollution control, Chemicals, Hazardous Waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water Supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Accordingly, the amendment to Table “1” of Appendix B to 40 CFR Part 300 to remove the entry “Fourth Street Abandoned Refinery”, “Oklahoma City, Oklahoma” is withdrawn as of July 15, 2008.
Environmental Protection Agency.
Withdrawal of direct final Notice of Deletion.
On June 13, 2008 EPA published a Notice of Intent to Delete (73 FR 33760) and a direct final Notice of Deletion (73 FR 33718) for the Double Eagle Refinery Co. from the National Priorities List. The EPA is withdrawing the Final Notice of Deletion due to adverse comments that were received during the public comment period. After consideration of the comments received, if appropriate, EPA will publish a Notice of Deletion in the
This withdrawal of the direct final action is effective as of
Bartolome Canellas, Remedial Project Manager, U.S. Environmental Protection Agency, Region 6, 6SF-RL, 1445 Ross Avenue, Dallas, Texas 75202-2733,
Environmental protection, Air pollution control, Chemicals, Hazardous
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Accordingly, the amendment to Table “1” of Appendix B to 40 CFR Part 300 to remove the entry “Double Eagle Refinery Co.”, “Oklahoma City, Oklahoma” is withdrawn as of July 15, 2008.
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2953.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001
In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains a proposed regulation that proposes to amend existing regulations issued under section 7508A of the Internal Revenue Code (Code). The purpose of the proposed regulation is to clarify rules relating to the postponement of certain tax-related acts by reason of a Presidentially declared disaster or terroristic or military action. The proposed regulation clarifies the scope of relief under section 7508A and specifies that interest may be suspended during the postponement period. These changes are necessary to reflect changes in the law made by the Victims of Terrorism Tax Relief Act and current IRS practice. The proposed regulation will affect taxpayers determined by the Secretary to be affected by a Presidentially declared disaster or terroristic or military action.
Written or electronically generated comments and requests for a public hearing must be received by October 14, 2008.
Send submissions to: CC:PA:LPD:PR (REG-142680-06), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-142680-06), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington DC, or sent electronically, via the Federal eRulemaking Portal at
Concerning the proposed regulation, Mary Ellen Keys (202) 622-4570; concerning submission of comments, Oluwafunmilayo Taylor, (202) 622-7180 (not toll-free numbers).
This document contains proposed amendments to the Procedure and Administration Regulations (26 CFR part 301). Section 7508A of the Internal Revenue Code (Code) relates to the postponement of certain tax-related acts by reason of Presidentially declared disaster or terroristic or military action. Section 7508A was added by section 911(a) of the Taxpayer Relief Act of 1997, Public Law 105-34 (111 Stat. 788, 877-78 (1997)) (the 1997 Act), which was effective for any period for performing an act that had not expired before December 5, 1997.
Section 7508A authorizes the Secretary to postpone the deadlines for the performance of certain tax-related acts for taxpayers determined to be affected by a Presidentially declared disaster or a terroristic or military action. Section 301.7508A-1 provides guidance for taxpayers seeking relief under section 7508A.
Since the publication of § 301.7508A-1 on December 14, 2000, section 7508A was amended by the Victims of Terrorism Tax Relief Act of 2001, Public Law 107-134 (115 Stat. 2427, 2433-35 (2002)) (the 2002 Act). The 2002 Act amended the statute by extending the time period during which the Secretary may postpone certain tax-related acts and allowing the Secretary to suspend the accrual of interest, penalties, additional amounts, or additions to the tax during the period of postponement. The proposed regulation incorporates amendments to section 7508A.
The proposed regulation reflects that the period of time the Secretary may postpone certain tax-related acts has been increased from 90 days to one year. Additionally, the proposed regulation reflects that the Secretary is authorized under section 7508A to suspend interest, penalties, additional amounts, and additions to tax which would normally accrue during the time the tax-related act is postponed. Before the 2002 Act, generally, a taxpayer was responsible for interest that accrued during the postponement period (with a limited exception under former section 6404(h) when the taxpayer received both an extension of time to file under section 6081 and an extension of time to pay under section 6161).
The proposed regulation sets forth how the IRS generally implements postponements of time under section 7508A. The proposed regulation provides, however, that the IRS may grant further relief to taxpayers under section 7508A by revenue ruling, revenue procedure, notice, announcement, news release or other guidance published in the Internal Revenue Bulletin, in addition to that relief provided by the proposed regulation.
The proposed regulation demonstrates that although specific tax-related acts may be due on different dates within the postponement period, the acts may be postponed under section 7508A until the last day of the period. Under the proposed regulation, when an affected taxpayer is required to perform a tax-related act by a due date that falls within the postponement period, the taxpayer is entitled to postponement of the act and is eligible for relief from interest, penalties, additional amounts, and additions to tax during the postponement period.
The proposed regulation provides that the postponement period under section 7508A runs concurrently with extensions of time to file or pay, if any, under other sections of the Code. Thus, when the original due date falls within the postponement period, an affected taxpayer has until the last day of the postponement period to file for an extension of time to file or pay, but any resulting extension runs from the original due date.
The proposed regulation also provides that, where the extended due date, but not the original due date, falls within the postponement period, relief under section 7508A is specific to the type of extension received. Thus, an affected taxpayer who received an extension of time to file, but not an extension of time to pay, is eligible for a postponement of time to file and relief from penalties relating to the failure to file. The
The regulation also clarifies that a postponement of time under section 7508A to perform a tax-related act does not extend the due date to perform the act, but instead, merely allows the IRS to disregard a time period of up to one year for performance of the act.
The regulation, as proposed, applies to Presidentially declared disasters or terroristic or military actions occurring on or after the date of publication of a Treasury decision adopting these rules as final regulations in the
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 been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation. The regulation does not impose a collection of information requirement on small business entities, thus the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before this proposed regulation is adopted as a final regulation, consideration will be given to any written (a signed original and eight (8) copies) and electronic comments that are submitted timely to the IRS. 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 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 this proposed regulation are Melissa Quale and Mary Ellen Keys of the Office of the Associate Chief Counsel (Procedure and Administration).
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
1. Revising the section heading of paragraphs (b) and (e).
2. Adding paragraph (d)(3).
3. Removing paragraph (f) and redesignating paragraphs (g) and (h) as paragraphs (f) and (g), respectively, and revising them.
The revisions and addition read as follows.
(b)
(i) Whether any or all of the acts described in paragraph (c) of this section were performed within the time prescribed;
(ii) The amount of interest, penalty, additional amount, or addition to the tax; and
(iii) The amount of credit or refund.
(2)
(3)
(ii)
(4)
(5)
(d) * * *
(3)
(e)
(f)
(i) Corporation X, a calendar year taxpayer, has its principal place of business in County M in State W. Pursuant to a timely filed request for extension of time to file, Corporation X's 2005 Form 1120, “U.S. Corporation Income Tax Return,” is due on September 15, 2006. Also due on September 15, 2006, is Corporation X's third quarter estimated tax payment for 2006. Corporation X's 2006 third quarter Form 720, “Quarterly Federal Excise Tax Return,” and third quarter Form 941, “Employer's Quarterly Federal Tax Return,” are due on October 31, 2006. In addition, Corporation X has an employment tax deposit due on September 15, 2006.
(ii) On September 1, 2006, a hurricane strikes County M in State W. On September 6, 2006, the President declares a disaster within the meaning of section 1033(h)(3). Also on September 6, 2006, the IRS determines that County M in State W is a covered disaster area and publishes guidance announcing that the time period for affected taxpayers to file returns, pay taxes and perform other time-sensitive acts falling on or after September 1, 2006, and on or before November 30, 2006, has been postponed to November 30, 2006, pursuant to section 7508A.
(iii) Because Corporation X's principal place of business is in County M, Corporation X is an affected taxpayer. Accordingly, Corporation X's 2005 Form 1120 will be timely if filed on or before November 30, 2006. Corporation X's 2006 third quarter estimated tax payment will be timely if made on or before November 30, 2006. In addition, pursuant to paragraph (c) of this section, Corporation X's 2006 third quarter Form 720 and third quarter Form 941 will be timely if filed on or before November 30, 2006. However, because deposits of taxes are excluded from the scope of paragraph (c) of this section, Corporation X's employment tax deposit is due on September 15, 2006. In addition, Corporation X's deposits relating to the third quarter Form 720 are not postponed. Absent reasonable cause, Corporation X is subject to the failure to deposit penalty under section 6656 and accrual of interest.
The facts are the same as in
The facts are the same as in
(i) H and W, individual calendar year taxpayers, intend to file a joint Form 1040, “U.S. Individual Income Tax Return,” for the 2007 taxable year and are required to file a Schedule H, “Household Employment Taxes.” The joint return is due on April 15, 2008. H's and W's principal residence is in County M in State Q.
(ii) On April 2, 2008, a severe ice storm strikes County M. On April 5, 2008, the President declares a disaster within the meaning of section 1033(h)(3). Also on April 5, 2008, the IRS determines that County M in State Q is a covered disaster area and publishes guidance announcing that the time period for affected taxpayers to file returns, pay taxes and perform other time-sensitive acts falling on or after April 2, 2008, and on or before June 2, 2008, has been postponed to June 2, 2008.
(iii) Because H's and W's principal residence is in County M, H and W are affected taxpayers. April 15, 2008, the due date for the filing of H's and W's 2007 Form 1040 and Schedule H, falls within the postponement period described in the IRS published guidance. Thus, H's and W's return will be timely if filed on or before June 2, 2008. If H and W request an extension of time to file under section 6081 on or before June 2, 2008, the extension is deemed to have been filed by April 15, 2008. Thus, H's and W's return will be timely if filed on or before October 15, 2008.
(iv) April 15, 2008, is also the due date for the payment due on the return. This date falls within the postponement period described in the IRS published guidance. Thus, the payment of tax due with the return will be timely if paid on or before June 2, 2008, the last day of the postponement period. If H and W fail to pay the tax due on the 2007 Form 1040 by June 2, 2008, and do not receive an extension of time to pay under section 6161, H and W will be subject to failure to pay penalties and accrual of interest beginning on June 3, 2008.
(i) H and W, residents of County D in State G, intend to file an amended return to request a refund of 2007 taxes. H and W timely filed their 2007 income tax return on April 15, 2008. Under section 6511(a), H's and W's amended 2007 tax return must be filed on or before April 15, 2011.
(ii) On April 1, 2011, an earthquake strikes County D. On April 5, 2011, the President declares a disaster within the meaning of section 1033(h)(3). Also on April 5, 2011, the IRS determines that County D in State G is a covered disaster area and publishes guidance announcing that the time period for affected taxpayers to file returns, pay taxes and perform other time-sensitive acts falling on or after April 1, 2011, and on or before September 28, 2011, has been postponed to September 28, 2011.
(iii) Under paragraph (c) of this section, filing a claim for refund of tax is one of the taxpayer acts for which up to one year may be disregarded. The postponement period for this disaster begins on April 1, 2011, and ends on September 28, 2011. Accordingly, H's and W's claim for refund for 2007 taxes will be timely if filed on or before September 28, 2011. Moreover, in applying the lookback period in section 6511(b)(2)(A), which limits the amount of the allowable refund, the period from September 28, 2011, back to April 1, 2011, is disregarded under paragraph (b)(1)(C) of this section. Thus, if the claim is filed on or before September 28, 2011, amounts deemed paid on April 15, 2008, under section 6513(b), such as estimated tax and tax withheld from wages, will have been paid within the lookback period of section 6511(b)(2)(A).
(i) A is an unmarried, calendar year taxpayer whose principal residence is located in County W in State Q. A intends to file a Form 1040 for the 2007 taxable year. The return is due on April 15, 2008. A timely files Form 4868, “Application for Automatic Extension of Time to File U.S. Individual Income Tax Return.” Due to A's timely filing of Form 4868, the extended filing deadline for A's 2007 tax return is October 15, 2008. Because A timely requested an extension of time to file, A will not be subject to the failure to file penalty under section 6651(a)(1), if A files the 2007 Form 1040 on or before October 15, 2008. However, A failed to pay the tax due on the return by April 15, 2008, and did not receive an extension of time to pay under section 6161. Absent reasonable cause, A is subject to the failure to pay penalty under section 6651(a)(2) and accrual of interest.
(ii) On September 30, 2008, a blizzard strikes County W. On October 3, 2008, the President declares a disaster within the meaning of section 1033(h)(3). Also on October 3, 2008, the IRS determines that County W in State Q is a covered disaster area and announces that the time period for affected taxpayers to file returns, pay taxes
(iii) Because A's principal residence is in County W, A is an affected taxpayer. Because October 15, 2008, the extended due date to file A's 2007 Form 1040, falls within the postponement period described in the IRS's published guidance, A's return is timely if filed on or before December 2, 2008. However, the payment due date, April 15, 2008, preceded the postponement period. Thus, A will continue to be subject to failure to pay penalties and accrual of interest during the postponement period.
(i) H and W, individual calendar year taxpayers, intend to file a joint Form 1040 for the 2007 taxable year. The joint return is due on April 15, 2008. After credits for taxes withheld on wages and estimated tax payments, H and W owe tax for the 2007 taxable year. H's and W's principal residence is in County J in State W.
(ii) On March 1, 2008, severe flooding strikes County J. On March 5, 2008, the President declares a disaster within the meaning of section 1033(h)(3). Also on March 5, 2008, the IRS determines that County J in State W is a covered disaster area and publishes guidance announcing that the time period for affected taxpayers to file returns, pay taxes and perform other time-sensitive acts falling on or after March 1, 2008, and on or before May 30, 2008, has been postponed to May 30, 2008.
(iii) Because H's and W's principal residence is in County J, H and W are affected taxpayers. Pursuant to the IRS's grant of relief under section 7508A, H and W received a postponement of the time to file the joint return and pay the tax due until May 30, 2008. Therefore, H's and W's joint return without extension is timely if filed on or before May 30, 2008. Similarly, H's and W's 2007 income taxes will be timely paid if paid on or before May 30, 2008.
(iv) On April 30, 2008, H and W timely file Form 4868, “Application for Automatic Extension of Time to File U.S. Individual Income Tax Return.” H's and W's extension will be deemed to have been filed on April 15, 2008. Thus, H's and W's 2007 income tax return is timely filed if filed on or before October 15, 2008.
(v) H and W did not request or receive an extension of time to pay. Therefore, pursuant to section 7508A, H's and W's 2007 income tax payment is due on May 30, 2008. H and W will be subject to the failure to pay penalty under section 6651(a)(2) and interest if H and W do not pay the tax due on the 2007 joint return on or before May 30, 2008. H and W will be subject to failure to pay penalties and accrual of interest beginning on May 31, 2008.
The facts are the same as in
(g)
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau proposes to expand by 2,635 acres the existing 609,673-acre Paso Robles American viticultural area in San Luis Obispo County, California. If this change is approved, the expanded Paso Robles viticultural area would continue to lie entirely within San Luis Obispo County and within the multi-county Central Coast viticultural area. We designate viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. We invite comments on this proposed change to our regulations.
We must receive written comments on or before September 15, 2008.
You may send comments to one of the following addresses:
•
• Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.
See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of this notice, selected supporting materials, and any comments we receive about this proposal at
N.A. Sutton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 925 Lakeville St., No. 158, Petaluma, CA 94952; phone 415-271-1254.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved American viticultural areas.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Petitioners may use the same procedure to request changes involving existing viticultural areas. Section 9.3(b) of the TTB regulations requires the petition to include—
• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;
• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;
• Evidence relating to the geographic features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;
• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and
• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.
On October 4, 1983, the Bureau of Alcohol, Tobacco and Firearms (ATF) published a final rule, T.D. ATF-148 (48 FR 45239), to establish the “Paso Robles” American viticultural area (AVA) in northern San Luis Obispo County, California (see 27 CFR 9.84). As established, the Paso Robles AVA was entirely within the Central Coast AVA (27 CFR 9.75) and, to the west, it bordered the much smaller York Mountain AVA (27 CFR 9.80). In 1983, the Paso Robles AVA contained approximately 5,000 acres of vineyards.
As established, the Paso Robles AVA was defined by the San Luis Obispo-Monterey county line in the north, the Cholame Hills to the east, and the Santa Lucia Mountains to the south and west. According to T.D. ATF-148, the Santa Lucia Mountains largely protect the Paso Robles AVA from the intrusion of marine air and fog from the Pacific Ocean, giving the Paso Robles AVA a drier and warmer summer time climate than regions to the west and south. The Paso Robles AVA also is characterized by day to night temperature changes of 40 to 50 degrees, annual rainfall of 10 to 25 inches, 600 to 1,000 foot elevations, and well-drained alluvial soils in terrace deposits.
Lacking a feasible way to use physical features, such as ridge lines, to define the Paso Robles AVA's boundary, the original petitioner largely used a series of township and range lines and point-to-point lines to delineate the AVA's boundary. The southern-most portion of the Paso Robles AVA was delineated to the south by the east-west T29S/T30S township boundary line and to the east by the north-south R13E/R14E range line.
On June 13, 1996, ATF published a final rule, T.D. ATF-377 (61 FR 29952) expanding the Paso Robles AVA along a portion of its western boundary. This expansion added 52,618 acres of land similar to that found in the original AVA. The expansion added to the AVA seven vineyards planted after the Paso Robles AVA's 1983 establishment, containing 235 acres of grapes. The Paso Robles AVA, as expanded, remained entirely within San Luis Obispo County and the Central Coast AVA, and this westerly expansion did not extend into the York Mountain AVA or change the AVA's original southern boundary.
In 2007, the Paso Robles AVA Committee (PRAVAC) submitted a petition to TTB requesting a 2,635-acre expansion of the Paso Robles AVA. The petition states that the PRAVAC represents a broad cross-section of the Paso Robles wine industry and notes that its 59 grape-grower and winery members collectively own or manage over 10,000 acres of vineyards within the Paso Robles AVA.
The proposed expansion area is immediately south of the Paso Robles AVA's current southern-most boundary, which is delineated by the T29S/T30S township line, as shown on the 1:250,000-scale USGS San Luis Obispo map used to define the AVA's boundary. As noted in the petition, the Paso Robles AVA's current southern-most boundary line bisects the southern portion of the Santa Margarita Valley, leaving a significant portion of the valley's southern end outside the AVA boundary as currently defined. The proposed expansion would, therefore, bring most of the remainder of the Santa Margarita Valley within the AVA, as shown on the 1:24,000 USGS Lopez Mountain map submitted with the petition. (TTB notes that, while not used to formally define the AVA's boundary in the proposed regulatory text, the Lopez Mountain map provides significantly more geographical detail regarding the expansion area due to its smaller scale.)
The proposed southern expansion also lies totally within San Luis Obispo County and the existing Central Coast AVA, and it would not overlap or otherwise affect any other established or currently-proposed new AVA. According to the petition, the distinguishing features of the proposed expansion area, including its geological history, geomorphology, soils, topography, and climate, are similar to those found in the southern region of the original Paso Robles AVA.
The petition states that the “Paso Robles” geographical name applies to the proposed southern expansion of the Paso Robles AVA due to the historic, geographic, commercial, and cultural ties between the Santa Margarita Valley and the Paso Robles region of San Luis Obispo County. This is due to that valley's northward orientation, which is enclosed to the south and west by the Santa Lucia Mountains. Historically, travel was easier going northward through the valley to the city of Paso Robles than it was going southward over the mountains to the city of San Luis Obispo. The petition also states that, due to the stated historic and other ties, local residents and members of the Paso Robles wine industry have assumed that the entire Santa Margarita Valley was within the original Paso Robles AVA boundary line and reference the area as such.
According to the petition, other sources also show the entire Santa Margarita Valley as falling within the Paso Robles region. For example, the Paso Style Living real estate Web site (
The proposed triangle-shaped expansion of the Paso Robles AVA would move its southern-most point approximately 2.6 miles south in order to encompass most of that portion of the Santa Margarita Valley currently not included within the AVA. Also, the proposed expansion area would increase the length of the commonly-shared eastern boundary of the Paso Robles and Central Coast AVAs by the same distance.
The petition describes the proposed expansion area as part of the “cohesive geographical unit” of the Santa Margarita Valley. Nestled between the Santa Lucia Range and the Salinas River, the Santa Margarita Valley lies on both sides of the Paso Robles AVA's existing southern boundary line. The petition describes the original Paso Robles AVA southern-most boundary line, which follows the T29S/T30 township line and which bisects the Santa Margarita Valley, as an “imaginary, indiscernible boundary in the landscape, not defined by any topographic or other environmental parameters.”
As explained in T.D. ATF-148, the Paso Robles AVA “is bounded on the west and south by the Santa Lucia Mountain range” which protects the AVA “from marine air intrusion and coastal fogs.” The proposed southern expansion, the petition explains, would more closely align the Paso Robles AVA's southern-most boundary with the Santa Lucia Range by encompassing most of the portion of the Santa Margarita Valley that is currently outside the AVA. The petition explains that beyond the proposed expansion area to the south is the narrowed terminus of the Santa Margarita Valley, with steep terrain on three sides and inadequate groundwater and warmth to sustain commercial viticulture.
According to the petition, the viticultural history of the Santa Margarita Valley began with the arrival of Spanish missionaries, who, among other things, brought grapes and winemaking to the Paso Robles area over 200 years ago. Near present-day Santa Margarita, the missionaries built the Santa Margarita de Cortona Asistencia in 1787, which functioned as an outpost of the mission located at San Luis Obispo. See page 39 of the “History of San Luis Obispo County, California, with Illustrations and Biographical Sketches of its Prominent Men and Pioneers” (Thompson & West, 1883), by Myron Angel, (reprinted 1966, Howell-North Books, Berkeley, California), which was included with the petition. The Santa Margarita Asistencia served as a chapel, farmstead, and storehouse for grain grown in the valley.
In 1861, the land surrounding the Asistencia site was purchased by Mary and Martin Murphy, who also owned portions of other land grants within the Paso Robles region, according to page 68 of the Angel publication. Under the Martin's ownership, the petition states, the Santa Margarita area developed a strong attachment to the more commercialized Paso Robles area to its north. By 1889, the petition explains, an extension of the Southern Pacific Railroad ran south from Paso Robles along the Salinas River to the small settlement of Santa Margarita. See pages 34 and 75 of “Rails Across the Ranchos,” by Loren Nicholson, 1993. The USGS San Luis Obispo regional map shows the Southern Pacific Railway running south from the city of Paso Robles across the relatively flat valley to the town of Santa Margarita where it begins a twisting climb up and over the Santa Lucia Mountains to the city of San Luis Obispo.
In 2000, the petition explains, the Robert Mondavi Winery leased more than 1,000 acres in the southern Santa Margarita Valley for commercial vineyard development. This acreage is bisected by the current southern-most boundary of the Paso Robles AVA. At the time of the petition, vineyards covered 800 of the 1,000 acres, with plantings located on both sides of the existing Paso Robles AVA boundary line, according to the petition.
The proposed expansion of the Paso Robles AVA relies on the Santa Margarita Valley's uniform topography, climate, soils, geologic history, and geomorphology. These geographical features, the petition notes, are the same throughout the valley, which is currently bisected by the existing Paso Robles AVA's southern-most boundary line. The Santa Margarita Valley, which makes up the portion of the Salinas River valley containing Santa Margarita and Rinconada Creeks, extends south from the city of Atascadero, through the town of Santa Margarita, and continues south-southeastward through the proposed expansion area, according to the USGS San Luis Obispo regional map and the petition.
Professor Deborah L. Elliott-Fisk, Ph.D, of the University of California, Davis, an expert on the geography and terroir of California and viticultural area designations, researched and provided the distinguishing features information used in the petition. According to the petition, Dr. Elliott-Fisk also coordinated the data and analyses supplied by meteorologist Donald Schukraft, Western Weather Group, LLC, and other experts.
The climate of the Paso Robles AVA as a whole, according to Dr. Elliott-Fisk, has smaller monthly temperature ranges and less continental influence than the inland areas further to the east, but is less influenced by Pacific marine air and fog than the coastal regions to the west due to the blocking effect of the Santa Lucia Mountains. As part of the larger Paso Robles region, the Santa Margarita Valley has climatic conditions similar to the AVA, Dr. Elliot-Fisk notes, and these conditions exist on both sides of the existing southern-most boundary of the AVA, which passes from west to east through the valley. Dr. Elliott-Fisk adds that other climate similarities found within the valley on either side of the existing AVA boundary include cold air drainage, cold air ponding under temperature inversions, and similar frost patterns, especially early in the growing season. Also, annual precipitation in the valley averages 29 inches, while regions to the east are drier and the coastal mountains to the west are wetter.
These climate similarities also are evidenced by various climate classification systems. For example, the petition states, the global scale climate classification system of Koppen, Geiger and Pohl (1953) labels the great majority of the Paso Robles region as a Mediterranean warm summer climate (Csb), while the region to the east has a Mediterranean hot summer climate (Csa).
Dr. Elliott-Fisk states that the Santa Margarita Valley's climate is classified as a cool region II climate of approximately 2,900 growing degree-days under the Winkler climate classification system, which is based on annual growing season heat accumulation. This classification is found on both sides of the existing southern-most Paso Robles AVA boundary. (As a measurement of heat
Regarding the southern end of the Santa Margarita Valley that lies beyond the proposed expansion, Dr. Elliott-Fisk explains that the steep topography east, south and west of the narrow valley floor causes increases in relief precipitation and evening settling of cold, dense air at the valley's terminus. Local farmers, the petition explains, state that air temperatures at the far southern end of the valley are too cold to produce quality wine grapes.
The geological features that characterize the southern region of the Paso Robles AVA continue across the AVA's southern-most boundary line and are found throughout the Santa Margarita Valley, including the proposed expansion area. Dr. Elliott-Fisk explains that the Salinas River originally formed the Santa Margarita Valley through a process of soil erosion and deposition, while the complex faulting of the Santa Lucia Range formed a graben basin that extends along the valley floor and crosses the existing Paso Robles AVA southern-most boundary line. Later, Dr. Elliott-Fisk notes, the Salinas River carved a new channel to the east through the soft Monterey Formation shales along the Rinconada Fault as the San Andreas Fault zone became more active. Rinconada Creek, a primary Salinas River tributary in the Santa Margarita Valley area, then deposited a series of broad alluvial fans and terraces across the older Salinas River alluvial fill, Dr. Elliott-Fisk explains. She notes that these alluvial terraces extend north and south of the current Paso Robles AVA boundary line and exist throughout the proposed expansion area.
To the east, south, and west of the proposed Paso Robles AVA expansion, Dr. Elliott-Fisk explains, the geology of the landscape is unsuitable for commercial production of wine grapes. She states that, to the east, granitic rocks on the mountainsides make the area difficult to farm, and the weathering and failure of near-surface rock makes road building difficult. Also, to the south, and at the narrowed southern terminus of the Santa Margarita Valley, Franciscan conglomerate rock underlies the shallow alluvium creating an environment lacking in adequate groundwater. To the west, the landscape includes massive units of the late Cretaceous Franciscan and Great Valley formations, consisting of hard marine sandstones and conglomerates on steep mountain slopes, making the terrain unsuitable for viticulture.
Similar soils exist on both sides of the current Paso Robles AVA southern boundary line, according to the current USDA soil survey for the Paso Robles Area of San Luis Obispo County (Lindsey, 1978). Climate, parent material, topography, and time, Dr. Elliott-Fisk states, all contribute to the soil type similarities that extend the length of the Santa Margarita Valley. The soils of the Santa Margarita Valley, Dr. Elliott-Fisk explains, include the deep gravelly loam soils of late-mid Quaternary age, grading into shallower clay loam soils against bedrock on the hillsides. Also, younger alluvial deposits dominate the flood plains of the valley's creeks.
Soils and terrain to the south, east, and west of the Paso Robles AVA proposed southern expansion are, however, unsuitable for commercial viticulture, Dr. Elliott-Fisk explains. To the south, the soils of the valley floor include clay loams with low water permeability and high water capacity with moderate shrink-swell potential, while the mountain slopes to the east and west have shallow top soil, small rooting zones for grapevines, and erosion potential, making those areas unsuitable for viticulture.
The PRAVAC petition, including Dr. Elliott-Fisk's discussion of the proposed expansion area's distinguishing features and a detailed letter from vineyard developer and manger Neil Roberts, emphasize that similar geological, geographical, and climatic conditions extend through the Santa Margarita Valley, which encompasses a portion of the existing Paso Robles AVA as well as the proposed expansion area. The landforms, topography, and geology features that form the Santa Margarita Valley, the petition explains, are similar both north and south of the existing Paso Robles AVA southern-most boundary line. Also, the valley's climate, as reflected by Winkler's degree-day values, and its soil types, as documented in the 1978 USDA soil survey for the Paso Robles Area of San Luis Obispo County, show strong similarities on both sides of the current Paso Robles AVA southern-most boundary line. The petition adds that vineyards are farmed the same way north and south of the current Paso Robles AVA boundary line through the valley and these vineyards grow the same varietals.
TTB concludes that the petition to expand the Paso Robles American viticultural area merits consideration and public comment, as invited in this notice.
See the narrative boundary description covering the petitioned-for viticultural area expansion in the proposed regulatory text amendment published at the end of this notice.
The petitioner provided the required map to document the proposed boundary change, and we list that map below in the proposed regulatory text amendment.
The proposed expansion of the Paso Robles viticultural area will not affect currently approved wine labels. The approval of this proposed expansion may allow additional vintners to use “Paso Robles” as an appellation of origin on their wine labels. Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be eligible to use a viticultural area name as an appellation of origin or a term of viticultural significance in a brand name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). Different rules apply if a wine has a brand name containing a viticultural area name or other viticulturally significant term that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
We invite comments from interested members of the public on whether we should expand the Paso Robles viticultural area as described above. We are especially interested in comments concerning the similarity of the proposed expansion area to the currently existing Paso Robles
You may submit comments on this notice by using one of the following two methods:
•
•
Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 85 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals.
If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail, please submit your entity's comment on letterhead.
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.
We will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments we receive about this proposal within Docket No. TTB-2008-0005 on the Federal e-rulemaking portal, Regulations.gov, at
All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting.
You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact our information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials.
We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.
N.A. Sutton of the Regulations and Rulings Division drafted this notice.
Wine.
For the reasons discussed in the preamble, we propose to amend title 27, chapter 1, part 9, Code of Federal Regulations, as follows:
1. The authority citation for part 9 continues to read as follows:
27 U.S.C. 205.
2. Section 9.84 is amended by revising paragraphs (b), (c)(7), and (c)(8), redesignating paragraphs (c)(9) and (c)(10) as (c)(10) and (c)(11), and adding a new paragraph (c)(9). The revisions and addition read as follows:
(b)
(c) Boundaries. * * *
(7) Then in an easterly direction along the T.29S. and T.30S. line for approximately 3.1 miles to its intersection with the eastern boundary line of the Los Padres National Forest;
(8) Then in a southeasterly direction along the eastern boundary line of the Los Padres National Forest for approximately 4.1 miles to its intersection with the R.13E. and R.14E. line;
(9) Then in a northerly direction along the R.13E. and R.14E. line for approximately 8.7 miles to its intersection with the T.28S. and T.29S. line;
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Wednesday, July 16, 2008, 2:45 p.m.-4 p.m.
Cohen Building, Room 3321, 330 Independence Ave., SW., Washington, DC 20237.
The members of the Broadcasting Board of Governors (BBG) will meet in closed session to review and discuss a number of issues relating to U.S. Government-funded non-military international broadcasting. They will address internal procedural, budgetary, and personnel issues, as well as sensitive foreign policy issues relating to potential options in the U.S. international broadcasting field. This meeting is closed because if open it likely would either disclose matters that would be properly classified to be kept secret in the interest of foreign policy under the appropriate executive order (5 U.S.C. 552b.(c)(1)) or would disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action. (5 U.S.C. 552b.(c)(9)(B)) In addition, part of the discussion will relate solely to the internal personnel and organizational issues of the BBG or the International Broadcasting Bureau. (5 U.S.C. 552b.(c)(2) and (6))
Persons interested in obtaining more information should contact Timi Nickerson Kenealy at (202) 203-4545.
Import Administration, International Trade Administration, Department of Commerce.
July 15, 2008.
Erin Begnal or Toni Dach, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1442 and (202) 482-1655, respectively.
On April 4, 2008, the Department of Commerce (“the Department”) published the preliminary results of the antidumping duty administrative review of glycine from the People's Republic of China, covering the period March 1, 2006, through February 28, 2007.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), and section 351.213(h)(1) of the Department's regulations, the Department shall issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of the date of publication of the order. The Act and the regulations further provide that the Department shall issue the final results of review within 120 days after the date on which the notice of the preliminary results was published in the
The Department extended the deadline for parties to submit case briefs and rebuttal briefs in order to address several issues raised by interested parties. As a result of these extensions and to allow more time to analyze issues raised in the case briefs and rebuttal briefs, the Department has determined that it is not practicable to complete the administrative review within the current time limit.
Section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations allow the Department to extend the deadline for the final results of a review to a maximum of 180 days from the date on which the notice of the preliminary results was published. For the reasons noted above, the Department is extending the time limit for the completion of these final results by 30 days, from the current deadline of August 2, 2008, until no later than September 2, 2008.
This notice is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has reached a final determination that countervailable subsidies are being provided to producers/exporters of certain new pneumatic off-the-road tires (OTR tires) from the People's Republic of China (PRC). For information on the final subsidy rates,
Mark Hoadley, Jun Jack Zhao, Nicholas Czajkowski, or Toni Page, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 7866, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3148, (202) 482-1396, (202) 482-1395, or (202) 482-1398, respectively.
Since the publication of the preliminary determination in the
In the
On January 9, 2008, the Department issued supplemental questionnaires to the GOC, GTC, Starbright, and TUTRIC. We received responses to our January 9, 2008 supplemental questionnaire from all Respondents on February 6, 2008. We issued another supplemental questionnaire to all respondent parties on January 25, 2008 for which we received responses from all Respondents on February 15, 2008. The Department issued a supplemental questionnaire to the GOC on February 13, 2008 for which the GOC filed a response on February 27, 2008. The Department issued a supplemental questionnaire to GTC on February 15, 2008 for which GTC filed a response on February 28, 2008. The Department also issued supplemental questionnaires to TUTRIC and Starbright on February 19, 2008, pursuant to which the companies filed responses on February 27, 2008.
The Department received requests for a hearing from the Petitioners, Bridgestone, the GOC, Starbright, and GTC on January 9, 2008 and on January 16, 2008 from TUTRIC. The Department had scheduled the hearing for June 19, 2008; however, on June 16, 2008 the Department received a letter from Bridgestone stating that all interested parties agreed that a hearing was not necessary.
From March 3 through March 13, 2008, we conducted verification of the questionnaire responses submitted by the GOC, including the national, provincial, and local governments, GTC, and TUTRIC. The Department issued verification reports on April 22, 2008 and April 24, 2008.
On March 7, 2008, the Department decided not to verify Starbright because the company had repeatedly declined to provide requested information.
After evaluating all of the parties' submissions and arguments on the matter, the Department stated that it would conduct a limited verification of Starbright's recurring subsidies received after Starbright's change in ownership.
Based on our examination of these responses, the Department decided to verify.
On May 2, 2008, we issued our post-preliminary analysis for certain programs for which the Department stated in the
Due to the decision to conduct verification of Starbright, the Department set up two separate briefing schedules: one for all issues except Starbright-specific issues and one for Starbright issues.
On June 10, 2008, both Bridgestone and Starbright filed letters with the Department alleging that the other party had included new factual information on the record in both the case briefs and the rebuttal briefs. On June 13, 2008, the Department issued a memorandum to the file addressing all allegations of new factual information.
The period of investigation (POI) for which we are measuring subsidies is calendar year 2006.
The products covered by the scope of this investigation are new pneumatic tires designed for off-the-road (OTR) and off-highway use, subject to certain exceptions. In the
In the
All comments submitted on the
On March 11, 2008, Petitioners submitted a timely critical circumstances allegation. On April 22, 2008, the Department preliminarily determined that critical circumstances did not exist for imports of OTR tires from the PRC.
The subsidy programs under investigation and the issues raised by interested parties in their case briefs and rebuttal briefs on the
In accordance with section 705(c)(1)(B)(i) of the Act, we determine the total net countervailable subsidy rates to be:
In accordance with section 705(c)(5)(A)(ii) of the Act, we have calculated the all others rate based on a weighted average of the three mandatory respondents' calculated rates.
In accordance with sections 703(d)(1)(B) and (2) of the Act, we directed U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of OTR tires from the PRC that were entered, or withdrawn from warehouse, for consumption on or after December 17, 2007. In accordance with section 703(d) of the Act, we instructed CBP to discontinue the suspension of liquidation for countervailing duty purposes for subject merchandise entered, or withdrawn from warehouse, on or after April 15, 2008, but to continue the suspension of liquidation of all entries from December 17, 2007 through April 14, 2008.
If the ITC issues a final affirmative determination of injury, we will issue a countervailing duty order, reinstate suspension of liquidation under section 706(a) of the Act for all entries, and require a cash deposit of estimated countervailing duties for such entries of merchandise at the rates indicated above. If the ITC determines that material injury to, threat of material injury to, or material retardation of, the domestic industry does not exist, this proceeding will be terminated and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Import Administration.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with section 351.305(a)(3) of the Department's regulations. Failure to comply is a violation of the APO.
This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act.
The products covered by the scope are new pneumatic tires designed for off-the-road (OTR) and off-highway use, subject to exceptions identified below. Certain OTR tires are generally designed, manufactured and offered for sale for use on off-road or off-highway surfaces, including but not limited to, agricultural fields, forests, construction sites, factory and warehouse interiors, airport tarmacs, ports and harbors, mines, quarries, gravel yards, and steel mills. The vehicles and equipment for which certain OTR tires are designed for use include, but are not limited to: (1) Agricultural and forestry vehicles and equipment, including agricultural tractors,
While the physical characteristics of certain OTR tires will vary depending on the specific applications and conditions for which the tires are designed (
Specifically excluded from the scope are new pneumatic tires designed, manufactured and offered for sale primarily for on-highway or on-road use, including passenger cars, race cars, station wagons, sport utility vehicles, minivans, mobile homes, motorcycles, bicycles, on-road or on-highway trailers, light trucks, and trucks and buses. Such tires generally have in common that the symbol “DOT” must appear on the sidewall, certifying that the tire conforms to applicable motor vehicle safety standards. Such excluded tires may also have the following designations that are used by the Tire and Rim Association:
Prefix letter designations:
• P—Identifies a tire intended primarily for service on passenger cars;
• LT—Identifies a tire intended primarily for service on light trucks; and,
• ST—Identifies a special tire for trailers in highway service.
Suffix letter designations:
• TR—Identifies a tire for service on trucks, buses, and other vehicles with rims having specified rim diameter of nominal plus 0.156” or plus 0.250”;
• MH—Identifies tires for Mobile Homes;
• HC—Identifies a heavy duty tire designated for use on “HC” 15” tapered rims used on trucks, buses, and other vehicles. This suffix is intended to differentiate among tires for light trucks, and other vehicles or other services, which use a similar designation.
• Example: 8R17.5 LT, 8R17.5 HC;
• LT—Identifies light truck tires for service on trucks, buses, trailers, and multipurpose passenger vehicles used in nominal highway service; and
• MC—Identifies tires and rims for motorcycles.
The following types of tires are also excluded from the scope: Pneumatic tires that are not new, including recycled or retreaded tires and used tires; non-pneumatic tires, including solid rubber tires; tires of a kind designed for use on aircraft, all-terrain vehicles, and vehicles for turf, lawn and garden, golf and trailer applications. Also excluded from the scope are radial and bias tires of a kind designed for use in mining and construction vehicles and equipment that have a rim diameter equal to or exceeding 39 inches. Such tires may be distinguished from other tires of similar size by the number of plies that the construction and mining tires contain (minimum of 16) and the weight of such tires (minimum 1500 pounds).
Import Administration, International Trade Administration, Department of Commerce.
July 15, 2008.
On February 20, 2008, the Department of Commerce (the “Department”) published its preliminary determination of sales at less than fair value (“LTFV”) in the antidumping investigation of certain new pneumatic off-the-road tires (“OTR tires”) from the People's Republic of China (“PRC”). The period of investigation (“POI”) is October 1, 2006, to March 31, 2007. We invited interested parties to comment on our preliminary determination of sales at LTFV and the post-preliminary determinations. Based on our analysis of the comments we received, we have made changes to our calculations for the mandatory respondents. We determine that OTR tires from the PRC are being, or are likely to be, sold in the United States at LTFV as provided in section 735 of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are shown in the “Final Determination Margins” section of this notice.
Lilit Astvatsatrian or Charles Riggle, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-6412 or (202) 482-0650, respectively.
The Department published its preliminary determination of sales at LTFV on February 20, 2008.
Between March 25 and April 25, 2008, the Department conducted verifications of Starbright,
On May 14, 2008, the Department issued a memorandum regarding the scope of both the AD and CVD Investigations on OTR Tires from the PRC, addressing the scope comments submitted by multiple interested parties.
The Department issued a post-preliminary determination on May 19, 2008, in which it applied a new targeted dumping methodology. See Memorandum entitled “Post-Preliminary Determinations on Targeted
On May 19, 2008, the Department also preliminarily granted separate-rate status to two separate rate applicants, Qingdao Aonuo Tyre Co., Ltd. (“Aonuo”) and Kenda Rubber (China) Co., Ltd. (“Kenda China”).
We invited interested parties to comment on the
As provided in section 782(i) of the Act, we verified the information submitted by Starbright, Guizhou Tyre, TUTRIC, and Xugong for use in our final determination.
All issues raised in the case and rebuttal briefs by parties to this investigation are addressed in the “Investigation of Certain New Pneumatic Off-The-Road Tires from the People's Republic of China: Issues and Decision Memorandum,” dated concurrently with this notice and, which is hereby adopted by this notice (“Issues and Decision Memorandum”). A list of the issues which parties raised and to which we respond in the Issues and Decision Memorandum is attached to this notice as Appendix II. The Issues and Decision Memorandum is a public document and is on file in the CRU, and is accessible on the Web at ia.ita.doc.gov/frn. The paper copy and electronic version of the memorandum are identical in content.
Based on our analysis of information on the record of this investigation, we have made changes to the margin calculations for the final determination for all mandatory respondents.
• We have updated the wholesale price index adjustor for the POI, which modified the inflated values for steam, water, electricity, brokerage and handling, marine insurance, and truck freight rate.
• We have corrected linking errors in the inflator adjustments for marine insurance and Essar Steel's brokerage and handling.
• We corrected an averaging error in the calculation of the surrogate value for water.
• We corrected the rail rate used in the company-specific rail freight to be based on metric ton.
• We have updated the PRC labor wage rate.
• We have used the following four financial statements to calculate the surrogate financial ratios: CEAT Limited (“Ceat”); Falcon Tyres Ltd. (“Falcon”); Goodyear India Limited (“Goodyear”); and TVS Srichakra (“TVS”). See Comments 17.A and 17.B in the Issues and Decision Memo dated concurrently with this notice.
• We have valued steam using the natural gas price reported in a May 2005 publication of
• We have made the following changes to the surrogate financial ratio calculations:
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◦
◦
◦
• We have revised the calculation of U.S. price for Guizhou Tyre and Starbright to include a deduction for warehousing expenses based on the average days subject merchandise is in inventory. See Final SV Memo, Guizhou Tyre Final Analysis Memo, and Starbright Final Analysis Memo.
Xugong:
Guizhou Tyre:
Starbright:
TUTRIC:
The products covered by the scope of this investigation are new pneumatic tires designed for off-the-road (OTR) and off-highway use, subject to certain exceptions. In the
In the
We have analyzed the case and rebuttal briefs with respect to targeted dumping issues submitted for the record in this investigation. As a result of our analysis, we made certain changes in the targeted dumping test we applied for purposes of the final determination. These changes result in a finding of targeted dumping for Xugong, but not for Guizhou Tyre, Starbright, and TUTRIC. For further discussion,
In the
In proceedings involving non-market-economy (“NME”) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an investigation in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
In the
Additionally, based on comments received from certain Separate Rate Recipients, and a review of the record, we found that the combination rates or the spelling of names for certain exporters were not properly included in the
Section 776(a)(2) of the Act, provides that, if an interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party “promptly after receiving a request from {the Department} for information, notifies {the Department} that such party is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms in which such party is able to submit the information,” the Department may modify the requirements to avoid imposing an unreasonable burden on that party.
Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If that person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e), disregard all or part of the original and subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not decline to consider information deemed “deficient” under section 782(d) if: (1) the information is submitted by the
Furthermore, section 776(b) of the Act states that if the Department “finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority or the Commission ..., in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.”
For this final determination, in accordance with sections 773(c)(3)(A) and (B) of the Act and section s776(a)(2)(A), (B) and (D) and 776(b) of the Act, we have determined that the use of adverse facts available (“AFA”) is warranted for the PRC entity, as discussed below.
Because we begin with the presumption that all companies within an NME country are subject to government control and because only the companies listed under the “Final Determination Margins” section below have overcome that presumption, we are applying a single antidumping rate - the PRC-wide rate - to all other exporters of subject merchandise from the PRC.
Section 776(c) of the Act provides that, when the Department relies on secondary information in using the facts otherwise available, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. We have interpreted “corroborate” to mean that we will, to the extent practicable, examine the reliability and relevance of the information submitted.
At the
Because no parties commented on the selection of the PRC-wide rate, we continue to find that the margin of 210.48 percent has probative value. Accordingly, we find that the rate of 210.48 percent is corroborated within the meaning of section 776(c) of the Act.
In the
We determine that the following percentage weighted-average margins exist for the POI:
We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, we are directing U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all imports of subject merchandise entered or withdrawn from warehouse, for consumption on or after the following dates: (1) for Starbright, TUTRIC, Guizhou Tyre and the separate rate companies, on or after February 20, 2008, the date of publication of the
Because the Department found that the weighted-average dumping margin for subject merchandise produced and exported by Xugong is zero, we are instructing CBP to terminate suspension of liquidation of all imports of subject merchandise produced and exported by Xugong, entered, or withdrawn from warehouse, for consumption on or after February 20, 2008, the date of publication of the
In accordance with section 735(d) of the Act, we have notified the International Trade Commission (“ITC”) of our final determination of sales at LTFV. As our final determination is affirmative, in accordance with section 735(b)(2) of the Act, within 45 days the ITC will determine whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of the subject merchandise. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice also serves as a reminder to the parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This determination and notice are issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.
• P - Identifies a tire intended primarily for service on passenger cars;
• LT - Identifies a tire intended primarily for service on light trucks; and,
• ST - Identifies a special tire for trailers in highway service.
• TR - Identifies a tire for service on trucks, buses, and other vehicles with rims having specified rim diameter of nominal plus 0.156″ or plus 0.250″;
• MH - Identifies tires for Mobile Homes;
• HC - Identifies a heavy duty tire designated for use on “HC” 15” tapered rims used on trucks, buses, and other vehicles. This suffix is intended to differentiate among tires for light trucks, and other vehicles or other services, which use a similar designation.
• Example: 8R17.5 LT, 8R17.5 HC;
• LT - Identifies light truck tires for service on trucks, buses, trailers, and multipurpose passenger vehicles used in nominal highway service; and
• MC - Identifies tires and rims for motorcycles.
Import Administration, International Trade Administration, Department of Commerce.
On March 6, 2008, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from India. This review covers 201 producers/exporters of the subject merchandise to the United States. The period of review (POR) is February 1, 2006, through January 31, 2007. We are rescinding the review with respect to four companies because these companies had no reportable shipments of subject merchandise during the POR.
Based on our analysis of the comments received, we have made certain changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”
Elizabeth Eastwood, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-3874.
This review covers 201 producers/exporters.
On March 6, 2008, the Department published in the
We invited parties to comment on our preliminary results of review. In April 2008, we received case briefs from the petitioner (
The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
The POR is February 1, 2006, through January 31, 2007.
In February 2007, the Department received timely requests, in accordance with 19 CFR 351.213(b)(1), from the petitioner and the LSA to conduct a review of many Indian producers/exporters, including four affiliated Indian producers/exporters of subject merchandise collectively known as “the Kadalkanny Group” (
Both the petitioner and the LSA withdrew their administrative review requests for Kadalkanny. Moreover, we confirmed with U.S. Customs and Border Protection (CBP) the claims made by two additional members of this group, Diamond and Theva, that they had no shipments of subject merchandise during the POR. Finally, on January 17 and February 7, 2008, we received information from Edhayam which demonstrated that its sole entry of subject merchandise during the POR was not a reportable transaction because it was a free sample, for which Edhayam received no remuneration. Therefore, in accordance with 19 CFR 351.213(d)(3), and consistent with the Department's practice, we are rescinding our review with respect to the Kadalkanny Group.
As noted in the
Since the preliminary results, no party to this proceeding has commented on this issue, and we have received no new information with respect to this issue. As a result, we continue to find that Asvini and Suryamitra are the successors-in-interest to Asvini Fisheries Limited and Surya Marine, respectively.
In the preliminary results, we determined that, in accordance with sections 776(a)(2)(A) and (C) of the Act, the use of facts available was appropriate as the basis for the dumping margins for 127 producers/exporters.
Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if,
In April 2007, the Department requested that all companies subject to review respond to the Department's Q&V questionnaire for purposes of mandatory respondent selection. The original deadline to file a response was April 23, 2007. Of the 319 companies initially subject to review, numerous companies did not respond to the Department's initial requests for information. Subsequently, in May 2007 and then again in June 2007, the Department issued letters to these companies affording them additional opportunities to submit a response to the Department's Q&V questionnaire. However, 126 companies also failed to respond to the Department's final requests for Q&V data.
Further, one additional company, Gajula, claimed that it made no shipments of subject merchandise to the United States during the POR. However, because we were unable to confirm the accuracy of Gajula's claim with CBP, we requested further information/clarification from this exporter. Gajula responded to the Department's inquiry via e-mail on August 16, 2007, but did not indicate if its submission contained either public or business proprietary information. Therefore, on August 16, 2007, we informed Gajula via e-mail of the Department's filing requirements.
Although the Department afforded Gajula multiple opportunities to correct the procedural deficiencies in its response, it failed to do so. By failing to respond to the Department's requests, Gajula withheld requested information and significantly impeded the proceeding. Consequently, pursuant to sections 776(a)(2)(A) and (C) of the Act, the Department finds that the use of total facts available for Gajula is appropriate.
In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information.
Section 776(b) of the Act provides that the Department may use as AFA information derived from: (1) The petition; (2) the final determination in the investigation; (3) any previous review; or (4) any other information placed on the record.
The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
In order to ensure that the margin is sufficiently adverse so as to induce cooperation, we have assigned a rate of 110.90 percent, which was the highest rate alleged in the petition, as adjusted at the initiation of the less-than-fair-value (LTFV) investigation, to the 127 companies listed below.
For the reasons stated in the
As discussed in the preliminary results, we conducted an investigation to determine whether Devi and Falcon made third country sales of the foreign like product during the POR at prices below their costs of production (COP) within the meaning of section 773(b) of the Act.
We found 20 percent or more of each respondent's sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade.
Therefore, for purposes of these final results, we found that Devi and Falcon made below-cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act.
All issues raised in the case briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the Decision Memo, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room 1117, of the main Department building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
Based on our analysis of the comments received, we have made certain changes in the margin calculations. These changes are discussed in the relevant sections of the Decision Memo.
We determine that the following weighted-average margin percentages exist for the period February 1, 2006, through January 31, 2007:
The
Pursuant to 19 CFR 351.212(b)(1), because Devi and Falcon reported the entered value for some or all of their U.S. sales, we have calculated importer-specific
For the responsive companies which were not selected for individual review, we have calculated an assessment rate based on the weighted average of the cash deposit rates calculated for the companies selected for individual review excluding any which are
Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Further, the following deposit requirements will be effective for all shipments of shrimp from India entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent,
This notice serves as a final reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests by interested parties, the Department of Commerce (Department) initiated an administrative review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from Malaysia with respect to three producers/exporters of the subject merchandise. The period of review (POR) is August 1, 2006, through July 31, 2007. The Department is now rescinding this administrative review in its entirety.
July 15, 2008.
Lyn Johnson or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-5287 and (202) 482-4477, respectively.
On May 6, 2008, the Department published a
The merchandise subject to this antidumping duty order is PRCBs which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches (15.24 cm) but not longer than 40 inches (101.6 cm).
PRCBs are typically provided without any consumer packaging and free of charge by retail establishments,
In
This notice serves as a reminder to parties subject to the administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Institute of Standards and Technology, Department of Commerce.
Notice of Modifications with Request for Comment.
This notice provides for changes to the existing provisions of the National Institute of Standards and Technology's (NIST) Alternative Personnel Management System (APMS) published October 21, 1997 (62 FR 54606), and May 6, 2005 (70 FR 23996) primarily to improve flexibility in rewarding new and mid-level employees and to broaden the ability to make performance distinctions.
This notice is effective on October 1, 2008. Comments will be accepted until close of business on August 14, 2008.
Send or deliver comments to Robert Kirkner, Chief Human Capital Officer, National Institute of Standards and Technology, Building 101, Room A-531, 100 Bureau Drive Mail Stop 1700, Gaithersburg, MD 20899-1700, FAX: (301) 948-6107 or e-mail comments to
For questions or comments, please contact Robert Kirkner at the National Institute of Standards and Technology, (301) 975-3002; or Pamela Boyland at the U.S. Department of Commerce, (202) 482-1068.
In accordance with Public Law 99-574, the NIST Authorization Act for 1987, the Office of Personnel Management (OPM) approved a demonstration project plan, “Alternative Personnel Management System (APMS) at the National Institute of Standards and Technology (NIST),” and published the plan in the
The plan provides for modifications to be made as experience is gained, results are analyzed, and conclusions are reached on how the system is working. This notice formally modifies the APMS plan to refine the links between pay and performance. Comments will be considered and any changes deemed necessary will be made.
The National Institute of Standards and Technology's (NIST) Alternative Personnel Management System (APMS) is designed to (1) Improve hiring and allow NIST to compete more effectively for high-quality researchers through direct hiring, selective use of higher entry salaries, and selective use of recruiting allowances; (2) motivate and retain staff through higher pay potential, pay-for-performance, more responsive personnel systems, and selective use of retention allowances; (3) strengthen the manager's role in personnel management through delegation of personnel authorities; and (4) increase the efficiency of personnel systems through installation of a simpler and more flexible classification system based on pay banding through reduction of guidelines, steps, and paperwork in classification, hiring, and other personnel systems, and through automation.
Since implementing the APMS, according to findings in the Office of Personnel Management's “Summative Evaluation Report National Institute of Standards and Technology Demonstration Project: 1988-1995,” NIST is more competitive for talent; NIST retained more top performers than a comparison group; and NIST managers reported significantly more authority to make decisions concerning employee pay. This modification builds on this success by refining the link between pay and performance. In 2005, NIST made the first significant changes to the APMS since its inception. NIST replaced its 100-point rating scale with six performance ratings and provided for automatic bonuses for high performing pay-capped employees. NIST also adjusted its provisions on retention service credit for reduction in force and annual adjustments to basic pay to correspond with the 2005 changes.
This amendment modifies the May 2005 amendment. Specifically, NIST will introduce a seventh level to its six level performance ratings system, broadening flexibility to make performance distinctions. Pay increases will continue to be based upon an annually determined percentage of the mid-point salary for each pay band in the career path and linked directly to
NIST will continually monitor the effectiveness of this amendment.
The need to modify the current Pay for Performance System (PPS), which was first implemented in fiscal year 2006, surfaced in the results of the 2007 NIST Employee Surveys, the NIST Research Advisory Committee 2007 Report to the NIST Director, the 2007 OPM Pay-for-Performance Report to NIST, and in discussions of the NIST Leadership Board. Generally, feedback indicated a need to clarify the system and address consequences of the May 2005 changes. One concern raised was that the system disproportionately rewarded employees in higher pay bands to the detriment of new and early-career employees. Another concern was that there was not enough flexibility to make meaningful performance distinctions. A work group of internal NIST stakeholders was tasked with evaluating the feedback and developing responsive modifications. The resulting adjustments are incorporated into this amendment.
The NIST APMS proposed modifications include adding a seventh level to the current six level system, to permit an additional performance distinction. From highest to lowest, the seven performance ratings are: Exceptional Contributor, Superior Contributor, Meritorious Contributor, Significant Contributor, Contributor, Marginal Contributor, and Unsatisfactory.
Performance ratings are determined based on the cumulative ratings and relative weights of the critical elements. Critical elements are rated using benchmark standards and supplemental standards/success measures. The ratings for the critical elements are: exceeds expectations (E), fully successful (S), minimally meets expectations (M), or unsatisfactory (U).
Performance pay increases will continue to be based on the annually determined percentage of the mid-point salary for each pay band in the career path. When the percentage is applied to the mid-point salary in each pay band, the resulting dollar amount is the unit of salary increase or “I” for that pay band and career path. “I” percentages may differ by pay band and career path. The “I” percentage used for any given career path and band will apply system-wide, except that the Director may authorize a particular operating unit to use a lower “I” percentage for reasons related to solvency.
Actual salary increases based on multiples of “I” are granted to employees in the top four performance levels as follows: Exceptional Contributor: “I” × 5; Superior Contributor: “I” × 3; Meritorious Contributor: “I” × 2; and Significant Contributor: “I.” A salary-capped employee with an Exceptional Contributor or Superior Contributor rating must receive a bonus at least equivalent to the salary increase that would have been received if the employee's salary were not capped.
In addition to receiving a performance pay increase, employees with Exceptional Contributor, Superior Contributor, Meritorious Contributor, and Significant Contributor ratings receive the full annual basic pay adjustment (general and locality pay increases) and are eligible for a discretionary bonus. Employees with a Contributor rating do not receive a performance pay increase but do receive the full annual basic pay adjustment and are eligible for a discretionary bonus. Employees rated Marginal Contributor or Unsatisfactory do not receive a performance pay increase, discretionary bonus, or annual basic pay adjustment.
The current provision on additional service credit for reduction-in-force purposes is revised to correspond with these changes. For retention purposes, this modification grants ten additional years of service for a rating of Exceptional Contributor, eight additional years of service for a rating of Superior Contributor, four additional years of service for a rating of Meritorious Contributor, three additional years of service for a rating of Significant Contributor, and one additional year of service for a rating of Contributor.
The APMS at the NIST, published in the
1. Link Between Performance and Retention: The subsection titled “Link Between Performance and Retention” (70 FR 23998) is replaced with the following:
An employee with a performance rating of Exceptional Contributor is credited with ten additional years of service for retention purposes. An employee with a performance rating of Superior Contributor is credited with eight additional years of service for retention purposes. An employee with a performance rating of Meritorious Contributor is credited with four additional years of service for retention purposes. An employee with a performance rating of Significant Contributor is credited with three additional years of service for retention purposes. An employee with a performance rating of Contributor is credited with one additional year of service for retention purposes. The total credit is based on the employee's three most recent annual performance ratings of record received during the four-year period prior to an established cutoff date, for a potential total credit of thirty years. No reduction-in-force credit converts to this system from any other performance appraisal system.
2. Performance Ratings: The subsection titled “Performance Ratings” (70 FR 23998) is replaced with the following:
The NIST APMS performance ratings are Exceptional Contributor, Superior Contributor, Meritorious Contributor, Significant Contributor, Contributor, Marginal Contributor, and Unsatisfactory. Performance ratings are determined based on the cumulative ratings and weights of the critical elements in the performance plan. Performance in each critical element is evaluated using the benchmark standards and any supplemental standards or success measures, and the element is assigned a rating of exceeds expectations (E), fully successful (S), minimally meets expectations (M), or unsatisfactory (U).
The rating of the element is then matched with the weighted value of that critical element to produce a value for the element. For example, if an element is weighted 4 and the element is assigned a rating of exceeds expectations (E), then that element has a value of 4E.
Once this matching is completed and the elements are totaled, performance ratings are assigned using the following table.
An employee with unsatisfactory performance in one or more critical elements is considered unsatisfactory overall and is given a performance improvement plan and an opportunity to improve. If the employee's performance remains unsatisfactory at the end of an opportunity to improve, the supervisor initiates appropriate follow-up action, i.e., reassignment, proposed change to a lower pay band, or proposed removal.
3. Performance Pay Decisions: The subsection titled “Performance Pay Decisions” (62 FR 54612) is replaced with the following:
Annually, the NIST Director determines the amount of a unit of increase, or “I,” based on a percentage of the mid-point salary for each pay band of each career path. The percentage may vary by career path and by pay bands within a career path. Performance pay increases are linked directly to performance ratings. An employee with an overall performance rating of Exceptional Contributor receives a performance pay increase equal to five units of increase, or 5 × “I.” A Superior Contributor receives a performance pay increase equal to 3 × “I.” A Meritorious Contributor receives a performance pay increase equal to 2 × “I.” A Significant Contributor receives a performance pay increase equal to “I.” The actual dollar amount of a performance pay increase depends upon an employee's career path and pay band. Employees may not receive an increase that causes their salary to exceed the maximum rate for their pay band.
Employees with Contributor, Marginal Contributor, and Unsatisfactory ratings do not receive performance pay increases.
National Institute of Standards and Technology, Department of Commerce.
Notice.
The National Institute of Standards and Technology (NIST) invites and requests nomination of individuals for appointment to its eight existing Federal Advisory Committees: Technology Innovation Program Advisory Committee, Board of Overseers of the Malcolm Baldrige National Quality Award, Judges Panel of the Malcolm Baldrige National Quality Award, Information Security and Privacy Advisory Board, Manufacturing Extension Partnership Advisory Board, National Construction Safety Team Advisory Committee, Advisory Committee on Earthquake Hazards Reduction, and Visiting Committee on Advanced Technology. NIST will consider nominations received in response to this notice for appointment to the Committees, in addition to nominations already received.
Nominations for all committees will be accepted on an ongoing basis and will be considered as and when vacancies arise.
See below.
Mr. Marc Stanley, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4700, Gaithersburg, MD 20899-4700; telephone 301-975-2162, fax 301-869-1150; or via e-mail at
The Board will function solely as an advisory body, in compliance with the provisions of the Federal Advisory Committee Act.
15 U.S.C 278n(k), as amended by the America COMPETES Act (Pub. L. 110-69), Federal Advisory Committee Act: 5 U.S.C. App. 2.
Please submit nominations to Harry Hertz, Director, Baldrige National Quality Program, NIST, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, MD 20899-1020. Nominations may also be submitted via FAX to 301-975-4967. Additional information regarding the Committee, including its charter, current membership list, and executive summary may be found on its electronic home page at:
Harry Hertz, Director, Baldrige National Quality Program and Designated Federal Officer, NIST, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, MD 20899-1020; telephone 301-975-2361; FAX 301-948-4967; or via e-mail at
1. The Board shall review the work of the private sector contractor(s), which assists the Director of the National Institute of Standards and Technology (NIST) in administering the Award. The Board will make such suggestions for the improvement of the Award process as it deems necessary.
2. The Board shall provide a written annual report on the results of Award activities to the Director of NIST, along with its recommendations for the improvement of the Award process.
3. The Board will function solely as an advisory committee under the Federal Advisory Committee Act.
4. The Board will report to the Director of NIST.
1. The Board will consist of approximately eleven members selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance, and for their
2. The Board will be appointed by the Secretary of Commerce and will serve at the discretion of the Secretary. The term of office of each Board member shall be three years. All terms will commence on March 1 and end of February 28 of the appropriate year.
1. Members of the Board shall serve without compensation, but may, upon request, be reimbursed travel expenses, including per diem, as authorized by 5 U.S.C. 5701 et seq.
2. The Board will meet twice annually, except that additional meetings may be called as deemed necessary by the NIST Director or by the Chairperson. Meetings are usually one day in duration.
3. Board meetings are open to the public. Board members do not have access to classified or proprietary information in connection with their Board duties.
1. Nominations are sought from the private and public sector as described above.
2. Nominees should have established records of distinguished service and shall be familiar with the quality improvement operations of manufacturing companies, service companies, small businesses, education, health care, and nonprofits. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. Nominations for a particular category should come from organizations or individuals within that category. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the Board, and will actively participate in good faith in the tasks of the Board. Besides participation at meetings, it is desired that members be able to devote the equivalent of seven days between meetings to either developing or researching topics of potential interest, and so forth, in furtherance of their Board duties.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Board membership.
Please submit nominations to Harry Hertz, Director, Baldrige National Quality Program, NIST, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, MD 20899-1020. Nominations may also be submitted via FAX to 301-975-4967. Additional information regarding the Committee, including its charter, current membership list, and executive summary may be found on its electronic home page at:
Harry Hertz, Director, Baldrige National Quality Program and Designated Federal Official, NIST, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, MD 20899-1020; telephone 301-975-2361; FAX 301-975-4967; or via e-mail at
1. The Judges Panel will ensure the integrity of the Malcolm Baldrige National Quality Award selection process by reviewing the results of examiners' scoring of written applications, and then voting on which applicants merit site visits by examiners to verify the accuracy of claims made by applicants.
2. The Judges Panel will ensure that individuals on site visit teams for the Award finalists have no conflict of interest with respect to the finalists. The Panel will also review recommendations from site visits and recommend Award recipients.
3. The Judges Panel will function solely as an advisory body, and will comply with the provisions of the Federal Advisory Committee Act.
4. The Panel will report to the Director of NIST.
1. The Judges Panel is composed of at least nine, and not more than twelve, members selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance. There will be a balanced representation from U.S. service and manufacturing industries, education, health care, and nonprofits and will include members familiar with performance improvement in their area of business.
2. The Judges Panel will be appointed by the Secretary of Commerce and will serve at the discretion of the Secretary. The term of office of each Panel member shall be three years. All terms will commence on March 1 and end on February 28 of the appropriate year.
1. Members of the Judges Panel shall serve without compensation, but may, upon request, be reimbursed travel expenses, including per diem, as authorized by 5 U.S.C. 5701 et seq.
2. The Judges Panel will meet three times per year. Additional meetings may be called as deemed necessary by the NIST Director or by the Chairperson. Meetings are usually one to four days in duration. In addition, each Judge must attend an annual three-day Examiner training course.
3. Committee meetings are closed to the public pursuant to Section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended by Section 5(c) of the Government in the Sunshine Act, Public Law 94-409, and in accordance with Section 552b(c)(4) of Title 5, United States Code. Since the members of the Judges Panel examine records and discuss Award applicant data, the meetings are likely to disclose trade secrets and commercial or financial information obtained from a person that may be privileged or confidential.
1. Nominations are sought from all U.S. service and manufacturing industries, education, health care, and nonprofits as described above.
2. Nominees should have established records of distinguished service and shall be familiar with the performance improvement operations of manufacturing companies, service companies, small businesses, education, health care, and nonprofit organizations. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. Nominations for a particular category should come from organizations or individuals within that category. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on federal advisory boards and federal employment. In addition, each nomination letter should state that the person agrees to the nomination, acknowledge the responsibilities of serving on the Judges Panel, and will actively participate in good faith in the tasks of the Judges Panel. Besides participation at meetings, it is desired
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Judges Panel membership.
Please submit nominations to Pauline Bowen, NIST, 100 Bureau Drive, Mail Stop 8930, Gaithersburg, MD 20899-8930. Nominations may also be submitted via fax to 301-975-4007, Attn: ISPAB Nominations. Additional information regarding the Board, including its charter and current membership list, may be found on its electronic home page at:
Pauline Bowen, ISPAB Designated Federal Official, NIST, 100 Bureau Drive, Mail Stop 8930, Gaithersburg, MD 20899-8930; telephone 301-975-2938; fax 301-975-8670; or via e-mail at
The objectives and duties of the ISPAB are:
1. To identify emerging managerial, technical, administrative, and physical safeguard issues relative to information security and privacy.
2. To advise the NIST, the Secretary of Commerce and the Director of the Office of Management and Budget on information security and privacy issues pertaining to Federal Government information systems, including thorough review of proposed standards and guidelines developed by NIST.
3. To annually report its findings to the Secretary of Commerce, the Director of the Office of Management and Budget, the Director of the National Security Agency, and the appropriate committees of the Congress.
4. To function solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
The ISPAB is comprised of twelve members, in addition to the Chairperson. The membership of the Board includes:
1. Four members from outside the Federal Government eminent in the information technology industry, at least one of whom is representative of small or medium sized companies in such industries.
2. Four members from outside the Federal Government who are eminent in the field of information technology, or related disciplines, but who are not employed by or representative of a producer of information technology equipment; and
3. Four members from the Federal Government who have information system management experience, including experience in information security and privacy; at least one of these members shall be from the National Security Agency.
Members of the ISPAB who are not full-time employees of the Federal government are not paid for their service, but will, upon request, be allowed travel expenses in accordance with subchapter I of chapter 57 of title 5, United States Code, while otherwise performing duties at the request of the Board Chairperson, while away from their homes or a regular place of business.
Meetings of the Board are usually two to three days in duration and are usually held quarterly. The meetings primarily take place in the Washington, DC, metropolitan area but may be held at such locations and at such time and place as determined by the majority of the Board.
Board meetings are open to the public and members of the press usually attend. Members do not have access to classified or proprietary information in connection with their Board duties.
Nominations are being accepted in all three categories described above.
Nominees should have specific experience related to information security or electronic privacy issues, particularly as they pertain to Federal information technology. Letters of nomination should include the category of membership for which the candidate is applying and a summary of the candidate's qualifications for that specific category. Also include (where applicable) current or former service on Federal advisory boards and any Federal employment. Each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the ISPAB, and that they will actively participate in good faith in the tasks of the ISPAB.
Besides participation at meetings, it is desired that members be able to devote a minimum of two days between meetings to developing draft issue papers, researching topics of potential interest, and so forth in furtherance of their Board duties.
Selection of ISPAB members will not be limited to individuals who are nominated. Nominations that are received and meet the requirements will be kept on file to be reviewed as Board vacancies occur.
Nominees must be U.S. citizens.
The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse ISPAB membership.
Please submit nominations to Ms. Karen Lellock, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, MD 20899-4800. Nominations may also be submitted via fax to 301-963-6556. Additional information regarding the Board, including its charter may be found on its electronic home page at:
Ms. Karen Lellock, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, MD 20899-4800; telephone 301-975-4269, fax 301-963-6556; or via e-mail at
The Board will consist of ten individuals appointed by the Director of the National Institute of Standards and Technology (NIST) and broadly representing stakeholders.
The Board will function solely as an advisory body, in compliance with the provisions of the Federal Advisory Committee Act.
15 U.S.C. 278k(e) and the Federal Advisory Committee Act: 5 U.S.C. App. 2.
Please submit nominations to Stephen Cauffman, National Construction Safety Team Advisory Committee, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8611, Gaithersburg, MD 20899-8611. Nominations may also be submitted via fax to 301-869-6275.
Stephen Cauffman, National Construction Safety Team Advisory Committee, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8611, Gaithersburg, MD 20899-8611, telephone 301-975-6051, fax 301-869-6275; or via e-mail at
1. The Committee shall advise the Director of the National Institute of Standards and Technology (NIST) on carrying out the National Construction Safety Team Act (Act), review and provide advice on the procedures developed under section 2(c)(1) of the Act, and review and provide advice on the reports issued under section 8 of the Act.
2. The Committee functions solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. The Committee shall provide a written annual report, through the Director of the NIST Building and Fire Research Laboratory (BFRL) and the Director of NIST, to the Secretary of Commerce for submission to the Congress, to be due at a date to be agreed upon by the Committee and the Director of NIST. Such report will provide an evaluation of National Construction Safety Team activities, along with recommendations to improve the operation and effectiveness of National Construction Safety Teams, and an assessment of the implementation of the recommendations of the National Construction Safety Teams and of the Committee. In addition, the Committee may provide reports at strategic stages of an investigation, at its discretion or at the request of the Director of NIST, through the Director of the BFRL and the Director of NIST, to the Secretary of Commerce.
1. The Committee will be composed of not fewer than five nor more than ten members that reflect a wide balance of the diversity of technical disciplines and competencies involved in the National Construction Safety Teams investigations. Members shall be selected on the basis of established records of distinguished service in their professional community and their knowledge of issues affecting the National Construction Safety Teams.
2. The Director of the NIST shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
1. Members of the Committee will not be paid for their services, but will, upon request, be allowed travel and per diem expenses in accordance with 5 U.S.C. 5701 et seq., while attending meetings of the Committee or of its subcommittees, or while otherwise performing duties at the request of the chairperson, while away from their homes or a regular place of business.
2. The Committee will meet at least once per year at the call of the Chair. Additional meetings may be called whenever one-third or more of the members so request it in writing or whenever the Chair or the Director of NIST requests a meeting.
1. Nominations are sought from all fields involved in issues affecting National Construction Safety Teams.
2. Nominees should have established records of distinguished service. The field of expertise that the candidate represents he/she is qualified for should be specified in the nomination letter. Nominations for a particular field should come from organizations or individuals within that field. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the candidate agrees to the nomination, acknowledges the responsibilities of serving on the Committee, and will actively participate in good faith in the tasks of the Committee.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Committee membership.
Please submit nominations to Tina Faecke, Administrative Officer, National Earthquake Hazards Reduction Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8630, Gaithersburg, MD 20899-8630. Nominations may also be submitted via fax to 301-975-5433 or e-mail at
Dr. Jack Hayes, Director, National Earthquake Hazards Reduction Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8610, Gaithersburg, MD 20899-8610, telephone 301-975-5640, fax 301-975-4032; or via e-mail at
1. The Committee will assess trends and developments in the science and engineering of earthquake hazards reduction, effectiveness of the Program in carrying out the activities under section 103(a)(2) of the Act, the need to revise the Program, the management, coordination, implementation, and activities of the Program.
2. The Committee functions solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. Not later than one year after the first meeting of the Committee, and at least once every two years thereafter, the Committee shall report to the Director of NIST, on its findings of the assessments and its recommendations for ways to improve the Program. In developing recommendations, the Committee shall consider the recommendations of the United States Geological Survey Scientific Earthquake Studies Advisory Committee.
1. The Committee will consist of not fewer than 11 nor more than 15 members, who reflect a wide diversity of technical disciplines, competencies, and communities involved in earthquake hazards reduction. Members
2. The Director of NIST shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
3. The term of office of each member of the Committee shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy and that the initial members shall have staggered terms such that the committee will have approximately
4. No committee member may be an “employee” as defined in subparagraphs (A) through (F) of section 7342(a)(1) of Title 5 of the United States Code.
1. Members of the Committee will not be compensated for their services, but will, upon request, be allowed travel and per diem expenses in accordance with 5 U.S.C. 5701
2. Members of the Committee shall serve as Special Government Employees and are required to file an annual Executive Branch Confidential Financial Disclosure Report.
3. The Committee shall meet at least once per year. Additional meetings may be called whenever the Director of NIST requests a meeting.
4. Committee meetings are open to the public.
1. Nominations are sought from industry and other communities having an interest in the National Earthquake Hazards Reduction Program, such as, but not limited to, research and academic institutions, industry standards development organizations, state and local government bodies, and financial communities, who are qualified to provide advice on earthquake hazards reduction and represent all related scientific, architectural, and engineering disciplines.
2. Nominees should have established records of distinguished service. The field of expertise that the candidate represents should be specified in the nomination letter. Nominations for a particular field should come from organizations or individuals within that field. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on federal advisory boards and federal employment. In addition, each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the Committee, and will actively participate in good faith in the tasks of the Committee.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Committee membership.
Please submit nominations to Gail Ehrlich, Visiting Committee on Advanced Technology, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1060, Gaithersburg, MD 20899-1060. Nominations may also be submitted via fax to 301-216-0529. Additional information regarding the Committee, including its charter, current membership list, and executive summary may be found on the NIST Web site at:
Gail Ehrlich, Visiting Committee on Advanced Technology, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1060, Gaithersburg, MD 20899-1060, telephone 301-975-2149, fax 301-216-0529; or via e-mail at
1. The Committee shall review and make recommendations regarding general policy for NIST, its organization, its budget, and its programs, within the framework of applicable national policies as set forth by the President and the Congress.
2. The Committee functions solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. The Committee shall provide a written annual report, through the Director of NIST, to the Secretary of Commerce for submission to the Congress no later than 30 days after the submittal to Congress of the President's annual budget request in each year. Such report shall deal essentially, though not necessarily exclusively, with policy issues or matters which affect the Institute, or with which the Committee in its official role as the private sector policy advisor of the Institute is concerned. Each such report shall identify areas of program emphasis for the Institute of potential importance to the long-term competitiveness of the United States industry, which could be used to assist the United States enterprises and United States industrial joint research and development ventures. Such report also shall comment on the programmatic planning document and updates thereto submitted to Congress under subsections (c) and (d) of section 23 of the NIST Act (15 U.S.C. 278i). The Committee shall submit to the Secretary and Congress such additional reports on specific policy matters as it deems appropriate.
1. The Committee is composed of fifteen members that provide representation of a cross-section of traditional and emerging United States industries. Members shall be selected solely on the basis of established records of distinguished service and shall be eminent in such fields as business, research, new product development, engineering, labor, education, management consulting, environment, and international relations. No employee of the Federal Government shall serve as a member of the Committee.
2. The Director of the National Institute of Standards and Technology shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
1. Members of the VCAT are not paid for their service, but will, upon request, be allowed travel expenses in accordance with 5 U.S.C. 5701
2. Meetings of the VCAT take place at the NIST headquarters in Gaithersburg, Maryland, and once each year at the NIST site in Boulder, Colorado. Meetings are one or two days in duration and are held at least twice each year.
3. Committee meetings are open to the public.
1. Nominations are sought from all fields described above.
2. Nominees should have established records of distinguished service and shall be eminent in fields such as business, research, new product development, engineering, labor, education, management consulting, environment and international relations. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. Nominations for a particular category should come from organizations or individuals within that category. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on federal advisory boards and federal employment. In addition, each nomination letter should state that the candidate agrees to the nomination, acknowledges the responsibilities of serving on the VCAT, and will actively participate in good faith in the tasks of the VCAT. Besides participation in one- or two-day meetings held at least twice each year, it is desired that members be able to devote the equivalent of two days between meetings to either developing or researching topics of potential interest, and so forth in furtherance of the Committee duties.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse VCAT membership.
National Institute of Standards and Technology (NIST), Department of Commerce.
Notice.
The National Institute of Standards and Technology's (NIST) Technology Innovation Program (TIP) announces that it will hold a single fiscal year 2008 competition and is soliciting high-risk, high-reward research and development proposals for financial assistance. TIP also announces that it will hold public meetings (Proposers' Conferences) for all interested parties. TIP is soliciting proposals under this fiscal year 2008 competition in one area of critical national need entitled “Civil Infrastructure” as described in the Program Description section below.
The due date for submission of proposals is 3 p.m. Eastern Time, Thursday, September 4, 2008. This deadline applies to any mode of proposal submission, including hand-delivery, courier, express mailing, and electronic. Do not wait until the last minute to submit a proposal. TIP will not make any allowances for late submissions, including incomplete Grants.gov registration or delays by guaranteed overnight couriers. To avoid any potential processing backlogs due to last minute registrations, proposers are strongly encouraged to start their Grants.gov registration process at least four weeks prior to the proposal submission due date. Review, selection, and award processing is expected to be completed by the end of November 2008.
Proposals must be submitted to TIP as follows:
Barbara Lambis at 301-975-4447 or by e-mail at
TIP Proposers' Conferences are being held at the following dates, times, and locations:
No registration fee will be charged for any of the Proposers' Conferences. Presentation materials from Proposers' Conferences will be made available on the TIP Web site.
The solutions to this societal challenge require advancement beyond the state-of-the-art of sensing technologies that will assess the structural integrity and/or deterioration processes of bridges, roads, water mains, and wastewater collection systems, that are more accurate, easier to use, and more economically feasible. The need for advanced sensing technologies is of national importance because nearly all municipalities and states in the nation face infrastructure management challenges. The need for TIP's investment is justified because portions of infrastructure are reaching the end of their life spans and there are few cost effective technical means to monitor infrastructure integrity and to prioritize the renovation and replacement of infrastructure elements. Transformational research beyond incremental advancements is required to achieve the objectives for this area of critical national need. Incremental improvements of current technologies will not meet the challenges of providing cost-effective, widely deployable solutions to the problems of sensing structural integrities and/or deterioration processes widely across infrastructure systems.
Proposals are being sought to create and validate new advanced, robust, network capable, nondestructive evaluation and test sensing systems, or system components, to cost effectively and quantitatively inspect and evaluate the structural integrity of the civil infrastructure.
The targeted system should be capable of, but not limited to, detection of corrosion, cracking, and delamination or failure of critical infrastructure elements and the materials of which they are made.
Solutions are needed for improved inspection systems for roads, highways, bridges, drinking and wastewater systems that provide real-time understanding of the integrity and service life through the use of portable, mobile or remote sensing capabilities.
Innovations are being sought in all aspects of a system to provide an advanced, cost effective, networked system, either fixed or mobile, that is easily deployable, self powered, and self monitoring. A complete system could include all system components, hardware, and software.
Proposals that include validation by potential end users will be considered as having strong potential.
Also within scope are:
a. Systems that provide new and advanced methodologies for the detection of fluid leaks from water piping systems; and
b. Single components of a system solution that include a demonstration of the component in a system setting.
Ineligible projects under this competition are:
a. Advancements in a system component without a prototype demonstrating that the component is functional within a system solution, as part of the proposed technical plan;
b. Integration projects using only existing state-of-the-art components;
c. Straightforward improvements to existing components without the potential for a transformational increase in performance to the technical requirements; and
d. Software development that is predominantly straightforward, routine data gathering using applications of standard software development practices.
In addition to the competition-specific ineligible projects, the following are ineligible projects:
a. Straightforward improvements of existing products or product development.
b. Projects that are Phase II, III, or IV clinical trials. TIP will rarely fund Phase I clinical trials and reserves the right not to fund a Phase I clinical trial. The portion of a Phase I trial that may be funded must be critical to meeting Evaluation Criterion (a)(1) addressing the scientific and technical merit of the proposal. The trial results must be essential for completion of a critical R&D task of the project. The definitions of all phases of clinical trials are provided in the
c. Pre-commercial-scale demonstration projects where the emphasis is on demonstrating that some technology works on a large scale or is economically sound rather than on R&D that advances the state of the art and is high-risk, high-reward.
d. Projects that TIP determines would likely be completed without TIP funds in the same time frame or nearly the same time frame, or with the same scale or scope.
e. Predominantly straightforward, routine data gathering (e.g., creation of voluntary consensus standards, data gathering/handbook preparation, testing of materials, or unbounded research aimed at basic discovery science) or application of standard engineering practices.
f. Projects in which the predominant risk is market oriented—that is, the risk that the end product may not be embraced by the marketplace.
g. Projects with software work, that are predominantly about final product details and product development, and that have significant testing involving users outside the research team to determine if the software meets the original research objectives, are likely to be either uncompetitive or possibly ineligible for funding. However, R&D projects with limited software testing, involving users outside of the research team, may be eligible for funding and contain eligible costs within a TIP award when the testing is critical to meeting Evaluation Criteria and/or Award Criteria and the testing results are essential for completion of a critical task in the proposed research. This type of testing in projects may also be considered to involve human subjects in research.
(a)(1) The proposer(s) adequately addresses the scientific and technical merit and how the research may result in intellectual property vesting in a United States entity including evidence that:
(i) The proposed research is novel;
(ii) The proposed research is high-risk, high-reward;
(iii) The proposer(s) demonstrates a high level of relevant scientific/technical expertise for key personnel, including contractors and/or informal collaborators, and has access to the necessary resources, for example research facilities, equipment, materials, and data, to conduct the research as proposed;
(iv) The research result(s) has the potential to address the technical needs associated with a major societal challenge not currently being addressed; and
(v) The proposed research plan is scientifically sound with tasks, milestones, timeline, decision points and alternate strategies.
(2) Total weight of (a)(1)(i) through (v) is 50%.
(b)(1) The proposer(s) adequately establishes that the proposed research has strong potential for advancing the state-of-the-art and contributing significantly to the United States science and technology knowledge base and to address areas of critical national need through transforming the Nation's capacity to deal with a major societal challenge(s) that is not currently being addressed, and generate substantial benefits to the Nation that extend significantly beyond the direct return to the proposer including an explanation in the proposal:
(i) Of the potential magnitude of transformational results upon the Nation's capabilities in an area;
(ii) Of how and when the ensuing transformational results will be useful to the Nation; and
(iii) Of the capacity and commitment of each award participant to enable or advance the transformation to the proposed research results (technology).
(2) Total weight of (b)(1)(i) through (iii) is 50%.
(a) The proposal explains why TIP support is necessary, including evidence that the research will not be conducted within a reasonable time period in the absence of financial assistance from TIP;
(b) The proposal demonstrates that reasonable and thorough efforts have been made to secure funding from alternative funding sources and no other alternative funding sources are reasonably available to support the proposal;
(c) The proposal explains the novelty of the research (technology) and demonstrates that other entities have not already developed, commercialized, marketed, distributed, or sold similar research results (technologies);
(d) The proposal has scientific and technical merit and may result in intellectual property vesting in a United States entity that can commercialize the technology in a timely manner; and
(e) The proposal establishes that the research has strong potential for advancing the state-of-the-art and contributing significantly to the United States science and technology knowledge base; and
(f) The proposal establishes that the proposed transformational research (technology) has strong potential to address areas of critical national need through transforming the Nation's capacity to deal with major societal challenges that are not currently being addressed, and generate substantial benefits to the Nation that extend significantly beyond the direct return to the proposer.
NIST must determine that a proposal successfully meets all six award criteria for the proposal to receive funding under the Program.
a. Assuring an appropriate distribution of funds among technologies and their applications,
b. Availability of funds, and/or
c. Program priorities.
NIST reserves the right to negotiate the cost and scope of the proposed work with the proposers that have been selected to receive awards. This may include requesting that the proposer delete from the scope of work a particular task that is deemed by NIST to be inappropriate for support. NIST also reserves the right to reject a proposal where information exists that raises a reasonable doubt as to the responsibility of the proposer.
a. Bid and proposal costs unless they are incorporated into a federally approved indirect cost rate (e.g., payments to any organization or person retained to help prepare a proposal).
b. Construction costs for new buildings or extensive renovations of existing laboratory buildings. However, costs for the construction of experimental research and development facilities to be located within a new or existing building are allowable provided the equipment or facilities are essential for carrying out the proposed project and are approved by the NIST Grants Officer. These types of facility costs may need to be prorated if they will not be used exclusively for the research activities proposed.
c. Contractor office supplies and contractor expenses for conferences/workshops.
d. Contracts to another part of the same company or to another company with identical or nearly identical ownership. Work proposed by another part of the same company or by another company with identical or nearly identical ownership should be shown as funded through inter-organizational transfers that do not contain profit. Inter-organizational transfers should be broken down in the appropriate budget categories.
e. For research involving human and/or animal subjects, any costs used to secure Institutional Review Board or Institutional Animal Care and Use Committee approvals before or during the award.
f. General purpose office equipment and supplies that are not used exclusively for the research, e.g., office computers, printers, copiers, paper, pens, and toner cartridges.
g. Indirect costs, which must be absorbed by the recipient. However, indirect costs are allowable for contractors under a single company or joint venture. (Note that indirect costs absorbed by the recipient may be used to meet the cost-sharing requirement.)
h. Marketing, sales, or commercialization costs, including marketing surveys, commercialization studies, and general business planning, unless they are included in a federally approved indirect cost rate.
i. Office furniture costs, unless they are included in a federally approved indirect cost rate.
j. Patent costs and legal fees, unless they are included in a federally approved indirect cost rate.
k. Preaward costs.
l. Profit, management fees, interest on borrowed funds, or facilities capital cost of money. However, profit is allowable for contractors under a single company or joint venture.
m. Relocation costs, unless they are included in a federally approved indirect cost rate.
n. Tuition costs. However, an institution of higher education participating in a TIP project as a contractor or as a joint venture member or lead may charge TIP for tuition remission or other forms of compensation in lieu of wages paid to students working on TIP projects, but only as provided in OMB Circular A-21, Section J.41. In such cases, tuition remission would be considered a cash contribution rather than an in-kind contribution.
For joint ventures, ownership of inventions arising from a TIP-funded project may vest in any participant in a joint venture, as agreed by the members of the joint venture (notwithstanding 35 U.S.C. 202 (a) and (b)). (
Title to any such invention shall not be transferred or passed, except to a participant in the joint venture, until the expiration of the first patent obtained in connection with such invention. Should the last existing participant in a joint venture cease to exist prior to the expiration of the first patent obtained in connection with any invention developed from assistance provided under TIP, title to such patent must be transferred or passed to a U.S. entity that can commercialize the technology in a timely fashion.
The United States reserves a nonexclusive, nontransferable, irrevocable paid-up license, to practice or have practiced for or on behalf of the United States any inventions developed from a TIP award. The federal government shall not in the exercise of such license publicly disclose proprietary information related to the license. This does not prohibit the licensing to any company of intellectual property rights arising from a TIP-funded project. (15 CFR 296.11(b)(3)). The federal government also has march-in rights in accordance with 37 CFR 401.6.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council will convene public meetings.
The meetings will be held August 11 - 15, 2008.
The meetings will be held at the Hilton Key Largo, 97000 S. Overseas Hwy., Key Largo, FL 33037.
Richard Leard, Deputy Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
3:30 p.m. - The Council meeting will begin with a review of the agenda and minutes.
The Council will review and discuss reports from the previous two days' committee meetings as follows:
The Council will continue to review and discuss reports from the committee meetings as follows:
Although other non-emergency issues not on the agendas may come before the Council and Committees 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 these meetings. Actions of the Council and Committees will be restricted to those issues specifically identified in the agendas 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 action to address the emergency.
The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. In order to further allow for such adjustments and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tina O'Hern at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Halibut Managers Workgroup (HMW) will hold a work session to discuss implications of the International Pacific Halibut Commission (IPHC) proposed catch apportionment methodology and to develop consensus on issues affecting Area 2A halibut fisheries prior to the IPHC workshop on catch apportionment. The HMW is not a committee of the Pacific Fishery Management Council (Council), however, the Council has expressed interest in having a report from the HMW, and has offered to provide meeting space. The meeting is open to the public.
The meeting will be held Thursday, August 7, 2008, from 9:30 a.m. to 4 p.m.
The meeting will be held at the Pacific Fishery Management Council Office, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384.
Mr. Chuck Tracy, Salmon and Halibut Management Staff Officer, Pacific Fishery Management Council, telephone: (503) 820-2280.
The purpose of the meeting is to allow an exchange of information and ideas among managers and industry representatives from Area 2A, primarily as they relate to the upcoming IPHC workshop on catch apportionment. The objective of the meeting will be to develop a consensus on a catch apportionment strategy that will be both fair and biologically sound, which can be presented at the IPHC workshop scheduled for September 4, 2008.
Although non-emergency issues not contained in the meeting agendas may come before the HMW for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental take authorization.
In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an IHA to BP Exploration (Alaska), Inc. (BPXA) to take, by harassment, small numbers of six species of marine mammals incidental to a 3D, ocean bottom cable (OBC) seismic survey in the Liberty Prospect, Beaufort Sea, Alaska during July and August, 2008.
Effective July 8, 2008, through August 25, 2008.
The application containing a list of the references used in this document, an addendum to the application, and the IHA are available by writing to P. Michael Payne, Chief, Permits, Conservation and Education
A copy of the 2006 Minerals Management Service's (MMS) Final Programmatic Environmental Assessment (PEA) and/or the NMFS/MMS Draft Programmatic Environmental Impact Statement (DPEIS) are available on the internet at:
Candace Nachman, Office of Protected Resources, NMFS, (301) 713-2289 or Brad Smith, NMFS Alaska Region, (907) 271-3023.
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), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings 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 marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
On November 21, 2007, NMFS received an application from BPXA for the taking, by Level B harassment only, of small numbers of several species of marine mammals incidental to conducting a 3D, OBC seismic survey in the Liberty Prospect area of the Alaskan Beaufort Sea in 2008. BPXA submitted an addendum to their application on April 21, 2008, which updated the vessel inventory, refined the dates of the survey, and withdrew the request for take of one narwhal. The survey would occur over a period of 40-60 days in July and August, 2008, with operations ceasing on August 25 prior to the start of the Nuiqsut whaling season. Seismic data acquisition is planned to start in early July, depending on the presence of ice. Open water seismic operations can only start when the project area is ice free (i.e., less than 10 percent ice coverage), which in this area normally occurs around July 20 (+/- 14 days). Limited layout of receiver cables might be possible on the mudflats in the Sagavanirktok River delta areas before the ice has cleared.
The Liberty field contains one of the largest undeveloped light-oil reservoirs near the North Slope infrastructure, and the development of this field could recover an estimated 105 million barrels of oil. The field is located in Federal waters of the Beaufort Sea about 8.9 km (5.5 mi) offshore in 6.1 m (20 ft) of water and approximately 8 to 13 km (5 to 8 mi) east of the existing Endicott Satellite Drilling Island (SDI; see Figure 1 of BPXA's application). The project area encompasses 351.8 km
Additional background information regarding BPXA's request was included in NMFS' Notice of Proposed IHA, which published in the
OBC seismic surveys are used to acquire seismic data in water that is too shallow for large marine-streamer vessels and/or too deep to have grounded ice in the winter. This type of seismic survey requires the use of multiple vessels for cable deployment/recovery, recording, shooting, and utility boats. The planned 3D, OBC seismic survey in the Liberty area will be conducted by CGGVeritas, a BPXA contractor. A detailed overview of the activities of this survey were provided in the Notice of Proposed IHA (73 FR 24236, May 2, 2008). No changes have been made to these proposed activities. Additional information is contained in BPXA's application and application addendum, which are available for review (see
A notice of receipt of BPXA's MMPA application and NMFS' proposal to issue an IHA to BPXA was published in the
The Level B harassment take estimate of 156 ringed seals is a small number, at least in relative terms, in that it represents only 0.06 percent of the regional stock size of that species (249,000), if each “exposure” at 160 dB represents an individual ringed seal. The percentage would be even lower if a higher SPL is required for a behavioral reaction (as is expected) or, if as expected, animals move out of the seismic area. As a result, NMFS believes that these “exposure” estimates are conservative, and seismic surveys will actually affect less than 0.06 percent of the Beaufort Sea ringed seal population.
The “average estimates” of exposures for the remaining species that could potentially occur in the Liberty Prospect (i.e., beluga, bowhead, and gray whales and bearded and spotted seals) are only between 1 and 11 animals, which constitute at most 0.09 percent of any of these five species populations in the Arctic. Additionally, the presence of beluga, bowhead, and gray whales in the shallow water environment within the barrier islands is possible but expected to be very limited.
Further, NMFS believes that it is incorrect to add the number of exposures together to support an argument that the numbers are not “small.” The MMPA is quite clear ”...taking by harassment of small numbers of marine mammals of a species or population stock...” does not refer to an additive calculation (small numbers, not small number).
Based on the fact that only small numbers of each species or stock will possibly be impacted and mitigation and monitoring measures will reduce the number of animals likely to be exposed to seismic pulses and therefore avoid injury and mortality, NMFS finds that BPXA's 3D OBC seismic survey will have a negligible impact on the affected species or stock.
Secondly, NMFS does not agree that the source used in BPXA's activity should be considered “continuous.” As mentioned in the IHA application and the
The decision in
On December 20, 2007, CBD petitioned NMFS to list the ribbon seal under the ESA due to the loss of its sea-ice habitat from global warming and the adverse impacts of oil industry activities on the species. On May 27, 2008, CBD submitted a similar petition seeking listing of the spotted, bearded, and ringed seals. We request that NMFS consider the information contained in these petitions, as well as other information in its files on the status of these species, when analyzing the impacts of the proposed IHA on these increasingly imperiled species. Because the status of the ribbon, spotted, ringed, and bearded seals and other stocks is unknown, NMFS cannot conclude that surveys which will harass untold numbers of individuals of each species will have no more than a “negligible effect” on the stocks.
NMFS does not require authorizations under section 101(a)(5) of the MMPA for normal shipping or transit. A further explanation was addressed in the response to Comment 7.
The NSB points out that in addition to the proposed offshore industrial operations listed above, there will be supply and fuel barging to villages, barging for support of onshore development and exploration, scientific cruises, climate change studies, USCG operations, tourist vessel traffic, and other activities as well. The cumulative impacts of all these activities must be factored into any negligible impact determination. Further, without an analysis of the effects of all of the planned operations, it is impossible to determine whether the monitoring plans are sufficient.
As stated in previous responses, cumulative impact assessments are NMFS' responsibility under NEPA, not the MMPA. In that regard, the MMS 2006 Final PEA and NMFS' 2008 SEA address cumulative impacts. The PEA's cumulative activities scenario and cumulative impact analysis focused on oil and gas-related and non-oil and gas-
Engel
Second, strandings have not been recorded for those marine mammal species expected to be harassed by seismic in the Arctic Ocean. Beaked whales and humpback whales, the two species linked in the literature with stranding events with a seismic component are not located in the area of the Beaufort Sea where seismic activities would occur (although humpback whales have been spotted in the Chukchi Sea and much farther west in the Beaufort Sea). Moreover, NMFS notes that in the Beaufort Sea, aerial surveys have been conducted by MMS and industry during periods of industrial activity (and by MMS during times with no activity). No strandings or marine mammals in distress have been observed during these surveys; nor reported by NSB inhabitants. Finally, if bowhead and gray whales react to sounds at very low levels by making minor course corrections to avoid seismic noise and mitigation measures require BPXA to ramp-up the seismic array to avoid a startle effect, strandings are highly unlikely to occur in the Arctic Ocean. Ramping-up of the array will allow marine mammals the opportunity to vacate the area of ensonification and thus avoid any potential injury or impairment of their hearing capabilities. In conclusion, NMFS does not expect any marine mammals will incur serious injury or mortality as a result of seismic surveys in the Beaufort Sea in 2008.
As NMFS has published several times in
A marine mammal within a radius of 100 m (328 ft) or less around a typical large array of operating airguns may be exposed to a few seismic pulses with levels greater than or equal to 205 dB and possibly more pulses if the marine mammal moves with the seismic vessel. When permanent threshold shift (PTS) occurs, there is physical damage to the sound receptors in the ear. In some cases, there can be total or partial deafness, whereas in other cases, the animal has an impaired ability to hear sounds in specific frequency ranges. However, there is no specific evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with airgun arrays larger than that proposed to be used in BPXA's survey. Given the possibility that mammals close to an airgun array might incur TTS, there has been further speculation about the possibility that some individuals occurring very close to airguns might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage in terrestrial mammals. Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals.
The information provided here regarding PTS is for large airgun arrays. BPXA is proposing to use an 880 in
The NSB DWM notes that BPXA suggests that bowheads are responsive to industrial sounds to the 160 to 170 dB zones. However, it is not clear why they do not also acknowledge that bowheads avoided an area around active seismic to much lower sound levels, down to 120 dB or lower (Richardson
As stated previously, the “take” numbers provided in BPXA's application are considered the numbers of animals “exposed” to the sounds based on species density, the area potentially affected, and the length of time the noise would be expected to last. This does not necessarily indicate that all animals will have a significant behavioral reaction to that sound at the level of 160 dB. In addition, CBD took the maximum number of marine mammals (based on animal density), instead of the expected density (as explained in BPXA's application). Using maximum density estimates is problematic as it tends to inflate harassment take estimates to an unreasonably high number and is not based on empirical science. As a result, and understanding the assumptions made in BPXA's IHA application, NMFS believes that far fewer marine mammals would receive SPLs sufficient to cause a significant biological reaction by the species. In regard to bowhead whales, while this species reacts to sounds at levels lower than 160 dB, during its fall westward migration (but not while in a non-migratory behavior), those reactions are not detectable by MMOs and that information is obtained only later during computer analysis of collected data.
Richardson
Lastly, the requirement to assess cumulative impacts is required under NEPA, not the MMPA. Cumulative impacts were assessed and analyzed in both the 2006 PEA and the 2008 SEA.
As an initial matter, NMFS should recognize that bowhead and beluga whales and ringed seals, all of which may be harassed as a result of BPXA's activities, each provide unique and irreplaceable subsistence resources that are important to the preservation of our culture. Our communities consume bowhead whale meat, which provides food for the ceremonial Nalukataq and important nutritional values. Bones from bowhead whales are used for carving by Inupiat artists, and bowhead jawbones are used to protect graveyards from animals. Communities along the Beaufort and Chukchi Seas also rely on beluga whales and ringed seals for subsistence. Other subsistence resources cannot be substituted for these important resources.
All of these species move widely throughout the Chukchi and Beaufort Seas, and BPXA's proposed activities may affect subsistence uses of these animals not only in the location of the activities but also elsewhere. In addition, subsistence foods are traditionally shared among communities, so diminishment of subsistence resources in one area-for instance Barrow, Nuiqsut, or Kaktovik-may have a ripple effect throughout other North Slope communities. A threat to these animals and their availability for subsistence is a threat to our culture. Even a slight interference with the availability of these species to communities on the Beaufort and Chukchi Seas will constitute an unmitigable adverse impact to their overall availability for subsistence uses and their unique ability to meet specific subsistence needs in Nuiqsut, Point Hope, and elsewhere.
The NVPH believes that by relying on this yet-to-be-completed agreement to mitigate impacts to subsistence, NMFS explicitly defers its determination whether BPXA's activities will have an unmitigable adverse impact on the availability of bowhead whales and seals for subsistence uses until after such a CAA has been negotiated. NMFS does not give any indication how it will assess the sufficiency of a CAA. It states that if no CAA is reached among the parties, NMFS may impose additional mitigation measures in the IHA. It does not identify those mitigation measures. Nevertheless, NMFS issues a preliminary conclusion that seismic activities will not have an unmitigables adverse impact on the subsistence uses of affected marine mammals (73 FR 24253, May 2, 2008). This preliminary conclusion is expressly conditioned on the implementation and effectiveness of restrictions included in a CAA or mitigation measures included in an IHA. NVPH and the NSB both note that absent specification of these restrictions and mitigation measures, NMFS cannot reasonably conclude that they will prove effective. Because it relies on the presumed effectiveness of non-existent
If NMFS bases its final “unmitigable adverse impact” determination for affected marine mammals on conditions imposed in a CAA, or, absent conclusion of a CAA, subsequent mitigation measures in an IHA, it must provide for another public comment period during which the public is able to evaluate such conditions. Otherwise, the agency has effectively deprived the public of the opportunity to comment on this determination.
BPXA signed a CAA with the AEWC on May 30, 2008. BPXA's activities will not occur during the beluga hunts, and the company agrees to abide by the transit routes to the project site laid out in the CAA. Additionally, BPXA will end seismic shooting by August 25 to avoid impacts on the fall bowhead subsistence hunt in the U.S. Beaufort Sea.
The design of BPXA's proposed surveys is itself a mitigation measure. The location of the project (inside the barrier islands) is in water too shallow to be suitable habitat for most whale species. Additionally, activities will not occur during subsistence hunting of bowheads or belugas. NMFS presented all of this information in its proposed IHA notice. Therefore, additional time for public comment is not warranted.
Additionally, the survey design itself has been created to mitigate the effects to the lowest level practicable. The total geographic area for which seismic data are required has been minimized by re-analyzing and re-interpreting existing data, thereby reducing the total area
Also, because the Liberty seismic survey will take place shoreward of the barrier islands in very shallow waters from 1-9.1 m (3-30 ft; where high seismic propagation loss is expected), few bowhead whales are likely to occur in the project area. The distance of received levels that might elicit avoidance will likely not (or barely) reach the main migration corridor and then only through the inter-island passages. BPXA's activities will cease before the beginning of the fall bowhead migration across the U.S. Beaufort Sea. Additionally, gray whales have not commonly or consistently been seen in the area of the Beaufort Sea where BPXA will conduct its activities over the last 25-30 years.
Total darkness will not set in during BPXA's survey. During the first two weeks of data acquisition, there will be 24 hrs of daylight. However, during times of impaired light, MMOs will be equipped with night vision devices. During poor visibility conditions, if the entire safety zone is not visible for the entire 30 min pre-ramp-up period, operations cannot begin.
NMFS believes that an IHA is the proper authorization required to cover BPXA's survey. As described in other responses to comments in this document, NMFS does not believe that there is a risk of serious injury or mortality from these activities. The monitoring reports from 2006 and 2007 do not note any instances of serious injury or mortality. Additionally, NMFS feels it has met all of the requirements of section 101(a)(5)(D) of the MMPA (as described throughout this document) and therefore can issue an IHA to BPXA for seismic operations in 2008.
BPXA has considered the limitation of MMOs in implementing mitigation measures to prevent Level A takes. BPXA has not planned on any additional monitoring efforts, however. If seismic surveys are going to extend into September, when darkness and inclement weather are more common than in August, there should be additional monitoring efforts to avoid Level A takes and to evaluate numbers of Level B takes of marine mammals. Aerial surveys or acoustic monitoring would be suitable means to this additional monitoring.
NMFS does not agree with Oceana's and Ocean Conservancy's statement that there has never been a comprehensive evaluation of the cumulative effects of seismic activities in the Arctic. The MMS 2006 PEA, NMFS 2007 SEA, 2007 MMS/NMFS DPEIS, and NMFS 2008 SEA for the proposed issuance of IHAs for five seismic survey and shallow hazard and site clearance survey activities for the 2008 open water season all provide comprehensive evaluation of the cumulative effects of seismic activities in the Arctic. In issuing the IHA to BPXA for its proposed OBC seismic survey in the Beaufort Sea, NMFS has conducted extensive environmental reviews.
As the MMC has noted in previous letters to NMFS, the NRC (2003) report
A description of the monitoring program submitted by BPXA was provided in BPXA's application, outlined in the
Additionally, although not required as part of the IHA issued by NMFS to BPXA, at the request of the NSB, BPXA has agreed to conduct three fish related studies in the proposed project area. First, BPXA will conduct a literature review on the effects of airgun sounds on fish and lower-level animals, including larval fish and invertebrates. Secondly, BPXA will sample behind the operation seismic airgun survey vessels to gather qualitative data on fish mortality. Lastly, BPXA has agreed to analyze catch-per-unit-effort data from fyke net in the Endicott area to look for a “seismic effect.” These studies will aid in collecting baseline ecosystem data in Foggy Island Bay.
NMFS has indicated that the findings in the 2006 ARBO are still relevant to BPXA's 2008 open water seismic survey planned for the Liberty Prospect, Foggy Island Bay, Beaufort Sea. MMS and NMFS are conducting a section 7 consultation for 2008 activities in the Chukchi Sea only, as there is evidence that humpback and fin whales may be affected by seismic surveys in 2008. However, since these species are not likely to occur in BPXA's project area, reinitiation of consultation for this particular IHA is not warranted. In addition, NMFS has issued an Incidental Take Statement under this Biological Opinion which contains reasonable and prudent measures with implementing terms and conditions to minimize the effects of take of bowhead whales. Regarding the polar bear, MMS has contacted the USFWS about conducting a section 7 consultation.
The monitoring reports from 2006 and 2007 seismic testing must be considered in any NEPA analysis for further seismic testing. Moreover, these reports indicate that the 120 dB and 160 dB zones from seismic surveys were much larger than anticipated or analyzed in the PEA. As such, the analysis of the PEA is simply inaccurate and underestimates the actual impacts from seismic activities. Also, in 2007, significant bowhead feeding activity occurred in Camden Bay, rendering the PEA's analyses of important bowhead feeding areas inadequate and inaccurate. Additionally, sea ice in 2007 retreated far beyond that predicted or analyzed in the PEA, rendering any discussion of cumulative impacts of seismic activities in the context of climate change horribly out of date.
Moreover, even if the EA was not of limited scope and out of date, the proposed surveys threaten potentially significant impacts to the environment, and must be considered in a full EIS. (See 42 U.S.C. 5 4332(2)(c);
The 2006 PEA analyzed a broad scope of proposed seismic activities in the Arctic Ocean. In fact, the PEA assessed the effects of multiple, ongoing seismic surveys (up to 8 surveys) in the Beaufort and Chukchi Seas for the 2006 season. Although BPXA's proposed activity for this season was not explicitly identified in the 2006 PEA, the PEA did contemplate that future seismic activity, such as BPXA's, could occur. NMFS believes the range of alternatives and environmental effects considered in the 2006 PEA, combined with NMFS' SEA for the 2008 season are sufficient to meet the agency's NEPA responsibilities. In addition, the 2008 SEA includes new information obtained since the 2006 Final PEA was issued, including updated information on cumulative impacts. NMFS also includes a new section in the 2008 SEA, which provides a review of the 2006 and 2007 monitoring reports. As a result of this review and analysis, NMFS has determined that it was not necessary to prepare an EIS for the issuance of an IHA to BPXA in 2008 for seismic activity in the Beaufort Sea but that preparation of an SEA and issuance of a FONSI were sufficient under NEPA.
NMFS has determined that it is not necessary for BPXA to monitor a 120-dB safety radius, as stated in several of the preceding responses. BPXA will establish a 160-dB safety radius to monitor for Level B harassment exposures; however, no serious injury or mortality is expected of any marine mammal species that enters this radius. Because BPXA will be conducting its activities in shallow water, inshore of the barrier islands, sound is not expected to propagate as far as it would outside the islands. The islands are also expected to absorb the majority of the sound produced by the airguns.
NMFS responded to comments submitted regarding the 2006 PEA in Appendix D of that document and will not repeat those comments and responses here. The comments submitted by the NVPH for the AES proposed IHA regarding NEPA issues are addressed in comments 41-43 in this document.
In regards to the NVPH statement, “The impacts of a single shallow hazard survey are comparable to the impacts NMFS anticipated from a single 2D or 3D seismic survey,” NMFS notes that BPXA's seismic program is not a shallow hazards survey but a 3D seismic survey conducted in shallow water, inside the barrier islands. This OBC survey is similar to those conducted for BPXA by Western Geophysical in the late 1990s at the nearby Northstar Prospect (see Richardson, W.J. (ed) 1997, 1998, 1999, 2000a, and 2000b for acoustic measurements and marine mammal impact assessments from OBC surveys during 1996 through 2000, respectively). As a result of these previous acoustic propagation measurements, NMFS believes that the sound propagation characteristics for the 880 in
The Beaufort Sea supports a diverse assemblage of marine mammals, including bowhead, gray, beluga, killer, minke, fin, and humpback whales, harbor porpoises, ringed, spotted, and bearded seals, polar bears, and walruses. These latter two species are under the jurisdiction of the USFWS and are not discussed further in this document. A separate LOA was issued to BPXA by the USFWS specific to walruses and polar bears.
A total of three cetacean species and four pinniped species are known to occur or may occur in the Beaufort Sea in or near the Liberty area (see Table 1 in BPXA's application for information on habitat and abundance). Of these species, only the bowhead whale is listed as endangered under the ESA. The narwhal, killer whale, harbor porpoise, minke whale, fin whale, and humpback whale could occur in the Beaufort Sea, but each of these species is rare or extralimital and unlikely to be encountered in the Liberty area.
The marine mammal species expected to be encountered most frequently throughout the seismic survey in the Liberty area is the ringed seal. The bearded and spotted seal can also be observed but to a far lesser extent than the ringed seal. Presence of beluga, bowhead, and gray whales in the shallow water environment within the barrier islands is possible but expected to be very limited because bowhead and beluga whales are mostly found farther east in the Mackenzie Delta, Camden Bay, and other parts of the Canadian Beaufort Sea in July and August. Also, during this time, gray whales are mostly found in the northern Bering and Chukchi Seas and are rarely seen in the project area. Descriptions of the biology, distribution, and population status of the marine mammal species under NMFS' jurisdiction can be found in BPXA's application, the 2007 NMFS/MMS DPEIS, and the NMFS SARs. The Alaska SAR is available at:
The effects of sounds from airguns might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, and temporary or permanent hearing impairment or non-auditory effects (Richardson
(1) The noise may be too weak to be heard at the location of the animal (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both);
(2) The noise may be audible but not strong enough to elicit any overt behavioral response;
(3) The noise may elicit reactions of variable conspicuousness and variable relevance to the well being of the marine mammal; these can range from temporary alert responses to active avoidance reactions such as vacating an area at least until the noise event ceases;
(4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent, and unpredictable in occurrence, and associated with situations that a marine mammal perceives as a threat;
(5) Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise;
(6) If mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and
(7) Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any TTS in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage.
The notice of the proposed IHA (73 FR 24236, May 2, 2008) included a discussion of the effects of sounds from airguns on mysticetes, odontocetes, and pinnipeds, including tolerance, masking, behavioral disturbance, hearing impairment and other physical effects, and non-auditory physiological effects. Additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels can be found in Appendix C of BPXA's application.
The notice of proposed IHA also included a discussion of the effects of pinger signals on marine mammals. Because of the low power output and the weaker signals produced by the pingers than by the airguns, NMFS believes it unlikely that marine mammals will be exposed to pinger signals at levels at or above those likely to cause harassment.
The anticipated harassments from the activities described above may involve temporary changes in behavior. There is no evidence that the planned activities could result in serious injury or mortality, for example due to collisions with vessels, strandings, or from sound levels high enough to result in PTS. Disturbance reactions, such as avoidance, are very likely to occur among marine mammals in the vicinity of the source vessel. The mitigation and monitoring measures proposed to be implemented (see below) during this survey are based on Level B harassment
The notice of the proposed IHA (73 FR 24236, May 2, 2008) included an in-depth discussion of the methodology used by BPXA to estimate incidental take by harassment by seismic and the numbers of marine mammals that might be affected in the seismic acquisition activity area in the Beaufort Sea. Additional information was included in BPXA's application. A summary is provided here.
The density estimates for the species covered under this proposed IHA are based on the estimates by Moore
In its application, BPXA provides estimates of the number of potential “exposures” to sound levels greater than 160 dB re 1 μPa (rms) and greater than 170 dB. BPXA states that while the 160-dB criterion applies to all species of cetaceans and pinnipeds, BPXA believes that a 170-dB criterion should be considered appropriate for delphinids and pinnipeds, which tend to be less responsive, whereas the 160-dB criterion is considered appropriate for other cetaceans (LGL, 2007). However, NMFS has noted in the past that it is current policy to estimate Level B harassment takes based on the 160-dB criterion for all species.
Expected density of marine mammals in the survey area of operation and area of influence are based on best available data. Density data derived from studies conducted in or near the proposed survey area are used for calculations, where available. When estimates were derived from data collected in regions, habitats, or seasons that differ from the proposed seismic survey, adjustments to reported population or density estimates were made to account for these differences insofar as possible (see Section 6.1 of BPXA's application).
The anticipated area to be ensonified by levels of greater than 160 dB re 1 Pa is a combination of the area covered by the approximately 3,219 km (2,000 mi) survey lines and the estimated safety radii. The close spacing of neighboring vessel tracklines within the planned seismic survey area results in a limited area exposed to sounds of 160 dB or greater, while much of that area is exposed repeatedly.
The duration of the seismic data acquisition in the Liberty area is estimated to be approximately 40 days, based on a continuous 24-hr operation. Therefore, the nearshore marine mammal densities for the summer period have been applied to 95 percent of the total trackline kilometers. The fall densities have been applied to the remaining 5 percent.
Most marine mammals in the Alaskan Beaufort Sea are migratory, occupying different habitats and/or locations during the year. The densities can therefore vary greatly within seasons and for different locations. For the purpose of this IHA request, different densities have been derived for the summer (late July through August) and the fall (September through early October). In addition to seasonal variation in densities, spatial differentiation is also an important factor for marine mammal densities, both in latitudinal and longitudinal gradient. Taking into account the size and location of the proposed seismic survey area and the associated area of influence, only the nearshore zone (defined as the area between the shoreline and the 50 m, 164 ft, line of bathymetry) in the western part of the Beaufort Sea (defined as the area west of 141° W.) is relevant for the density calculations. If the best available density data cover other zones than the nearshore zone or areas outside the western part of the Beaufort Sea, densities were derived based on expert judgment.
Because the available density data are not always representative for the area of interest, and correction factors were not always known, there is some uncertainty in the data and assumptions used in the density calculations. To provide allowance for these uncertainties, maximum estimates of the numbers potentially affected have been provided in addition to average densities, although NMFS relies on the average density estimate to derive potential exposure estimates. The marine mammal densities presented are believed to be close to, and in most cases, higher than the densities that are expected to be encountered during the survey.
The densities of beluga and bowhead whales present in the Beaufort Sea are expected to vary by season and location. During the early and mid-summer, most belugas and bowheads are found in the Canadian Beaufort Sea or adjacent areas. During fall, both species migrate through the Alaskan Beaufort Sea, sometimes interrupting their migration to feed. However, since survey activity will cease prior to the fall migration period, few cetaceans are expected to be taken. Additional species specific information for both bowhead and belugas was contained in the notice of proposed IHA.
Pinnipeds in the polar regions are mostly associated with sea ice and most census methods count pinnipeds when they are hauled out on the ice, not in open-water where seismic surveys are conducted. Consequently, the density and potential take (exposure) numbers for seals in the Beaufort Sea will likely overestimate the number of seals that would likely be encountered and/or exposed to seismic airguns because only animals in the water near the survey area would be exposed to the seismic activity sound sources. Because seals would be more widely dispersed at this time of the year, animal densities would be less than when seals are concentrated on and near the ice. However, to account for the proportion of animals present but not hauled out (availability bias) or seals present on the ice but missed (detection bias), a correction factor should be applied to the “raw” counts. This correction factor is very dependent on the behavior of each species. To estimate the proportion of ringed seals visible resting on the ice surface, radio tags were placed on seals during the spring months during 1999-2003 (Kelly
Impacts on marine mammals from the planned seismic survey focus on the
Table 3 in BPXA's application and Table 1 here outline the estimated distances for specified received levels from airgun arrays with total discharge volumes of 440 in
The distances from the source to specific received sound levels as summarized in Table 3 of the application and Table 1 above are estimates used for the purpose of this IHA request. These estimated distances will be verified with field measurements at the start of the survey.
The radii associated with received sound levels of 160 and/or 170 dB re 1 μPa (rms) or higher are used to calculate the number of potential marine mammal “exposures” to sounds that have the potential to impact their behavior. The 160-dB criterion is applied for all species, and for pinnipeds additional calculations were made for the 170-dB criterion.
The potential number of each species that might be exposed to received levels of 160 and 170 dB re 1 μPa (rms) or greater is calculated by multiplying:
• The expected species density as provided in Table 2 of BPXA's application; by
• The anticipated area to be ensonified to that level during airgun operations.
The area expected to be ensonified was determined by entering the seismic survey lines into a MapInfo Geographic Information System (GIS). GIS was then used to identify the relevant areas by “drawing” the applicable 160-dB buffer from Table 3 in the application or Table 1 above around each seismic source line and then to calculate the total area within the buffers. This method avoids the large overlap of buffer zones from each seismic source line and hence an overestimation of the potential number of marine mammals exposed.
The following table indicates the authorized take levels for each species, as well as the estimated percent of the population that these numbers constitute. Only small numbers of all species are expected to be taken by harassment during the proposed OBC seismic survey, with less than 1 percent of the population of each species authorized for take by Level B (behavioral) harassment.
Impacts of seismic sounds on cetaceans are generally expected to be restricted to avoidance of a limited area around the seismic operation and short-term changes in behavior, falling within the MMPA definition of Level B harassment. The authorized harassment for each species is based on the estimated average numbers exposed to 160 dB re 1 μPa (rms) or greater from an airgun array operating at 4 m (13 ft) depth.
The estimated numbers of cetaceans and pinnipeds potentially exposed to sound levels sufficient to cause behavioral disturbance are very low percentages of the regional stock or population size in the Bering-Chukchi-Beaufort seas. For the bowhead whale, a species listed as endangered under the ESA, BPXA's estimates include approximately 2 bowheads. This is approximately 0.02 percent of the estimated 2008 Bering-Chukchi-Beaufort population of 13,330 (based on a population size of 10,545 in 2001 and an annual population growth of 3.4 percent, cf Table 1 in the application). Although the best available data suggest that beluga whales are not likely to be present in or near the Liberty area, it is possible that some individuals might be observed. Belugas also show aggregate behavior, and so there is the unlikely event that if belugas appear in this area it might be in a larger group. Even so, this larger number still constitutes a very low percentage of the estimated regional stock or population size (see Table 6 in the application).
The many reported cases of apparent tolerance by cetaceans of seismic operations, vessel traffic, and some other human activities show that co-existence is possible. Mitigation measures such as controlled speed, look outs, non-pursuit, shutdowns or power-downs when marine mammals are seen within defined ranges, and avoiding migration pathways when animals are likely most sensitive to noise will further reduce short-term reactions, and minimize any effects on hearing sensitivity. Additionally, the fact that BPXA does not intend to conduct any activities during or after the fall migration period further reduces the potential for effects to cetaceans. In all cases, the effects are expected to be short-term, with no lasting biological consequence. Subsistence issues are addressed below.
From the few pinniped species likely to be encountered in the study area, the ringed seal is by far the most abundant marine mammal that could be encountered. The estimated number of ringed seals potentially exposed to airgun sounds at received levels of 160 dB re 1 μPa (rms) during the seismic survey represent 0.06 percent of the Bering-Chukchi-Beaufort stock, and these are even smaller portions for bearded and spotted seals (see Table 6 in the application and Table 2 above). It is probable that at this received level, only a small percentage of these seals would actually experience behavioral disturbance, if any at all. The short-term exposures of pinnipeds to airgun sounds are not expected to result in any long-term negative consequences for the individuals or their stocks. Additionally, since these numbers do not take into account that mitigation and monitoring measures will be implemented during the survey (see below), the numbers should in fact be even lower.
The seismic survey will not result in any permanent impact on habitats used by marine mammals or to the food sources they utilize. The activities will be of short duration in any particular area at any given time; thus any effects would be localized and short-term. The main impact issue associated with the activity will be temporarily elevated sound levels and the associated direct effects on marine mammals, as discussed above.
During the seismic study only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term, and fish would return to their pre-disturbance behavior once the seismic activity ceases. Thus, the survey would have little, if any, impact on the abilities of marine mammals to feed in the area where seismic work is planned.
Some mysticetes, including bowhead whales, feed on concentrations of zooplankton. Some feeding bowhead whales may occur in the Alaskan Beaufort Sea in July and August, and others feed intermittently during their westward migration in September and October (Richardson and Thomson [eds.], 2002; Lowry
The disturbance and potential displacement of marine mammals by sounds from seismic activities are the principal concerns related to subsistence use of the area. Subsistence remains the basis for Alaska Native culture and community. Marine mammals are legally hunted in Alaskan waters by coastal Alaska Natives. In rural Alaska, subsistence activities are often central to many aspects of human existence, including patterns of family life, artistic expression, and community religious and celebratory activities. The
In the Beaufort Sea, bowhead and beluga whales are the species primarily harvested during the open water season, when the seismic survey is planned. Bowhead whale hunting is the key activity in the subsistence economies of Barrow and two smaller communities, Nuiqsut and Kaktovik. The whale harvests have a great influence on social relations by strengthening the sense of Inupiat culture and heritage in addition to reinforcing family and community ties. Barrow residents focus hunting efforts on bowhead whales during the spring but can also conduct bowhead hunts in the fall. The communities of Nuiqsut and Kaktovik engage only in the fall bowhead hunt. Few belugas are present or harvested by Nuiqsut or Kaktovik.
The Nuiqsut subsistence hunt for bowhead whales has the potential to be impacted by the seismic survey due to its proximity to Cross Island. Around late August, the hunters from Nuiqsut establish camps on Cross Island from where they undertake the fall bowhead whale hunt. The hunting period starts normally in early September and may last as late as mid-October, depending mainly on ice and weather conditions and the success of the hunt. Most of the hunt occurs offshore in waters east, north, and northwest of Cross Island where bowheads migrate and not inside the barrier islands (Galginaitis, 2007). Hunters prefer to take bowheads close to shore to avoid a long tow, but Braund and Moorehead (1995) report that crews may (rarely) pursue whales as far as 80 km (50 mi) offshore. BPXA's seismic survey will take place within the barrier islands in very shallow water (<10 m, 33 ft). BPXA discussed potential concerns with the affected communities (see “POC” section) throughout the early part of 2008 and recently signed a CAA with the AEWC and affected community whaling captains. One of the agreements reached by the parties to reduce impacts on subsistence was that BPXA will cease all activity by August 25.
Ringed seals are hunted mainly from October through June. Hunting for these smaller mammals is concentrated during the ice season because of larger availability of seals on the ice. In winter, leads and cracks in the ice off points of land and along the barrier islands are used for hunting ringed seals. Although ringed seals are available year-round, the seismic survey will not occur during the primary period when these seals are typically harvested.
The more limited seal harvest that takes place during the open water season starts around the second week of June. Hunters take boats on routes in the Colville River and much of Harrison Bay. The main seal hunt occurs in areas far west from the Liberty area, so impacts on the subsistence seal hunt are not expected.
Potential impacts on subsistence uses of marine mammals will be mitigated by application of the procedures established in the CAA between the seismic operators, the AEWC, and the Captains' Associations of Barrow, Nuiqsut, Kaktovik, Wainwright, Pt. Lay, and Pt. Hope. The CAA curtails the times and locations of seismic and other noise producing sources during times of active bowhead whale scouting and actual whaling activities within the traditional subsistence hunting areas of the potentially affected communities.
Regulations at 50 CFR 216.104(a)(12) require IHA applicants for activities that take place in Arctic waters to provide a POC or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes. BPXA negotiated a POC in the form of a CAA with representatives of the communities of Nuiqsut and Kaktovik, the AEWC, and the NSB for the 2008 Liberty seismic survey in Foggy Island Bay, Beaufort Sea. BPXA worked with the people of these communities and organizations to identify and avoid areas of potential conflict. Meetings that have taken place prior to the survey include:
• October 25, 2007: Meeting with AEWC and NSB representatives during the AEWC convention;
• October 29, 2007: Meeting with NSB Wildlife Group to provide updates of the survey and to obtain information on their opinions and views on mitigation and monitoring requirements.
• February 7, 2008: Meeting in Deadhorse with Nuiqsut and Kaktovik whaling captains to provide an introduction to the planned 2008 Liberty seismic survey.
• February 28, 2008: First Annual Programmatic CAA Meeting with AEWC commissioners and community representatives from the affected villages in Barrow.
• April 2008: As in previous years, BPXA participated in the “open water peer/stakeholder review meeting” convened by NMFS in Anchorage in mid-April 2008, where representatives of the AEWC and NSB also participated.
• May 13, 2008: Meeting with the NSB DWM to discuss monitoring plans and project concerns.
• June 18, 2008: Two meetings in Nuiqsut to provide a survey overview to the whaling captains and representatives from the community.
The CAA covers the phases of BPXA's seismic survey planned to occur in July and August. This plan identifies measures that will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses and to ensure good communication between BPXA (including the seismic team leads), native communities along the coast, and subsistence hunters at sea.
It should be noted that NMFS must make a determination under the MMPA that an activity would not have an unmitigable adverse impact on the subsistence needs for marine mammals. While this includes usage of both cetaceans and pinnipeds, the primary impact by seismic activities is expected to be impacts from noise on bowhead whales during its westward fall feeding and migration period in the Beaufort Sea. NMFS has defined unmitigable adverse impact as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met (50 CFR 216.103).
Based on the signed CAA, the mitigation and monitoring measures included in the IHA (see next sections), and the project design itself, NMFS has determined that there will not be an unmitigable adverse impact on subsistence uses from BPXA's activities.
This section describes the measures that have been included in the survey design and those that are required to be implemented during the survey.
Mitigation measures to reduce any potential impact on marine mammals that have been considered and included in the planning and design phase are as follows:
• The area for which seismic data is required, i.e., the well path from SDI to the Liberty Prospect, has been minimized by re-analyzing and re-
• The total airgun discharge volume has been reduced to the minimum volume needed to obtain the required data. The total volume for the proposed survey is 880 in
• Two seismic source vessels will be used simultaneously (alternating their shots) to minimize the total survey period. This will allow the survey to be completed prior to the start of the whale fall migration and whaling season.
The seismic survey will take place inside the barrier islands in nearshore shallow waters. The survey period will be July-August, prior to the bowhead whale migration season. It is unlikely that whales will be present in the nearshore zone where the seismic survey is taking place, and if they are present, the numbers are expected to be low. The main marine mammal species to be expected in the area is the ringed seal. With the required mitigation measures (see below), any effect on individuals is expected to be limited to short-term behavioral disturbance with a negligible impact on the affected species or stock.
The mitigation measures are an integral part of the survey in the form of specific procedures, such as: (1) speed and course alterations; (2) power-down, ramp up, and shutdown procedures; and (3) provisions for poor visibility conditions. For the implementation of these measures, it is important to first establish and verify the distances of various received levels that function as safety zones and second to monitor these safety zones and implement mitigation measures where required.
Greeneridge Sciences, Inc. estimated for BPXA the distances from the 880 in
Received sound levels will be measured as a function of distance from the array prior to the start of the survey. This will be done for: (a) two 440 in
MMOs on board the vessels play a key role in monitoring the safety zones and implementing the mitigation measures. Their primary role is to monitor marine mammals near the seismic source vessel during all daylight airgun operations and during any nighttime start-up of the airguns. These observations will provide the real-time data needed to implement the key mitigation measures described below. When marine mammals are observed within or about to enter designated safety zones, airgun operations will be powered down (or shut down if necessary) immediately. These safety zones are defined as the distance from the source to a received level of 190 dB for pinnipeds and 180 dB for cetaceans. A specific dedicated vessel monitoring program to detect aggregations of baleen whales (12 or more) within the 160-dB zone or 4 or more bowhead whale cow-calf pairs within the 120-dB zone is not considered applicable here as none of these situations are expected in the survey based on the estimated safety zones, as well as the time of year that activities will occur.
If a marine mammal (in water) is detected outside the safety radius and, based on its position and the relative motion, is likely to enter the safety radius, the vessel's speed and/or direct course will be changed in a manner that does not compromise safety requirements. The animal's activities and movements relative to the seismic vessel will be closely monitored to ensure that the individual does not approach within the safety radius. If the mammal appears likely to enter the safety radius, further mitigative actions will be taken, i.e., either further course alterations or power-down or shutdown of the airgun(s).
A power-down involves decreasing the number of airguns in use such that the radii of the 190-dB and 180-dB zones are decreased to the extent that observed marine mammals are not in the applicable safety zone. Situations that would require a power-down are listed below.
(1) When the vessel is changing from one source line to another, one airgun or a reduced number of airguns is operated. The continued operation of one airgun or a reduced airgun array is intended to: (a) alert marine mammals to the presence of the seismic vessel in the area and (b) retain the option of initiating a ramp up to full operations under poor visibility conditions.
(2) If a marine mammal is detected outside the safety radius but is likely to enter the safety radius, and if the vessel's speed and/or course cannot be changed to avoid the animal from entering the safety zone. As an alternative to a complete shutdown, the airguns may be powered- down before the animal is within the safety zone.
(3) If a marine mammal is already within the safety zone when first detected, the airguns may be powered-down immediately if this is a reasonable alternative to a complete shutdown. This decision will be made by the MMO and can be based on the results obtained from the acoustic measurements for the establishments of safety zones.
Following a power-down, operation of the full airgun array will not resume until the marine mammal has cleared the safety zone. The animal will be considered to have cleared the safety zone if it:
(1) Is visually observed to have left the safety zone;
(2) Has not been seen within the zone for 15 min in the case of small odontocetes and pinnipeds; or
(3) Has not been seen within the zone for 30 min in the case of mysticetes (large odontocetes do not occur within the study area).
A shutdown procedure involves the complete turn off of all airguns. Ramp-up procedures will be followed during resumption of full seismic operations. The operating airgun(s) will be shut down completely during the following situations:
(1) If a marine mammal approaches or enters the applicable safety zone, and a power- down is not practical or adequate to reduce exposure to less than 190 dB (rms; pinnipeds) or 180 dB (rms; cetaceans).
(2) If a marine mammal approaches or enters the estimated safety radius
Airgun activity will not resume until the marine mammal has cleared the safety radius. The animal will be considered to have cleared the safety radius as described above for power-down procedures.
A ramp-up procedure will be followed when the airgun array begins operating after a specified duration with no or reduced airgun operations. The specified duration depends on the speed of the source vessel, the size of the airgun array that is being used, and the size of the safety zone, but is often about 10 min.
NMFS requires that, once ramp-up commences, the rate of ramp-up be no more than 6 dB per 5 min period. Ramp-up will begin with the smallest airgun, in this case, 70 in
(1) If, after a complete shutdown, the entire 180 dB safety zone has been visible for at least 30 min prior to the planned start of the ramp-up in either daylight or nighttime. If the entire safety zone is visible with vessel lights and/or night vision devices, then ramp-up of the airguns from a complete shutdown may occur at night.
(2) If one airgun has operated during a power-down period, ramp-up to full power will be permissible at night or in poor visibility, on the assumption that marine mammals will either be alerted by the sounds from the single airgun and could move away or may be detected by visual observations.
(3) If no marine mammals have been sighted within or near the applicable safety zone during the previous 15 min in either daylight or nighttime, provided that the entire safety zone was visible for at least 30 min.
BPXA plans to conduct 24-hr operations. Regarding nighttime observations, note that there will be no periods of total darkness during the survey. There will be 24 hrs of daylight each day for the first two weeks, after which, nautical twilight will set in for 1-7.5 hrs at a time each day. MMOs are proposed not to be on duty during ongoing seismic operations at night, given the very limited effectiveness of visual observation at night. At night, bridge personnel will watch for marine mammals (insofar as practical) and will call for the airguns to be shut down if marine mammals are observed in or about to enter the safety zones. If a ramp-up procedure needs to be conducted following a full shutdown at night, two MMOs need to be present to monitor for marine mammals near the source vessel and to determine if proper conditions are met for a ramp-up. The proposed provisions associated with operations at night or in periods of poor visibility include:
(1) During any nighttime operations, if the entire 180-dB safety radius is visible using vessel lights and/or night vision devices, then start of a ramp-up procedure after a complete shutdown of the airgun array may occur following a 30-min period of observation without sighting marine mammals in the safety zone.
(2) If during foggy conditions or darkness (which may be encountered starting in late August), the full 180-dB safety zone is not visible, the airguns cannot commence a ramp-up procedure from a full shutdown.
(3) If one or more airguns have been operational before nightfall or before the onset of foggy conditions, they can remain operational throughout the night or foggy conditions. In this case, ramp-up procedures can be initiated, even though the entire safety radius may not be visible, on the assumption that marine mammals will be alerted by the sounds from the single airgun and have moved away.
BPXA considered the use of PAM in conjunction with visual monitoring to allow detection of marine mammals during poor visibility conditions, such as fog. The use of PAM for this specific survey might not be very effective because the species most commonly present (ringed seal) is not vocal during this time period.
BPXA will sponsor marine mammal monitoring during the Liberty seismic survey in order to implement the required mitigation measures that require real-time monitoring, to satisfy the monitoring requirements of the IHA, and to meet any monitoring requirements agreed to as part of the POC/CAA. The monitoring plan is described below.
The monitoring work described here is planned as a self-contained project independent of any other related monitoring projects that may occur simultaneously in the same area. Provided that an acceptable methodology and business relationship can be worked out in advance, BPXA is prepared to work with other energy companies in its efforts to manage, understand, and fully communicate information about environmental impacts related to its activities.
There will be three MMOs on each source vessel during the entire survey. These vessel-based MMOs will monitor marine mammals near the seismic source vessels during all daylight hours and during any ramp-up of airguns at night. In case the source vessels are not shooting but are involved in the deployment or retrieval of receiver cables, the MMOs will remain on the vessels and will continue their observations. The main purpose of the MMOs is to monitor the established safety zones and to implement the mitigation measures described previously in this document.
The main objectives of the visual marine mammal monitoring from the seismic source vessels are as follows:
(1) To form the basis for implementation of mitigation measures during the seismic operation (e.g., course alteration, airgun power-down, shutdown and ramp-up);
(2) To obtain information needed to estimate the number of marine mammals potentially affected, which must be reported to NMFS within 90 days after completion of the 2008 seismic survey program;
(3) To compare the distance and distribution of marine mammals relative to the source vessel at times with and without seismic activity; and
(4) To obtain data on the behavior and movement patterns of marine mammals observed and compare those at times with and without seismic activity.
Note that potential to successfully achieve objectives 3 and 4 is subject to the number of animals observed during the survey period.
Two MMOs will also be placed on the mothership the
At least one observer will monitor for marine mammals at any time during daylight hours and nighttime ramp-ups after a full shutdown (and if the entire safety zone is visible). There will be no periods of darkness until mid-August. Two MMOs will be on duty whenever feasible and practical, as the use of two simultaneous observers will increase the early detectability of animals present near the safety zone of the source vessels. MMOs will be on duty in shifts of maximum 4 hrs, but the exact shift regime will be established by the lead MMO in consultation with each MMO team member.
Before the start of the seismic survey, the lead MMO will explain the function of the MMOs, their monitoring protocol, and mitigation measures to be implemented to the crew of the seismic source vessels
Both the
Acoustic measurements and monitoring will be conducted for three different purposes: (1) To establish the distances of the safety zones; (2) to measure source levels (i.e., received levels referenced to 1 m (3 ft) from the sound source) of each vessel of the seismic fleet to obtain knowledge on the sounds generated by the vessels; and (3) to measure received levels offshore of the barrier islands from the seismic sound source.
The results of these acoustic measurements will be used to re-define the safety zone distances for received levels of 190 dB, 180 dB, and 160 dB. The 160-dB received level is monitored to avoid any behavioral disturbances of marine mammals that may be in the area. The distances of the received levels as a function of the different sound sources (varying discharge volumes) will be used to guide power-down and ramp-up procedures. A preliminary report describing the methodology and results of the measurement for at least the 190-dB and 180-dB (rms) safety zones will be submitted to NMFS within 72-hrs of completion of the measurements.
During the July and August timeframe, no bowhead whales are expected to be present in or close to the survey area, so no aerial surveys are planned or required for BPXA's activity.
A report on the preliminary results of the acoustic verification measurements, including as a minimum the measured 190- and 180-dB (rms) radii of the airgun sources, will be submitted within 72-hrs after collection of those measurements at the start of the field season. This report will specify the distances of the safety zones that were adopted for the survey.
A report on BPXA's activities and on the relevant monitoring and mitigation results will be submitted to NMFS within 90 days after the end of the seismic survey. The report will describe the operations that were conducted, the measured sound levels, and the cetaceans and seals that were detected near the operations. The report will be submitted to NMFS, providing full documentation of methods, results, and interpretation pertaining to all acoustic and vessel-based marine mammal monitoring. The 90-day report will summarize the dates and locations of seismic operations, and all whale and seal sightings (dates, times, locations, activities, associated seismic survey activities). Marine mammal sightings will be reported at species level,
Additionally, BPXA participates in and contributes money to the Joint Industry Studies Program. This includes coastal aerial surveys in the Chukchi Sea, acoustic “net” arrays in the Chukchi Sea, and acoustic arrays in the Beaufort Sea. These studies aid in the gathering of data on abundance and distribution of marine mammals in the Chukchi and Beaufort Seas.
In November, 2007, Shell (in coordination and cooperation with other Arctic seismic IHA holders) released a final, peer-reviewed edition of the 2006 Joint Monitoring Program in the Chukchi and Beaufort Seas, July-November 2006 (LGL, 2007). This report is available for downloading on the NMFS website (see
Following the 2008 open water season, a comprehensive report describing the proposed acoustic, vessel-based, and aerial monitoring programs will be prepared. The 2008 comprehensive report will describe the methods, results, conclusions and limitations of each of the individual data sets in detail. The report will also integrate (to the extent possible) the studies into a broad based assessment of industry activities and their impacts on marine mammals in the Beaufort Sea during 2008. The 2008 report will form the basis for future monitoring efforts and will establish long term data sets to help evaluate changes in the Beaufort/Chukchi Sea ecosystems. The report will also incorporate studies being conducted in the Chukchi Sea and will attempt to provide a regional synthesis of available data on industry activity in offshore areas of northern Alaska that may influence marine mammal density, distribution, and behavior.
This comprehensive report will consider data from many different sources including two relatively different types of aerial surveys; several types of acoustic systems for data collection (net array, PAM, vertical array, and other acoustical monitoring systems that might be deployed), and vessel based observations. Collection of comparable data across the wide array of programs will help with the synthesis of information. However, interpretation of broad patterns in data from a single year is inherently limited. Much of the 2008 data will be used to assess the efficacy of the various data collection methods and to establish protocols that will provide a basis for integration of the data sets over a period of years.
NMFS has previously consulted under section 7 of the ESA on the issuance of IHAs for seismic survey activities in the Beaufort and Chukchi Seas. NMFS issued a Biological Opinion on June 16, 2006, regarding the effects of this action on ESA-listed species and critical habitat under the jurisdiction of NMFS. The Opinion concluded that this action is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. A copy of the Biological Opinion is available at:
In 2006, the MMS prepared Draft and Final PEAs for seismic surveys in the Beaufort and Chukchi Seas. NMFS was a cooperating agency in the preparation of the MMS PEA. On November 17, 2006 (71 FR 66912), NMFS and MMS announced that they were preparing a DPEIS in order to assess the impacts of MMS' annual authorizations under the Outer Continental Shelf Lands Act to the U.S. oil and gas industry to conduct offshore geophysical seismic surveys in the Chukchi and Beaufort Seas off Alaska and NMFS' authorizations under the MMPA to incidentally harass marine mammals while conducting those surveys.
On March 30, 2007 (72 FR 15135), the Environmental Protection Agency (EPA) noted the availability for comment of the NMFS/MMS DPEIS. Based upon several verbal and written requests to NMFS for additional time to review the DPEIS, EPA has twice announced an extension of the comment period until July 30, 2007 (72 FR 28044, May 18, 2007; 72 FR 38576, July 13, 2007). Because NMFS has been unable to complete the PEIS, it was determined that the 2006 PEA would need to be updated in order to meet NMFS' NEPA requirement. This approach was warranted as it was reviewing five proposed Arctic seismic survey IHAs for 2008, well within the scope of the PEA's eight consecutive seismic surveys. To update the 2006 Final PEA, NMFS prepared a SEA which incorporates by reference the 2006 Final PEA and other related documents.
Based on the information provided in BPXA's application and addendum, public comments received on BPXA's application, the proposed IHA notice (73 FR 24236, May 2, 2008), this document, the 2006 and 2007 Comprehensive Monitoring Reports by Shell Oil Inc. and others, public review of BPXA's mitigation and monitoring program in Anchorage, Alaska, in April, 2008, and the analysis contained in the MMS Final PEA and NMFS' 2008 Final SEA, NMFS has determined that the impact of BPXA conducting seismic surveys in the Liberty Prospect, Foggy Island Bay, Beaufort Sea in 2008 will have a negligible impact on the affected species or stock of marine mammals and that there will not be an unmitigable adverse impact on their availability for taking for subsistence uses provided the mitigation measures required under the authorization are implemented. Moreover, as explained below, NMFS has determined that only small numbers of marine mammals of a species or population stock would be taken by BPXA's seismic activities. The impact of conducting a seismic survey in this area will result, at worst, in a temporary modification in behavior of small numbers of the affected marine mammal species.
NMFS has determined that the short-term impact of conducting seismic surveys in the Liberty Prospect area of the U.S. Beaufort Sea may result, at worst, in a temporary modification in behavior by certain species of marine mammals. While behavioral and avoidance reactions may be made by these species in response to the resultant noise, this behavioral change is expected to have a negligible impact on the affected species or stocks. In addition, no take by death and/or serious injury is anticipated or authorized, and the potential for temporary or permanent hearing impairment will be avoided through the incorporation of the mitigation and monitoring measures described above.
For reasons explained in this document, NMFS does not expect that any marine mammals will be seriously injured or killed during BPXA's seismic survey activities, even if some animals are not detected prior to entering the 180-dB (cetacean) and 190-dB (pinniped) safety zones. These criteria
For whales exposed to single short pulses (such as seismic), the TTS threshold appears to be a function of the energy content of the pulse. As noted in this document, the received level of a single seismic pulse might need to be >210 dB re 1 Pa rms (221-226 dB pk-pk) in order to produce brief, mild TTS. Exposure to several seismic pulses at received levels near 200-205 dB (rms) might result in slight TTS in a small odontocete, assuming the TTS threshold is a function of the total received pulse energy. Seismic pulses with received levels of 200-205 dB or more are usually restricted to a radius of no more than 200 m (656 ft) around a seismic vessel operating a large array of airguns. As a result, NMFS believes that injury or mortality is highly unlikely due to the injury zone being close to the airgun array (astern of the vessel), the establishment of conservative safety zones and shutdown requirements (see “Mitigation Measures”) and the fact that there is a strong likelihood that baleen whales (bowhead and gray whales) would avoid the approaching airguns (or vessel) before being exposed to levels high enough for there to be any possibility of onset of TTS.
For pinnipeds, information indicates that for single seismic impulses, sounds would need to be higher than 190 dB rms for TTS to occur while exposure to several seismic pulses indicates that some pinnipeds may incur TTS at somewhat lower received levels than do small odontocetes exposed for similar durations. This indicates to NMFS that the 190-dB safety zone provides a sufficient buffer to prevent PTS in pinnipeds.
In conclusion, NMFS believes that a marine mammal within a radius of <100 m (<328 ft) around a typical large array of operating airguns (larger than that to be used by BPXA) may be exposed to a few seismic pulses with levels of >205 dB, and possibly more pulses if the marine mammal moved with the seismic vessel. However, there is no specific evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with large arrays of airguns. The array to be used by BPXA is of moderate size. Given the possibility that marine mammals close to an airgun array might incur TTS, there has been further speculation about the possibility that some individuals occurring very close to airguns might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage in terrestrial mammals. Relationships between TTS and PTS thresholds have not been studied in marine mammals, but are assumed to be similar to those in humans and other terrestrial mammals.
While the number of potential incidental harassment takes will depend on the distribution and abundance of marine mammals (which vary annually due to variable ice conditions and other factors) in the area of seismic operations, the number of potential harassment takings is estimated to be small (less than one percent of any of the estimated population sizes) and has been mitigated to the lowest level practicable through incorporation of the measures mentioned previously in this document.
In addition, NMFS has determined that the location for seismic activity in the Beaufort Sea meets the statutory requirement for the activity to identify the “specific geographical region” within which it will operate. With regards to dates for the activity, BPXA intends to work beginning the second week of July and ceasing activity on August 25.
Finally, NMFS has determined that the seismic activity by BPXA in the Beaufort Sea in 2008 will not have an unmitigable adverse impact on the availability of marine mammals for subsistence uses. This determination is supported by the information in this
As a result of these determinations, NMFS has issued an IHA to BPXA for conducting a seismic survey in the Liberty Prospect, Foggy Island Bay, Beaufort Sea in 2008, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Corporation for National and Community Service.
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The Corporation for National and Community Service (hereinafter the “Corporation”), has submitted a public information collection request (ICR) entitled Learn and Serve America Application Instructions to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13), (44 U.S.C. Chapter 35). A copy of the ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Cara Patrick, 202-606-6905 (
Comments may be submitted, identified by the title of the information collection activity, to the Office of information and Regulatory Affairs, Attn: Ms. Katherine Astrich,
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The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before September 15, 2008.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before September 15, 2008.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes the notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before August 14, 2008.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Notice inviting applications for a new award for fiscal year (FY) 2008.
Additional information on the RERC program can be found at:
This priority is:
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The maximum amount includes direct and indirect costs.
The Department is not bound by any estimates in this notice.
1.
An RERC must be operated by or in collaboration with (a) one or more IHEs or (b) one or more nonprofit organizations (34 CFR 350.31).
2.
1.
To obtain a copy from ED Pubs, write, fax, or call the following: Education
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA Number 84.133E-8.
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the person or team listed under
2.
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative. Single spacing may be used for titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative section (Part III).
The application package will provide instructions for completing all components to be included in the application. Each application must include a cover sheet (Standard Form 424); budget requirements (ED Form 524) and narrative budget justification; other required forms; an abstract, Human Subjects narrative, Part III narrative; resumes of staff; and other related materials, if applicable.
3.
Deadline for Transmittal of Applications: August 29, 2008.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a.
Applications for grants under the Rehabilitation Engineering Research Centers competition, CFDA number 84.133E-8, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under Exception to Electronic Submission Requirement.
You may access the electronic grant application for the Rehabilitation Engineering Research Centers competition—CFDA number 84.133E-8 at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC, time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, SW., room 6029, PCP, Washington, DC 20202-2700. FAX: (202) 245-7593.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA number 84.133E-8), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
: If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
The Secretary is interested in outcomes-oriented research or development projects that use rigorous scientific methodologies. To address this interest, applicants are encouraged to articulate goals, objectives, and expected outcomes for the proposed research or development activities. Proposals should describe how results and planned outputs are expected to contribute to advances in knowledge, improvements in policy and practice, and public benefits for individuals with disabilities. Applicants should propose projects that are designed to be consistent with these goals. We encourage applicants to include in their application a description of how results will measure progress towards achievement of anticipated outcomes (including a discussion of measures of effectiveness), the mechanisms that will be used to evaluate outcomes associated with specific problems or issues, and how the proposed activities will support new intervention approaches and strategies. Submission of the information identified in this section V. 2.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
NIDRR will provide information by letter to grantees on how and when to submit the final performance report.
4.
• The percentage of newly-awarded NIDRR projects that are multi-site, collaborative, controlled studies of interventions and programs.
• The number of accomplishments (e.g., new or improved tools, methods, discoveries, standards, interventions, programs, or devices) developed or tested with NIDRR funding that have been judged by expert panels to be of high quality and to advance the field.
• The number of new or improved NIDRR-funded assistive and universally designed technologies, products, and devices transferred to industry for potential commercialization.
• The average number of publications per award based on NIDRR-funded research and development activities in refereed journals.
• The percentage of new grants that include studies funded by NIDRR that assess the effectiveness of interventions, programs, and devices using rigorous methods.
NIDRR uses information submitted by grantees as part of their Annual Performance Reports (APRs) in support of these performance measures.
Updates on the Government Performance and Results Act of 1993
Grantees should consult this site on a regular basis to obtain details and explanations on how NIDRR programs contribute to the advancement of the Department's long-term and annual performance goals.
Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, SW., Room 6029, PCP, Washington, DC 20202.
If you use a TDD, call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of final priority for an RERC.
The Assistant Secretary for Special Education and Rehabilitative Services announces a priority for an RERC for Technologies for Successful Aging With Disability under the Disability and Rehabilitation Research Projects and Centers Program administered by the National Institute on Disability and Rehabilitation Research (NIDRR). The Assistant Secretary may use this priority for competitions in fiscal year (FY) 2008 and later years. We take this action to focus research attention on areas of national need. We intend this priority to improve rehabilitation services and outcomes for individuals with disabilities.
Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, SW., Room 6029, Potomac Center Plaza (PCP), Washington, DC 20202-2700.
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities can obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
The purpose of the RERC program is to improve the effectiveness of services authorized under the Rehabilitation Act of 1973, as amended, by conducting advanced engineering research and development on innovative technologies that are designed to solve particular rehabilitation problems or remove environmental barriers. RERCs also demonstrate and evaluate such technologies, facilitate service delivery system changes, stimulate the production and distribution of new technologies and equipment in the private sector, and provide training opportunities.
RERCs carry out research or demonstration activities in support of the Rehabilitation Act of 1973, as amended, by—
• Developing and disseminating innovative methods of applying advanced technology, scientific achievement, and psychological and social knowledge to: (a) Solve rehabilitation problems and remove environmental barriers; and (b) study and evaluate new or emerging technologies, products, or environments and their effectiveness and benefits; or
• Demonstrating and disseminating: (a) Innovative models for the delivery of cost-effective rehabilitation technology services to rural and urban areas; and (b) other scientific research to assist in meeting the employment and independent living needs of individuals with severe disabilities; and
• Facilitating service delivery systems change through: (a) The development, evaluation, and dissemination of consumer-responsive and individual and family-centered innovative models for the delivery to both rural and urban areas of innovative cost-effective rehabilitation technology services; and (b) other scientific research to assist in meeting the employment and independence needs of individuals with severe disabilities.
Each RERC must be operated by, or in collaboration with, one or more institutions of higher education or one or more nonprofit organizations.
Each RERC must provide training opportunities, in conjunction with institutions of higher education and nonprofit organizations, to assist individuals, including individuals with disabilities, to become rehabilitation technology researchers and practitioners.
Each RERC must emphasize the principles of universal design in its product research and development. Universal design is “the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design” (North Carolina State University, 1997.
Additional information on the RERC program can be found at:
We published a notice of proposed priorities (NPP) for NIDRR's Disability and Rehabilitation Research Projects and Centers Program in the
There are differences between the proposed priority for the RERC for Technologies for Successful Aging With Disability and the final priority for the RERC for Technologies for Successful Aging With Disability as discussed in the following section.
In response to our invitation in the NPP, five parties submitted comments on the proposed priority for the RERC. An analysis of the comments and of any changes in the priority since publication of the NPP follows.
Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make under the applicable statutory authority. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.
We believe the terms “technology” and “technologies” encompass assistive technologies, technology-based products, and built environments. In section 3 of the Assistive Technology Act of 1998 (AT Act the term assistive technology is defined as technology that is designed to be used in an assistive technology device or assistive technology service. The AT Act defines an assistive technology device as any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities. The AT Act defines an assistive technology service as any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device.
The term “technology-based products” is intended to refer to products that utilize practical applications of science and knowledge. The distinction between technologies and technology-based products is illustrated with a specific example. A manual wheelchair is a technology-based product that utilizes specific technologies including hand-rim design and seating systems.
The term “built environments” refers to man-made physical spaces such as residences, workspaces, public buildings, and facilities. “Environment” is a more general term and for that reason we removed that term from the priority. As recommended by the commenter, we revised the priority to use terms consistently throughout the priority.
This notice does
This NFP is in concert with President George W. Bush's New Freedom Initiative (NFI) and NIDRR's Final Long-Range Plan for FY 2005-2009 (Plan). The NFI can be accessed on the Internet at the following site:
The Plan, which was published in the
Through the implementation of the NFI and the Plan, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of expertise, information, and training to facilitate the advancement of knowledge and understanding of the unique needs of traditionally underserved populations; (3) determine best strategies and programs to improve rehabilitation outcomes for underserved populations; (4) identify research gaps; (5) identify mechanisms of integrating research and practice; and (6) disseminate findings.
The Assistant Secretary for Special Education and Rehabilitative Services announces a priority for the establishment of a Rehabilitation Engineering Research Center (RERC) for Technologies for Successful Aging with Disability. Under this priority, the RERC must research, evaluate, and develop new technologies and approaches, or modify and apply existing technologies and approaches that address the challenges to community participation experienced by middle-aged and older adults with disabilities in home, work, or community settings.
Under this priority, the RERC must be designed to contribute to the following outcomes:
(a) Increased technical and scientific knowledge regarding the use of technologies for successful aging with disability. The RERC must contribute to this outcome by conducting no more than a total of four rigorous research and development projects that address the needs of individuals with disabilities and that use state-of-the-art methodologies. For purposes of this priority, a rigorous research and development project may include a combination of research and development activities, or may include only research or only development activities. These rigorous research and development projects must generate measurable results and improve policy, practice, or system capacity to use technology to meet the community participation needs of individuals who are aging with disabilities, or who are aging into disability.
(b) Improved technologies, technology-based products, and built environments for successful aging with disability. The RERC must contribute to this outcome by developing new, or modifying and applying existing technologies, technology-based products, and built environments, and testing and evaluating their utility for intended users.
(c) Increased impact of research in the area of technologies for successful aging with disability. The RERC must contribute to this outcome by providing technical assistance to public and private organizations, individuals with disabilities, and employers on policies, guidelines, and standards related to the use of technologies to facilitate successful aging with disability.
(d) Increased transfer of RERC-developed technologies to the marketplace. The RERC must contribute to this outcome by developing and implementing a technology transfer plan for ensuring that technologies developed by the RERC are transferred to the marketplace. The RERC must develop its technology transfer plan in the first year of the project period in consultation with the NIDRR-funded Disability and Rehabilitation Research Project, Center on Knowledge Translation for Technology Transfer.
In addition, the RERC must—
• Have the capability to design, build, and test prototype devices and assist in the transfer of successful solutions to relevant production and service delivery settings;
• Evaluate the efficacy and safety of its new products, instrumentation, or assistive technology devices;
• Provide as part of its proposal, and then implement, a plan that describes how it will include, as appropriate, individuals with disabilities or their representatives in all phases of its activities, including research, development, training, dissemination, and evaluation;
• Provide as part of its proposal, and then implement, in consultation with the NIDRR-funded National Center for the Dissemination of Disability Research (NCDDR), a plan to disseminate its research results to individuals with disabilities, their representatives, disability organizations, service providers, professional journals, manufacturers, and other interested parties;
• Conduct a state-of-the-science conference on its designated priority research area in the fourth year of the project period, and publish a comprehensive report on the final outcomes of the conference in the fifth year of the project period; and
• Coordinate research projects of mutual interest with relevant NIDRR-funded projects, as identified through consultation with the NIDRR project officer.
This NFP has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with this NFP are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this NFP, we have determined that the benefits of the final priority justify the costs.
The benefits of the Disability and Rehabilitation Research Projects and Centers Program have been well established over the years in that similar projects have been completed successfully. This final priority will generate new knowledge and technologies through research, development, dissemination, utilization, and technical assistance projects.
Another benefit of this final priority is that the establishment of a new RERC will support the President's NFI and will improve the lives of individuals with disabilities. The new RERC will generate, disseminate, and promote the use of new information that will improve the options for individuals with disabilities to perform regular activities in the community.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 762(g), 764(a), and 764(b)(3).
This notice invites applications for two separate competitions. For key dates, contact person information, and funding information regarding each competition, see the chart in the
The priorities are:
The IDEA and the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB), and their implementing regulations contain a number of provisions related to the instruction and assessment of, and accountability for, students with disabilities that require changes in policy and practice at many different levels of the educational service system and in both regular and special education: State and district policies must change, teachers must be trained, administrative supports must be provided, and parents must be informed. Coordinating change across regular and special education is challenging because teachers, administrators, other professionals, and parents typically differ in their training, experiences, priorities, and perspectives.
In order to support and facilitate the effective implementation of IDEA and NCLB, the Office of Special Education Programs (OSEP) has funded partnership projects that bring together representatives from national associations that have a vested interest in improving results for all students, including students with disabilities. These associations represent a wide range of interests and viewpoints in both regular and special education, including those of policymakers, local administrators, service providers, and family members. Each of these national associations has members working directly with administrators, teachers, parents, and others at the State and local levels (State and local affiliates) who are responsible for implementing the requirements of IDEA and NCLB.
An example of how partnerships with national organizations worked together to support the implementation of an instructional practice that affects both regular and special education is the work of the OSEP-funded IDEA Partnership Project's National Community of Practice on NCLB/IDEA Collaboration. The project developed TA materials for their State and local affiliates to use to facilitate and promote schools' and districts' implementation of Response to Intervention (RTI) strategies. RTI was selected because changes in policies and practices at many different levels of the special education and regular education
The TA materials were designed to articulate a consistent message about RTI, using appropriate formats and content relevant to the information needed by policy makers, local administrators, service providers, and families to support effective implementation of RTI. This approach helped State and local affiliates of multiple national associations understand the core components of RTI, engage with each other in discussions about RTI, and work together to align policy with effective RTI implementation at all levels of the education system. For further information on the past work of the Partnership Project, go to
The Department seeks to fund another Partnership project to provide opportunities for national associations to collaborate with each other and with their collective State and local affiliates to improve the implementation of education policies and practices in States. These associations and their State and local affiliates need continued support to engage in meaningful dialogue and problem solving that will improve the implementation of IDEA and NCLB within States.
The purpose of this priority is to fund a cooperative agreement to support the establishment and operation of an IDEA Partnership Project (Partnership Project) that will strengthen and unite national associations, and their State and local affiliates, representing policymakers, service providers, local-level administrators, and families to collaborate to improve the implementation of IDEA and NCLB.
To be considered for funding under this absolute priority, applicants must meet the application requirements contained in the priority. The project funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.
(a) A logic model that depicts, at a minimum, the goals, activities, outputs, and outcomes of the proposed project. A logic model communicates how a project will achieve its outcomes and provides a framework for both the formative and summative evaluations of the project;
For more information on logic models, the following Web site lists multiple online resources:
(b) A plan to implement the activities described in the
(c) A plan, linked to the proposed project's logic model, for a formative evaluation of the proposed project's activities. The plan must describe how the formative evaluation will use clear performance objectives to ensure continuous improvement in the operation of the proposed project, including objective measures of progress in implementing the project and ensuring the quality of products and services;
(d) A budget for attendance at the following:
(1) A one and one half day kick-off meeting to be held in Washington, DC within four weeks after receipt of the award, and an annual planning meeting held in Washington, DC with the OSEP Project Officer during each subsequent year of the project period.
(2) A three-day Project Directors' Conference in Washington, DC during each year of the project period.
(3) A four-day Technical Assistance and Dissemination Conference in Washington, DC during each year of the project period.
(4) Two two-day trips annually to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP; and
(e) A line item in the proposed budget for an annual set-aside of five percent of the award amount to support emerging needs that are consistent with the proposed project's activities, as those needs are identified in consultation with OSEP.
With approval from the OSEP Project Officer, the Partnership Project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period.
(f) Assurances that no financial commitments were made to any associations or membership organizations in developing this application. The Partnership Project will negotiate any financial commitments to associations during the first month of the project period with final approval by OSEP.
(a) Form a single partnership among national associations and their State and local affiliates that focuses on regular education and special education in order to meet the collective needs of the following four audiences:
(1) Policymakers including, but not limited to, associations of chief State school officers, State boards of education, local school boards, State directors of special education, ESEA Title I coordinators, mental health coordinators, children with special health care needs coordinators, deans of schools of education, department chairs at institutions of higher education, superintendents, governors, and State legislators.
(2) Service providers including, but not limited to, associations of regular and special education teachers, community-based providers of education services, vocational education teachers, related services providers, and paraprofessionals.
(3) Local-level administrators including, but not limited to, associations of elementary, middle, and secondary school principals; regular and special education administrators; and administrators of private schools.
(4) Families including, but not limited to, associations of parents and family members of children in regular and special education, and disability organizations representing individuals with disabilities and family members of individuals with disabilities.
(b) Establish and maintain an advisory committee to review the activities and outcomes of the Partnership Project and provide programmatic support and advice throughout the project period. At a minimum, the advisory committee must meet on an annual basis in Washington, DC, and consist of individuals representing each of the four constituency groups listed in paragraph (a) and representatives from OSEP and other federally-funded TA projects. The Partnership Project must submit the names of proposed members of the advisory committee to OSEP for approval within eight weeks after receipt of the award.
(c) Conduct a needs assessment of the partner organizations to identify their needs in relation to the implementation of IDEA and NCLB;
(d) Report results of the needs assessment to the advisory committee within the first three months of the project period.
(e) Based on the results of the needs assessment and with input from the advisory committee and the partnering organizations, develop and implement a plan annually for coordinated training, TA, dissemination, and outreach to the partners' State and local affiliates. Each annual plan must address needs related to the integration and coordination of regular and special education, as well as needs identified by OSEP in reviewing State Performance Plans and Annual Performance Reports. The project's annual plan, which must be submitted to OSEP for approval prior to implementation, must include the following information:
(1) How partnering organizations will reach their members at both the State and local levels and work with them and each other to implement the plan.
(2) How specific activities in the plan will be conducted and coordinated with those of other OSEP and Office of Elementary and Secondary Education (OESE)-funded TA centers, and a timeline for implementing the activities.
(3) If the plan includes implementing research-based practices or interventions, how partner organizations will support State and local affiliates to implement those practices or interventions to effectively implement NCLB and IDEA.
(4) How trainers who are members of partner organizations will be compensated for their training time.
(5) How partners will leverage other resources to support planned activities.
(6) How the Partnership Project will serve as a broker for TA services between the partners and other OSEP and OESE TA projects.
(f) Create opportunities for the Partnership Project's partnering organizations to engage in cross-stakeholder communication, learning, and strategic planning to address the complex challenges associated with implementing IDEA and NCLB to improve results for children with disabilities.
(g) Establish the following:
(1) A Web site that meets a government or industry-recognized standard for accessibility and that links to the Web site operated by the Technical Assistance Coordination Center (TACC), which OSEP intends to fund in FY 2008.
(2) A comprehensive, up-to-date, and searchable database of partners' products and activities that is accessible to all partners.
(3) A mechanism for regularly updating partners on new developments in relevant legislation.
(h) Communicate and collaborate, on an ongoing basis, with OSEP-funded projects, including the communities of practice, the Parent Training and Information Centers, the TACC, and the National Dissemination Center for Individuals with Disabilities, which OSEP intends to fund in FY 2008. This collaboration could include the joint development of products, the coordination of TA services, and the planning and carrying out of TA meetings and events.
(i) Although product development is not a primary function of this project, comply with the following requirements, when product development is needed:
(1) If OSEP funds a TA center in the content area that is the topic of the proposed product, but no product currently exists that will meet the needs of the Partnership Project, work with the content center to develop a product that is research-based (i.e., consistent with research and theory on the topic).
(2) Prior to developing any new product, whether paper or electronic, submit to the OSEP Project Officer and the Proposed Product Advisory Board at OSEP's TACC for approval, a proposal describing the content and purpose of the product.
(3) Before submitting a draft of a product to the OSEP Project Officer, request input from individuals representing each of the four constituency groups (listed in paragraph (a)(1) through (a)(4) under
(4) Coordinate with the National Dissemination Center for Individuals with Disabilities to develop an efficient and high-quality dissemination strategy that reaches the broad audiences to be targeted by the project. The Partnership Project must report to the OSEP Project Officer the outcomes of these coordination efforts.
(j) Contribute, on an ongoing basis, updated information on the Partnership Project's services to OSEP's Technical Assistance and Dissemination Matrix (
(k) Conduct a summative evaluation of the Partnership Project in collaboration with the OSEP-funded Center to Improve Project Performance (CIPP) as described in the following paragraphs. This summative evaluation must examine the outcomes or impact of the Partnership Project's activities in order to assess the effectiveness of those activities.
The major tasks of CIPP would be to guide, coordinate, and oversee the summative evaluations conducted by selected Technical Assistance, Personnel Development, Parent Training and Information Center, and Technology projects that individually receive $500,000 or more funding from OSEP annually. The efforts of CIPP are expected to enhance individual project evaluations by providing expert and unbiased assistance in designing evaluations, conducting analyses, and interpreting data.
To fulfill the requirements of the summative evaluation to be conducted under the guidance of CIPP and with the approval of the OSEP Project Officer, the Partnership Project must—
(1) Hire or designate, with the approval of the OSEP Project Officer, a project liaison staff person with sufficient dedicated time, experience in evaluation, and knowledge of the Partnership Project to work with CIPP on the following tasks: (i) Planning for the Partnership Project's summative evaluation (e.g., selecting evaluation questions, developing a timeline for the evaluation, locating sources of relevant data, and refining the logic model used for the evaluation), (ii) developing the summative evaluation design and instrumentation (e.g., determining quantitative or qualitative data collection strategies, selecting respondent samples, and pilot testing instruments), (iii) coordinating the evaluation timeline with the implementation of the Partnership Project's activities, (iv) collecting summative data, and (v) writing reports of summative evaluation findings;
(2) Cooperate with CIPP staff in order to accomplish the tasks described in paragraph (1) of this section; and
(3) Dedicate $80,000 of the annual budget request for this project to cover the costs of carrying out the tasks described in paragraphs (1) and (2) of this section, implementing the Partnership Project's formative evaluation, and traveling to Washington, DC in the second year of the project period for the Partnership Project's review for continued funding.
(l) Maintain ongoing communication with the OSEP Project Officer through monthly phone conversations and e-mail communication.
In deciding whether to continue funding the Partnership Project for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), and in addition—
(a) The recommendation of a review team consisting of experts selected by the Secretary. This review will be conducted during a one-day intensive meeting in Washington, DC that will be held during the last half of the second year of the project period. Projects must
(b) The timeliness and effectiveness with which all requirements of the negotiated cooperative agreement have been or are being met by the Partnership Project; and
(c) The quality, relevance, and usefulness of the Partnership Project's activities and products and the degree to which the Partnership Project's activities and products have contributed to changed practice and improved (1) collaboration across regular education, special education, and parent partner organizations to support and facilitate the effective implementation of IDEA and NCLB at the national, State, and local levels; (2) implementation of research-based practices; and (3) involvement of national organizations' State and local affiliates in the implementation of IDEA and NCLB at the State and local levels.
Along with an increased demand for educational accountability and improvement, diverse audiences, including educators and parents, have a greater need for information about education that addresses topics such as standards, assessments, and instructional practices (Petrides & Nodine, 2003). The increased need for information is reflected in an increase in the number of visits to the Web site of the National Dissemination Center for Children with Disabilities (NICHCY) funded by the Office of Special Education Programs (OSEP). The Center is a central source for information on disabilities in children, the laws that affect children with disabilities, and effective educational and early intervention practices that can be implemented to improve outcomes for students and infants and toddlers with disabilities.
Along with the increased need for information and the number of channels through which information is disseminated, individuals' preferences for obtaining information have changed (Caffarella, 2002; Kilgore, 2001). In 2005, NICHCY disseminated approximately 149,000 printed products in English and about 55,300 printed products in Spanish. In 2006, NICHCY disseminated a significantly smaller number of printed materials (approximately 27,000 total in English and Spanish), presumably reflecting consumers' increased use of a variety of technology and electronic retrieval methods to access information.
Current demographic patterns of students in regular education and special education, and of children participating in early intervention programs (U.S. Department of Education, 2007), indicate an increased prevalence of certain disabilities. Given this demographic change and the movement of students between regular and special education, the audience interested in information regarding children with disabilities and the Individuals with Disabilities Education Act (IDEA) is likely to become larger and more diverse in the future. Further, with increases in research and knowledge production, existing materials will need to be updated and revised and new materials will need to be created to keep pace with the increased customer demand for up-to-date information. Moreover, innovative approaches to dissemination, for example the use of diverse channels such as Webinars, will be needed to reach these audiences. Similarly, as education audiences increasingly request information through diverse channels, they also will expect this information to be customized and targeted. When information is conveyed using channels and formats aligned with the needs and preferences of end-users, knowledge transfer and learning may be more likely to occur (Hood, 2002). In sum, a new national dissemination center for children with disabilities is needed that will build on the work of NICHCY to respond to the expanding information needs and preferences of diverse audiences.
The purpose of this priority is to fund a cooperative agreement to support the establishment and operation of a National Dissemination Center for Children with Disabilities (Center). The Center must (a) develop and disseminate information about children with disabilities and IDEA that will be readily accessible to a broad range of audiences, and (b) provide leadership in the design and implementation of integrated, responsive, and effective information dissemination strategies.
To be considered for funding under this absolute priority, applicants must meet the application requirements contained in this priority. Any project funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.
(a) A logic model that depicts, at a minimum, the goals, activities, outputs, and outcomes of the proposed project. A logic model communicates how a project will achieve its outcomes and provides a framework for both the formative and summative evaluations of the project;
The following Web site provides more information on logic models and lists multiple online resources:
(b) A plan to implement the activities described in the
(c) A plan, linked to the proposed project's logic model, for a formative evaluation of the proposed project's activities. The plan must describe how the formative evaluation will use clear performance objectives to ensure continuous improvement in the operation of the proposed project, including objective measures of progress in implementing the project and ensuring the quality of products and services. Specifically, the Center must examine its dissemination activities to ensure that the information needs of targeted audiences (e.g., parents, families, early intervention personnel, educators) are being met;
(d) A budget for attendance at the following:
(1) A one and one half day kick-off meeting to be held in Washington, DC within four weeks after receipt of the award, and an annual planning meeting held in Washington, DC with the OSEP Project Officer during each subsequent year of the project period.
(2) A three-day Project Directors' Conference in Washington, DC during each year of the project period.
(3) A four-day Technical Assistance and Dissemination Conference in Washington, DC during each year of the project period.
(4) Three one-day trips annually to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP; and
(e) A line item in the proposed budget for an annual set-aside of five percent of the award amount to support emerging needs that are consistent with the proposed project's activities, as those needs are identified in consultation with OSEP.
With approval from the OSEP Project Officer, the Center must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period.
(a) Identify and analyze quantitative and qualitative data, and other relevant sources, to determine the topical and informational needs of families, early intervention personnel, and educators. Sources for these data include, but are not limited to, the Regional Resource Centers (RRCs), Parent Technical Assistance Centers, the National Early Childhood Technical Assistance Center, and the Comprehensive Technical Assistance Centers funded through the Office of Elementary and Secondary Education.
(b) Develop strategies, in cooperation with the Technical Assistance Coordination Center (TACC), which OSEP intends to fund in FY 2008, to provide needed information about children with disabilities in a mode and manner easily accessed and understood by diverse audiences, including persons with limited English proficiency, individuals who have low literacy skills or who are not literate, and individuals with disabilities. Strategies must include developing informational materials that are universally designed (for more information on universal design, the following Web site provides multiple online resources:
(a) Maintain a customer-service response system that enables individuals who request information to access that information in multiple ways. Points of access must include, but not be limited to, a toll-free telephone number, toll-free TTY, e-mail, and a Web site. Information response activities must include developing and disseminating documents and providing referrals to a broad range of service agencies upon request. Information services must be flexible in delivery format and hours of operation and be available, to the maximum extent possible, in multiple languages. The Web site must meet a government- or industry-recognized standard for accessibility and link to the Web site operated by TACC.
(b) Conceptualize, design, and produce an electronic newsletter that informs diverse audiences about the products and services available from OSEP-funded projects, and, as appropriate, products and services available from projects funded by other offices in the Department.
(c) Review IDEA-related materials developed by relevant Federal, State, and local public and private organizations to identify gaps in the information targeted for parents, families, early intervention personnel, and educators and offer recommendations to OSEP's TA&D Network to address these information gaps. Recommendations may include amending existing informational materials or developing new materials. The Center must make selected materials produced available for parents and families in both English and Spanish.
(a) Establish and maintain an advisory committee to review the activities and outcomes of the Center and provide programmatic support and advice throughout the project period. At a minimum, the advisory committee must meet annually, whether in person, or by phone or another means and consist of family members of children with disabilities, regular and special educators, early intervention personnel, and technical assistance providers, as appropriate. The Center must submit the names of proposed members of the advisory committee to OSEP for approval within eight weeks after receipt of the award.
(b) Collaborate with relevant Federal, State, and local public and private organizations to plan and conduct outreach activities that promote awareness of disability issues using innovative technologies and particularly targeting remote or underserved populations. This plan and annual updates on its implementation must be submitted to OSEP and the advisory committee.
(c) Collect the dissemination plans from OSEP's TA&D projects and provide feedback on ways the projects can improve their respective dissemination plans to reach their target audiences. Based on the review of these plans and a review of evidence-based dissemination practices, develop a comprehensive dissemination strategy for OSEP's TA&D Network.
(d) Communicate and collaborate, on an ongoing basis, with OSEP-funded projects, including TACC, the Consortium for Appropriate Dispute Resolution in Special Education, the National Early Childhood Technical Assistance Center, and the Technical Assistance Alliance for Parent Centers. This collaboration could include the joint development of products, the coordination of TA services, and the planning and carrying out of TA meetings and events.
(e) Participate in, organize, or facilitate, as appropriate, OSEP communities of practice (
(f) Prior to developing any new product, whether paper or electronic, submit to the OSEP Project Officer and the Proposed Product Advisory Board at OSEP's TACC for approval, a proposal describing the content and purpose of the product.
(g) Contribute, on an ongoing basis, updated information on the Center's services to OSEP's Technical Assistance and Dissemination Matrix (
(h) Conduct a summative evaluation of the Center in collaboration with the Center to Improve Project Performance (CIPP) as described in the following paragraphs. This summative evaluation must examine the outcomes or impact of the Center's activities in order to assess the effectiveness of those activities.
The major tasks of CIPP are to guide, coordinate, and oversee the summative evaluations conducted by selected Technical Assistance, Personnel Development, Parent Training and Information Center, and Technology projects that individually receive $500,000 or more funding from OSEP annually. The efforts of CIPP are expected to enhance individual project evaluations by providing expert and unbiased assistance in designing evaluations, conducting analyses, and interpreting data.
To fulfill the requirements of the summative evaluation to be conducted under the guidance of CIPP, the Center must—
(1) Hire or designate, with the approval of the OSEP Project Officer, a project liaison staff person with sufficient dedicated time, experience in evaluation, and knowledge of the Center to work with CIPP on the following tasks: (i) Planning the Center's summative evaluation (
(2) Cooperate with CIPP staff in order to accomplish the tasks described in paragraph (1) of this section; and
(3) Dedicate $50,000 of the annual budget request for this project to cover the costs of carrying out the tasks described in paragraphs (1) and (2) of this section, implementing the Center's formative evaluation, and traveling to Washington, DC in the second year of the project period for the Center's review for continued funding.
(i) Maintain ongoing communication with the OSEP Project Officer through monthly phone conversations and e-mail communication.
In deciding whether to continue funding the Center for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), and in addition—
(a) The recommendation of a review team consisting of experts selected by the Secretary. This review will be conducted during a one-day intensive meeting in Washington, DC that will be held during the last half of the second year of the project period. Projects must budget for travel for this one-day intensive review;
(b) The timeliness and effectiveness with which all requirements of the negotiated cooperative agreement have been or are being met by the Center; and
(c) The quality, relevance, and usefulness of the Center's activities and products and the degree to which the Center's activities and products have contributed to changed practice and improved knowledge and awareness regarding the implementation of IDEA.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The Department is not bound by any estimates in this notice.
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(b) Applicants and grant recipients funded under this program must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the projects (see section 682(a)(1)(A) of IDEA).
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You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify the competition to which you want to apply, as follows: CFDA Number 84.326A or 84.326N.
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the person or team listed under
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• A “page” is 8.5” x 11”, on one side only, with 1” margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the two-page abstract, the resumes, the bibliography, the references, or the letters of support. The page limit, however, does apply to the application narrative in Part III.
We will reject your application if you exceed the page limit or if you use other standards and exceed the equivalent of the page limit.
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Applications for grants under this program may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: See chart.
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To comply with the President's Management Agenda, we are participating as a partner in the Governmentwide Grants.gov Apply site. The Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities program, CFDA Numbers 84.326A and 84.326N, announced in this notice are included in this project. We request your participation in Grants.gov.
If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at
You may access the electronic grant application for the Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities program competitions—CFDA numbers 84.326A and 84.326N at
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30:00 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for the competition to which you are applying to ensure that you submit your application in a timely manner to the Grants.gov system. You also can find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• If you submit your application electronically, you must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
U.S. Department of Education, Application Control Center, Stop 4260, Attention: (CFDA Number 84.326A or 84.326N), 7100 Old Landover Road, Landover, MD 20785-1506.
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326A or 84.326N) 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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The grantee also will be required to report information on the project's performance in annual reports to the Department (34 CFR 75.590).
If you use a TDD, call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Department of Energy.
Notice of open meeting.
The Department of Energy (DOE) Office of Environmental Management (EM), and the National Nuclear Security Administration (NNSA), will co-sponsor a Suppliers Outreach event for suppliers interested in providing service and products in the nuclear sector.
Thursday, July 31, 2008, 8 a.m.-6 p.m.
The Hyatt Regency Tech Center Hotel, 7800 E Tufts Avenue, Denver, Colorado 80237.
Nancy Osbourne, Event Coordinator, Performance Results Corporation, 2605 Cranberry Square, Morgantown, WV 26508. Phone (304) 291-2100; Fax (304) 291-5885 or e-mail:
The purpose of this forum is two fold. First, it will help ensure that all EM and NNSA sites have an adequate number of qualified nuclear and non-nuclear suppliers for future projects and programs. Second, it will provide information for suppliers regarding the needs of DOE projects and programs for their products and services in the years ahead.
Registration Information: There is no conference fee. Participants may register at
Department of Energy.
Notice of open teleconference.
This notice announces a teleconference of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L. 92-463; 86 Stat. 770) requires that public notice of these teleconferences be announced in the
July 15, 2008 from 2. p.m. to 3. p.m. EDT.
Gary Burch, STEAB Designated Federal Officer, Acting Assistant Manager, Office of Commercialization and Project Management, Golden Field Office, U.S. Department of Energy, 1617 Cole Boulevard, Golden, CO 80401, Telephone 303/275-4801.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. This application is not ready for environmental analysis at this time.
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o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. This application is not ready for environmental analysis at this time.
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o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that Commission 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-459-229) 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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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
On May 19, 2008, Wellesley Rosewood Maynard Mills LP filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Clock Tower Place Hydroelectric Project, to be located on the Assabet River in the Maynard area of Middlesex County, Massachusetts.
The proposed project would consist of: (1) Two existing dams, the larger constructed of dry-laid, cut granite blocks, 9.5-foot-high and 170-foot-long and the smaller a masonry-faced embankment structure, respectively, for the upper and lower reservoirs which would have water surface elevations of 177 and 176 feet, MSL, a (2) proposed powerhouse containing one generating unit having a total installed capacity of 290 kilowatts, a (3) proposed 49-foot-long penstock and twin 300-foot-long tailrace tunnels, a (4) 1,600-foot-long power canal leading to the gatehouse, (5) incorporation of an existing transformer to interconnect equipment with Clock Tower Place at 208y/120 volts, and (5) appurtenant facilities. The project would have an annual energy generation of 1,241,000 kWh per year.
Applicant Contact: Mr. Robert Buonato, President, Wellesley Rosewood Maynard Mills LLC, 12 Clock Tower Place, Suite 200, Maynard, MA 01754; phone: 978-823-8224. FERC Contact: Alyssa Dorval, 202-502-6735.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's website under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following public utility holding company filings:
Docket Numbers: PH08-30-000.
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 the Commission received the following electric corporate filings:
Take notice that the Commission received the following public utility holding company 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 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
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 the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff 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 docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's regulations, 18 CFR Part 380 (Order No. 486, 52 FR 47879) the Office of Energy Projects has prepared an environmental assessment (EA) for an application filed by Central Nebraska Public Power and Irrigation District (licensee) on February 12, 2007, requesting Commission approval to amend the Land and Shoreline Management Plan (LSMP) for the Kingsley Dam Hydroelectric Project (FERC No. 1417). The licensee proposes to reclassify certain shoreline lands at Plum Creek reservoir (reservoir) from open-space to residential in order to allow adjacent landowners to apply for shoreline access facilities. The reservoir is located within the Platte River Basin in Dawson and Gosper Counties, near the towns of Lexington and Elwood, Nebraska. The project does not occupy any federal lands. The EA evaluates the environmental impacts that would result from approving the licensee's proposal. The EA finds that approval of the application would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission's Web site at
You also may register online at
For further information, please contact Christopher Yeakel by telephone at (202) 502-8132 or by e-mail at
Take notice that on May 23, 2008, Starwood Energy Group Global, L.L.C., on behalf of itself and its subsidiary holding companies, filed an application, FERC-65B Waiver Notification, requesting waiver of the accounting, record retention and reporting requirements of sections 366.21, 366.22 and 366.23 of the Commission's regulations, 18 CFR sections 366.21-366.23.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 19, 2008, TexMex Energy, LLC filed a Petition for Declaratory Order resolving jurisdictional uncertainty regarding the operation and use of the “Eagle Pass DC Tie” between the Electric Reliability Council of Texas Region and the grid controlled by the Comision Federal de Electricidad.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will
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
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before August 14, 2008.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2006-0771 to (1) EPA online using
Mr. Carey A. Johnston, Office of Science and Technology, Mail Code 4303T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 566-1014; fax number: (202) 566-1053; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On January 25, 2008 (73 FR 4556), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received comments during the comment period from 35 individuals or organizations including industry representatives; Federal, State, and Tribal representatives; public interest groups and landowners; and water treatment experts. These comments are summarized in this notice and addressed in the supporting statement for this ICR (
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2006-0771, which is available for online viewing at
Use EPA's electronic docket and comment system at
CBM extraction requires removal of large amounts of water from underground coal seams before CBM can be released. CBM wells have a distinctive production cycle characterized by an early stage when large amounts of water are produced to reduce reservoir pressure which in turn encourages release of gas; a stable stage when quantities of produced gas increase as the quantities of produced water decrease; and a late stage when the amount of gas produced declines and water production remains low. Pollutants often found in these wastewaters include chloride, sodium, sulfate, bicarbonate, fluoride, iron, barium, magnesium, ammonia, and arsenic.
EPA identified the CBM sector as a candidate for a detailed study in the final 2006 Effluent Guidelines Program Plan (71
EPA received 35 public comments from industry, landowners, public interest groups, water treatment experts, and Federal agencies in response to its notice on January 25, 2008 (73
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office announces a public meeting of the SAB Particulate Matter (PM) Research Centers Program Advisory Panel to comment on the Agency's current PM research centers program and provide advice to EPA concerning future structures and strategic direction for the program.
The meeting dates are Wednesday, October 1, 2008, from 8:30 a.m. to 5:30 p.m. through Thursday, October 2, 2008, from 8:30 a.m. to 3 p.m. (Eastern Time).
The meeting will be held in the SAB Conference Center located at: 1025 F Street, NW., Room 3705, Washington, DC 20004.
Members of the public who wish to obtain further information about this meeting must contact Mr. Fred Butterfield, Designated Federal Officer (DFO). Mr. Butterfield may be contacted at the EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or via telephone/voice mail: 202-343-9994; fax 202-233-0643; or e-mail at
The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. This SAB Panel will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
In 2002, ORD requested that the Science Advisory Board conduct an interim review of EPA's PM Research Centers program, the report from which is found at
EPA's National Center for Environmental Research (NCER), within ORD, requested that the SAB Staff Office form an expert panel to comment on the Agency's current PM Research Centers program and to advise EPA concerning the possible structures and strategic direction for the program as ORD considers funding a third round of air pollution research centers into the future,
The SAB Staff Office has established the SAB PM Research Centers Program Advisory Panel. This
The SAB meeting agenda and any other materials for this upcoming public advisory meeting will be available on the EPA Web site at
Environmental Protection Agency (EPA).
Notice.
Notice is hereby given that a petition has been received from the State of New York requesting a determination by the Regional Administrator, U.S. Environmental Protection Agency, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for Hempstead Harbor, Nassau County, New York. The waters of the proposed No Discharge Zone fall within the jurisdictions of the Town of North Hempstead, the Town of Oyster Bay, the County of Nassau, the City of Glen Cove and the Villages of Sea Cliff, Roslyn Harbor, Roslyn, Flower Point and Sands Point. These entities, through the New York Department of State and the Hempstead Harbor Protection Committee prepared the application for the designation of a Vessel Waste No Discharge Zone, which was submitted by the New York State Department of Environmental Conservation (NYSDEC).
Comments regarding this tentative determination are due by August 14, 2008.
Submit your comments using one of the following methods:
James L. Olander, U.S. Environmental Protection Agency—Region 2, 290 Broadway, 24th Floor, New York, NY 10007-1866.
Telephone: (212) 637-3833, Fax number: (212) 637-3887; e-mail address:
Notice is hereby given that a petition has been received from the State of New York requesting a determination by the Regional Administrator, U.S. Environmental Protection Agency, pursuant to section 312(f)(3) of Public Law 92-500 as amended by Public Law 95-217 and Public Law 100-4, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for Hempstead Harbor and its harbors and creeks within the following boundaries: South of a line drawn from Mott Point on the west side of the harbor to a breakwater approximately one-half mile north of Mosquito Cove on the east side of the ha rbor (Lat 40°52′ N, Long 73°40′ W) within the Villages of Sea Cliff, Roslyn, Roslyn Harbor, Flower Point and Sands Point and the City of Glen Cove.
New York has provided documentation indicating that the total vessel population is estimated to be 1,350 in the proposed area. Five pumpout facilities are operational in the harbor, these facilities are Tappen Marina, Bar Beach, Brewer's Marina, Sea Cliff Yacht Club, and Glen Cove Yacht Club. In addition to these five pumpout facilities, the Towns of North Hempstead Harbor and Oyster Bay each operate pumpout boats that serve the harbor. Based upon the criteria cited in the Clean Vessel Act and based upon the vessel population, Hempstead Harbor requires approximately three to five pumpout facilities. The harbor has seven facilities operational which satisfies the criteria.
Tappen Marina Pumpout is loc ated at 40°50′2.44″ N/73°39′2.93″ W. The pumpout is user operated and available 24 hours per day and 365 days a year. The contact for information on the pumpout is the Town of Oyster Bay Dockmaster or the Parks Commissioner at 516-674-7100 and the facility fee is free. Vessel limitations are 50 feet in length and 10 feet in draft. An onsite septic field is used for disposal, with transport to a wastewater treatment plant as backup.
Brewer's Marina is loc ated at 40°51′16.17″ N/73°38′46.51″ W. The pumpout is user operated and available 24 hours per day from April 1 to November 30, seven days a week. The contact for information is the Brewer's Marina at 516-671-5563 and the facility fee is free. Vessel limitations are 40 feet in length and 6 feet in draft. The pumpout facility is directly connected to the Glen Cove wastewater treatment facility.
Sea Cliff Yacht Club is loc ated at 40°51′11.03″ N/73°38′59.11″ W and is available Memorial Day through October 15th, 9 a.m. until 5 p.m. on weekdays and by appointment on weekends. The contact for information is Jim Kowchesski, Manager, at (516) 671-7374 or the Dockmaster at (516) 671-0193 and the facility fee is $5.00. Vessel limitations are 40 feet in length and 4.5 feet in draft. The pumpout facility discharges to the Glen Cove wastewater treatment facility.
The Town of Oyster Bay Pumpout Boat operates in Hempstead Harbor and Oyster Bay and is available June through October, Friday through Monday. The contact for information is the Town of Oyster Bay at 516-677-5711 or VHF Channel 9 and the fee is free. No vessel limitations exist. The Roosevelt Marina pumpout is used for disposal sewage from the pumpout boat and the marina pumpout discharges to the Oyster Bay Sewer District wastewater treatment plant.
The Town of North Hempstead Pumpout Boat operates in Hempstead Harbor and Manhasset Bay and is available June through September, Wednesday through Sunday. The contact for information is the Town of Hempstead at 516-767-4622 or VHF Channel 9 and the fee is free. No vessel limitations exist. The pumpout boat discharges to the local sewer at Town dock. While Bar Beach and the Glen Cove Yacht Club pumpout facilities are listed in the petition, no information is provided regarding location, contact information or fees.
The EPA hereby makes a tentative affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for Hempstead Harbor in the County of Nassau, New York. A 30-day period for public comment has been opened on this matter.
Environmental Protection Agency (EPA).
Notice.
Notice is hereby given that a petition has been received from the State of New York requesting a determination by the Regional Administrator, U.S. Environmental Protection Agency, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for Oyster Bay/Cold Springs Harbor Complex, New York. The waters of the proposed No Discharge Zone fall within the jurisdictions of the Town of Oyster Bay, the Town of Huntington, the Village of Bayville, the Village of Bayville, the Village of Centre Island, the Village of Cove Neck, the Village of Lattingtown, the Village of Laurel Hollow, the Village of Lloyd Harbor, the Village of Mill Neck, the Village of Oyster Bay Cove, the County of Nassau, and the County of Suffolk. These entities submitted an application prepared by Cashin Associates, P.C. for the designation of a Vessel Waste No Discharge Zone. New York State Department of Environmental Conservation certified the need for greater protection of the water quality.
Comments regarding this tentative determination are due by August 14, 2008.
Submit your comments using one of the following methods:
James L. Olander, U.S. Environmental Protection Agency—Region 2, 290 Broadway, 24th Floor, New York, NY 10007-1866. Telephone: (212) 637-3833, Fax number: (212) 637-3887; e-mail address:
Notice is hereby given that a petition has been received from the State of New York requesting a determination by the Regional Administrator, U.S. Environmental Protection Agency, pursuant to section 312(f)(3) of Public Law 92-500 as amended by Public Law 95-217 and Public Law 100-4, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for Oyster Bay/Cold Springs Harbor Complex and its harbors and creeks within the following boundary:
South of a line drawn from Rocky Point on Centre Island in west to Caumsett State Park in the east. The Complex encompasses 6400 acres of open water and intertidal area. The waterbodies included in the Complex are Oyster Bay Harbor between Bayville Bridge and Plum Point on Centre Island, Mill Neck Creek to the west of Bayville Bridge, Cold Spring Harbor south of a line between Cooper Bluff in Cove Neck and West Neck Beach in the Village of Lloyd Harbor, and Oyster Bay between Centre Island and the Lloyd Neck peninsula that connects Oyster Bay Harbor and Cold Spring Harbor to Long Island Sound.
New York has provided documentation indicating that the total vessel population is estimated to be 2,000 in the proposed area. Based upon boat census data, approximately 1000 to 1500 vessels would be equipped with a Type III marine sanitation device (holding tank). Four pumpout facilities are operational in the Complex, these facilities are Roosevelt Marina, Powles Marina, Town of Oyster Bay Pumpout Barges (2-East and West), and Town of Oyster Bay Pumpout Vessel. Based upon the criteria cited in the Clean Vessel Act (a pumpout facility can adequately service 300 to 600 vessels) and based upon the vessel population, the Complex requires approximately three to six pumpout facilities. The harbor has five facilities operational which satisfies the criteria. An additional pumpout boat is available when needed.
Roosevelt Marina Pumpout is located at 40° 52.635″ N/73° 31.805″ W. The pumpout is available 24 hours per day and 365 days a year. The contact for information on the pumpout is the Town of Oyster Bay, Roosevelt Marina Pumpout, VHF Channel 9 or 516-797-4110. The facility fee is free. Vessel limitations are 36 feet in length and 4 feet in draft at dead low tide. The collected vessel sewage is discharged to the sewer and treated at the Oyster Bay Sewer District Wasterwater Treatment Plant.
Powles Marina Pumpout is at 40° 52′ 31.17″ N/73° 28′ 17.94″ W. The pumpout is available 24 hours per day from Mid-April to October 31, seven days a week. The contact for information is the Powles Marina at 631-367-7670 or VHF Channel 9. The facility fee is free. Vessel limitations are 50 feet in length and 5 feet in draft at low tide. The pumpout facility is serviced by the town sewage truck.
Town of Oyster Bay Pumpout Barges are located at 40° 52.657″ N/73° 31.456″ W and 40° 52.804″ N/73° 32.264″ W. The barges are available Mid-April through October 31, 24 hours a day, 7 days per week. The contact for information is Oyster Bay Pumpout Barge on VHF Channel 9. The facility fee is free. Vessel limitations are location dependent. The pumpout barges offload vessel sewage at the Roosevelt Marina Pumpout.
The Town of Oyster Bay Pumpout Vessel operates in the Complex and is available Mid-April through October 31, Thursday through Sunday, from 10 a.m. until 6 p.m. The contact for information is the Town of Oyster Bay Pumpout Vessel on VHF Channel 9. The facility fee is free. The Roosevelt Marina Pumpout is used for disposal sewage from the pumpout boat and the marina pumpout discharges to the Oyster Bay Sewer District wastewater treatment plant.
The EPA hereby makes a tentative affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Oyster Bay/Cold Spring Harbor Complex in the Counties of Nassau and Suffolk, New York. A 30-day period for public comment has been opened on this matter which may result in a New York State prohibition of any sewage discharges from vessels in for the Oyster Bay/Cold Spring Harbor Complex in the Counties of Nassau and Suffolk, New York.
Federal Maritime Commission.
73 FR 38214.
10 a.m.-July 9, 2008.
The addition of Item 2 in the Open Session of the Meeting.
Item 2—Application of Japan Grace Co., Inc. for a Certificate (Performance) Using an Escrow Agreement as Evidence of Section 3, Public Law 89-777 Financial Responsibility.
Karen V. Gregory, Assistant Secretary, (202) 523-5725.
Board of Governors of the Federal Reserve System.
11:30 a.m., Monday, July 21, 2008.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, N.W., Washington, D.C. 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
2. Any items carried forward from a previously announced meeting.
Michelle Smith, Director, or Dave Skidmore, Assistant to the Board, Office of Board Members at 202-452-2955.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at
Board of Governors of the Federal Reserve System, July 11, 2008.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 30, 2008.
Board of Governors of the Federal Reserve System, July 10, 2008.
Federal Trade Commission (“Commission” or “FTC”).
Notice.
The information collection requirements described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”). The FTC is seeking public comments on its proposal to extend through October 31, 2011, the current PRA clearance for information collection requirements contained in its Trade Regulation Rule on Disclosure Requirements and Prohibitions Concerning Franchising (“Franchise Rule”). That clearance expires on October 31, 2008.
Comments must be submitted on or before September 15, 2008.
Interested parties are invited to submit written comments. Comments should refer to “16 CFR Part 436, Paperwork Comment, FTC File No. R511003” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex J), 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Because paper mail in the Washington area and at the FTC is subject to delay, please consider submitting your comments in electronic form, as prescribed below. If, however, the comment contains any material for which confidential treatment is requested, the comment must be filed in paper form, and the first page of the document must be clearly labeled “Confidential.”
Comments filed in electronic form should be submitted by following the instructions on the web-based form at: (
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments will be considered by the Commission and will be available to the public on the FTC website, to the extent practicable, at
Requests for additional information or copies of the proposed information requirements for the Franchise Rule should be addressed to Craig Tregillus, Staff Attorney, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, Room H-238, 600 Pennsylvania Ave., N.W., Washington, D.C. 20580, (202) 326-2970.
Under the PRA, 44 U.S.C. 3501-3521, federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). As required by section 3506(c)(2)(A) of the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing paperwork clearance for the Franchise Rule, 16 CFR Part 436 (OMB Control Number 3084-0107).
The FTC invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency’s estimate of 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 Franchise Rule ensures that consumers who are considering a franchise investment have access to the material information they need to make an informed investment decision provided in a format that facilitates comparisons of different franchise offerings. The Rule requires that franchisors disclose this information to consumers and maintain records to facilitate enforcement of the Rule. Revisions to the Rule promulgated on March 30, 2007,
As amended, the Rule requires franchisors to furnish to prospective purchasers a disclosure document that provides information relating to the franchisor, its business, the nature of the proposed franchise, and any representations by the franchisor about financial performance regarding actual or potential sales, income, or profits made to a prospective franchise purchaser. The franchisor must preserve materially different copies of its disclosures and franchise agreements, as well as information that forms a reasonable basis for any financial performance representation it elects to make. These requirements are subject to the PRA, and for which the Commission seeks to extend existing clearance.
Based on a review of trade publications and information from state regulatory authorities, staff believes that, on average, from year to year, there are approximately 2,500 sellers of franchises covered by the Rule, with perhaps about 10% of that total reflecting an equal amount of new and departing business entrants.
For October 31, 2008 to October 31, 2009, the first twelve months of prospective 3-year renewed PRA clearance, staff estimates that the average annual disclosure burden to update existing disclosure documents will be three hours each year for the 2,250 established franchisors, or 6,750 hours (3 x 2,250), and 30 hours each year for the 250 or so new entrant franchisors to prepare their initial disclosure documents, or 7,500 hours (30 x 250). These estimates for the amended Rule are based on staff’s prior estimates for the original Rule, and further adopt the analysis of the 2005 clearance request and the Statement of Basis and Purpose (“SBP”) for the amended Rule.
As discussed in the 2005 Notices and the SBP, as under the original Rule, covered franchisors also may need to maintain additional documentation for the sale of franchises in non-registration states, which could take up to an additional hour of recordkeeping per year. This yields an additional cumulative total of 2,500 hours per year for covered franchisors (1 hour x 2,500 franchisors).
Part 436 of the amended Rule would also increase franchisors’ recordkeeping obligations. Specifically, a franchisor would be required to retain copies of receipts for disclosure documents, as well as materially different versions of its disclosure documents. Such recordkeeping requirements, however, are consistent with, or less burdensome, than those imposed by the states.
Thus, staff estimates the average hours burden for new and established franchisors during the three-year clearance period ahead would be 16,750 ((30 hours of annual disclosure burden x 250 new franchisors = 7,500 hours) + (3 hours of average annual disclosure burden x 2,250 established franchisors = 6,750 hours) + (1 hour of annual recordkeeping burden x 2,500 franchisors = 2,500 hours)).
Labor costs are derived by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below are estimated averages.
As stated in the 2005 Notices, staff believes that an attorney will prepare the disclosure document, and at an estimated $250 per hour. Accordingly, staff estimates that 250 new franchisors will each annually incur $7,500 in labor costs (30 hours x $250 per hour) and 2,250 established franchisors will each incur $750, annually, in labor costs (3 hours x $250 per hour).
Further, staff anticipates that recordkeeping under part 436 will be performed by clerical staff at approximately $13 per hour. Thus, 2,500 hours of recordkeeping burden per year for all covered franchisors will amount to a total annual labor cost of $32,500.
Cumulatively, then, total estimated labor costs under part 436 is $3,595,000 (($7,500 attorney costs x 250 new franchisors = $1,875,000) + ($750 attorney costs x 2,250 established franchisors =$1,687,500) + ($13 clerical costs x 2,500 franchisors = $32,500)).
As an initial matter, in developing cost estimates, Commission staff consulted with practitioners who prepare disclosure documents for a cross-section of franchise systems. Accordingly, the Commission believes that its cost estimates are representative of the costs incurred by franchise systems generally. In addition, many franchisors establish and maintain
As set forth in the 2005 Notices, staff estimates that the non-labor burden incurred by franchisors under part 436 will differ based on the length of the disclosure document and the number of disclosure documents produced. Staff estimates that 2,000 franchisors (80% of total franchisors covered by the Rule) will print and mail 100 disclosure documents at $35 each. Thus, these franchisors will each incur $3,500 in printing and mailing costs. Staff estimates that the remaining 20% of covered franchisors (500) will transmit 50% of their 100 disclosure documents electronically, at $5 per electronic disclosure. Thus, these franchisors will each incur $2,000 in distribution costs (($250 for electronic disclosure [$5 for electronic disclosure x 50 disclosure documents]) + ($1,750 for printing and mailing [$35 for printing and mailing x 50 disclosure documents])).
Accordingly, the cumulative annual non-labor costs for part 436 of the amended Rule is approximately $8,000,000 (($3,500 printing and mailing costs x 2,000 franchisors = $7,000,000) + ($250 electronic distribution costs + $1,750 printing and mailing costs) x 500 franchisors = $1,000,000)).
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention announces the following committee meeting:
The agenda is subject to change as priorities dictate.
Because there is not a public comment period, written comments may be submitted. Any written comments received will be included in the official record of the meeting and should be submitted to the contact person below well in advance of the meeting.
Toll Free 1-800-CDC-INFO, e-mail
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing its determination that SANOREX (mazindol) Tablets, 1 and 2 milligrams (mg), were not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for mazindol tablets if all other legal and regulatory requirements are met.
Carol E. Drew, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6306 Silver Spring, MD 20993-0002, 301-796-3601.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA applicants must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations,” which is known generally as the “Orange Book.” Under FDA regulations, drugs are removed from the list if the agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness, or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162). Regulations also provide that the agency must make a determination as to whether a listed drug was withdrawn from sale for reasons of safety or effectiveness before an ANDA that refers to that listed drug may be approved (§ 314.161(a)(1) (21 CFR 314.161(a)(1))). FDA may not approve an ANDA that does not refer to a listed drug.
On August 20, 2007, AAIPharma submitted a citizen petition (Docket No. 2007P-0326/CP1) to FDA under 21 CFR 10.30. The petition requests that the agency determine whether SANOREX (mazindol) Tablets, 1 and 2 mg (NDA 17-247), manufactured by Novartis Pharmaceuticals Corp. (Novartis), were withdrawn from sale for reasons of safety or effectiveness. SANOREX is approved for the management of exogenous obesity as a short term adjunct in a regimen of weight reduction based on caloric restriction in certain patients. SANOREX Tablets were approved on June 14, 1973. SANOREX Tablets were discontinued in 1999, and the drug product was moved from the prescription drug product list to the “Discontinued Drug Product List” section of the Orange Book.
FDA has reviewed its records and, under § 314.161, has determined that SANOREX Tablets, 1 and 2 mg, were not withdrawn from sale for reasons of safety or effectiveness. The petitioner identified no data or other information suggesting that SANOREX Tablets, 1 and 2 mg, were withdrawn for reasons of safety or effectiveness. FDA has independently evaluated relevant literature and data for possible postmarketing adverse events and has found no information that would indicate that this product was withdrawn from sale for reasons of safety or effectiveness. Accordingly, the agency will continue to list SANOREX Tablets 1 and 2 mg in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to SANOREX (mazindol) Tablets, 1 and 2 mg, may be approved by the agency if all other legal and regulatory requirements for the approval of ANDAs are met. If FDA determines that labeling for this drug product should be revised to meet current standards, the agency will advise ANDA applicants to submit such labeling.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of final and proposed documents that have been prepared by Study Groups 1 and 3 of the Global Harmonization Task Force (GHTF), respectively. These documents represent a harmonized proposal and recommendation from the GHTF Study Groups that may be used by governments developing and updating their regulatory requirements for medical devices. These documents are intended to provide information only and do not describe FDA's current regulatory requirements; elements of these documents may not be consistent with current U.S. regulatory requirements. In particular, FDA seeks comments on the advantages and disadvantages of the approaches in the GHTF documents, particularly where they are not consistent with current practices for the manufacturer of products distributed within the United States.
Submit written or electronic comments on these documents by October 14, 2008. After October 14, 2008, written comments or electronic comments may be submitted at any time to the contact persons listed in this document.
Submit written requests for single copies of these documents to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health, Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 240-276-3151. See the
Submit written comments concerning these documents to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
FDA has participated in a number of activities to promote the international harmonization of regulatory requirements. In September 1992, a meeting was held in Nice, France by senior regulatory officials to evaluate international harmonization. This meeting led to the development of the organization now known as the GHTF to facilitate harmonization. Subsequent meetings have been held in various locations throughout the world.
The GHTF is a voluntary group of representatives from national medical device regulatory authorities and the regulated industry. Since its inception, the GHTF has been comprised of representatives from five founding members grouped into three geographical areas: Europe, Asia-Pacific, and North America, each of which actively regulates medical devices using their own unique regulatory framework.
The objective of the GHTF is to encourage convergence at the global
Study Group 1 was initially tasked with the responsibility of identifying differences between various regulatory systems. In 1995, the group was asked to propose areas of potential harmonization for premarket device regulations and possible guidelines that could help lead to harmonization. As a result of its efforts, this group has developed final document GHTF/SG1/N011:2008. GHTF/SG1/N011:2008 “Summary Technical Documentation for Demonstrating Conformity to the Essential Principles of Safety and Performance of Medical Devices (STED)” is intended to provide information on the content of the STED to be assembled and submitted to a Regulatory Authority (RA) or Conformity Assessment Body (CAB) for premarket review, and for use postmarket to assess continuing conformity to GHTF Study Group 1's document, GHTF/SG1/N41R9:2005, “Essential Principles of Safety and Performance.”
Study Group 3 was initially tasked with the responsibility of developing documents on Quality Systems. As a result of their efforts, this group has developed proposed document SG3(PD)N17R7. The proposed document SG3(PD)N17R7 entitled, “Quality Management System—Medical Devices—Guidance on the Control of Products and Services Obtained From Suppliers” provides information for medical device manufacturers on control of products and services obtained from suppliers.
These documents represent recommendations from the GHTF study groups and do not describe regulatory requirements. FDA is making these documents available so that industry and other members of the public may express their views and opinions. In particular, FDA seeks comments on the advantages and disadvantages of the approaches in the GHTF documents, particular where they are not consistent with current practices for the manufacturer of products distributed in the United States.
Persons interested in obtaining a copy of these documents may do so by using the Internet. The Center for Devices and Radiological Health (CDRH) maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes device safety alerts,
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
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Guidance for Industry: CGMP for Phase 1 Investigational Drugs” dated July 2008. The guidance provides assistance in applying relevant current good manufacturing practice (CGMP) requirements of the Federal Food, Drug, and Cosmetic Act (the act) to the manufacture of most investigational new drugs, including biological drugs, used in phase 1 clinical trials. FDA is issuing this guidance concurrently with a final rule published elsewhere in this issue of the
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of the guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, or the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 301-827-1800. See the
Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Monica Caphart, Center for Drug Evaluation and Research (HFD-320), Food and Drug Administration, 11919 Rockville Pike, Rockville, MD 20852, 301-827-9047, or Christopher Joneckis, Center for Biologics Evaluation and Research (HFM-1), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-5000.
FDA is announcing the availability of a document entitled “Guidance for Industry: CGMP for Phase 1 Investigational Drugs” dated July 2008. This guidance provides assistance in applying CGMP required under section 501(a)(2)(B) of the act (21 U.S.C. 351(a)(2)(B)) in the manufacture of most investigational new drugs used in phase 1 clinical trials (phase 1 investigational drugs). The guidance is being issued concurrently with a final rule that specifies that the manufacture of most investigational new drugs manufactured for use in phase 1 clinical trials do not have to comply with the specific regulatory requirements in part 211 (21 CFR part 211).
Because a phase 1 clinical trial initially introduces an investigational new drug into human subjects, appropriate CGMP helps ensure subject safety. This guidance applies, as part of CGMP, quality control principles to the manufacture of phase 1 investigational drugs (i.e., interpreting and implementing CGMP consistent with good scientific methodology), which foster CGMP activities that are more appropriate for phase 1 clinical trials, improve the quality of phase 1 investigational drugs, and facilitate the initiation of investigational clinical trials in humans while continuing to protect trial subjects. For the manufacture of phase 1 investigational drugs described in this guidance (see section III of the guidance), this guidance will replace the guidance issued in 1991 (56 FR 7048, February 21, 1991) entitled “Preparation of Investigational New Drug Products (Human and Animal)” (the 1991 guidance). However, the 1991 guidance still applies to the manufacture of investigational new products (human and animal) used in phase 2 and phase 3 clinical trials.
In the
The guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents FDA's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in this guidance for part 211 have been approved under OMB control number 0910-0139.
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
Persons with access to the Internet may obtain the guidance at
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.
In additional embodiments, the invention is directed to use of epitope II as a molecular decoyant. In further embodiments, the invention is directed to use of epitope II to affinity purify an immune globulin to deplete interfering antibodies from and enrich neutralizing antibodies in the preparation.
1. P Zhang et al. Hepatitis C virus epitope-specific neutralizing antibodies in Igs prepared from human plasma. Proc Natl Acad Sci USA. 2007 May 15;104(20):8449-8454.
2. MY Yu et al. Neutralizing antibodies to hepatitis C virus (HCV) in immune globulins derived from anti-HCV-positive plasma. Proc Natl Acad Sci USA. 2004 May 18;101(20):7705-7710.
The skin thickening caused by topical application of DKK1 can be useful for skin grafts, and skin ulcers or abrasions. Decreased skin pigmentation, experimentally achieved by either topical or in vitro application of DKK1, may be desirable for conditions such as uneven skin pigmentation, pigmented birthmarks, or post inflammatory pigmentation. Suppressed hair growth may be cosmetically desirable for some areas of the skin, and in conditions such hypertrichosis, adrenal hyperplasia, or polycystic ovarian syndrome. DKK1 treatment may also be important for treating or preventing certain melanomas which involve hyperplastic or pre-malignant lesions.
U.S. Provisional Application No. 60/873,874 filed 07 Dec 2006 (HHS Reference No. E-321-2006/0-US-01).
PCT Application No. PCT/US2007/086855 filed 07 Dec 2007 (HHS Reference No. E-321-2006/0-PCT-02).
1. Makareeva E, Mertz EL, Kuznetsova NV, Sutter MB, DeRidder AM, Cabral WA, Barnes AM, McBride DJ, Marini JC, Leikin S. Structural heterogeneity of type I collagen triple helix and its role in osteogenesis imperfecta. J Biol Chem. 2008 Feb 22;283(8):4787-4798.
2. Mertz EL, Leikin S. Interactions of inorganic phosphate and sulfate anions with collagen. Biochemistry. 2004 Nov 30;43(47):14901-14912.
U.S. Patent 7,355,697 issued 08 Apr 2008 (HHS Reference No. E-096-2004/0-US-01).
International Patent Application No. PCT/US2005/030218 filed 25 Aug 2005, which published as WO 2006/026342 on 09 Mar 2006 (HHS Reference No. E-096-2004/0-PCT-02).
European Patent Application 05786373.9 filed 26 Aug 2005 (HHS Reference No. E-096-2004/0-EP-03).
U.S. Patent Application No. 11/826,806 filed 18 Jul 2007 (HHS Reference No. E-096-2004/1-US-01).
The current invention takes advantage of the ability of transposons, or mobile genetic elements, to move from one part of the genome to another by the cleavage and joining of their sequences into the target site; a reaction facilitated by a transposase enzyme. The phage Mu transposase is capable of inserting the right end sequence of the Mu transposon into any DNA sequence both
Fast, simple screening for genetic mutations in several diseases such as cystic fibrosis, spinal and bulbar muscular dystrophy, human fragile-X syndrome, Huntington's disease,
Genetic mapping and identification.
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.
National Protection and Programs Directorate, Infrastructure Protection, DHS.
60-Day Notice and request for comments.
The Department of Homeland Security (DHS) invites the general public and other federal agencies to comment on new information collection request 1670-NEW, TRIPWire User Registration. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), DHS is soliciting comments for this collection.
Comments are encouraged and will be accepted until September 15, 2008. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to Department of Homeland Security, Attn: IP/PSCD/Charlie Payne, Mail Stop 8540, 245 Murray Lane, SW., Washington, DC 20528-8540, or e-mail
Department of Homeland Security, Attn: IP/PSCD/Charlie Payne, Mail Stop 8540, 245 Murray Lane, SW., Washington, DC 20528-8540, or e-mail
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Privacy Office, DHS.
Notice of Publication of Privacy Impact Assessments.
The Privacy Office of the Department of Homeland Security (DHS) is making available sixteen (16) Privacy Impact Assessments on various programs and systems in the Department. These assessments were approved and published on the Privacy Office's Web site between January 1 and March 31, 2008.
The Privacy Impact Assessments will be available on the DHS Web site until September 15, 2008, after which they may be obtained by contacting the DHS Privacy Office (contact information below).
Hugo Teufel III, Chief Privacy Officer, Department of Homeland Security, Mail Stop 0550, Washington, DC 20528, or e-mail:
Between January 1 and March 31, 2008, the Chief Privacy Officer of the Department of Homeland Security (DHS) approved and published sixteen (16) Privacy Impact Assessments (PIAs) on the DHS Privacy Office Web site,
The Transportation Security Administration (TSA) is conducting pilot operations to evaluate the use of various Whole Body Imaging (WBI) technologies, including backscatter x-ray and millimeter wave devices, to detect threat objects carried on persons entering airport sterile areas. WBI creates an image of the full body, showing the surface of the skin and revealing objects that are on the body, not in the body. To mitigate the privacy risk associated with creating an image of the individual's body, TSA isolates the Transportation Security Officer (TSO) viewing the image from the TSO interacting with the individual. During the initial phase of the pilot, individuals who must undergo secondary screening will be given the option of undergoing the normal secondary screening technique involving a physical pat down by a TSO or a screening by a WBI device. A subsequent phase will evaluate WBI technology for individuals undergoing primary screening. Individuals will be able to choose to undergo WBI screening in primary.
The Federal Flight Deck Officer program was established by the Arming Pilots Against Terrorism Act as Title XIV of the Homeland Security Act (Pub. L. 107-296, Nov. 25, 2003, 116 Stat. 2300), codified at 49 U.S.C. 44921. Under this program, TSA deputizes qualified volunteer pilots and flight crewmembers of passenger and cargo aircraft as law enforcement officers to defend the flight deck of aircraft against acts of criminal violence or air piracy. Participants in the program, known as Federal Flight Deck Officers (FFDOs), are trained and authorized to transport and carry a firearm and to use force, including deadly force. Through this program, TSA collects data on pilots to assess the qualification and suitability of prospective and current FFDOs through an online application, and to administer the program.
DHS issued a final rule establishing minimum standards for State-issued driver's licenses and identification cards that Federal agencies will accept for official purposes after May 11, 2008, in accordance with the REAL-ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, 302 (2005) (codified at 49 U.S.C. 30301 note) (the Act). The final rule establishes standards to meet the minimum requirements of the Act including: Information and security features that must be incorporated into each card; application information to establish the identity and lawful status of an applicant before a card can be issued; and physical security standards for locations issuing driver's licenses and identification cards.
The DHS Office of Security uses the Integrated Security Management System (ISMS) to automate the tracking of Personnel Security related activities at DHS headquarters and component sites. ISMS is an update system to the Personnel Security Activities Management System (PSAMS). ISMS will help manage DHS personnel and security case records by adding to the existing functionality of PSAMS.
This is an update to the PIA for the USCIS Person Centric Query (PCQ) Service, operating through the USCIS Enterprise Service Bus (ESB) to describe the privacy impact of expanding the PCQ Service to include the following additional PCQ Client: The National Security and Records Verification Directorate/Verification Division's VIS.
This is an update to the PIA for the USCIS PCQ Service, operating through the USCIS ESB to describe the privacy impact of expanding the PCQ Service to include the following additional PCQ Client: The Immigrant Status Verifiers of the USCIS National Security and Records Verification Directorate/Verification Division.
U.S. Customs and Border Protection (CBP) employs Radio Frequency Identification (RFID) Technology that is to be used in cross-border travel documents to facilitate the land border primary inspection process. A unique number is embedded in an RFID tag which, in turn, is embedded in each cross-border travel document. At the border, the unique number is read wirelessly by CBP and then forwarded through a secured data circuit to back-end computer systems. The back-end
U.S. Immigration and Customs Enforcement (ICE) has established a system called the ICE Pattern Analysis and Information Collection (ICEPIC) system. ICEPIC is a toolset that assists ICE law enforcement agents and analysts in identifying suspect identities and discovering possible non-obvious relationships among individuals and organizations that are indicative of violations of the customs and immigration laws as well as possible terrorist threats and plots. All ICEPIC activity is predicated on ongoing law enforcement investigations. This PIA is being completed to provide additional notice of the existence of the ICEPIC system and publicly document the privacy protections that are in place for the ICEPIC system.
DHS Office of Inspector General (OIG) Investigative Records System includes both paper investigative files and the “Investigations Data Management System” (IDMS)—an electronic case management and tracking information system, which also generates reports. OIG uses IDMS to manage information relating to DHS OIG investigations of alleged criminal, civil, or administrative violations relating to DHS employees, contractors and other individuals and entities associated with the DHS. This PIA is being conducted to assess the privacy impact of the OIG Investigative Records system that includes both paper investigative files and the IDMS.
DHS TSA has developed the Crew Member Self-Defense Training Program (CMSDT), a voluntary self-defense training course, for air carrier crew members. TSA will collect name, last four (4) numerals of the Social Security Number, contact information, employer information including employee identification number, and course location preferences in order to verify a crew member's eligibility for the program and to provide the self-defense training. Because the CMSDT collects PII on members of the public, TSA is conducting this PIA in accordance with the statutory requirements of the E-Government Act of 2002.
Project Hostile Intent (PHI) is a research effort by the Science and Technology Directorate to ascertain whether screening technology can aid DHS screeners in making better decisions by supplementing the current screening process (wherein a human screener evaluates an individual's behavior) with training and computers. This PIA addresses privacy impacts of this program, and specifically, the temporary storage of video images during field tests of PHI's performance with real behavioral data to ensure that it is effective in a “real world” environment.
The Science & Technology Directorate's Protected Repository for the Defense of Infrastructure Against Cyber Threats (PREDICT) system is a repository of test datasets of Internet traffic data that is made available to approved researchers and managed by an outside contractor serving as the PREDICT Coordination Center. The goal of PREDICT is to create a national research and development resource to bridge the gap between (a) the producers of security-relevant network operations data and (b) technology developers and evaluators who can use this data to accelerate the design, production, and evaluation of next-generation cyber security solutions, including commercial products. A key motivation of PREDICT is to make these data sources more widely available to technology developers and evaluators, who are currently forced to base the efficacy of their technical solutions on old, irrelevant traffic data, anecdotal evidence, or small-scale test experiments, rather than on more comprehensive, real-world data analysis.
The Verification Division of the U.S. Citizenship and Immigration Services (USCIS) operates the Verification Information System (VIS). VIS is a composite information system incorporating data from various DHS databases. It is the underlying information technology that provides immigration status verification for (1) benefits determinations through the Systematic Alien Verification for Entitlements (SAVE) program for government benefits and (2) verification of employment authorization for newly hired employees through the E-Verify program. USCIS is conducting this PIA to clarify previous VIS PIAs and to describe updates to VIS that will improve the ability of USCIS to verify citizenship and immigration status information to users of SAVE and E-Verify.
Office of the Chief Human Capital Officer (OCHCO) implemented an enterprise e-Recruitment system for DHS. The use of an automated recruitment solution is necessary to meet mission critical needs of DHS and comply with the 45-day hiring model under the President's Management Agenda. OCHCO has conducted this PIA because e-Recruitment will use and maintain PII.
This PIA describes the expansion of the existing U.S. Coast Guard (USCG) and U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program partnership to provide mobile biometrics collection and analysis capability at sea, along with other remote areas where DHS operates. As a result of the success of this partnership's USCG Mona Pass Proof of Concept, the USCG plans a measured expansion of at-sea biometric capability throughout its mission scope and areas
DHS and CBP, in conjunction with the Bureau of Consular Affairs at the Department of State, published in the
Privacy Office, DHS.
Notice of Publication of Privacy Impact Assessments.
The Privacy Office of the Department of Homeland Security (DHS) is making available ten (10) Privacy Impact Assessments on various programs and systems in the Department. These assessments were approved and published on the Privacy Office's Web site between October 1, 2007, and December 31, 2007.
The Privacy Impact Assessments will be available on the DHS Web site until September 15, 2008, after which they may be obtained by contacting the DHS Privacy Office (contact information below).
Hugo Teufel III, Chief Privacy Officer, Department of Homeland Security, Mail Stop 0550, Washington, DC 20528, or e-mail:
Between October 1 and December 31, 2007, the Chief Privacy Officer of the Department of Homeland Security (DHS) approved and published ten (10) Privacy Impact Assessments (PIAs) on the DHS Privacy Office Web site,
The Transportation Security Administration (TSA) published a joint Final Rule with the United States Coast Guard to implement a Transportation Worker Identification Credential (TWIC) program to provide a biometric credential that can be used to confirm the identity of workers in the national transportation system, and conducted a PIA associated with that Final Rule. TSA is amending the PIA to reflect the development of TWIC contactless card capability in sections 1.4, 1.6, 9.2 and 9.3, and the approval of the records schedule by NARA in section 3. This PIA replaces the one published December 29, 2006.
TSA conducts security threat assessments on Commercial Driver's License (CDL) holders. CDL holders are licensed to operate large commercial motor vehicles that potentially pose threats to transportation security. Congress directed TSA to perform threat assessments on certain CDL holders in the SAFE PORT Act Pub. L. No. 109-347, 120 Stat. 1884 (2006). Since the potential threat extends beyond ports, TSA will perform security threat assessments on all CDL holders pursuant to its authority under 49 U.S.C. 14(f) which gives TSA broad authority “to assess threats to transportation” including vetting persons who could pose a threat to transportation.
The PIA previously published on July 14, 2006, has been amended to reflect the collection of a photograph to be placed on the temporary badge. The photograph will be stored in the system only for so long as is required to create the badge, then is deleted to create the next badge. This PIA replaces the previously published PIA.
TSA implemented a process to conduct security threat assessments on all Federal Aviation Administration (FAA) Airmen Certificate applicants and holders to ensure that the individual does not pose or is not suspected of posing a threat to transportation or national security. FAA Airmen Certificate holders include pilots, air crews, and others required to hold a certificate pursuant to FAA regulations. Because this program entails a new collection of information by TSA about members of the public in an identifiable form, the E-Government Act of 2002 and the Homeland Security Act of 2002 require that the TSA issue a PIA. The data collected and maintained for this program and the details and uses of this information are outlined in this PIA.
Recently the United Kingdom (UK) enacted legislation requiring the submission of biometric data by almost all individuals filing applications for UK visas. Officials from the UK and DHS have agreed that individuals who are physically located in the United States (US) may provide the requisite biometrics and limited biographical information at U.S. Citizenship and Immigration Services (USCIS) Application Support Centers (ASCs) for forward transfer to the UK in support of the adjudication of applications for visas. USCIS will temporarily retain the submitted biometric and biographical records until the UK provides confirmation that the transfer of data was successful. USCIS will delete the biometric and biographical records immediately after it receives that confirmation.
US-VISIT is an office and program within the National Protection and Programs Directorate of DHS. The office manages DHS' IDENT system and provides biometrics-based identity management services to agencies throughout immigration and border management, law enforcement, and intelligence communities. The Program provides an integrated, automated, biometric entry and exit system that records the arrival and departure of foreign nationals. US-VISIT published this PIA to update and describe the US-VISIT Program's change from collecting two (2) fingerprints to collecting up to ten (10) fingerprints (using inkless optical reading devices) from foreign nationals upon entering or exiting the United States.
The National Infrastructure Coordinating Center (hereafter refer to as the NICC), part of the National Operations Center (NOC) in the Operations Directorate, operates the INSight Information Management System (INSight), designed to support the identification of potentially significant changes in the operational status of the nation's Critical Infrastructures and Key Resources so that trained analysts can provide timely coordination with the NOC, respective Information Sharing and Analysis Centers, and other involved agencies in the public sector and federal sectors. INSight may collect personally identifiable information (PII) associated with infrastructure information; accordingly NICC has conducted this PIA.
The Boarding Pass Scanning System (BPSS) is a process and technology that validates the authenticity of the boarding pass at the TSA security checkpoint using 2-dimensional (2D) bar code readers and encryption techniques. The BPSS will display machine readable data from the boarding pass for confirmation against the human readable portions of the boarding pass to verify that the boarding pass is legitimate and has not been tampered with. Once confirmed, the displayed data will be deleted from the BPSS.
The Executive Secretariat of DHS operates the Enterprise Correspondence Tracking (ECT) system. The ECT is a correspondence workflow management system that assists DHS in responding to inquiries from the public, other government agencies, and the private sector. Tens of thousands of pieces of correspondence ranging from official rulings, policy statements, testimony, or even thank you letters are processed annually by DHS. The Executive Secretariat conducted this privacy impact assessment because the ECT collects and uses PII.
DHS added a new layer of security to its vendor employee access control procedures at certain facilities by offering a new and voluntary vendor program called the DHSAccessGate Program. Part of this program will involve the collection of PII from individuals who are not DHS employees or contractors. The DHS Office of Security has conducted this privacy impact assessment because of the collection of new PII.
Federal Emergency Management Agency, DHS.
Notice of Federal Advisory Committee Meeting.
This notice announces the date, time, location, and agenda for the next meeting of the National Advisory Council (NAC). At the meeting, the subcommittees will be reporting back regarding their work since the May 14-15, 2008 meeting. This meeting will be open to the public.
The meeting will be held at the Grand Hyatt Washington, 1000 H St. NW., Washington, DC 20001. 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 be provided to the address listed in the
Alyson Price, Designated Federal Officer, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, telephone 202-646-3746, fax 202-646-3061, and 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
30-Day Notice of Information Collection Under Review: Form I-192, Application for Advance Permission to Enter as Nonimmigrant (Pursuant to 212(d)(3) of the Immigration and Nationality Act); OMB Control No. 1615-0017.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until August 14, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the USCIS Web site at:
If additional information is required contact: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, Suite 3008, Washington, DC 20529, (202) 272-8377.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day Notice and request for comments; Extension of an existing information collection: 1651-0126; Proposed collection; comments requested.
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: Guam Visa Waiver Agreement (Form I-760). 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 form the public and affected agencies. This proposed information collection was previously published in
Written comments should be received on or before August 14, 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 Department of Homeland Security/Customs and Border Protection, and sent via electronic mail to
U.S. Customs and Border Protection (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 (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.
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.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The Interstate Land Sales Full Disclosure Act, 15 U.S.C. 1701,
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-0243) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice of upcoming meeting via conference call.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the Manufactured Housing Consensus Committee (the Committee) to be held via telephone conference. This meeting is open to the general public, which may participate by following the instructions below.
The conference call meeting will be held on Wednesday, July 16, 2008, from 11 a.m. to 3 p.m. eastern daylight time.
Information concerning the conference call can be obtained from the Department's Consensus Committee Administering Organization, the National Fire Protection Association (NFPA). Interested parties can link onto the NFPA's Web site for instructions concerning how to participate, and for contact information for the conference call, in the section marked “Business” “Manufactured Housing Consensus Committee Information”. The link can be found at:
William W. Matchneer III, Associate Deputy Assistant Secretary, Office of Regulatory Affairs and Manufactured Housing, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-6409 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Notice of this meeting is provided in accordance with Sections 10(a) and (b) of the Federal Advisory Committee Act (5 U.S.C. App. 2) and 41 CFR 102-3.150. The Manufactured Housing Consensus Committee was established under Section 604(a)(3) of the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended, 42 U.S.C. 5403(a)(3). The Committee is charged with providing recommendations to the Secretary to adopt, revise, and interpret manufactured home construction and safety standards and procedural and enforcement regulations, and with developing and recommending proposed model installation standards to the Secretary.
The purpose of this conference call meeting is for the Committee to review and provide comments to the Secretary on a draft proposed rule for the On-Site Completion of Construction of Manufactured Homes.
A. Roll call.
B. Welcome and opening remarks.
C. Regulatory Enforcement subcommittee discussion and recommendations.
D. Full Committee meeting for discussion of the On-Site Completion of Construction of Manufactured Homes Draft Proposed Rule.
E. Adjournment.
Bureau of Indian Affairs, Interior.
Proposed amendment of existing Privacy Act system of records.
Under the Privacy Act of 1974, as amended (5 U.S.C. 552a), the Bureau of Indian Affairs (BIA) is issuing public notice of its intent to amend an existing Privacy Act system of records notice entitled Interior, BIA—13 “Indian Loan Files,” published at 48 FR 41098 (September 13, 1983).
Comments must be received by August 25, 2008.
Any persons interested in commenting on this proposed amendment may do so by submitting comments in writing to the Privacy Act Officer, Bureau of Indian Affairs, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail to
Darlene Greifenberger, Office of Indian Energy and Economic Development, 1951 Constitution Avenue, NW., MS SIB-20, Washington, DC 20245, 202-513-7680 or by e-mail at
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in 209 DM 8.1.
The Office of Indian Energy and Economic Development Loan Guaranty and Insurance Program was developed to implement the Indian Financing Act of 1974 (25 U.S.C. 1481), as amended. This law requires the Department of the Interior to encourage private commercial lenders to make loans to Indian businesses they might otherwise deny because of insufficient familiarity with Indian business prospects. The program offers private lenders enhanced loan security with a partial loan guaranty which allows a modest federal investment to leverage large amounts of private capital for Indian business development. The system of records supporting this program, now known as the Loan Management and Accounting System (LOMAS), protects information contained in loan applications and supporting documents.
The purpose of this notice is to amend the Privacy Act System of Records entitled Interior, BIA—13: “Indian Loan Files,” by (1) Changing the name of the system to Interior, BIA—13: “Loan Management and Accounting System (LOMAS)”; (2) updating the addresses of the system locations, system managers, the categories of individuals covered by the system; (3) updating the information regarding disclosures outside the Department of the Interior; and (4) updating the storage, retrievability and safeguards statements to incorporate the changes since the system notice was last published.
A copy of the notice, with changes incorporated, is attached.
Loan Management and Accounting System (LOMAS)—Interior, BIA—13.
(1) Office of Indian Energy and Economic Development, 1951 Constitution Avenue NW., MS SIB-20, Washington, DC, 20245.
(2) Loan Accounting Section, Bureau of Indian Affairs (BIA), 1001 Indian School Road NW., Ste. 349, Albuquerque, NM, 87104. (Send correspondence to: P.O. Box 7430, Albuquerque, NM, 87194-7430.)
(3) System Administrator—LOMAS, National Business Center, 421 Gold Street SW., Suite 103, Albuquerque, NM, 87102.
(4) BIA Regional and Agency credit offices. For a listing of specific locations, contact the System Manager, at the address provided below.
(1) Applicants who applied for or received loan guaranties, loan insurance, or interest subsidies.
(2) Applicants who applied for guarantied bonds.
(3) Purchasers of guarantied or insured loans.
(1) Loan applications, including but not limited to loan collateral information, loan collection information, loan approval information, loan budget validation, and loan disbursement information;
(2) Supporting documents for loans;
(3) Borrower information including name, address, birth date, phone number, loan guaranty number, tribal name, record of payment cards, guaranty agreements, eligibility certificates, default documents, and/or promissory notes;
(4) Information pertaining to individuals who refuse to make required loan payments when it is determined by the Department of Treasury that they have sufficient assets to pay and/or as a result of the individual misuse of loan proceeds;
(5) Interest subsidy requests;
(6) Loan extension approvals;
(7) Information on loan applications not approved for guaranty or insurance; and
(8) Account information for individuals approved for loans, which includes loan account status, loan advance and subsidy status and approval status, loan number and borrower ID.
This system of records is maintained under the authority of Public Law 98-449, codified at 25 U.S.C. 1451, which authorizes the Department of the Interior to finance economic development on Indian Reservations.
The primary use of the records is to administer the Loan Guaranty and Insurance Program by tracking and recording payments and unpaid balances and providing information on payments made for paying interest subsidy, credits obtained, service loans made, and premiums paid by lenders.
Disclosures outside the Department of the Interior may also be made:
(1) To the Department of the Treasury and/or Justice in the form of information on individual delinquent borrowers or borrowers who have misused funds in order to support debt collection efforts.
(2) To Congress in the form of periodic reports on the status of the Indian Affairs Loan Guarantee, Insurance and Interest Subsidy Program in order to document the use of program funds.
(3) To credit reporting agencies in the form of basic information regarding payment delinquencies in order to satisfy Federal claims collection standards.
(4) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(5) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(6) To any criminal, civil, or regulatory law enforcement authority (whether federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(7) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(8) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(10) To state and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(11) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(12) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of
(c) The disclosure is made of such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(13) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(14) To the Department of the Treasury to recover debts owed to the United States.
(15) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored in both manual and electronic format. Manual records are maintained in letter files, application files, and computer printouts. Electronic records are maintained in network access storage, on hard disks, and on magnetic tapes.
Records are:
(a) Indexed by name of borrower, loan guaranty number, and tribal name when applicable.
(b) Retrieved by manual search or computer inquiry.
LOMAS is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access; agency officials have access only to records pertaining to their agencies.
(1) Physical Security: Paper or electronic format records are maintained in locked file cabinets and/or in secured rooms.
(2) Technical Security: Electronic records are maintained in conformity with Office of Management and Budget and Departmental guidelines reflecting the implementation of the Federal Information Security Management Act. Electronic data is protected through user identification, passwords, database permissions, and software controls. These security measures establish different degrees of access for different types of users. An audit trail is maintained and reviewed periodically to identify unauthorized access. A Privacy Impact Assessment was completed for LOMAS and is updated at least annually to ensure that Privacy Act requirements and personally identifiable information safeguard requirements are met.
(3) Administrative Security: All DOI and contractor employees with access to LOMAS are required to complete Privacy Act, Records Management Act, and Security Training.
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), as approved by the National Archives and Records Administration (NARA), and are scheduled for permanent retention. All records of guarantied or insured loans are stored permanently. Records of loans that are paid, cancelled, or otherwise disposed of are archived. Records of rejected loans are stored for 1 year and then archived.
Director, Office of Indian Energy and Economic Development, Office of the Assistant Secretary—Indian Affairs, 1951 Constitution Avenue, NW., MS SIB-20,Washington, DC 20245.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access may be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Information is received from individuals on whom the records are maintained, commercial banks, BIA employees and contractors, and purchasers of guarantied or insured loans.
None.
Bureau of Indian Affairs.
Notice of addition of a new system of records.
The Department of the Interior (DOI), Bureau of Indian Affairs is issuing public notice of its intent to add a new Privacy Act system of records to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a). This action is necessary to meet the requirements of the Privacy Act to publish in the
Comments must be received by August 25, 2008.
Any persons interested in commenting on this new system of records may do so by submitting comments in writing to the Privacy Act Officer, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail to
Nicole Jaber, Director, Division of Internal Validation and Verification, Office of the Chief Information Officer, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail at
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(3)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in 209 DM 8.1. This notice establishes the Privacy Act system or record entitled Interior, BIA—31, “Information Management System” (IMS).
The purpose of IMS is to automate the management of all types of documents
Information Management System (IMS): Interior, BIA-31.
Herndon Data Center (HDC), 625 Herndon Parkway, Herndon, VA 20170.
Individuals who are employees of BIA and AS-IA who are the originators or approving officials for government documentation.
(1) Information about employees to include name, work location and home address, work and home telephone number and fax numbers;
(2) Employee's office information, title, supervisor, and supervisory status;
(3) AS-IA and BIA Offices;
(4) Documents generated, their originator and originating office, and their approval destination(s); and
(5) Document tracking data and document suspense requirements.
This system of records is maintained under the authority of 25 U.S.C. 1, 1a, 13; 18 U.S.C. 3055; 25 U.S.C. 480.
The system is used to manage all AS-IA correspondence in a single database. IMS contains information to facilitate the efficiency of the correspondence process throughout AS-IA. The system will allow the tracking of correspondence from receipt to completion/response, provide valuable information to AS-IA coordinators, identify duplicate requests, ensure consistency in responses, reduce processing time, support action on correspondence, and improve customer service. IMS facilitates the management of documents, maintains multiple versions of any single document, and provides a mechanism to distribute documents to a group of individuals with the capability for the group members to respond/reply to the sender, and to manage/track workflow.
Disclosure(s) outside the Department of the Interior may be made:
(1)(a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(3) To any criminal, civil, or regulatory law enforcement authority (whether Federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(4) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(5) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose of which the records were compiled.
(6) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(7) To State and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(8) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(9) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(10) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(11) To the Department of the Treasury to recover debts owed to the United States.
(12) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored in electronic media: hard disks and magnetic tapes.
Users can access the IMS system by navigating (via browser) to the IMS logon Web page, and successfully entering their login credentials. Documents stored in IMS are retrieved by document name, subject matter, or author.
IMS is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access; agency officials have access only to records pertaining to their agencies.
(1) Physical Security: Electronic format records are maintained in locked file cabinets and/or in secured rooms. Buildings have security guards and/or secured doors, and all entrances are monitored by electronic surveillance equipment on a 24/7 basis.
(2) Technical Security: Electronic records are maintained in conformity with Office of Management and Budget and Departmental guidelines reflecting the implementation of the Federal Information Security Management Act. Electronic data are protected through user identification, passwords, database permissions, and software controls. These security measures establish different degrees of access for different types of users. An audit trail is maintained and reviewed periodically to identify changes made to records. A Privacy Impact Assessment was completed for the IMS and is updated at least annually to ensure that Privacy Act requirements and personally identifiable information safeguard requirements are met.
(3) Administrative Security: All DOI and contractor employees with access to IMS are required to complete Privacy Act, Records Management Act, and Security Awareness Training.
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), approved by the National Archives and Records Administration (NARA), and scheduled for permanent retention.
Director, Office of Information Operations (OIO), Office of the Chief Information Officer, 625 Herndon Parkway, Herndon, VA 20170.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Authorized user data comes from the Identity Information System (IIS). The subject document data is entered by the user.
None.
Bureau of Indian Affairs, Interior.
Proposed amendment of an existing system of records.
The Department of the Interior (DOI), Bureau of Indian Affairs (BIA) is issuing public notice, pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), of its intent to amend its existing Privacy Act system of records notice entitled Interior, BIA-07, “Tribal Rolls,” published at 48 FR 41098 (September 13, 1983).
Comments must be received by August 25, 2008.
Any persons interested in commenting on this proposed amendment may do so by submitting comments in writing to the Privacy Act Officer, Bureau of Indian Affairs, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail to
Dolores Ayotte, Acting Superintendent, Alaska Region, West Central Alaska Agency, Bureau of Indian Affairs, Department of the Interior, 3601 C Street, Suite 1100, Anchorage, AK 99503, or by e-mail to
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in 209 DM 8.1. This notice amends the Privacy Act System of Records entitled Interior, BIA-07, “Tribal Rolls.”
The purpose of this amendment is to: (1) Change the name of the system to Interior, BIA-07, “Progeny;” (2) update the information on the location of the records and the technology used to store and retrieve records; (3) more clearly state the information that is included in the system of records; (4) more clearly state the current routine uses of the records by organizations and individuals outside of the Department of the Interior; and (5) expand the routine uses of such information to include using these records as a basis for the creation of the Certificate of Degree of Indian Blood (CDIB) for the Alaska Native Claims Settlement Act (ANCSA) enrollees and descendants. A copy of the notice, with changes incorporated, is attached.
Progeny—Interior, BIA-07.
(1) BIA Albuquerque Data Center, 1011 Indian School Rd. NW., Albuquerque, NM 87104.
(2) Other BIA Area, Agency, and Field Offices. (For a listing of specific locations, contact the System Manager.)
Alaska Native Individuals originally enrolled through the Alaska Native Claims Settlement Act and their descendants.
• Tribal member information, including name, social security number, birth date, address, phone number, blood quantum, names of biological parents, and grandparents, and certificate of Degree of Indian Blood (CDIB);
• Tribal affiliation information, including Tribal Enrollment Number, Tribal member profile report, and Tribal composition;
• Tribal member genealogy information, including a family tree report, birth, marriage, and death notices; and
• Records of actions taken, including judgment distributions, per capita payments, shares of stocks, ownership, and census data taken using the rolls as a base.
This system of records is maintained under the authority of 25 U.S.C. 163; 25 U.S.C. 480.
The primary use of the records is to support DOI's statutory duty to create a Secretary's Roll of Tribal group members. Records are used to determine eligibility of individuals to participate in or enjoy benefits from an interest in a Tribal group, and to provide lists of approved enrollees used to distribute funds or income, or as a base to gather census or ownership data for planning purposes.
Disclosures outside of the Department of the Interior may be made:
(1) To the Tribe, Band, Pueblo, or corporation of which the individual to which the record pertains is a member or stockholder.
(2) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(3) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(4) To any criminal, civil, or regulatory law enforcement authority (whether Federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(5) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(6) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(7) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(8) To State and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(10) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(11) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(12) To the Department of the Treasury to recover debts owed to the United States.
(13) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored in both paper and electronic form.
Manual records are indexed by name. Electronic records can be retrieved by name, social security number, birth date, enrollment number, phone number, or address.
Progeny is maintained with controls meeting safeguard requirements
(1) Physical Security: Paper or electronic format records are maintained in locked file cabinets and/or in secured rooms.
(2) Technical Security: Electronic records are maintained in conformity with Office of Management and Budget and Departmental guidelines reflecting the implementation of the Federal Information Security Management Act. Electronic data are protected through user identification, passwords, database permissions, and software controls. These security measures establish different degrees of access for different types of users. An audit trail is maintained and reviewed periodically to identify unauthorized access. A Privacy Impact Assessment was completed for Progeny and is updated at least annually to ensure that Privacy Act requirements and personally identifiable information safeguard requirements are met.
(3) Administrative Security: All DOI and contractor employees with access to Progeny are required to complete Privacy Act, Records Management Act, and Security Training.
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), as approved by the National Archives and Records Administration, and are scheduled for permanent retention.
Deputy Bureau Director, Office of Trust Services, 1849 C Street, NW., Washington, DC, 20240.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access may be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Source information is received from individuals on whom the records are maintained, or from Federal and Tribal Government enrollment records.
None.
Bureau of Indian Affairs, Interior.
Notice of addition of a new system of records.
The Department of the Interior (DOI), Bureau of Indian Affairs (BIA) is issuing public notice of its intent to add a new Privacy Act system of records to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a). This action is necessary to meet the requirements of the Privacy Act to publish in the
Comments must be received by August 25, 2008.
Any persons interested in commenting on this new system of records may do so by submitting comments in writing to the Privacy Act Officer, 625 Herndon Parkway, Herndon, Virginia 20170, or by e-mail to
For information regarding Interior, BIA-34, National Irrigation Information Management System (NIIMS), contact Vicki Forrest, Deputy Bureau Director, Office of Trust Services, Bureau of Indian Affairs, 1849 C Street, NW., Washington, DC 20240, or by e-mail to
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in 209 DM 8.1. This notice establishes the Privacy Act system of records entitled Interior, BIA-34, “National Irrigation Information Management System (NIIMS).”
NIIMS is a billing, debt collection, and debt management system for customers of Indian irrigation operation-and-maintenance and construction projects operated by the BIA with costs that are reimbursable to the Federal government. NIIMS tracks financial billing and collection information, establishes receivables, processes collection actions and posts them against the receivables, and on a daily basis generates summarized transactions for interfacing with other Departmental financial systems.
National Irrigation Information Management System (NIIMS): Interior, BIA—34.
DOI National Business Center (NBC), 7401 W. Mansfield Ave, D-2772, Denver, CO 80235-2230.
(1) Customers (water users) of Indian irrigation operation-and-maintenance and construction projects operated by the BIA, including individuals (Indians and non-Indians), private sector parties (businesses), and tribal governments.
(2) Owners of land on which Indian irrigation projects are constructed, operated and maintained, to whom payments for water are made, including individuals (Indians and non-Indians), private sector parties (businesses), and tribal governments.
(1) Information on current and former owners of land on which Indian irrigation projects are constructed, including land owner account number, Social Security Number, tax identification number, Indian identification number, phone number, name, address, Federal or State identification numbers.
(2) Customer (water user) billing information, including name of the person who remits payment, and the name of the party who was legally allowed to claim an applicable tax write-off for irrigation related expenses.
(3) Information about land on which irrigation projects are constructed including land construction data, county assigned district identifier,
This system of records is maintained under the authority of 25 U.S.C. 1, 1a, 13; 18 U.S.C. 3055; 25 U.S.C. 480.
The primary uses of the records are to bill customers of Indian irrigation operation-and-maintenance and construction projects operated by the BIA, (including individual Indian and non-Indians and private sector parties (businesses)) with costs that are reimbursable to the Federal government, for water supplied by these projects, and to collect debts resulting from unpaid bills.
Disclosure outside the Department of the Interior may be made:
(1) To the Department of the Treasury to recover debts owed to the United States. When a NIIMS account is delinquent for 120 days, it is referred to the Treasury for collection. The information shared with the Treasury includes the tax ID or social security number, the customer name and address, along with the amount of debt owed.
(2)(a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(3) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(4) To any criminal, civil, or regulatory law enforcement authority (whether Federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(5) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(6) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose of which the records were compiled.
(7) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(8) To State and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(10) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft, or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(11) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(12) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
(13) To owners of land on which Indian irrigation projects are constructed, operated and maintained (including individual Indian and non-Indians and private sector parties (businesses)) to verify the payment received.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored on paper in a locked office or secured desk or cabinet, and in electronic form on hard disks and magnetic tapes.
Customer records are retrieved by name or customer ID number (if assigned). Ownership information is retrieved by owner name, unit serial number, or owner ID number (if assigned). Land information is retrieved by unit serial number.
NIIMS is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access.
(1)
(2)
(3)
Records relating to individuals covered by this system are retained in accordance with the Bureau of Indian Affairs Manual (BIAM), approved by the National Archives and Records Administration (NARA), and are scheduled for permanent retention.
Financial Specialist, Division of Irrigation, Power, and Safety of Dams, Office of Trust Services, Bureau of Indian Affairs, 911 NE 11th Avenue, Portland, OR 97232.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access may be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Source information includes information taken from individuals, information manually extracted from other in-house BIA records such as realty and probate records, information from county assessors and title companies, information from tribal documents, information collected from the Department of the Treasury, and information extracted from native allotment files by authorized BIA employees.
None.
Bureau of Indian Affairs, Interior.
Notice of addition of a new system of records.
The Department of the Interior (DOI), Bureau of Indian Affairs (BIA) is issuing public notice, pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), of its intent to add a new Privacy Act system of records to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a). This action is necessary to meet the requirements of the Privacy Act to publish in the
Comments must be received by August 25, 2008.
Any persons interested in commenting on this proposed amendment may do so by submitting comments in writing to the Privacy Act Officer, Bureau of Indian Affairs, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail to
Vicki Forrest, Deputy Bureau Director, Office of Trust Services, 1849 C Street, NW., Washington. DC 20240, or by e-mail to
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in 209 DM 8.1. This notice establishes the Privacy Act System of Records entitled Interior, BIA-28, “AKTitle.”
The purpose of this system is to maintain a single database of records related to individual Indians enrolled in Alaska Native corporations and their heirs. The existence of one consolidated database allows Alaska Title Plant and Probate personnel to quickly and accurately locate records in order to verify real estate holdings.
AKTitle—Interior, BIA-28.
Alaska Title Services Center, 3601 C Street, Suite 1100, Anchorage, AK 99053.
Individual Indians enrolled in Alaska Native Corporations and heirs.
• Enrollee information, including name, date of birth, date of death, social security number, Alaska Native Enrollment Number, names of mother and father, Native Corporation to which individual is enrolled, and title ownership; and
• Information on individual real estate holdings, including lot, block, section, township, range, and tract number.
This system of records is maintained under the authority of 36 Stat. 855, 856, 38 Stat. 588, 42 Stat. 1185, 44 U.S.C. 3101
AKTitle is used to manage records of real estate holdings of individual Indians enrolled in Alaska Native corporations. AKTitle shares information with “Alaska National Interest Lands Conservation Act” (ANILCA) and Native Allotment Distributions for Alaska Realty and Compact/Contract Offices.
Disclosures outside the Department of the Interior may be made:
(1) To State Offices (primarily Welfare, etc.); the Social Security Office; Indian Health Services; Department of Education; and Alaskan Natives.
(2)(a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(3) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(4) To any criminal, civil, or regulatory law enforcement authority (whether Federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(5) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(6) To Federal, State, territorial, local, Alaskan Native, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(7) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(8) To State and local governments and Alaskan Native organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(10) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(11) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(12) To the Department of the Treasury to recover debts owed to the United States.
(13) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
(14) To individual Indians and their heirs to verify their real estate holdings.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored in both paper and electronic form.
Manual records are indexed by name. Electronic records can be retrieved by name, social security number, date of birth, ID number, names of parents, U.S. Survey Numbers, or land descriptions such as Township or Range.
AKTitle is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access; agency officials have access only to records pertaining to their agencies.
(1)
(2)
(3)
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), as approved by the National Archives and Records Administration, and are scheduled for permanent retention.
Deputy Bureau Director, Office of Trust Services, 1849 C Street, NW., Washington, DC 20240.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access should be addressed to the System Manager. The request must be in writing, signed by
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Source information is received from Probate files, Native Allotment files, the Bureau of Vital Statistics, the Regional Solicitor, and decisions from the Office of Hearings and Appeals. Information was collected from the public for the Vietnam Veterans Allotment Act.
None.
Bureau of Indian Affairs (BIA), Interior.
Proposed amendment of an existing system of records.
The Department of the Interior (DOI), Bureau of Indian Affairs (BIA) is issuing public notice, pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), of its intent to amend its existing Privacy Act system of records notice entitled Interior, BIA-22, “Indian Student Records,” published at 55 FR 34085 (August 21, 1990).
Comments must be received by August 25, 2008.
Any persons interested in commenting on the amended system of records may do so by submitting comments in writing to the Privacy Act Officer, Bureau of Indian Affairs, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail to
Kevin Skenandore, Acting Director, Bureau of Indian Education (BIE), 1849 C Street, NW., MIB MS 3609, Washington, DC 20245, or by e-mail to
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs, in 209 DM 8.1. This notice amends the Privacy Act System of Records entitled Interior, BIA-22, “Indian Student Records.” The purpose of the amendment is to: (1) Change the name of the system from Interior, BIA-22, “Indian Student Records” to Interior, BIA-22, “Native American Student Information System” (NASIS) (2) update the addresses of the system locations, system managers, and the categories of individuals covered by the system statement; (3) update the information regarding disclosures outside the Department of the Interior; (4) update the information on student records; (5) update the routine uses, storage, retrievability and safeguards statements to incorporate the changes since the system notice was last published, and (6) expand the existing system of records to include information necessary to generate the reports the Bureau of Indian Education produces annually to meet the various requirements. A copy of the notice, with changes incorporated, is attached.
Native American Student Information System (NASIS), Interior, BIA-22.
(1) Bureau of Indian Education (BIE) Central Office, 1849 C Street, NW., MS 3609, Washington, DC 20240.
(2) Bureau of Indian Affairs (BIA) Albuquerque Data Center, 1011 Indian School Road, NW, Albuquerque, NM 87104.
(3) Infinite Campus, 2 Pine Tree Drive, Suite 302, Arden Hills, MN 55112.
(4) BIE-specific school locations. For a listing of specific locations, contact the Systems Manager.
• All students who attend BIE-funded primary and secondary schools;
• All education staff who work at BIE-funded primary and secondary schools, including school administrators, principals, registrars, school clerks, teachers, teacher aides, counselors, school bus drivers (for certifications), janitorial staff, food service staff, school complex security staff, and dormitory staff; and
• Parents or guardians of, and emergency or authorized contacts for, students attending BIE-funded primary and secondary schools.
• School staff information including, but not limited to, staff ID number, qualifications for staff position, school district of employment and school district assignments, home address, home phone number, and e-mail address;
• Student information including name, birth date, address, phone number, e-mail address, student ID information, student photo, school, residential enrollment, free or reduced meal status, and household census information;
• Student tribal affiliation, tribal certificate type, and validation of tribal membership;
• Student contact information including contact information for parents or guardians or other parties to contact in an emergency, and relationships of students to emergency contacts;
• Records documenting student behavior including information on behavior problems and the resolution of the problems;
• Transcripts, test scores, grades, education level, classes available, class scheduling, special education data, gifted and talented data, instructional and residential attendance;
• School bus transportation data;
• Languages spoken by students, level of English proficiency, indigenous Indian languages spoken, and preferred language;
• Immunization records of students, health conditions of students and other information pertaining to student health, including treatments for health problems.
This system of records is maintained under the authority of 25 U.S.C. 1, 1a, 13; 25 U.S.C. 480; Public Law 95-561 and subsequent amendments; 25 CFR parts 31, 36, and 39; the Snyder Act (25 U.S.C. 13); Johnson O'Malley Act (codified as amended, 25 U.S.C. 452 (2000)); Elementary and Secondary Education Act (20 U.S.C. 6301); Tribally Controlled Schools Act (25 U.S.C. 2501
The system is used to administer BIE-funded schools by providing high quality data to legitimate users. NASIS serves as the BIE's primary tracking and reporting system for students attending BIE-funded schools and for duty certifications of employees at such schools.
Disclosure outside the Department of the Interior may be made:
(1) To Congress in the form of Indian Student Equalization Program (ISEP) reports to justify ISEP funding for Indian schools.
(2) To the Department of Education in the form of Consolidated School Reports to satisfy accountability requirements of NCLBA.
(3) To the Department of Education in the form of Annual Performance Reports to satisfy accountability requirements of the IDEA.
(4) To parents and guardians of students in the form of web-enabled access to grades, assignments, attendance, behavior, schedule, and school calendar for their student.
(5) To parents and guardians of students in the form of periodic reports on their student(s).
(6) To State education departments in the form of bio-grid data for assessment access for students within that State for the purpose of fulfilling accountability requirements under NCLBA.
(7) To State education departments in the form of attendance and graduation rate data for students within that State for the purpose of fulfilling accountability requirements under NCLBA.
(8) To an authorized recipient such as a parent, medical facility, service provider, or school to which the student is transferring, in the form of a data package containing information about the student to enable the recipient to provide services to the student, following the guidelines of the IDEA for special education students, or privacy policies for DOI and Family Education Rights and Privacy Act (FERPA) for all other students.
(9) To the public in the form of school report cards as required by NCLBA.
(10) To individual requestors in accordance with the requirements of FERPA and Freedom of Information Act (FOIA).
(11) To schools receiving grants from or under contract to the BIE.
(12)(a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(13) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(14) To any criminal, civil, or regulatory law enforcement authority (whether Federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(15) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(16) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(17) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(18) To state and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(19) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(20) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(21) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(22) To the Department of the Treasury to recover debts owed to the United States.
(23) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored in both paper and electronic form. Technical data from audit logs and database queries produced by IT support in Infinite Campus are stored in paper form at this location. Sensitive student records
Records including attendance, grades, discipline information, test and assessment histories, program enrollments, and health information are retrieved from the NASIS using a unique student identification code assigned by the system. Other records for school administrators, principals, teachers, teacher aides, counselors, school bus drivers, line officers, regional directors, system administrators, librarians, food service workers, dormitory managers, and parents/guardian records are retrievable using a unique identifier code assigned by the system for each individual.
NASIS is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access; agency officials have access only to records pertaining to their agencies.
(1)
(2)
(3)
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), as approved by the National Archives and Records Administration (NARA), and are scheduled for permanent retention.
NASIS COTR and Project Manager, Bureau of Indian Education, 1001 Indian School Road, NW, Suite 219A, Albuquerque, NM 87103
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access may be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Information is received from students attending BIE-funded schools, parents/guardians of students, school administrators, principals, teachers, teacher aides, counselors, school bus drivers, librarians, food service workers, and dormitory managers on whom records are maintained.
None.
Bureau of Indian Affairs, Interior.
Notice of addition of a new system of records.
The Department of the Interior, Bureau of Indian Affairs (BIA) is issuing public notice of its intent to add a new Privacy Act system of records to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552). This action is necessary to meet the requirements of the Privacy Act to publish in the
Comments must be received by August 25, 2008.
Any persons interested in commenting on this new system of records may do so by submitting comments in writing to the Privacy Act Officer, 625 Herndon Parkway, Herndon VA 20170, or by e-mail to
Nicole Jaber, Director, Division of Independent Validation and Verification, Office of the Chief Information Officer, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail at
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in 209 DM 8.1. This notice establishes the Privacy Act system of records entitled Interior, BIA-30, “Identity Information System” (IIS). The purpose of this system is to provide an automated tool to track the security screening of BIA and Assistant Secretary—Indian Affairs (AS-IA) employees and contractors. It enables or allows BIA and AS-IA to record completion of official required IT security training and track requests for access to BIA IT information systems.
Identity Information System (IIS)—Interior, BIA-30.
Herndon Data Center (HDC), 625 Herndon Parkway, Herndon, VA 20170.
Those members from the following organizations who require access to BIA IT systems:
(1) Employees and contractors of AS-IA, BIA and the Bureau of Indian Education (BIE)
(2) Office of the Special Trustee for American Indians (OST)
(3) Office of Hearings and Appeals (OHA)
(4) Office of Historical Trust Accounting (OHTA)
(5) Bureau of Land Management (BLM)
(6) Tribal users covered under a 638 Compact/Contract
(1) Individual data including the name, title, birth date, Social Security Number, phone number, office name, and office location;
(2) Agency affiliation and status as employee or contractor
(3) Status of required training;
(4) System role based accesses granted to each user;
(5) Building access badge information;
(6) Acceptance date of BIA Rules of Behavior;
(7) Record showing that background status has been confirmed by personnel security;
(8) IT systems for which access has been requested and the status of those requests;
(9) Supervisor or government approver records showing those users whose access or removal request needs to be approved by the supervisor or government approver;
(10) Business owner records showing those users whose access or removal request needs to be approved by the business owner;
(11) System administrator records showing the names of those users whose access needs to be set up or revoked;
(12) Contract Officer Technical Representative (COTR) records showing the names and other data of contract IT users employed on a contract under the administrative support of that COTR.
This system of records is maintained under the authority of 25 U.S.C. 1, 1a, 13; 25 U.S.C. 480.
The system is used to record and manage contact, training, and security screening information about BIA and AS-IA employees and contractors; and to manage access by BIA and AS-IA employees and contractors to BIA information systems.
Disclosure(s) outside the Department of the Interior may be made:
(1) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(3) To any criminal, civil, or regulatory law enforcement authority (whether Federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(4) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(5) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(6) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(7) To State and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(8) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(9) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(10) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(11) To the Department of the Treasury to recover debts owed to the United States.
(12) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored on network storage devices, (
IIS users view their own data by signing onto IIS with their user name and password. Additional access to data
IIS is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access; agency officials have access only to records pertaining to their agencies.
(1)
(2)
(3)
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), as approved by the National Archives and Records Administration, and scheduled for permanent retention.
Director, Office of Information Operations (OIO), Office of the Chief Information Officer, 625 Herndon Parkway, Herndon, VA 20170.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access may be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Individuals on whom the records are maintained providing information on themselves, managers issuing approvals for system access requests, IT technicians reporting status of IT system access requests, and personnel security officers reporting verification of background investigations.
None.
Bureau of Indian Affairs, Interior.
Notice of addition of a new system of records.
The Department of the Interior (DOI), Bureau of Indian Affairs (BIA) is issuing public notice of its intent to add a new Privacy Act system of records to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a). This action is necessary to meet the requirements of the Privacy Act to publish in the
Comments must be received by August 25, 2008.
Any persons interested in commenting on this proposed amendment may do so by submitting comments in writing to the Privacy Act Officer, Bureau of Indian Affairs, 625 Herndon Parkway, Herndon, VA 20170, or by e-mail to
Vicki Forrest, Deputy Bureau Director, Office of Trust Services, 1849 C Street, NW., Washington, DC 20240, or by e-mail at
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Principal Deputy Assistant Secretary—Indian Affairs in 209 DM 8.1. This notice establishes the Privacy Act system of records entitled Interior, BIA-29: “Fee to Trust Tracking System” (FTTS).
FTTS was developed for the BIA to track applications for conversions of land from fee ownership into trust status for Tribes and individual Indians. FTTS is replacing an existing legacy system, Fee to Trust (FTT), that does not collect sufficient information to properly track applications.
Fee to Trust Tracking System (FTTS), Interior, BIA-29.
Office of Information Operations, Bureau of Indian Affairs, 625 Herndon Parkway, Herndon, VA 20170.
(1) Individuals applying to the Department of the Interior (DOI) for conversion of land from fee ownership into trust status.
(2) Individuals, Tribes, organizations or other stakeholders or their representatives with an interest in applications for converting land from fee ownership into trust status.
(3) DOI employees or contractors who process the applications for conversion of land from fee ownership into trust status if their contact information is required.
(1) Statistical information necessary to improve and streamline the process, as well as, budget preparatory information to support the entire transfer of fee simple land into trust lands for tribes and individual Indians.
(2) Information required by the trust fee lands transfer case packet application, including but not limited to, a legal description of the trust fee land packet, and the name, phone number and address of the party (or parties) filing the application.
(3) Legal representation information pertaining to the trust fee lands transfer packet application, including but not
(4) Case management information for each packet, including but not limited to trust fee land packet number, documents required for the processing of the trust fee land transfer, and Tribal consensual information.
(5) Information pertaining to the status of the packet with respect to the steps required to transfer fee simple land into trust land for tribes and individual Indians.
5 U.S.C. 552; 5 U.S.C. 552A; 5 U.S.C. 301; 43 U.S.C. 1457; and 44 U.S.C. 3101
FTTS is used primarily to track applications for conversions of land from fee simple ownership into trust status for Tribes and individual Indians.
Disclosure outside the Department of the Interior may be made:
(1) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(3) To any criminal, civil, or regulatory law enforcement authority (whether federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(4) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(5) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(6) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(7) To State and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(8) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(9) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(10) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(11) To the Department of the Treasury to recover debts owed to the United States.
(12) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored in both paper and electronic form.
Both manual and electronic data can be retrieved (by means of a search of electronic indices) by land transfer packet case number, name of party (or parties) filing the application, name of Tribe, property name, assessor's parcel number, or region, state, county and meridian.
FTTS is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access; agency officials have access only to records pertaining to their agencies.
(1)
(2)
(3)
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), as approved by the National Archives and Records Administration, and are scheduled for permanent retention.
Deputy Bureau Director, Office of Trust Services, 1849 C Street, NW., Washington, DC 20240.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.60.
A request for access should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Source information is received from individuals on whom the records are maintained, or from legal representatives acting on the behalf of parties filing applications to convert land from fee simple ownership into trust status.
None.
Bureau of Indian Affairs, Interior.
Notice of addition of a new system of records.
The Department of the Interior (DOI), Bureau of Indian Affairs (BIA) is issuing public notice of its intent to add a new Privacy Act system of records to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a). This action is necessary to meet the requirements of the Privacy Act to publish in the
Comments must be received by August 25, 2008.
Any persons interested in commenting on this new system of records may do so by submitting comments in writing to the Privacy Act Officer, 625 Herndon Parkway, Herndon, VA 20170, via fax to 703-735-4386, or by e-mail to
For information regarding Interior, BIA-32, “Land Consolidation Tracking System” (LCTS), contact Melissa O'Connor, Program Assistant, BIA, Indian Land Consolidation Center, 721 W. Lakeshore Dr., Ashland, WI, 54806, or by e-mail at
This notice is published pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)) and is in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in 209 DM 8.1. This notice establishes the Privacy Act system of records entitled Interior, BIA-32, “Land Consolidation Tracking System” (LCTS).
The purpose of the LCTS is to provide the Indian Land Consolidation Program (ILCP) with an electronic means of tracking the land sale process. LCTS tracks the land sale process from initiation by the landowner until the sale is complete. The LCTS gives a land owner an updated status report on the sale of his/her land. It also provides the BIA with a means of tracking the paper documents that pertain to the sale and with management reports pertaining to the steps in the land sale process.
Land Consolidation Tracking System (LCTS)—Interior, BIA-32.
Office of the Chief Information Officer, Office of Information Operations, Bureau of Indian Affairs, 625 Herndon Parkway, Herndon, VA 20170.
(1) Land owners who are sellers and clients of the LCTS process.
(2) Indian Land Consolidation Office (ILCO) staff whose office and work information is used to validate staffing requirements.
(1) The name, surname at birth if different from married name (if married), address, telephone number, Social Security Number, tribal enrollment number, gender, date of birth, date of death, mother's maiden name, and father's name of each Indian land owner.
(2) The land owner's fractionated interests by Land Area Code, ownership percentage, number of shares, equivalent acres, and value.
(3) Summaries of land tracts and locations for each individual land holder, location and summary information on the tracts and whether the land has mineral value or not.
(4) The information necessary to track information about the seller and document the interaction with ILCO.
(5) The status of land sales, metrics on the Indian Land Consolidation Act program to help determine the effectiveness of the program.
(6) The time spent and contribution value of support carried out by ILCO personnel in order to track Activity Based Costing Management.
(7) Information on the location of documents generated by the sale process that are needed by the members of the ILCO staff in order to continue a transaction or answer a question.
(8) Names and contact information for ILCO staff, which is used for tracking the land consolidation work and validating the staff requirements.
This system of records is maintained under the authority of 25 U.S.C. 1, 1a, 13; 18 U.S.C. 3055; 25 U.S.C. 480.
The LCTS is primarily used to administer the Indian Land Consolidation Program by tracking the land sale process, providing the BIA with a means of tracking the paper documents that pertain to the land sale, and providing the land owner with status reports on the sale of his/her land. LCTS tracks the land sale process from initiation by the landowner until the sale is complete.
Disclosures outside the Department of the Interior may be made:
(1) To Tribes that compact, contract, or enter into cooperative agreements with the BIA.
(2) (a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The Department of Justice (DOJ);
(ii) A court, adjudicative or other administrative body;
(iii) A party in litigation before a court or adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of Hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee;
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(ii) DOI deems the disclosure to be:
(A) Relevant and necessary to the proceeding; and
(B) Compatible with the purposes for which the records were compiled.
(3) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir of such individual if covered individual is deceased, has made to the office.
(4) To any criminal, civil, or regulatory law enforcement authority (whether Federal, State, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(5) To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(6) To Federal, State, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing, or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(7) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(8) To State and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(9) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(10) The appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made of such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(11) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(12) To the Department of the Treasury to recover debts owed to the United States.
(13) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined by the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Paper records are maintained in manual form in file folders. Electronic data extracted from title documents pertaining to land owners, land ownership, conveyances, encumbrances, valuation and income, are maintained on electronic media (
Manual records are retrievable by the surname of the land owner. Electronic records are retrievable from LCTS by name, Social Security Number, tribal enrollment number, mother's maiden name, or date of birth.
LCTS is maintained with controls meeting safeguard requirements identified in Departmental Privacy Act Regulations (43 CFR 2.51) for manual and automated records. Access to records is limited to authorized personnel whose official duties require such access; agency officials have access only to records pertaining to their agencies.
(1) Physical Security: Paper or electronic format records are maintained in locked file cabinets and/or in secured rooms.
(2) Technical Security: Electronic records are maintained in conformity with Office of Management and Budget and Departmental guidelines reflecting the implementation of the Federal Information Security Management Act. Electronic data is protected through user identification, passwords, database permissions, and software controls. These security measures establish different degrees of access for different types of users. An audit trail is maintained and reviewed periodically to identify unauthorized access. A Privacy Impact Assessment was
(3) Administrative Security: All DOI and contractor employees with access to LCTS are required to complete Privacy Act, Records Management Act, and Security Awareness Training.
Records relating to individuals covered by this system are retained in accordance with the 16 Bureau of Indian Affairs Manual (BIAM), as approved by the National Archives and Records Administration, and, as such, are scheduled for permanent retention.
Program Assistant, BIA, Indian Land Consolidation Office, 721 W. Lakeshore Dr., Ashland, WI 54806.
Inquiries regarding the existence of records should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet requirements of 43 CFR 2.60.
A request for access should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the requirements of 43 CFR 2.63.
A petition for amendment should be addressed to the System Manager. The request must be in writing, signed by the requester, and meet the content requirements of 43 CFR 2.71.
Source information includes information taken from individuals and information manually extracted from other in-house BIA records, such as realty and probate records. Source information also includes county assessor, title company, and tribal documents, and documents collected from the Department of Treasury and from native allotment files.
None.
Bureau of Land Management, Interior.
Notice of application.
The surface owner of the lands described in this notice, aggregating approximately 160 acres, has filed an application for the purchase of the Federally-owned mineral interests in the lands. Publication of this notice temporarily segregates the mineral interest from appropriation under the public land laws, including the mining law.
Interested persons may submit written comments to the Bureau of Land Management (BLM) at the address stated below. Comments must be received no later than August 29, 2008.
Bureau of Land Management, Phoenix District, 21605 North 7th Avenue, Phoenix, AZ 85027. Detailed information concerning this action, including appropriate environmental information, is available for review at the above address.
Matthew Magaletti, Lands and Realty Specialist, at the above address or at 623-580-5590.
The surface owner of the following described lands has filed an application pursuant to section 209 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1719(b), for the purchase and conveyance of the Federally-owned mineral interest in the following described lands:
Total Acres 160.00, more or less.
Effective immediately, the BLM will process the pending application in accordance with the regulations stated in 43 CFR part 2720. Written comments concerning the application must be received no later than the date specified above in this notice. The purpose for a purchase and conveyance is to allow consolidation of surface and subsurface minerals ownership where (1) there are no known mineral values or (2) in those instances where the Federal mineral interest reservation interferes with or precludes appropriate nonmineral development and such development is a more beneficial use of the land than the mineral development.
On July 15, 2008 the mineral interests owned by the United States in the above described lands will be segregated to the extent that they will not be subject to appropriation under the public land laws, including the mining laws. The segregative effect shall terminate upon issuance of a patent or deed of such mineral interest; upon final rejection of the mineral conveyance application; or July 15, 2010, whichever occurs first.
43 CFR 2720.1-1(b).
Bureau of Land Management, Interior.
Notice of intent.
The Bureau of Land Management (BLM) Kingman Field Office, Kingman, Arizona, intends to amend the Kingman Resource Management Plan (RMP) with an associated Environmental Assessment (EA) and by this notice is announcing the start of the public scoping period. The Kingman RMP, approved March 1995, requires amendment in order to designate a Transportation Corridor in response to an Arizona Department of Transportation (ADOT) proposal to realign State Route 95 (SR-95).
Public scoping comments will be accepted for 30 days from the publication date of this
You may submit comments by any of the following methods:
•
•
•
Documents pertinent to this proposal may be examined at the Kingman Field Office.
For further information and/or to have your name added to our mailing list, contact John Reid, Environmental Protection Specialist, Kingman Field Office, telephone (928) 718-3735; e-mail
This document provides notice that the BLM Kingman Field Office, Kingman, Arizona, intends to amend the Kingman RMP with an associated EA and announces the public scoping period.
The proposed location for the Transportation Corridor would be within Gila and Salt River Meridian, Mohave County, Arizona: T. 16N., R.20 W.; T. 17 N., R. 20 W.; T. 17 N., R. 21 W.; T. 19 N., R. 21 W.; and, T. 21 N., R. 20 W. The area described contains about 776 acres in Mohave County, Arizona. The amendment will fulfill the needs and obligations set forth by the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and BLM management policies. 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.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis and alternatives. You may submit comments on issues to the BLM using one of the methods listed in the
Preliminary issues and management concerns have been identified by BLM personnel, other agencies, and in meetings with individuals and user groups. They represent the BLM's knowledge to date regarding the existing issues and concerns with current land management. The major issues identified thus far that will be addressed include:
• Land Tenure adjustments;
• Cultural Resources management;
• Visual Resource management;
• Special Status Species management;
• Wild and Free Roaming Horse and Burro management; and,
• Resource Access and Travel Management.
The Federal Highway Administration is in the process of developing an EIS that will analyze project specific effects. Following the preparation of the EIS there will be further opportunities for public involvement and comment.
43 CFR 2809.
National Park Service, Department of the Interior.
Notice of intent to prepare an environmental impact statement for the general management plan for Golden Spike National Historic Site.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service is preparing an environmental impact statement for the general management plan for Golden Spike National Historic Site, Utah. The Regional Director, Intermountain Region, will approve the environmental impact statement.
Golden Spike National Historic Site is in Box Elder County, Utah. The national historic site was authorized by Congress on July 30, 1965. Congress charged the Secretary with acquisition of lands “ * * * for the purpose of establishing a national historic site commemorating the completion of the first transcontinental railroad across the United States * * *” The enabling legislation also states that “the National Park Service * * * shall administer, protect, and develop such historic site, subject to the provisions of the Act entitled `An Act to establish a National Park Service, and for other purposes' ” approved August 25, 1916 (39 Stat. 525), as amended and supplemented, and the Act entitled “An Act to provide for the preservation of historic American sites buildings, objects, and antiquities of national significance, and for other purposes,” approved August 21, 1935 (49 Stat. 666), as amended.
The general management plan will prescribe the resource conditions and visitor experiences that are to be achieved and maintained in the national historic site over the next approximately 20 years. The clarification of what must be achieved according to law and policy will be based on review of the park's purpose, significance, special mandates, and the body of law and policies directing the park management. Management decisions to be made where law, policy, or regulations do not provide clear guidance or limits will be based on the purposes of the park; the range of public expectations and concerns; resource analysis; an evaluation of the natural, cultural, and social impacts of alternative courses of action; and consideration of long-term
The National Park Service will conduct public scoping for 90 days from the date of publication of this notice. Open meetings regarding the general management plan may be held during the public scoping period depending on the level of public interest. Specific dates, times, and locations will be made available in the local media, or by contacting the Superintendent, Golden Spike National Historic Site.
Throughout the scoping and planning process, information will be available for public review and comment online at
Leslie Crossland, Superintendent, Golden Spike National Historic Site, P.O. Box 897, Brigham City, Utah 84302-0897; TEL (435) 471-2209; FAX (435) 471-2341.
If you want to comment on the general management planning process for Golden Spike National Historic Site, or on any issues associated with the plan, you many submit your comments by any one of several methods. You may mail comments to Superintendent, Golden Spike National Historic Site, P.O. Box 897, Brigham City, Utah 84302-0897. You may also submit comments on the National Park Service's Planning, Environment, and Public Comment Web site at
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 9) issued by the presiding administrative law judge (“ALJ”) extending the target date in the above-captioned investigation to September 14, 2009.
Paul M. Bartkowski, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-5432. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
This investigation was instituted on January 3, 2008, based on a complaint filed by Seoul Semiconductor Company, Ltd. (“SSC”) of Seoul, Korea. The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of short wavelength semiconductor lasers and products containing the same that infringe claim 1 of U.S. Patent No. 5,321,713. The complaint initially named Nichia Corporation (“Nichia”) of Tokushima, Japan as the sole respondent. Subsequently, five additional respondents were added to the investigation.
On May 27, 2008, the administrative law judge (“ALJ”) issued Order No. 8, requesting that the parties submit a proposed target date and proposed schedules in response to Order No. 6, which added the five additional respondents mentioned above. Upon receipt and consideration of the submissions received, the ALJ issued the subject ID on June 13, 2008, extending the target date from August 24, 2009, to September 14, 2009. No petitions for review were filed. The Commission has determined not to review the ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42 and 210.51 of the Commission's Rules of Practice and Procedure (19 CFR 210.42, 210.51).
By order of the Commission:
United States International Trade Commission.
July 16, 2008 at 11 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: None.
2. Minutes.
3. Ratification List.
4. Inv. No. 731-TA-990 (Review) (Non-Malleable Cast Iron Pipe Fittings from China)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before July 24, 2008.)
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission:
United States International Trade Commission.
July 17, 2008 at 11 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: none
2. Minutes
3. Ratification List
4. Inv. Nos. 701-TA-449 and 731-TA-1118-1120 (Final) (Light-Walled Rectangular Pipe and Tube from China, Korea, and Mexico)—briefing and vote. (The Commission is currently scheduled to transmit its determinations and Commissioners' opinions to the Secretary of Commerce on or before July 28, 2008.)
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission:
United States International Trade Commission.
July 18, 2008 at 11 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: None.
2. Minutes
3. Ratification List
4. Inv. Nos. 701-TA-450 and 731-TA-1122 (Final) (Laminated Woven Sacks from China)—briefing and vote. (The Commission is currently scheduled to transmit its determinations and Commissioners' opinions to the Secretary of Commerce on or before July 30, 2008.)
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission:
Notice is hereby given that on July 8, 2008, a proposed Consent Decree in
In this action, the United States sought injunctive relief and civil penalties for violations of the industrial refrigerant repair, recordkeeping, and reporting regulations at 40 CFR 82.152-82.166 (Recycling and Emission Reduction) promulgated by the Environmental Protection Agency (“EPA”) under Subchapter VI of the Act (Stratospheric Ozone Protection), 42 U.S.C. 7671-7671q, at thirteen of Bristol-Myers Squibb's United States facilities, which are located in Wallingford, Connecticut; Evansville and Mount Vernon, Indiana; Billerica, Massachusetts; Zeeland, Michigan; Hopewell, Lawrenceville, and New Brunswick, New Jersey; Buffalo and East Syracuse, New York; and Barceloneta, Humacao, and Mayaguez, Puerto Rico. In the proposed Consent Decree, Bristol-Myers Squibb agrees to (1) retrofit or retire seventeen of its industrial process and comfort cooling (air conditioners) refrigeration units at five of its facilities, in Evansville and Mt. Vernon, Indiana; Hopewell, New Jersey; and Humacao and Mayaguez, Puerto Rico by July 1, 2009, (2) pay a $127,000 penalty to the United States, and (3) perform a Supplemental Environmental Project by retiring two comfort cooling refrigeration units at its New Brunswick, New Jersey facility and tying the functions served by the comfort coolers into the company's new centralized water-chilled refrigeration systems at a cost of at least $2,250,000.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the Office of the United States Attorney, 10 West Market St., Suite 2100, Indianapolis, IN, 46204, and at U.S. EPA Region 5, 77 West Jackson Blvd., Chicago, IL 60604. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, to
On June 5, 2008, the Department of Justice published notice of lodging of a proposed Consent Decree on May 29, 2008, with the United States District Court for the Northern District of Illinois in
The Department of Justice hereby supplements its Notice to indicate that under Section 7003(d) of the Resource Conservation and Recovery Act (“RCRA''), 42 U.S.C. 6973(d), the public may request an opportunity for a public meeting in the affected area at which time they may offer comment. This opportunity to request a public meeting is extended for 10 days from the date of publication of this Supplemental Notice.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on May 24, 2007, applicable to workers of Best: Artex LLC, Highland, Illinois. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the support activities of accounting and technical services to an affiliate in West Point, Mississippi, producing dyed and bleached fabric.
New information shows that following a change in ownership in February 2007, Best: Artex LLC is currently known as Best Textiles International Ltd. Workers separated from employment at the subject firm had their wages reported under a separate unemployment insurance (UI) tax account for Best Textiles International Ltd.
Accordingly, the Department is amending this certification to show that Best: Artex LLC is currently known as Best Textiles International Ltd.
The intent of the Department's certification is to include all workers of Best: Artex LLC, currently known as Best Textiles International Ltd. who were adversely affected by a shift in production to Cambodia.
The amended notice applicable to TA-W-61,393 is hereby issued as follows:
“All workers of Best: Artex LLC, currently known as Best Textiles International Ltd., Highland, Illinois, who became totally or partially separated from employment on or after April 26, 2006, through May 24, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on January 29, 2008, applicable to workers of Carrier Access Corporation, Boulder, Colorado. The notice was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of telecommunication equipment.
New information shows that on February 8, 2008, Turin Networks purchased Carrier Access and is currently known as Turin Networks.
Accordingly, the Department is amending this certification to show that Carrier Access Corporation is currently known as Turin Networks.
The intent of the Department's certification is to include all workers of Carrier Access, currently known as Turin Networks who were adversely affected by a shift in production of telecommunication equipment to Mexico.
The amended notice applicable to TA-W-62,520 is hereby issued as follows:
“All workers of Carrier Access Corporation, currently known as Turin Networks, Boulder, Colorado, who became totally or partially separated from employment on or after January 7, 2008, through January 9, 2010, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.”
“All workers of Carrier Access Corporation, currently known as Turin Networks, Boulder, Colorado, who became totally or partially separated from employment on or after November 27, 2006, through January 9, 2010, are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on October 24, 2007, applicable to workers of Delphi Corporation, Thermal—Vandalia Plant, Vandalia, Ohio. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of door modules, instrument panels, airbags, steering wheels, and power products for the auto industry.
New information shows that leased workers from Bartech were employed on-site at the Vandalia, Ohio location of Delphi Corporation, Thermal—Vandalia Plant. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include leased workers from Bartech working on-site at the Vandalia, Ohio location of the subject firm.
The intent of the Department's certification is to include all workers employed at Delphi Corporation, Thermal—Vandalia Plant who were adversely affected by a shift in production of door modules, instrument panels, airbags, steering wheels, and power products to Mexico.
The amended notice applicable to TA-W-62,298 is hereby issued as follows:
“All workers of Delphi Corporation, Thermal—Vandalia Plant, including on-site leased workers from Bartech, Vandalia, Ohio, who became totally or partially separated from employment on or after October 11, 2006, through October 24, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on March 16, 2007, applicable to workers of Delphi Corporation, Automotive Holdings Group, including on-site leased workers of Bartech, MSX, Inc., Production Design Services and Troy Design, Moraine, Ohio. The notice was published in the
At the request of a State agency, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of automotive compressors and pistons. New information provided to the Department shows that in March 2006, following a “Plan of Reorganization” agreement between Delphi Corporation and General Motors Corporation, some workers of the subject firm had their wages reported under the Unemployment Insurance (UI) tax account for General Motors Corporation.
Accordingly, the Department is amending this certification to properly reflect this matter.
The amended notice applicable to TA-W-63,038 is hereby issued as follows:
“All workers of Delphi Corporation, Automotive Holdings Group, including workers whose wages are reported under the employer identification number for General Motors Corporation, and including on-site leased workers from Bartech, MSX, Inc., Production Design Services, Troy Design and Setech, Inc., Moraine, Ohio, who became totally or partially separated from employment on or after February 26, 2006, through March 16, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of June 23 through June 27, 2008.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially
B. the sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. there has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. the country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. there has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
None.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) of the Trade Act have been met.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
The Department has determined that criterion (1) of Section 246 has not been met. The firm does not have a significant number of workers 50 years of age or older.
The Department has determined that criterion (2) of Section 246 has not been met. Workers at the firm possess skills that are easily transferable.
The Department has determined that criterion (3) of Section 246 has not been met. Competition conditions within the workers' industry are not adverse.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria of Section 222(b)(2) has not been met. The workers' firm (or subdivision) is not a supplier to or a downstream producer for a firm whose workers were certified eligible to apply for TAA.
I hereby certify that the aforementioned determinations were issued during the period of June 23 through June 27, 2008. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
On April 30, 2008, the Department issued an Affirmative Determination Regarding Application for Reconsideration for the workers and former workers of the subject firm. The notice was published in the
The TAA petition, which was filed on behalf of workers at Norcal Pottery Products, Macramé Department, Richmond Distribution Center, Richmond, California engaged in the production of macramé plant hangers was denied based on the findings that during the relevant time period, the subject company did not separate or threaten to separate a significant number or proportion of workers, as required by Section 222 of the Trade Act of 1974.
In the request for reconsideration, the petitioner stated that the subject firm contracted five independent contractors to produce macramé plant hangers. The petitioner also stated that the contracts between the subject firm and the contractors were terminated in 2007. The petitioner seems to allege that because the workers were contracted to perform production for the subject firm, they should be considered as employees of the subject firm and, therefore, eligible for Trade Adjustment Assistance. To support the allegations, the petitioner attached copies of the “Independent Contractor Agreement”.
To determine whether five contracting workers were employees of the subject firm, on-site leased workers, or workers under the control of the subject firm and whether there was a significant proportion of workers separated or threatened with separations at the subject company during the relevant time period, the Department contacted the subject firm's company official and requested employment figures for the relevant employment data (for one year prior to the date of the petition and any imminent layoffs).
The company official stated that five independent contractors were not employees of Norcal Pottery Products, Macramé Department, Richmond Distribution Center, Richmond, California, and they were not leased workers employed on-site of the subject facility. It was revealed that the independent contractors produced macramé plant hangers at their homes. The company official also stated that the nature of the business between the subject firm and the independent contractors was determined by the contractual agreement, which underlines no operational control by Norcal Pottery Products over these independent contractors.
The Department carefully reviewed the Independent Contract Agreement provided by the petitioner to determine whether there was operational control by the subject firm over the contracted workers. According to the document, the relationship between the parties is described as two independent entities “engaged in a separate business enterprise”. It states that the “contractor is free to contract similar services to be provided for other customers”. The Agreement also states that “Company is concerned only with the act of completion of the work,” and that “the conduct and control of the work to be provided by Contractor will lie solely with the Contractor, who alone shall be in control” of the work. Furthermore, the agreement allows the contractor to employ or utilize other persons to carry out the terms of the Agreement under contractor's control.
The investigation on reconsideration determined that five contractors claiming to be employees of Norcal Pottery Products, Macramé Department, Richmond Distribution Center, Richmond, California were not employees of the subject firm or leased workers employed on-site of the subject facility. The investigation also revealed that the independent contractors were not under operational control of the subject facility, and thus cannot be considered to be a part of the worker group employed by the subject firm.
After careful review of the information provided on reconsideration, it was revealed that Norcal Pottery Products, Macramé Department, Richmond Distribution Center, Richmond, California is a distribution facility and no production of macramé plant hangers took place at the subject location. Moreover, a review of the records provided by the company official established that only two workers were separated from the subject facility during the relevant time period.
After reconsideration, I affirm the original notice of negative determination of eligibility to apply for worker adjustment assistance for workers and former workers of Norcal Pottery Products, Macramé Department, Richmond Distribution Center, Richmond, California.
By application dated June 19, 2008, a company official requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of Gramercy Jewelry Manufacturing Corporation, New York, New York, to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA). The negative determination was issued on June 10, 2008. The Department's notice of determination was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, which was filed on behalf of workers at Gramercy Jewelry Manufacturing Corporation, New York, New York engaged in the production of jewelry, was denied based on the findings that sales and production at the subject firm did not decrease from 2006 to 2007 or from January through April 2008, when compared with the same period in 2007. The investigation also revealed no shift in production to a foreign country in the relevant time period.
In the request for reconsideration, the company official stated that he disagrees with the investigation and that the
After careful review of the request for reconsideration, the Department determines that none of the circumstances under 29 CFR 90.18(c) for granting reconsideration have been met.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Employment and Training Administration, Labor.
Notice.
The Employment and Training Administration is issuing this notice to announce the receipt of two (2) individual “Certification of Non-Relocation and Market and Capacity Information Reports” (Form 4279-2) for the following:
All interested parties may submit comments in writing no later than July 29, 2008. Copies of adverse comments received will be forwarded to the applicant noted above.
Address all comments concerning this notice to Anthony D. Dais, U.S. Department of Labor, Employment and Training Administration, 200 Constitution Avenue, NW., Room S-4231, Washington, DC 20210; or e-mail
Anthony D. Dais, at telephone number (202) 693-2784 (this is not a toll-free number).
Section 188 of the Consolidated Farm and Rural Development Act of 1972, as established under 29 CFR Part 75, authorizes the United States Department of Agriculture to make or guarantee loans or grants to finance industrial and business activities in rural areas. The Secretary of Labor must review the application for financial assistance for the purpose of certifying to the Secretary of Agriculture that the assistance is not calculated, or likely, to result in: (a) A transfer of any employment or business activity from one area to another by the loan applicant's business operation; or, (b) An increase in the production of goods, materials, services, or facilities in an area where there is not sufficient demand to employ the efficient capacity of existing competitive enterprises unless the financial assistance will not have an adverse impact on existing competitive enterprises in the area. The Employment and Training Administration within the Department of Labor is responsible for the review and certification process. Comments should address the two bases for certification and, if possible, provide data to assist in the analysis of these issues.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Notice of Revised Determination on Reconsideration on May 9, 2008. The notice was published in the
At the request of the petitioners, the Department reviewed the Notice of Revised Determination on Reconsideration for workers of the subject firm. The workers are engaged in the production of brass rod, wire and low melt alloys. The workers are separately identifiable by product line.
New information shows that leased workers of Adecco Staffing were employed on-site at the Bellefonte, Pennsylvania location of Bolton Metal Products, Co. The Department has determined that these workers were sufficiently under the control of Bolton Metal Products Co. to be considered leased workers.
Based on these findings, the Department is amending this certification to include leased workers of Adecco Staffing working on-site at the Bellefonte, Pennsylvania location of the subject firm.
The intent of the Department's certification is to include all workers employed at Bolton Metal Products Co., Bellefonte, Pennsylvania who were adversely-impacted by increased imports of brass rod, wire, and low melt alloys.
The amended notice applicable to TA-W-62,875 is hereby issued as follows:
“All workers of Bolton Metal Products Co., including on-site leased workers of Adecco Staffing, Bellefonte, Pennsylvania, who became totally or partially separated from employment on or after February 18, 2007, through May 9, 2010, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on June 2, 2008 in response to a worker petition filed by a company official on behalf of workers of Excello Engineered Systems, Macedonia, Ohio.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on June 30, 2008 in response to a petition filed by a company official on behalf of workers of Holophane, Newark, Ohio.
The petitioning group of workers are covered under the earlier petition (TA-W-63,615), filed on June 27, 2008 that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore the investigation under this petition has been terminated.
Copyright Royalty Board, Library of Congress.
Notice announcing commencement of Phase I distribution proceeding with request for Petitions to Participate.
The Copyright Royalty Judges are announcing the commencement of a proceeding to determine the Phase I distribution of 2004 and 2005 royalties collected under the cable statutory license. The Judges are also announcing the date by which a party who wishes to participate in this distribution proceeding must file its Petition to Participate and the accompanying $150 filing fee.
Petitions to Participate and the filing fee are due on or before August 14, 2008.
An original, five copies, and an electronic copy in Portable Document Format (PDF) on a CD of the Petition to Participate, along with the $150 filing fee, may be delivered to the Copyright Royalty Board by either mail or hand delivery. Petitions to Participate and the $150 filing fee may not be delivered by an overnight delivery service other than the U.S. Postal Service Express Mail. If by mail (including overnight delivery), Petitions to Participate, along with the $150 filing fee, must be addressed to: Copyright Royalty Board, P.O. 70977, Washington, DC 20024-0977. If hand delivered by a private party, Petitions to Participate, along with the $150 filing fee, must be brought to the Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered by a commercial courier, Petitions to Participate, along with the $150 filing fee, must be delivered to the Congressional Courier Acceptance Site, located at 2nd and D Street, NE., Washington, DC. The envelope must be addressed to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue, SE., Washington, DC 20559-6000.
LaKeshia Brent, CRB Program Specialist, by telephone at (202) 707-7658 or e-mail at
Each year, semiannually, cable systems must submit royalty payments to the Copyright Office as required by the cable statutory license for the privilege of retransmitting over-the-air television and radio broadcast signals. 17 U.S.C. 111. These royalties are then distributed to copyright owners whose works were included in such retransmissions and who timely filed a claim for royalties. Distribution of the royalties for each calendar year are determined by the Copyright Royalty Judges (“Judges”) in two phases. At Phase I, the royalties are divided among the representatives of the major categories of copyrightable content (movies, sports programming, music, etc.) requesting the distribution. At Phase II, the royalties are divided among the various copyright owners within each category.
This Notice announcing the commencement of a proceeding under 17 U.S.C. 803(b)(1) for distribution of cable royalties collected for 2004 and 2005 is confined to Phase I.
Consistent with 17 U.S.C. 804(b)(8), the Copyright Royalty Judges determine that a Phase I controversy exists as to the distribution of the 2004 and 2005 cable royalties. We reach this determination, in this instance, for two reasons. First, several interested parties have represented to us that a Phase I controversy exists for these years.
The Judges are consolidating the 2004 and 2005 royalty years into a single proceeding. We note that the Librarian routinely consolidated multiple royalty years into a single proceeding in order to maximize the efficiencies associated
Petitions to Participate must be filed in accordance with § 351.1(b) of the Judges' regulations.
Further procedural matters, including scheduling, will be addressed after Petitions to Participate have been received.
Note that in accordance with 37 CFR 350.2 (Representation), only attorneys who are members of the bar in one or more states and in good standing will be allowed to represent parties before the Copyright Royalty Judges, unless the party is an individual who represents herself or himself.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before August 14, 2008. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting the Life Cycle Management Division (NWML) using one of the following means:
Laurence Brewer, Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-1539. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1228.24(b)(3).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Health and Human Services, Food and Drug Administration (N1-88-07-2, 16 items, 13 temporary items). Guidance and regulation development records; publication change requests; non-substantive program subject files; program management files; adverse event reports relating to agency regulated products; and regulated products registration and listing records. Proposed for permanent retention are final guidance documents, internal program directives and procedures manuals, and substantive program subject files.
2. Department of Homeland Security, Management Directorate (N1-563-08-10, 4 items, 3 temporary items). Classification management records relating to declassification plans, requests, and reviews. Proposed for permanent retention are security classification guides.
3. Department of Homeland Security, United States Citizenship and Immigration Services (N1-566-08-10, 1 item, 1 temporary item). Master file associated with an electronic information system that stores biometric images (photograph, fingerprint, and signature) used to verify the identity of registered resident aliens and for preventing illegal entry into the United States.
4. Department of Homeland Security, United States Citizenship and Immigration Services (N1-566-08-15, 1 item, 1 temporary item). Master file associated with an electronic information system that processes and tracks applications by individuals for naturalization and/or citizenship. Data in the system is downloaded to the USCIS Central Index System, which was previously approved for permanent retention.
5. Department of the Interior, Bureau of Reclamation (N1-115-08-9, 2 items, 2 temporary items). Master files of the Supervisory Control and Data Acquisition systems and verification backups of files. These systems collect real time data used to operate and maintain water storage and hydroelectric power generation.
6. Department of the Interior, United States Geological Survey (N1-57-08-7, 12 items, 6 temporary items). Geology Discipline records including geology research project development, demonstration, distribution, assessment, testing, and related research functions. Proposed for permanent retention are significant research records and related indexes.
7. Department of Justice, Agency-wide (N1-60-08-21, 1 item, 1 temporary item). Master file for an electronic personnel locator system used for collaboration purposes and to contact personnel during emergency situations.
8. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (N1-436-08-4, 1 item, 1 temporary item). Master file of the Forensics Administrative Caseload and Evidence Tracking System, which tracks caseload status for submitted evidence.
9. Department of Justice, Federal Bureau of Investigation (N1-65-08-17, 1 item, 1 temporary item). This schedule requests authority to destroy case 29J-PG-70390, which pertains exclusively to the investigation of the captioned individual. This request responds to a Federal Pre-Trial Diversion Program court order to delete the records of the captioned individual.
10. Department of Justice, Federal Bureau of Investigation (N1-65-08-18, 1 item, 1 temporary item). This schedule requests authority to destroy case 46B-DL-87279, which pertains exclusively to the investigation of the captioned individual. This request responds to a Federal Pre-Trial Diversion Program court order to delete the records of the captioned individual.
11. Department of Justice, Federal Bureau of Investigation (N1-65-08-19, 2 items, 2 temporary items). Records of the health care programs unit, including equipment maintenance and non-employee individual health records.
12. Department of the Navy, Naval Criminal Investigative Service (N1-NU-07-8, 4 items, 4 temporary items). Forensic lab records, including reports, case notes, collected data and fingerprint records.
13. Department of the Treasury, Financial Management Service (N1-425-08-1, 32 items, 29 temporary items). Records of the Debt Management Services' Office of the Assistant Commissioner and Debt Program Division, including reporting records, background files, legislative proposal records, program development records, and customer interaction files for the Treasury Offset Program. Proposed for permanent retention are two series of briefing books covering program administration and policies and final debt collection activity reports. The proposed disposition instructions are limited to paper records, except where an electronic format is specified, including Disclosure Awareness Training records.
14. Environmental Protection Agency, Agency-wide (N1-412-08-8, 3 items, 3 temporary items). Web site records, including site management and operations records, log files, and Web content that is not unique (
15. Federal Communications Commission, Office of Engineering and Technology (N1-173-08-2, 1 item, 1 temporary item). Master files of an electronic information system used to track applications for experimental licenses.
16. Federal Communications Commission, Office of Engineering and Technology (N1-173-08-3, 1 item, 1 temporary item). Master files of an electronic information system documenting technical reports.
17. Federal Communications Commission, Office of Engineering and Technology (N1-173-08-6, 1 item, 1 temporary item). Master file of an electronic information system used to track the receipt and disposition of information related to equipment authorization enforcement.
18. Federal Energy Regulatory Commission, Agency-wide (N1-138-08-1, 6 items, 1 temporary item). This schedule authorizes the agency to apply the existing disposition instructions to records series regardless of the recordkeeping medium. Included are Secretary's meeting folders containing agendas and drafts of documents discussed and considered. Paper recordkeeping copies of these records were previously approved for disposal. Also included are minutes of formal Commission meetings and transcripts and digital recordings, for which paper and analog recordkeeping copies previously were approved as permanent.
19. Federal Maritime Commission, Office of the General Counsel (N1-358-08-8, 8 items, 8 temporary items). International affairs files, court and docket case files, legislative correspondence, and subject files.
20. Millennium Challenge Corporation, Agency-wide (N1-561-08-4, 5 items, 5 temporary items). Master files and outputs for electronic information systems used by the agency for performance measuring, evaluation of policy performance of candidate countries, and sharing of information on countries requesting agency partnerships.
21. National Commission on Libraries and Information Science, Agency-wide (N1-220-08-2, 9 items, 9 temporary items). Correspondence files, subject files, task force files, and related records documenting program activities relating to library and information science. The records will be donated to the Special Collections Library at the University of Michigan. The proposed disposition instructions are limited to paper records.
22. Nuclear Regulatory Commission, Office of Federal and State Materials and Environmental Management Programs (N1-431-08-7, 1 item, 1 temporary item). Master file of an electronic information system used to manage information on requests from licensees for authorization to dispose of low level nuclear wastes.
23. Nuclear Regulatory Commission, Office of Federal and State Materials and Environmental Management Programs (N1-431-08-8, 3 items, 3 temporary items). Master file and outputs of an electronic information system used to track requests for reciprocity between jurisdictions in regard to licensing of radioactive materials for medical and industrial testing uses.
National Institute for Literacy.
Notice of a closed meeting.
This notice sets forth the schedule and proposed agenda of an upcoming closed meeting of the National Institute for Literacy Advisory Board. The notice also describes the functions of the Committee. Notice of this meeting is required by Section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of its opportunity to attend.
August 11, 2008.
The National Institute for Literacy, 1775 I St., NW., Suite 730, Washington, DC 20006.
Steve Langley, Staff Assistant, the National Institute for Literacy; 1775 I St. NW., Suite 730; phone: (202) 233-2025; fax: (202) 233-2050; e-mail:
The National Institute for Literacy Advisory Board is authorized by section 242 of the Workforce Investment Act of 1998, Pub. L. 105-220 (20 U.S.C. 9252). The Board consists of 10 individuals appointed by the President with the advice and consent of the Senate. The Board advises and makes recommendations to the Interagency Group that administers the Institute. The Interagency Group is composed of the Secretaries of Education, Labor, and Health and Human Services. The Interagency Group considers the Board's recommendations in planning the goals of the Institute and in implementing any programs to achieve those goals. Specifically, the Board performs the following functions: (a) Makes recommendations concerning the appointment of the Director and the staff of the Institute; (b) provides independent advice on operation of the Institute; and (c) receives reports from the Interagency Group and the Institute's Director.
The purpose of this meeting is to discuss the national search for the position of Director. The discussion is likely to disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personnel privacy. The discussion must therefore be held in closed session under exemptions 2 and 6 of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(2) and (6). A summary of the activities at the closed session and related matters that are informative to the public and consistent with the policy of 5 U.S.C. 552b will be available to the public within 14 days of the meeting.
Records are kept of all Committee proceedings and are available for public inspection at the National Institute for Literacy, 1775 I St., NW., Suite 730, Washington, DC 20006, from the hours of 9 a.m. to 5 p.m., Eastern Time Monday through Friday.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
National Science Foundation.
Notice of permits issued under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Office, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On June 9, 2008, the National Science Foundation published a notice in the
Chevron Environmental Management Company (CEMC or Licensee) is the holder of License No. SMB-1393 issued by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 40. The license authorizes the decommissioning of the Washington, PA, Decommissioning Project in accordance with conditions specified therein. The facility is located in Washington, Pennsylvania.
This confirmatory order is the result of an agreement reached during an alternative dispute resolution (ADR) mediation session conducted on June 5, 2008.
On July 19, 2007, the NRC's Office of Investigations (OI) issued its investigative report regarding whether a radiation safety employee (RSE) was the subject of employment discrimination in violation of 10 CFR 40.7, “Employee protection.” In OI Report No. 1-2006-054, OI concluded that a RSE was discriminated against, in part, for raising concerns regarding the transportation of potentially contaminated soil samples over public roads and the monitoring of potentially radioactive airborne dust caused by the construction work activities at the site. By letter dated February 29, 2008, the NRC identified to the Licensee an apparent violation of 10 CFR 40.7, and offered CEMC the opportunity to provide a written response, attend a pre-decisional enforcement conference, or to request alternative dispute resolution (ADR) in which a neutral mediator with no decision-making authority would facilitate discussions between the NRC and CEMC and, if possible, assist the NRC and CEMC in reaching an agreement. CEMC chose to participate in ADR.
On June 5, 2008, the NRC and CEMC met in an ADR session in Washington, D.C., mediated by a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. This confirmatory order is issued pursuant to the agreement reached during the ADR process. The elements of the agreement consisted of the following:
1. By no later than thirty (30) calendar days after the issuance of the confirmatory order, a member of CEMC's senior management responsible for the Washington site will, in writing, communicate CEMC's policy, and the expectations of management, to the Washington site workforce regarding their rights to raise concerns without fear of retaliation.
2. By no later than thirty (30) calendar days after the issuance of this confirmatory order, CEMC shall distribute a questionnaire to all employees at the Washington site to assess, in part, whether employees understand their rights to raise concerns and solicit their willingness to raise nuclear safety concerns, if any.
3. By no later than thirty (30) days after the issuance of this confirmatory order, CEMC agrees to implement a new requirement of its contractors (including subcontractors) at the Washington site whereby the contractors would be required to affirm to CEMC, in writing, at the time that any significant job action is being taken against a Washington site employee, that such action is not being implemented in retaliation for the employee raising safety-related concerns or in retaliation for filing a safety-related complaint either internally or externally, and to affirm that the job action was taken in compliance with 10 CFR 40.7, “Employee Protection.”
4. By no later than thirty (30) calendar days after the issuance of this confirmatory order, CEMC agrees to enter into a written agreement with its contractors performing work at the Washington site that requires compliance with 10 CFR 40.7, “Employee Protection.”
5. By no later than sixty (60) calendar days after the issuance of this confirmatory order, CEMC agrees to provide training conducted by its counsel to all Washington site supervisory employees relating to 10 CFR 40.7, “Employee Protection” and how to foster a safety-conscious work environment.
6. By no later than seventy five (75) calendars days after the issuance of this confirmatory order, CEMC shall hold one or more meetings with employees at the Washington site to emphasize the company's policy and management's expectation that employees can raise any nuclear safety concerns without fear of retaliation.
On July 2, 2008, CEMC consented to issuing this confirmatory order with the commitments, as described in Section V below. CEMC further agreed that this confirmatory order is to be effective upon issuance and it has waived its right to a hearing.
Since CEMC has agreed to take additional actions to address NRC concerns, as set forth in Item III above, and NRC has concluded that its concerns can be resolved through issuance of this confirmatory order and thereby has agreed not to pursue any further enforcement action for this issue and will not count this matter as previous enforcement for the purposes of assessing potential future enforcement action civil penalty assessments in accordance with Section VI.C of the Enforcement Policy.
I find that the Licensee's commitments as set forth in Section V are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that the public health and safety require that the Licensee's commitments be confirmed by this confirmatory order. Based on the above and the Licensee's consent, this confirmatory order is immediately effective upon issuance. By no later than thirty (30) calendar days after the completion of the requirements in Section V, CEMC is required to notify the NRC in writing and summarizing its actions.
Accordingly, pursuant to Sections 103, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Part 50,
1. By no later than thirty (30) calendar days after the issuance of this confirmatory order, a member of CEMC's senior management responsible for the Washington site will, in writing, communicate CEMC's policy, and the expectations of management, to the Washington site workforce regarding their rights to raise concerns without fear of retaliation.
2. By no later than thirty (30) calendar days after the issuance of this confirmatory order, CEMC shall distribute a questionnaire to all employees at the Washington site to assess, in part, whether employees understand their rights to raise concerns and solicit their willingness to raise nuclear safety concerns, if any.
3. By no later than thirty (30) days after the issuance of this confirmatory order, CEMC agrees to implement a new requirement of its contractors (including subcontractors) at the Washington site whereby the contractors would be required to affirm to CEMC, in writing, at the time that any significant job action is being taken against a Washington site employee, that such action is not being implemented in retaliation for the employee raising safety-related concerns or in retaliation for filing a safety-related complaint either internally or externally, and to affirm that the job action was taken in compliance with 10 CFR 40.7, “Employee Protection.”
4. By no later than thirty (30) calendar days after the issuance of this confirmatory order, CEMC agrees to enter into a written agreement with its contractors performing work at the Washington site that requires compliance with 10 CFR 40.7, “Employee Protection.”
5. By no later than sixty (60) calendar days after the issuance of this confirmatory order, CEMC agrees to provide training conducted by its counsel to all Washington site supervisory employees relating to 10 CFR 40.7, “Employee Protection” and how to foster a safety-conscious work environment.
6. By no later than seventy five (75) calendars days after the issuance of this confirmatory order, CEMC shall hold one or more meetings with employees at the Washington site to emphasize the company's policy and management's expectation that employees can raise any nuclear safety concerns without fear of retaliation.
Any person adversely affected by this confirmatory order, other than the Licensee, may request a hearing within 20 days of its issuance. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension.
A request for a hearing must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August, 2007, 72 Fed. Reg. 49, 139 (Aug. 8, 2007). The E-Filing process requires participants to submit and serve documents over the Internet or, in some cases, to mail copies on electronic optical storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements associated with E-Filing, at least five (5) days prior to the filing deadline the requestor must contact the Office of the Secretary by e-mail at
Once a requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for a hearing through EIE. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by (1) first-class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, MD, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
If a person (other than the Licensee) requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If the hearing is requested by a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this confirmatory order should be sustained. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 20 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received. A request for hearing shall not stay the immediate effectiveness of this order.
For the Nuclear Regulatory Commission.
Pursuant to section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from June 19, 2008 to July 2, 2008. The last biweekly notice was published on July 1, 2008 (73 FR 370501).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Written comments may be submitted by mail to the Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
Within 60 days after the date of publication of this notice, person(s) may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request via electronic submission through the NRC E-Filing system for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner/requestor intends to rely in proving the contention at the hearing. The petitioner/requestor must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner/requestor intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for hearing or a petition for leave to intervene must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 28, 2007 (72 FR 49139). The E-Filing process requires participants to submit and serve documents over the internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least five (5) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Time on the due date.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
For further details with respect to this amendment action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
The U.S Nuclear Regulatory Commission (NRC) issued a “Notice of Availability of Model Safety Evaluation on Technical Specification Improvement To Modify Requirements Regarding LCO 3.10.1, Inservice Leak and Hydrostatic Testing Operation Using the Consolidated Line Item Improvement Process” in the
Criterion 1: The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Technical Specifications currently allow for operation at greater than 200 degrees F while imposing MODE 4 requirements in addition to the secondary containment requirements required to be met. Extending the activities that can apply this allowance will not adversely impact the probability or consequences of an accident previously evaluated. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Criterion 2: The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Technical Specifications currently allow for operation at greater than 200 degrees F while imposing MODE 4 requirements in addition to the secondary containment requirements required to be met. No new operational conditions beyond those currently allowed by LCO 3.10.1 are introduced. The changes do not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. In addition, the changes do not impose any new or different requirements or eliminate any existing requirements. The changes do not alter assumptions made in the safety analysis. The proposed changes are consistent with the safety analysis assumptions and current plant operating practice. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Criterion 3: The proposed change does not involve a significant reduction in a margin of safety.
Technical Specifications currently allow for operation at greater than 200 degrees F while imposing MODE 4 requirements in addition to the secondary containment requirements required to be met. Extending the activities that can apply this allowance will not adversely impact any margin of safety. Allowing completion of inspections and testing and supporting completion of scram time testing initiated in conjunction with an inservice leak or hydrostatic test prior to power operation results in enhanced safe operations by eliminating unnecessary maneuvers to control reactor temperature and pressure. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the analysis adopted by the licensee and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the change involve a significant increase in the probability [ ] or consequences of an accident previously evaluated?
Response: No.
The proposed license amendment would allow fuel assemblies to be removed from the reactor core and be stored in the Spent Fuel Pool (SFP) in less time after subcriticality than currently allowed by the Technical Specifications. Decreasing the decay time of the fuel affects the radionuclide make-up of the fuel to be offloaded as well as the amount of decay heat that is present from the fuel at the time of offload. The accident previously evaluated that is associated with the proposed license amendment is the fuel handling accident. Allowing the fuel to be offloaded in less time after subcriticality using actual heat loads does not impact the manner in which the fuel is offloaded. The accident initiator is the dropping of the fuel assembly. Since earlier offload does not affect fuel handling, there is no increase in the probability of occurrence of a Fuel Handling Accident (FHA). The time frame in which the fuel assemblies are moved has been evaluated against the 10 CFR 50.67 dose limits for members of the public, licensee personnel and control room. Additionally, the guidance provided in [Regulatory] Guide 1.183 was used for the selective application of Alternative Source Term. All dose limits are met with the reduced core offload times; and significant margin is maintained, as the minimum decay time prior to movement of fuel for the FHA analysis is 24 hours.
Therefore, the proposed license amendment does not significantly increase the probability [ ] or the consequences of accidents previously evaluated.
2. [Does the change] [c]reate the possibility of a new or different kind of accident from any accident previously evaluated[?]
Response: No.
The proposed license amendment would allow core offload to occur in less time after subcriticality which affects the radionuclide makeup of the fuel to be offloaded as well as the amount of decay heat that is present from the fuel at the time of offload. The radionuclide makeup of the fuel assemblies and the amount of decay heat produced by the fuel assemblies do not currently initiate any accident. A change in the radionuclide makeup of the fuel at the time of core offload or an increase in the decay heat produced by the fuel being offloaded will not cause the initiation of any accident. The accident previously evaluated that is associated with fuel movement is the fuel handling accident; no new accidents are introduced. There is no change to the manner in which fuel is being handled or in the equipment used to offload or store the fuel. The effects of the additional decay heat load have been analyzed. The analysis demonstrates that the existing Spent
Therefore, the proposed license amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
Response: No.
The margin of safety pertinent to the proposed changes is the dose consequences resulting from a fuel handling accident. The shorter decay time prior to fuel movement has been evaluated against 10 CFR 50.67 and all limits continue to be met. All dose limits are met with the reduced core offload times; and significant margin is maintained, as the minimum decay time prior to movement of fuel for the FHA analysis is 24 hours. Decay heat-up calculations performed prior to the refueling outage, as part of the Integrated Decay Heat Management (IDHM) Program, ensure that planned spent fuel transfer to the SFP will not result in maximum SFP temperature exceeding the design basis limit of 149 °F (with both heat exchangers available) or 180 °F (with one heat exchanger alternating between the two pools). As stated above, the changes in radionuclide makeup and additional heat load do not impact any safety settings and do not cause any safety limit to not be met. In addition, the integrity of the Spent Fuel Pool is maintained.
The time frame in which the fuel assemblies are moved has been evaluated against the 10 CFR 50.67 dose limits for members of the public, licensee personnel and control room. Additionally, the guidance provided in [Regulatory] Guide 1.183 was used. Calculations performed conclude that expected dose limits following a Fuel [H]andling Accident are met with the proposed decay time prior to commencing fuel movement.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, with changes in the areas noted above, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration.
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 25, 2008.
The Commission's related evaluation of this amendment is contained in a Safety Evaluation dated June 23, 2008.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 18, 2008.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 19, 2008.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 24, 2008.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 27, 2008.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 30, 2008.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 27, 2008.
The Commission's related evaluation of the amendment is contained in a safety evaluation dated June 30, 2008.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 16, 2008.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 27, 2008.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 30, 2008.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 30, 2008.
The supplements dated March 14, April 3, and April 23, 2008, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination. The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 30, 2008.
During the period since publication of the last biweekly notice, individual notices of issuance of amendments have been issued for the facilities as listed below. These notices were previously published as separate individual notices. They are repeated here because this biweekly notice lists all amendments that have been issued for which the Commission has made a final determination that an amendment involves no significant hazards consideration.
In this case, a prior Notice of Consideration of Issuance of Amendment, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing was issued, a hearing was requested, and the amendment was issued before any hearing because the Commission made a final determination that the amendment involves no significant hazards consideration.
Details are contained in the individual notice as cited.
The Commission's related evaluation of the amendment is contained in a safety evaluation dated June 19, 2008.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual Notice of Consideration of Issuance of Amendment, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a nuclear power plant or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, the Commission may not have had an opportunity to provide for public comment on its no significant hazards consideration determination. In such case, the license amendment has been issued without opportunity for comment. If there has been some time for public comment but less than 30 days, the Commission may provide an opportunity for public comment. If comments have been requested, it is so stated. In either event, the State has been consulted by telephone whenever possible.
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action, see (1) the application for amendment, (2) the amendment to Facility Operating License, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. Within 60 days after the date of publication of this notice, person(s) may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request via electronic submission through the NRC E-Filing system for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland, and electronically on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.
Each contention shall be given a separate numeric or alpha designation within one of the following groups:
1.
2.
3.
As specified in 10 CFR 2.309, if two or more petitioners/requestors seek to co-sponsor a contention, the petitioners/requestors shall jointly designate a representative who shall have the authority to act for the petitioners/requestors with respect to that contention. If a petitioner/requestor seeks to adopt the contention of another sponsoring petitioner/requestor, the petitioner/requestor who seeks to adopt the contention must either agree that the sponsoring petitioner/requestor shall act as the representative with respect to that contention, or jointly designate with the sponsoring petitioner/requestor a representative who shall have the authority to act for the petitioners/requestors with respect to that contention.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing. Since the Commission has made a final determination that the amendment involves no significant hazards consideration, if a hearing is requested, it will not stay the effectiveness of the amendment. Any hearing held would take place while the amendment is in effect.
A request for hearing or a petition for leave to intervene must be filed in
To comply with the procedural requirements of E-Filing, at least five (5) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Time on the due date.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
The Commission's related evaluation of the amendment, finding of emergency circumstances, state consultation, and final NSHC determination are contained in a safety evaluation dated June 25, 2008.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of July 14, 21, 28, August 4, 11, 18, 2008.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be Webcast live at the Web address—
There are no meetings scheduled for the week of July 28, 2008.
There are no meetings scheduled for the week of August 4, 2008.
This meeting will be Webcast live at the Web address—
This meeting will be Webcast live at the Web address—
There are no meetings scheduled for the week of August 18, 2008.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
The Briefing on Fire Protection Issues previously scheduled on Thursday, July 17, 2008, at 1 p.m. is now scheduled to begin at 2 p.m. on the same day.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify the NRC's Disability Program Coordinator, Rohn Brown, at 301-492-2279, TDD: 301-415-2100, or by e-mail at
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Securities and Exchange Commission (“Commission”).
Notice of application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 19(b) of the Act and rule 19b-1 under the Act.
Applicants request an order to permit certain closed-end investment companies to make periodic distributions of long-term capital gains with respect to their outstanding common stock as frequently as twelve times each year, and as frequently as distributions are specified by or in accordance with the terms of any outstanding preferred stock that such investment companies may issue.
ING Clarion Real Estate Income Fund (“IIA”), ING Clarion Global Real Estate Income Fund (“IGR”), and ING Clarion Real Estate Securities, L.P. (the “Adviser”).
March 26, 2004, February 1, 2007, June 12, 2008, and July 8, 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 Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on August 4, 2008, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, 201 King of Prussia Road, Suite 600, Radnor, PA 19087,
Wendy Friedlander, Senior Counsel, at (202) 551-6837, or James M. Curtis, Branch Chief, at (202) 551-6825 (Division of Investment Management, Office of Chief Counsel).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Room, 100 F Street, NE., Washington 20549-1520 (telephone (202) 551-5850).
1. Each of IIA and IGR is a registered closed-end management investment company organized as a Delaware statutory trust, and each has high current income as its primary objective and capital appreciation as its
2. The Adviser is registered under the Investment Advisers Act of 1940 and is responsible for the overall management of IIA and IGR. The Adviser is a subsidiary of ING Group, N.V., a financial services organization based in The Netherlands.
3. Applicants represent that on November 16, 2006, the Boards of Trustees (the “Boards”) of each of IIA and IGR, including a majority of the members of each of the Boards who are not “interested persons” of each fund (the “Independent Trustees”) as defined in section 2(a)(19) of the Act, reviewed information regarding the purpose and terms of a proposed distribution policy, the likely effects of such policy on the respective fund's long-term total return (in relation to market price and net asset value (“NAV”) per common share) and the relationship between the fund's distribution rate on its common shares under the policy and the fund's total return on NAV per share. Applicants state that the Independent Trustees of each of IIA and IGR also considered what conflicts of interest the Adviser and the affiliated persons of the Adviser and each fund might have with respect to the adoption or implementation of such policy. Applicants further state that after considering such information the Board, including the Independent Trustees, of each of IIA and IGR approved a distribution policy and related plan with respect to each of the respective fund's common shares (a “Plan”) and determined that such policy and Plan are consistent with the relevant fund's investment objectives and in the best interests of such fund's common shareholders.
4. Applicants state that the purpose of each of the proposed Plans would be to permit each fund to distribute over the course of each year, through periodic distributions as nearly equal as practicable and any required special distributions, an amount closely approximating the total taxable income of the fund during such year and, if so determined by its Board, all or a portion of the returns of capital paid by portfolio companies to the fund during such year. Applicants represent that each of the funds would distribute to its respective common shareholders a fixed monthly percentage or amount under its proposed Plan, which percentage or amount may be adjusted from time to time. Applicants state that the minimum annual distribution rate with respect to a fund's common shares under each Plan would be independent of the fund's performance during any particular period but would be expected to correlate with the fund's performance over time. Applicants explain that each distribution on the common shares would be at the stated rate then in effect, except for extraordinary distributions and potential increases or decreases in the final dividend periods in light of the fund's performance for the entire calendar year and to enable the fund to comply with the distribution requirements of subchapter M of the Internal Revenue Code of 1986 (the “Code”) for the calendar year. Applicants expect that over time the NAV distribution rate with respect to a fund's common shares will approximately equal that fund's total return on NAV.
5. Applicants state that at the November 16, 2006 meeting, the Boards of IIA and IGR each also adopted policies and procedures under rule 38a-1 under the Act that are reasonably designed to ensure that all notices sent to IIA or IGR shareholders with distributions under the Plan (“Notices”) comply with condition II below, and that all other written communications by IIA or IGR or its agents regarding distributions under the Plan include the disclosure required by condition III below. Applicants state that the Boards of IIA and IGR each also adopted policies and procedures at that meeting that require IIA and IGR to keep records that demonstrate each fund's compliance with all of the conditions of the requested order and that are necessary for each fund to form the basis for, or demonstrate the calculation of, the amounts disclosed in its Notices.
1. Section 19(b) generally makes it unlawful for any registered investment company to make long-term capital gains distributions more than once each year. Rule 19b-1 limits the number of capital gains dividends, as defined in section 852(b)(3)(C) of the Code (“distributions”), that a fund may make with respect to any one taxable year to one, plus a supplemental “clean up” distribution made pursuant to section 855 of the Code not exceeding 10% of the total amount distributed for the year, plus one additional capital gain dividend made in whole or in part to avoid the excise tax under section 4982 of the Code.
2. Section 6(c) provides that the Commission may, by order upon application, conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of the Act, if and to the extent that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Applicants state that one of the concerns underlying section 19(b) and rule 19b-1 is that shareholders might be unable to differentiate between regular distributions of capital gains and distributions of investment income. Applicants state, however, that rule 19a-1 effectively addresses this concern by requiring that a separate statement showing the sources of a distribution (
4. Applicants further state that each of IIA and IGR will make the additional disclosures required by the conditions set forth below, and each of them has adopted compliance policies and procedures in accordance with rule 38a-1 to ensure that all required Notices and disclosures are sent to shareholders. Applicants argue that by providing the information required by section 19(a) and rule 19a-1, and by complying with the procedures adopted under each Plan and the conditions listed below, the funds would ensure that each fund's shareholders are provided sufficient information to understand that their periodic distributions are not tied to the fund's net investment income (which for this purpose is the fund's taxable income other than from capital gains) and realized capital gains to date, and may not represent yield or investment
5. Applicants note that section 19(b) and rule 19b-1 also were intended to prevent certain improper sales practices, including, in particular, the practice of urging an investor to purchase shares of a fund on the basis of an upcoming capital gains dividend (“selling the dividend”), where the dividend would result in an immediate corresponding reduction in NAV and would be in effect a taxable return of the investor's capital. Applicants assert that the “selling the dividend” concern should not apply to closed-end investment companies, such as IIA and IGR, which do not continuously distribute shares. According to Applicants, if the underlying concern extends to secondary market purchases of shares of closed-end funds that are subject to a large upcoming capital gains dividend, adoption of a Plan actually helps minimize the concern by avoiding, through periodic distributions, any buildup of large end-of-the-year distributions.
6. Applicants also note that common shares of closed-end funds that invest primarily in equity securities often trade in the marketplace at a discount to their NAV. Applicants believe that this discount may be reduced for closed-end funds that pay relatively frequent dividends on their common shares at a consistent rate, whether or not those dividends contain an element of long-term capital gain.
7. Applicants assert that the application of rule 19b-1 to a Plan actually could have an undesirable influence on portfolio management decisions. Applicants state that, in the absence of an exemption from rule 19b-1, the implementation of a Plan imposes pressure on management (i) not to realize any net long-term capital gains until the point in the year that the fund can pay all of its remaining distributions in accordance with rule 19b-1, and (ii) not to realize any long-term capital gains during any particular year in excess of the amount of the aggregate pay-out for the year (since as a practical matter excess gains must be distributed and accordingly would not be available to satisfy pay-out requirements in following years), notwithstanding that purely investment considerations might favor realization of long-term gains at different times or in different amounts. Applicants thus assert that the limitation on the number of capital gain distributions that a fund may make with respect to any one year imposed by rule 19b-1, may prevent the efficient operation of a Plan whenever that fund's realized net long-term capital gains in any year exceed the total of the periodic distributions that may include such capital gains under the rule.
8. In addition, Applicants assert that rule 19b-1 may cause fixed regular periodic distributions under a Plan to be funded with returns of capital
9. Applicants state that
10. Applicants assert that the potential abuses addressed by section 19(b) and rule 19b-1 do not arise with respect to preferred stock issued by a closed-end fund. Applicants assert that such distributions are fixed or determined in periodic auctions by reference to short-term interest rates rather than by reference to performance of the issuer and
11. Applicants also submit that the “selling the dividend” concern is not applicable to preferred stock, which entitles a holder to no more than a periodic dividend at a fixed rate or the rate determined by the market, and, like a debt security, is priced based upon its liquidation value, credit quality, and frequency of payment. Applicants state that investors buy preferred shares for the purpose of receiving payments at the frequency bargained for, and do not expect the liquidation value of their shares to change.
12. Applicants request an order under section 6(c) granting an exemption from the provisions of section 19(b) and rule 19b-1 to permit each fund's common stock to distribute periodic capital gains dividends (as defined in section 852(b)(3)(C) of the Code) as often as monthly in any one taxable year in respect of its common shares and as often as specified by or determined in accordance with the terms thereof in respect of its preferred shares.
Applicants agree that, with respect to each fund seeking to rely on the order, the order will be subject to the following conditions:
The fund's chief compliance officer will: (a) Report to the fund Board, no less frequently than once every three months or at the next regularly scheduled quarterly board meeting, whether (i) the fund and the fund adviser have complied with the conditions to the requested order, and (ii) a Material Compliance Matter, as defined in rule 38a-1(e)(2), has occurred with respect to compliance with such conditions; and (b) review the adequacy of the policies and procedures adopted by the fund no less frequently than annually.
A. Each Notice to the holders of the fund's common shares, in addition to the information required by section 19(a) and rule 19a-1:
1. Will provide, in a tabular or graphical format:
(a) The amount of the distribution, on a per common share basis, together with the amounts of such distribution amount, on a per common share basis and as a percentage of such distribution amount, from estimated: (A) Net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source;
(b) The fiscal year-to-date cumulative amount of distributions, on a per common share basis, together with the amounts of such cumulative amount, on a per common share basis and as a percentage of such cumulative amount of distributions, from estimated: (A) Net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source;
(c) The average annual total return in relation to the change in NAV for the 5-year period (or, if the fund's history of operations is less than five years, the time period commencing immediately following the fund's first public offering) ending on the last day of the month prior to the most recent distribution declaration date compared to the current fiscal period's annualized distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution declaration date; and
(d) The cumulative total return in relation to the change in NAV from the last completed fiscal year to the last day of the month prior to the most recent distribution declaration date compared to the fiscal year-to-date cumulative distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution declaration date.
Such disclosure shall be made in a type size at least as large and as prominent as the estimate of the sources of the current distribution; and
2. Will include the following disclosure:
(a) “You should not draw any conclusions about the fund's investment performance from the amount of this distribution or from the terms of the fund's Plan”;
(b) “The fund estimates that it has distributed more than its income and net realized capital gains; therefore, a portion of your distribution may be a return of capital. A return of capital may occur, for example, when some or all of the money that you invested in the fund is paid back to you. A return of capital distribution does not necessarily reflect the fund's investment performance and should not be confused with ‘yield’ or ‘income’”; and
(c) “The amounts and sources of distributions reported in this Notice are only estimates and are not being provided for tax reporting purposes. The actual amounts and sources of the amounts for [accounting and] tax reporting purposes will depend upon the fund's investment experience during the remainder of its fiscal year and may be subject to changes based on tax regulations. The fund will send you a Form 1099-DIV for the calendar year that will tell you how to report these distributions for federal income tax purposes.”
Such disclosure shall be made in a type size at least as large as and as prominent as any other information in the Notice and placed on the same page in close proximity to the amount and the sources of the distribution.
B. On the inside front cover of each report to shareholders under rule 30e-1 under the Act, the fund will:
1. Describe the terms of the Plan (including the fixed amount or fixed percentage of the distributions and the frequency of the distributions);
2. Include the disclosure required by condition II.A.2.a above;
3. State, if applicable, that the Plan provides that the Board may amend or terminate the Plan at any time without prior notice to fund shareholders; and
4. Describe any reasonably foreseeable circumstances that might cause the fund to terminate the Plan and any reasonably foreseeable consequences of such termination.
C. Each report provided to shareholders under rule 30e-1 and in each prospectus filed with the Commission on Form N-2 under the Act will provide the fund's total return in relation to changes in NAV in the financial highlights table and in any discussion about the fund's total return.
A. The fund will include the information contained in the relevant Notice, including the disclosure required by condition II.A.2 above, in any written communication (other than a Form 1099) about the Plan or distributions under the Plan by the fund, or agents that the fund has authorized to make such communication on the fund's behalf, to any fund common shareholder, prospective common shareholder or third-party information provider;
B. The fund will issue, contemporaneously with the issuance of any Notice, a press release containing the information in the Notice and will file with the Commission the information contained in such Notice, including the disclosure required by condition II.A.2 above, as an exhibit to its next filed Form N-CSR; and
C. The fund will post prominently a statement on its (or its adviser's) Web site containing the information in each Notice, including the disclosure required by condition II.A.2 above, and will maintain such information on such Web site for at least 24 months.
If a broker, dealer, bank or other person (“financial intermediary”) holds common stock issued by the fund in nominee name, or otherwise, on behalf of a beneficial owner, the fund: (a) Will request that the financial intermediary, or its agent, forward the Notice to all beneficial owners of the fund's shares held through such financial intermediary; (b) will provide, in a timely manner, to the financial intermediary, or its agent, enough copies of the Notice assembled in the form and at the place that the financial intermediary, or its agent, reasonably requests to facilitate the financial intermediary's sending of the Notice to each beneficial owner of the fund's shares; and (c) upon the request of any financial intermediary, or its agent, that receives copies of the Notice, will pay the financial intermediary, or its agent, the reasonable expenses of sending the Notice to such beneficial owners.
A. The fund's common shares have traded on the exchange that they primarily trade on at the time in question at an average premium to NAV equal to or greater than 10%, as determined on the basis of the average of the discount or premium to NAV of the fund's common shares as of the close of each trading day over a 12-week rolling period (each such 12-week rolling period ending on the last trading day of each week); and
B. The fund's annualized distribution rate for such 12-week rolling period, expressed as a percentage of NAV as of the ending date of such 12-week rolling period, is greater than the fund's average annual total return in relation to the change in NAV over the 2-year period ending on the last day of such 12-week rolling period; then:
1. At the earlier of the next regularly scheduled meeting or within four months of the last day of such 12-week rolling period, the Board including a majority of the Independent Trustees:
(a) Will request and evaluate, and the fund's adviser will furnish, such information as may be reasonably necessary to make an informed determination of whether the Plan should be continued or continued after amendment;
(b) Will determine whether continuation, or continuation after amendment, of the Plan is consistent with the fund's investment objective(s) and policies and in the best interests of the fund and its shareholders, after considering the information in condition V.B.1.a above; including, without limitation:
(1) Whether the Plan is accomplishing its purpose(s);
(2) The reasonably foreseeable effects of the Plan on the fund's long-term total return in relation to the market price and NAV of the fund's common shares; and
(3) The fund's current distribution rate, as described in condition V.B above, compared with the fund's average annual total return over the 2-year period, as described in condition V.B, or such longer period as the board deems appropriate; and
(c) Based upon that determination, will approve or disapprove the continuation, or continuation after amendment, of the Plan; and
2. The Board will record the information considered by it and the basis for its approval or disapproval of the continuation, or continuation after amendment, of the Plan in its meeting minutes, which must be made and preserved for a period of not less than six years from the date of such meeting, the first two years in an easily accessible place.
The fund will not make a public offering of the fund's common shares other than:
A. A rights offering below net asset value to holders of the fund's common stock;
B. An offering in connection with a dividend reinvestment plan, merger, consolidation, acquisition, spin-off or reorganization of the fund; or
C. An offering other than an offering described in conditions VI.A and VI.B above, unless, with respect to such other offering:
1. The fund's average annual distribution rate for the six months ending on the last day of the month ended immediately prior to the most recent distribution declaration date,
2. The transmittal letter accompanying any registration statement filed with the Commission in connection with such offering discloses that the fund has received an order under section 19(b) to permit it to make periodic distributions of long-term capital gains with respect to its common stock as frequently as twelve times each year, and as frequently as distributions are specified in accordance with the terms of any outstanding preferred stock that such fund may issue.
The requested relief will expire on the effective date of any amendment to rule 19b-1 that provides relief permitting certain closed-end investment companies to make periodic distributions of long-term capital gains with respect to their outstanding common stock as frequently as twelve times each year.
By the Commission.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on July 17, 2008 at 10 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(5), (7), (9)(B), and (10) and 17 CFR 200.402(a)(5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Casey, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting scheduled for July 17, 2008 will be:
Formal orders of investigation; institution and settlement of injunctive actions; institution and settlement of administrative proceedings of an enforcement nature; other matters related to enforcement proceedings; and an opinion.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551-5400.
On May 14, 2008, the American Stock Exchange LLC (“Amex”), The NASDAQ Stock Market LLC (“Nasdaq”), the New York Stock Exchange LLC (“NYSE”), and NYSE Arca, Inc. (“NYSE Arca” and together with Amex, Nasdaq, and NYSE, collectively, the “Exchanges”), through its wholly owned subsidiary, NYSE Arca Equities, Inc. (“NYSE Arca Equities”), each filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Each Exchange proposes to amend its respective rules
After careful consideration, the Commission finds that the proposed rule changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that the Exchanges' respective trading halt rules are reasonably designed to prevent trading in certain derivative securities products when the availability of certain information is impaired. Specifically, each Exchange proposes to require a trading halt in certain derivative securities products that are listed and trading on such Exchange, if such Exchange becomes aware that the NAV and/or Disclosed Portfolio, as applicable, for such derivative product is not being disseminated to all market participants at the same time. In addition, each Exchange would resume trading in such halted derivative securities product only when the NAV and/or Disclosed Portfolio, as applicable, is disseminated to all market participants. The Commission believes that the proposed rule changes are intended to protect investors and the public interest when key information relating to the NAV or the Disclosed Portfolio becomes unavailable or available only to some market participants, but not all participants, at the time of dissemination. The Commission notes that individual listing standards for many derivative securities products already include a similar trading halt requirement.
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”),
CBOE proposes to amend its Fees Schedule to extend through July 31, 2009 the Options Intermarket Linkage (“Linkage”) fees pilot program. The text of the proposed rule change is available at
In its filing with the Commission, CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified 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's fees for Principal (“P”) and Principal Acting as Agent (“P/A”) orders
The Exchange assesses its members the following Linkage order related fees: (i) $.30 per contract transaction fee, and (ii) $.10 per contract surcharge fee on transactions in options on the Nasdaq-100 Index (MNX and NDX) and options on the Russell 2000 Index (RUT).
The Exchange believes that extension of the Linkage fee pilot program until July 31, 2009 will give the Commission further opportunity to evaluate the appropriateness of Linkage fees.
The Exchange also proposes to amend Section 21 of the Fees Schedule to change the Linkage fees pilot expiration date included in that section to July 31, 2009, thereby extending the term of the DPM Linkage Fees Credit program for PA orders.
The Exchange believes the proposed rule change is consistent with Section 6(b) of the Act,
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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,
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.
On May 19, 2008, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposal would, in connection with any member or customer who exceeds the Exchange's position limit in accordance with CBOE Rule 4.11, increase the fine levels specified in the Minor Rule Violation Plan (“MRVP”); consolidate individual members, member organizations, and customers into one category; and lengthen the surveillance period from a 12-month period to a rolling 24-month period.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In approving this proposed rule change, the Commission in no way minimizes the importance of compliance with CBOE rules and all other rules subject to the imposition of fines under the MRVP. The Commission believes that the violation of any SRO rules, as well as Commission rules, is a serious matter. However, the MRVP provides a reasonable means of addressing rule violations that do not rise to the level of requiring formal disciplinary proceedings, while providing greater flexibility in handling certain violations. The Commission expects that CBOE would continue to conduct surveillance with due diligence and make a determination based on its findings, on a case-by-case basis, whether a fine of more or less than the recommended amount is appropriate for a violation under the CBOE MRVP or whether a violation requires formal
It is therefore ordered, pursuant to Section 19(b)(2) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt NASD Rule 3013 (Annual Certification of Compliance and Supervisory Processes) and IM-3013 (Annual Compliance and Supervision Certification) as a FINRA rule in the consolidated FINRA rulebook without material change and to delete the corresponding provisions in Incorporated NYSE Rule 342.30 and NYSE Rule Interpretations 311(b)(5)/04 through /05 and 342.30(d)/01 through (e)/01.
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
As part of the process of developing the new consolidated rulebook (the “Consolidated FINRA Rulebook”),
NASD Rule 3013 and Incorporated NYSE Rule 342 require each member to designate one or more principals to serve as a chief compliance officer (“CCO”). These Rules further require that the chief executive officer(s) (“CEO”) certify annually that the member has in place processes to establish, maintain, review, modify and test policies and procedures reasonably designed to achieve compliance with applicable NASD (or NYSE) rules and federal securities laws and regulations. The certification includes not only a statement that the member has in place certain compliance processes, but also that the CEO(s) has conducted one or more meetings with the CCO(s) in the preceding 12 months to discuss the processes. Incorporated NYSE Rule 342 and NASD IM-3013 explain that the mandated meetings between the CEO(s) and CCO(s) must include a discussion of the member's compliance efforts to date and identify and address significant compliance problems and plans for emerging business areas. NASD IM-3013 contains additional guidance, including setting forth the expertise that is expected of a CCO. The same expertise requirements are also found in Incorporated NYSE Rule Interpretation 342.30.
There currently are four differences in the rules. First, NASD IM-3013 requires that the member provide to its board of directors and audit committees (or equivalent bodies) the report that evidences the processes to which the CEO(s) certifies either prior to execution of the certification or at the earlier of their next scheduled meetings or within 45 days of certification. The Incorporated NYSE rules require submission of the report to those bodies prior to certification. FINRA does not intend to require the board of directors or audit committee to review or consider the report as a condition to the CEO executing the certification; rather, FINRA intends the provision to ensure that those governing bodies remain informed of this aspect of the member's compliance system in the context of their overall responsibility for governance and internal controls of the member for which they serve. Accordingly, the proposed rule change would maintain the NASD rule requirements.
Second, the current rules differ in the certification deadline. Incorporated NYSE Rule 342.30 requires certification as part of the submission of a member's annual compliance report, which is due by April 1 of each year. NASD Rule 3013 requires certification not later than the anniversary of the prior year's certification. And while NASD allowed members to execute their first certification no later than April 1, 2006, to accommodate Dual Members, many FINRA-only firms executed their first certification earlier than that and thus have differing anniversary dates. Moreover, new members are required to execute their first certification within a year of approval for membership; therefore some firms necessarily are on a cycle that does not correspond to April 1. The proposed rule change would maintain the NASD rule deadline to provide firms the flexibility to certify on a schedule that meets with their
Third, Incorporated NYSE Rule 342.30 requires that the member submit its certification to the Exchange, whereas the NASD rule requires only that the certification be maintained for inspection. FINRA believes the submission of the certification creates an unnecessary—albeit small—additional burden on members with no attendant benefits to FINRA's examination program. Therefore, the proposed rule change would retain the NASD requirement that the certifications be kept for inspection by members.
Finally, while both rules permit designation of multiple CCOs subject to certain conditions, Incorporated NYSE Rule Interpretation 311(b)(5) requires Exchange approval of the allocation of supervisory responsibilities between those CCOs. By comparison, the NASD rules rely on the business judgment of the member and require only that the member define and document the areas of responsibility allocated to each CCO. FINRA believes the NASD approach is more appropriate, and therefore the proposed rule change would not adopt the approval requirement into the new rule in the Consolidated FINRA Rulebook.
The proposed rule change would replace NASD Rule 3013 and IM-3013 with a single rule that integrates the substance of the IM either as provisions in the new rule or as supplementary material.
As noted above, FINRA will announce the implementation date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
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.
All submissions should refer to File Number SR-FINRA-2008-030 and should be submitted on or before August 5, 2008.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 6.
This is an amendment of the Presidential declaration of a major disaster for the State of Indiana (FEMA-1766-DR), dated 06/11/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration,
The notice of the President's major disaster declaration for the State of Indiana, dated 06/11/2008, is hereby amended to establish the incident period for this disaster as beginning 05/30/2008 and continuing through 06/27/2008.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Indiana (FEMA-1766-DR), dated 06/08/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Indiana, dated 06/08/2008, is hereby amended to establish the incident period for this disaster as beginning 05/30/2008 and continuing through 06/27/2008.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 7.
This is an amendment of the Presidential declaration of a major disaster for the State of Indiana (FEMA-1766-DR), dated 06/11/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Indiana, dated 06/11/2008 is hereby amended to include the following areas as adversely affected by the disaster:
All other counties contiguous to the above named primary county have previously been declared.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of West Virginia (FEMA-1769-DR), dated 06/19/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of West Virginia, dated 06/19/2008 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
It is proposed that the amended Prefatory Statement notify individuals of an additional routine use of Privacy Act information. The OMB requires all federal agencies to be able to quickly and efficiently respond in the event of a breach of personally identifiable information and directed agencies to publish a routine use that will allow disclosure of Privacy Act information to persons and entities in a position to assist with notifying affected individuals, or playing a role in preventing, minimizing, or remedying any harm from a breach.
The Department of State is proposing to add a new routine use that will allow it to meet the OMB objective of responding quickly and efficiently should such a breach occur. The new routine use will help the Department prevent, minimize, or remedy a data breach or compromise. All responses to a confirmed or suspected breach will be prepared on a case-by-case basis. The purpose of the amendment to the Prefatory Statement is to allow the Department to respond more quickly and efficiently in the event of a breach of personally identifiable information and, when necessary, to disclose information regarding the breach to individuals identified under the routine use, and to give the affected individuals full and fair notice of the extent of these potential disclosures.
The proposed routine use is compatible with the purpose for which information maintained by the Department originally was collected. As indicated in the April 2007 Strategic Plan report issued by the President's Identity Theft Task Force (page 83) and OMB M-07-16, a routine use to provide for disclosure in connection with response and remedial efforts in the event of a breach of federal data qualifies as a necessary and proper use of information—a use that is in the best interest of both the individual and the public. Such a routine use will serve to protect the interests of the individuals whose information is at issue by allowing the Department to take appropriate steps to facilitate a timely and effective response, thereby improving its ability to prevent, minimize, or remedy any harm resulting from a compromise of data maintained in its systems of records.
Additional editorial and housekeeping changes are also incorporated in the amended prefatory statement. In particular, these changes improve formatting to clarify that separate routine uses apply to potential disclosures to Courts and Contractors, and update references to potential recipients of terrorism-related information to specify the National Counterterrorism Center (instead of its precursor organization, the Terrorist Threat Integration Center) and the Department of Homeland Security.
Any persons interested in commenting on this amendment to the Prefatory Statement of routine uses to Department of State Privacy Act Issuances may do so by submitting comments in writing to Margaret P. Grafeld, Director, Office of Information Programs and Services, A/ISS/IPS, U.S. Department of State, SA-2, Washington, DC 20522-8001.
The new routine use amendment to the Prefatory Statement of Routine Uses to Department of State Privacy Act Issuances will be effective 40 days from the date of publication, unless we receive comments that result in a contrary determination.
The amendment will read as set forth below.
In the event that a system of records maintained by this agency to carry out its functions indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto.
A record from the Department's systems of records may be disclosed to the Federal Bureau of Investigation, the Department of Homeland Security, the National Counter-Terrorism Center (NCTC), the Terrorist Screening Center (TSC), or other appropriate federal agencies, for the integration and use of such information to protect against terrorism, if that record is about one or more individuals known, or suspected, to be or to have been involved in activities constituting, in preparation for, in aid of, or related to terrorism. Such information may be further disseminated by recipient agencies to Federal, State, local, territorial, tribal, and foreign government authorities, and to support private sector processes as contemplated in Homeland Security Presidential Directive/HSPD-6 and other relevant laws and directives, for terrorist screening, threat-protection and other homeland security purposes.
A record from this system of records may be disclosed as a “routine use” to a federal, state or local agency maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit.
A record from this system of records may be disclosed to a federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
A record from this system of records may be disclosed to a federal, state, local or foreign agency as a routine use response to such an agency's request, where there is reason to believe that an individual has violated the law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, if necessary, and only to the extent necessary, to enable such agency to discharge its responsibilities of investigating or prosecuting such violation or its responsibilities with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto.
A record from this system of records may be disclosed to a foreign agency as a routine response to such an agency's
The information contained in this system of records will be disclosed to the Office of Management and Budget in connection with review of private relief legislation, as set forth in OMB Circular No. A-19, at any stage of the legislative coordination and clearance process as set forth in that Circular.
Disclosure may be made to a congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.
Information from a system of records may be disclosed to anyone who is under contract to the Department of State to fulfill an agency function but only to the extent necessary to fulfill that function.
Information from a system of records may be made available to any court of competent jurisdiction, whether Federal, state, local or foreign, when necessary for the litigation and adjudication of a case involving an individual who is the subject of a Departmental record.
A record from a system of records may be disclosed as a routine use to the National Archives and Records Administration and the General Services Administration: For records management inspections, surveys and studies; following transfer to a Federal records center for storage; and to determine whether such records have sufficient historical or other value to warrant accessioning into the National Archives of the United States.
A record may be disclosed as a routine use to any component of the Department of Justice, including United States Attorneys, for the purpose of representing the Department of State or any officer or employee of the Department of State in pending or potential litigation to which the record is pertinent.
To appropriate agencies, entities, and persons when (1) the Department of State suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
SUMMARY: During a review of this agency's operations, a system was identified as being in operation that is not covered by a Privacy Act system of records. Notice is hereby given that the Department of State proposes to create a new system of records, Global Financial Management System, pursuant to the provisions of the Privacy Act of 1974, as amended (5 U.S.C. 552a), and Office of Management and Budget Circular No. A-130, Appendix I. The Department's report relating to this system was filed with the Office of Management and Budget on July 8, 2008.
It is proposed that the new system will be named “Global Financial Management System.” It is also proposed that the new system description will identify the Global Financial Management System (GFMS) as the official financial management system for the Department of State to account for and control appropriated resources and to maintain accounting and financial information associated with the normal operation of government organizations. The routine uses applying to GFMS that provide for disclosure to the Department of the Treasury and the Internal Revenue Service are compatible with the purpose for collecting information that resides in this system because such disclosures enable the appropriate reimbursements to individuals and documentation thereof for purposes of tax compliance.
Any persons interested in commenting on the new Global Financial Management System may do so by submitting comments in writing to Margaret P. Grafeld, Director, Office of Information Programs and Services, A/ISS/IPS, U.S. Department of State, SA-2, Washington, DC 20522-8001. The new system of records for the Global Financial Management System will be effective 40 days from the date of publication, unless comments are received that result in a contrary determination. This new system description will read as set forth below.
Global Financial Management System.
Unclassified.
Department of State, Annex 1, 2201 C Street, NW., Washington, D.C. 20520; Annex 15, 1800 N. Kent Street, Arlington, VA 22209; Charleston Financial Service Center, Building 646A, 1969 Dyess Avenues, Charleston, SC 29408; and overseas at U.S. Embassies, U.S. Consulates General and Consulates.
Any individual requiring payment by the Department of State whether for services rendered or for reimbursement of an authorized payment voucher.
Federal Managers' Financial Integrity Act of 1982, Federal Financial Management Improvement Act of 1996 and the Debt Collection Act of 1982 and 1996.
Names, addresses, telephone numbers, social security numbers, tax identification numbers, employee identification numbers, bank routing and account numbers, loan numbers and receivable reference numbers, and related information.
The Global Financial Management System (GFMS) is the official financial
The principal users of this information outside the Department of State are: (1) Department of Treasury to issue authorized payments to companies and individuals or to issue authorized reimbursement payments to employees; and (2) the Internal Revenue Service and companies or individuals who have received qualifying payments during the tax year as recipients of 1099 reporting. Also see the Department of State's Prefatory Statement of Routine Uses published in the Federal Register.
Disclosure made pursuant to 5 U.S.C. 552a(b)(12): Debt information concerning a government claim against an individual may be furnished in accordance with 5 U.S.C. 552a(b)(12) and section 3 of the Debt Collection Act of 1982 (Pub. L. 97-365) to consumer reporting agencies to encourage repayment of an overdue debt.
Electronic media and paper records.
By name, employee identification number, or social security number, consistent with Executive Order 9397 and Section 7 of the Privacy Act.
All Department of State employees and contractors with authorized access have undergone a thorough background security investigation. Access to the Department and its annexes is controlled by security guards and admission is limited to those individuals possessing a valid identification card or individuals under proper escort. Records containing personal information are maintained in secured file cabinets or in restricted areas, access to which is limited to authorized personnel. Servers are stored in Department of State secured facilities in cipher locked server rooms. Physical access to the server rooms is limited to authorized personnel only. The system is secured with the safeguards required by Office of Management and Budget Memorandum M-07-16 as may be applicable
Records maintenance and disposal is in accordance with National Archives and Records Administration retention schedule, and any supplemental guidance issued by individual components.
Director, Systems Development and Maintenance, Department of State, P.O. Box 150008, Charleston, SC 29415-5008.
Individuals who have reason to believe that the Department of State's Global Financial Management System may have records pertaining to themselves may write the Director, Office of Information Programs and Services, A/ISS/IPS, SA-2, Department of State, 515 22nd Street, NW., Washington, DC 20522-8100.
The individual must specify that he or she wishes the GFMS to be checked. At a minimum, the individual should include: Name, date of birth, current mailing address and zip code, signature; and also a brief description of the circumstances that caused the individual cause to believe that the GFMS has records pertaining to him or her.
Individuals who wish to gain access to or amend records pertaining to them should write to the Director, Office of Information Programs and Services, A/ISS/IPS, SA-2, Department of State, 515 22nd Street, NW., Washington, DC 20522-8100.
These records contain information obtained from the individual who is the subject of these records, from Department of State transactions, and from other U.S. Government agencies.
None.
Federal Aviation Administration (FAA), DOT.
This notice announces revisions to (1) Chapter 4, Special Airworthiness Certification, Section 9 of the FAA Order 8130.2F,
Frank Paskiewicz, Manager, Production and Airworthiness Division, AIR-200, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone number: (202) 267-8361.
The FAA established an Amateur-Built Aviation Rulemaking Committee (ARC) in July, 2006. The ARC, made up of representatives from the FAA, aircraft kit manufacturers, commercial assistance center owners and associations, was asked to make recommendations regarding the use of builder or commercial assistance when fabricating and assembling amateur-built aircraft intended for certification under Title 14 Code of Federal Regulations (14 CFR) part 21.191(g). The committee concluded that the existing procedures used for evaluation of aircraft kits are inadequate, need updating, and are not used in a standardized manner.
On February 15, 2008, the FAA published a notice in the
As a result of the ARC findings, the FAA proposes to revise Chapter 4, Special Airworthiness Certification, Section 9, of FAA Order 8130.2F and combine AC 20-27G and AC 20-139 used in amateur-built aircraft kit evaluations.
The FAA believes that new guidance is necessary to ensure that an amateur builder completes the necessary amount of fabrication and assembly (the major portion) of an aircraft to be in compliance with § 21.191(g). A determination of major portion is made by evaluating the amount of work accomplished by the amateur builder(s) against the total amount of work necessary to complete the aircraft. The major portion of the aircraft is defined as more than 50 percent of the fabrication and assembly tasks.
The FAA most recently addressed fabrication and assembly in an FAA internal directive, FAA Order 8130.2B, dated October 20, 1987, which stated in pertinent part, “* * * the ‘major portion' of the aircraft is considered to mean more than 50 percent of the fabrication and more than 50 percent of the assembly.” Editorial changes in subsequent revisions inadvertently shortened this statement to “more than 50 percent of the fabrication and assembly operations.” This had the unintended consequence of not specifying a minimum amount of fabrication and assembly as intended by the regulation.
In the last 25 to 30 years there has been significant deviation from this intent as a result of increasing sophistication of designs and materials as well as advances in kit manufacturing processes. In some cases the FAA has found that, depending upon the aircraft design, the amateur builder only fabricates 10 to 20 percent of an aircraft, and assembles 80 to 90 percent. The trend by kit manufacturers for more assembly and less fabrication results in work for the amateur builder that primarily consists of assembly of prepared parts. This is contrary to the intent of § 21.191(g).
To ensure consistency and standardization concerning amateur-built kit aircraft evaluations, the FAA proposes to clarify how much fabrication and assembly must be performed by the amateur builder. The FAA is proposing that an amateur builder fabricate a minimum of 20 percent of an aircraft and assemble a minimum of 20 percent of the aircraft. The FAA also clarifies the role of commercial assistance, which includes both the pre-fabrication of parts and direct assistance to the builder, as part of the remaining 49 percent (manufacturer and commercial assistance). The figure below illustrates this clarification.
A stated level of builder fabrication is necessary for the FAA to issue the amateur builder a repairman certificate after showing compliance with § 65.104. Among other requirements, that section requires the experimental aircraft builder to be the primary builder of the aircraft, and to show to the satisfaction of the Administrator that the individual has the requisite skill to determine whether the aircraft is in a condition for safe operations.
The FAA is seeking comments on the proposed minimum percentage of fabrication and assembly that would be required in order for an amateur-built aircraft to qualify for a special airworthiness certificate in the experimental category. In addition, the FAA seeks comments to Chapter 4, Special Airworthiness Certification, Section 9, of FAA Order 8130.2F,
Although not required, the Federal Railroad Administration (FRA) is providing notice that it has received a petition for approval of a Railroad Safety Program Plan (RSPP) submitted pursuant to Title 49 Code of Federal Regulations (CFR) Part 236, Subpart H. The petition is listed below, including the party seeking approval, and the requisite docket number. FRA is not accepting comments on this RSPP.
The Northeast Illinois Regional Commuter Railroad Corporation (METRA) submitted a petition for approval of an RSPP. The petition, the RSPP, and any related documents have been placed in the requisite docket (FRA-2008-0072) and are available for public inspection.
Interested parties are invited to review the RSPP and associated documents at the DOT Docket Management Facility during regular business hours (9 a.m.-5 p.m.) at 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590. All documents in the public docket are also available for inspection and copying on the internet at
Anyone is able to search the electronic form of any written communications received into any of our dockets by name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) has received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Memphis Area Transit Authority (MATA) seeks a permanent waiver of compliance from sections of Title 49 of the CFR for operation of its vintage Main Street Trolley line, which features “limited connections” such as a shared corridor operation and a diamond at-grade rail crossing of Canadian National/Illinois Central Railroad (CN/IC) track by the streetcar.
The Main Street Trolley line is a 7 mile long, urban transit system serving 35 stations, and partially shares a riverfront corridor with CN/IC. Along this shared corridor, there are 11 shared highway-rail at grade crossings and one diamond at-grade rail crossing in which the streetcar crosses the CN/IC north of Auction Avenue as it heads south to GE Patterson Avenue. All shared highway rail at grade crossings have signalized crossing protection. Also, the diamond at-grade rail crossing is fully interlocked and signaled. All maintenance is performed by CN/IC.
MATA's Main Street Trolley line shares a limited connection to the general freight system at 11 highway-rail at grade crossings and 1 diamond at-grade rail crossing, and seeks a permanent waiver of compliance from Title 49 of the CFR, specifically:
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2008-0063) and may be submitted by any of the following methods:
•
•
•
•
Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.—5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Canadian National Railway Company (CN), a Class I railroad, on its own behalf and for its wholly-owned United States operating subsidiaries, seeks a waiver of compliance from certain provisions of Title 49 CFR Part 232—
1. Battle Creek Yard, Battle Creek, MI;
2. Destrehan Yard, Destrehan, LA;
3. Flat Rock Yard, Flat Rock, MI
4. Glenn Yard, Forest View, IL;
5. Green Bay Yard, Green Bay, WI;
6. Hawthorne Yard, Cicero, IL;
7. Mays Yard, New Orleans, LA;
8. Neenah Yard, Neenah, WI;
9. Pokegama Yard, Pokegama, WI; and
10. Stevens Point Yard, Stevens Point, WI.
Under CN's previous interpretation of Part 232.103 (n)(1), CN states that they previously safely operated over the past number of years at several of these locations with a zero hand brake applied policy. CN has suspended that policy pending the outcome of this petition. CN states that under its previous policy, they experienced no unintended equipment roll-outs at these locations, which they attributed to the flat or “bowl” shaped configuration of these yards. CN also states that safety and efficiency of operation were improved, due to reduction of employee exposure to injury while applying or releasing handbrakes, and that wheel damage caused by the failure of a crew to release hand brakes before equipment movement was reduced.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2008-0060) and may be submitted by any of the following methods:
• Web site:
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•
•
Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
In rule document E8-13378 beginning on page 35893 in the issue of Wednesday, June 25, 2008 make the following corrections:
1. On page 35893, in the third column, the last paragraph and its accompanying footnotes should read as follows:
Title XIII of the Housing and Community Development Act of 1992, Public Law 102-550, titled the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Act) (12 U.S.C. 4501
2. On page 35894, in the first column, the first full paragraph and its accompanying footnotes should read as follows:
Pursuant to the Act, OFHEO published a final regulation setting forth a risk-based capital test which forms the basis for determining the risk-based capital requirement for each Enterprise.
3. On the same page, in the second column, the first full paragraph and its accompanying footnote should read as follows:
Consistent with the Act and OFHEO's commitment to review, update and enhance the Risk-Based Capital Regulation in order to ensure an accurate risk sensitive and transparent calculation of the risk-based capital requirement, OFHEO published a notice of proposed rulemaking (NPRM) to incorporate amendments to the Risk-Based Capital Regulation.
Federal Register rule document E8-13961, originally published at pages 35778 to 35833 in the issue of Tuesday, June 24, 2008, included several pages of duplicated text and deleted material. This document is being republished in its entirety.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; fishing season notification.
This final rule implements the management measures described in Final Amendment 2 to the Atlantic HMS Fishery Management Plan (FMP). These management measures are designed to rebuild overfished species and prevent overfishing of Atlantic sharks. These measures include, but are not limited to, reductions in the commercial quotas, adjustments to commercial retention limits, establishment of a shark research fishery, a requirement for commercial vessels to maintain all fins on the shark carcasses through offloading, the establishment of two regional quotas for non-sandbar large coastal sharks (LCS), the establishment of one annual season for commercial shark fishing instead of trimesters, changes in reporting requirements for dealers (including swordfish and tuna dealers), the establishment of additional time/area closures for bottom longline (BLL) fisheries, and changes to the authorized species for recreational fisheries. This rule also establishes the 2008 commercial quota for all Atlantic shark species groups. These changes affect all commercial and recreational shark fishermen and shark dealers on the Atlantic Coast.
This rule is effective on July 24, 2008.
For copies of Final Amendment 2 to the Highly Migratory Species Fishery Management Plan, the Small Entity Compliance Guide, or other related documents, please write to the Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910, or call at (301) 713-2347 or fax to (301)713-1917. Copies are also available on the HMS website at
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to the Highly Migratory Species Management Division at (301) 713-2347 or by fax to (301) 713-1917 and by e-mail to
Michael Clark, Karyl Brewster-Geisz, or LeAnn Southward Hogan at 301-713-2347 or by fax at 301-713-1917; or Jackie Wilson at 240-338-3936.
The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Consolidated HMS FMP is implemented by regulations at 50 CFR part 635.
NMFS announced its intent to prepare an environmental impact statement (EIS) on November 7, 2006 (71 FR 65086), and held seven scoping meetings in January 2007 (72 FR 123, January 3, 2007). As described in the notice of intent, based on the results of the 2005 Canadian porbeagle shark stock assessment, the 2006 dusky shark stock assessment, and the 2005/2006 LCS stock assessment, NMFS declared the current status of the LCS complex as unknown, sandbar sharks as overfished with overfishing occurring, the Gulf of Mexico blacktip shark population as not overfished with overfishing not occurring, the Atlantic blacktip shark population as unknown, the dusky shark as overfished with overfishing occurring, and porbeagle sharks as overfished with overfishing not occurring. Where there are overfished/ overfishing determinations, under the Magnuson-Stevens Act, NMFS is required to develop management measures to rebuild overfished shark stocks and prevent overfishing.
In March 2007, NMFS presented a predraft of the Amendment 2 to the HMS Advisory Panel (72 FR 7860, February 21, 2007). Based in part on the comments received during scoping and from the HMS Advisory Panel, on July 27, 2007, NMFS developed further and then released the draft Amendment 2 to the Consolidated HMS FMP and the associated proposed rule (72 FR 41325; 72 FR 41392). The public comment period was originally scheduled to end on October 10, 2007; however, it was subsequently extended (72 FR 56330, October 3, 2007) and reopened until December 17, 2007 (72 FR 64186, November 15, 2007), to provide the Regional Fishery Management Councils, the Interstate Marine Fisheries Commissions, and the public additional opportunity to submit comments. In addition to the written comments submitted, the public verbally commented on the proposed rule at five Regional Fishery Management Council meetings (New England, Mid-Atlantic, South Atlantic, Gulf of Mexico, and Caribbean), an Atlantic States Marine Fisheries Commission meeting, ten public hearings, and one HMS Advisory Panel meeting. The summary of the comments received and NMFS' responses are provided below. Based on these public comments, NMFS re-evaluated the preferred alternatives identified in the draft Amendment 2, made changes as outlined in Final Amendment 2, and now releases its final rule as modified after considering public comment.
Consistent with the Consolidated HMS FMP objectives, the Magnuson-Stevens Act, and other applicable law, the objectives for this final rule are to: (1) implement rebuilding plans for sandbar, dusky, and porbeagle sharks; (2) provide an opportunity for the sustainable harvest of blacktip and other sharks, as appropriate; (3) prevent overfishing of Atlantic sharks; (4) analyze BLL time/area closures and take necessary action to maintain or modify the closures, as appropriate; and (5) improve, to the extent practicable, data collections or data collection programs.
The rebuilding plans in Final Amendment 2 to the Consolidated HMS FMP considers the recommendations in the stock assessments to be the best available scientific information on the status of the species and therefore, reflects those recommendations. This includes NMFS establishing rebuilding time periods that are as short as possible, taking into account the status and biology of the stocks and needs of the fishing communities according to National Standard (NS) 1 guidelines.
The 2005/2006 stock assessment for the sandbar shark assumed that sandbar shark fishing mortality from 2005 to 2007 would be maintained at levels similar to 2004 (the last year of data used in the stock assessment was from 2004) and that there would be a constant total allowable catch (TAC) between 2008 and 2070. Using these assumptions, the projections indicated that sandbar sharks would have a 70-percent probability of rebuilding by 2070 with a TAC of 220 mt whole
Under the rebuilding plan, sandbar sharks are separated from the LCS complex, and the base commercial sandbar shark quota is established at 116.6 mt dw/year, which results in a total sandbar shark TAC of 158.3 mt dw (220 mt ww) once other sources of sandbar sharks mortality are included. For the first five years of this rebuilding plan (through 2012), to account for 2007 overharvests, the base commercial quota is reduced to 87.9 mt dw. The adjusted base quota through 2012 includes the amount of quota that would have been available in the 1
Projections in the dusky shark stock assessment indicated that with the age-structured production model (i.e., baseline scenario), dusky sharks could be rebuilt with a 70-percent probability by the year 2400. Other projections from the three other modeling approaches indicate that rebuilding of dusky sharks will take between 100-400 years. As such, in this final rule, NMFS assumes that the rebuilding timeframe that would be as short as possible for dusky sharks would be at least 100 years. The harvest of dusky sharks has been prohibited since 2000. Despite this fact, dusky sharks are still overfished with overfishing occurring. NMFS believes this is at least partly due to the fact that they are caught as bycatch, predominantly in longline fisheries. Many of the final actions in this rule, such as establishing a shark research fishery with 100 percent observer coverage and decreasing the retention limits of non-sandbar large coastal sharks on all fishing vessels, should reduce dusky shark bycatch. This reduction in bycatch should aid in rebuilding and in collecting additional information to evaluate dusky shark status and catches. In the research fishery, if dusky shark catch is high by a particular vessel or in a particular region, NMFS could stop that vessel's trip(s) or stop all research trips in that region and/or time. Additionally, if NMFS decides, after reviewing the data from a particular year, NMFS decides that the catch was too high in the research fishery, NMFS could adjust the research protocols and reduce effort or modify gear requirements, as needed. For the non-research fishery trips, NMFS could either reduce the retention limit in an attempt to reduce effort or work with the appropriate Regional Fishery Management Council to reduce bycatch mortality in certain fisheries, or consider other measures, as appropriate.
A stock assessment was conducted for North Atlantic porbeagle sharks in 2005 by the Canadian Department of Fisheries and Oceans. This assessment was reviewed by NMFS scientists who determined it used appropriate methodologies and all available fishery and biological data including U.S. landings and research. As a result of this review, NMFS determined that the assessment constituted the best available science. NMFS also determined that because the stock assessed is a unit stock that extends into U.S. waters, the assessment and its recommendations were appropriate for use in U.S. domestic management. The assessment recommended that there is a 70-percent probability of rebuilding in 100 years if fishing mortality levels are maintained at or below 0.04 (current fishing mortality level). Considering this science, NMFS believes that the rebuilding timeframe that is as short as possible is 100 years, which will allow a TAC of 11.3 mt dw based on current commercial landings of 1.7 mt dw, current commercial discards of 9.5 mt dw, and current recreational landings of 0.1 mt dw. This results in a commercial porbeagle shark quota of 1.7 mt dw.
This final rule does not contain detailed information regarding the management history of Atlantic sharks or the alternatives considered. Those issues are discussed in the preamble of the proposed rule. Additional information can also be found in the Final Amendment 2 to the Consolidated HMS FMP available from NMFS (see
A large number of individuals and groups provided both written and verbal comments on the proposed rule during the 143-day comment period, 10 public hearings, 5 Regional Fishery Management Council meetings, one Interstate Marine Fisheries Commission meeting, and one HMS Advisory Panel meeting. These comments resulted in numerous changes. The comments are summarized below together with NMFS' responses. All of the comments are grouped together by major issue. There are 16 major issues: Quotas/Species Complexes; Porbeagle Sharks as Prohibited; Retention Limits; Fins on Requirement; Time Area Closures; Reporting; Seasons; Regions; Recreational Measures; Stock Assessment and Fishery Evaluation (SAFE) Report and Stock Assessment Frequency; Research Fishery/Preferred Alternative; Comments on Other Alternative Suites and Management Measures; Science; National Standards; Economic Impacts; and Miscellaneous. The comments are numbered consecutively, starting with 1, at the beginning of each issue.
Given section 304 and other timing considerations for this action, NMFS did not consider an ITQ system as a reasonable alternative, as it takes several years to properly design an ITQ system that appropriately considers the views of all stakeholders and then to implement such a system. The general requirements for ITQs or LAPPs were included in the 2007 reauthorized Magnuson-Stevens Act (section 303A). Overall, two basic things must be done when implementing a LAPP system: 1) determine who would receive and who can hold the harvest privileges; and 2) define the nature of the harvest privileges. In addition, NMFS is currently establishing referenda requirements for LAPPs (for instance, a particular allocation scheme must be approved by a given level of the industry). In addition, unlike the research fishery, which would allow an individual fisherman to target sharks on a yearly basis, allocation under an ITQ, IFQ, or LAPP would be for a much longer time period. Because fishermen would have these allocations for a long time, NMFS traditionally works extensively with all stakeholders to devise the best allocation scheme possible for these type of permit programs through workshops and other meetings.
In using historical landings reported by shark dealers to calculate the non-sandbar LCS quota, NMFS follows the recommendations of the stock assessments for Gulf of Mexico and Atlantic blacktip shark populations. These stock assessments recommended keeping catch levels the same in the Atlantic region and not increasing catch levels in the Gulf of Mexico region. Basing quotas on dealer reports would cap fishing effort at historical levels and keep stocks in the Gulf of Mexico healthy and stocks in the Atlantic from declining. Setting quotas higher than these levels could have detrimental effects on shark stocks.
However, as suggested by the commenter, NMFS tried to accommodate incidental landings in other fisheries. Under the final action, fishermen can still retain some non-sandbar LCS while they fish for other species (e.g., reef fish and snapper-grouper). A fisherman with a directed shark permit could harvest 33 non-sandbar LCS per trip and a fisherman with an incidental shark permit could land 3 non-sandbar LCS per trip. The trip limit for directed shark permit holders is based, in part, on BLL observer program data from 2005 to 2007. The observer data showed that fishermen with directed shark permits fishing for snapper-grouper kept, on average, 12 sharks per trip. A 33 non-sandbar trip limit should allow fishermen with directed permits to retain sharks (besides sandbar sharks) they catch while targeting other species and should minimize discards. The incidental trip limit is based on what fishermen with incidental permits currently retain under the status quo.
NMFS also considered whether limiting sandbar harvest to the research fishery would increase dead discards or if NMFS needed to include a trip limit for sandbar sharks. Observer data
In general, shark stock status determinations are based on NMFS-conducted stock assessments. NMFS uses the Southeast Data, Assessment, and Review (SEDAR) process for shark stock assessments, which is open to the public and uses the Center for Independent Experts (CIE) to provide independent peer reviews of assessment results.
These assessments consider landings by other countries such as Mexico and Canada but contain mostly U.S. data. For shark species that may have substantial landings outside of the United States (e.g., blue shark), NMFS also relies on the results of the Standing Committee for Research and Statistics (SCRS) of the International Commission for the Conservation of Atlantic Tunas (ICCAT). These stock assessments are conducted with scientists and data from throughout the world, including U.S. scientists and data. In the case of porbeagle sharks, SCRS determined that ICCAT did not need to conduct a stock assessment since Canada had already conducted one. As such, NMFS scientists reviewed the Canadian stock assessment and determined it was appropriate for use in domestic management.
To date, NMFS has not relied on outside organizations, such as the IUCN, when making stock status determinations. This is due to the unknown nature of the data and peer review methodology applied by these outside groups.
The latest blacktip shark assessments recommended not increasing catch levels in the Gulf of Mexico and keeping catch levels at historical levels in the Atlantic. To account for differences in catch between the Gulf of Mexico and Atlantic region and to follow recommendations from the blacktip shark stock assessments, NMFS is implementing a Gulf of Mexico non-sandbar LCS regional quota and an Atlantic non-sandbar LCS regional quota based on historical landings from HMS shark dealer reports from 2003 to 2005. Based on dealer reports, the Atlantic region has a lower non-sandbar LCS base quota (188.34 mt dw) than the Gulf of Mexico region (439.5 mt dw). Since the Atlantic blacktip shark stock assessment recommended not changing landings and did not recommend prohibiting the harvest of blacktip sharks, NMFS is implementing this regional quota based on historical landings in the Atlantic region.
Unlike the sandbar shark assessment, which recommended a specific TAC, or the blacktip stock assessments, which recommended specific catch levels, the dusky shark assessment did not give specific mortality targets. Dusky sharks have been on the prohibited species list in 2000; however, there continue to be dusky shark discards in other fisheries. NMFS estimated reduction in dusky shark mortality as a result of sandbar shark and non-sandbar LCS management actions. Based on the reduced quotas and trip limits, NMFS estimates that dusky shark mortality will likely be reduced from 33.1 mt dw to 9.1 mt dw per year. This is a 73-percent reduction in mortality compared to the status quo, which should help rebuild the dusky shark population and afford dusky sharks more protection compared to the status quo.
Finally, NMFS is aware of a separate external hammerhead shark stock assessment that is being conducted, but not aware of separate stock assessments for common threshers or sand tiger sharks. Conducting stock assessments at a species specific level is difficult due to the lack of species-specific information collected to conduct stock assessments for each species of sharks involved in commercial shark fisheries. Therefore, species such as hammerhead sharks and common threshers are managed within species complexes. While NMFS is not implementing management measures for hammerhead sharks, it is likely that hammerhead shark landings will be reduced due to the reduced non-sandbar LCS quota and retention limits.
NMFS has not considered specific management actions for common threshers in this rulemaking, but an annual quota is in place for the pelagic shark complex (488 mt dw), and underharvests of this complex are not applied to the next season. NMFS may consider additional management actions for this species, as warranted, in the future.
For sand tiger sharks, based on their high vulnerability to exploitation and to discourage any future directed fisheries, NMFS included these sharks on the prohibited species list in 1997. Additionally, as with the dusky sharks, a reduction in discards based on the sandbar shark and non-sandbar LCS quotas and management actions taken in this rulemaking should afford additional protection for sand tiger sharks.
However, while separate blacktip shark assessments were conducted, NMFS has decided not to implement separate blacktip shark quotas because the shark fishery is a multi-species fishery. The majority of sharks harvested in the directed shark fishery, other than sandbar sharks, are blacktip sharks. For instance, 82-percent of sharks caught in the directed shark fishery in the Gulf of Mexico region are blacktip sharks (not including sandbar sharks). The next highest landings were for hammerhead sharks at 7-percent and bull sharks at 5-percent. The South Atlantic region had the same pattern with the highest percentage of landings, apart from sandbar sharks, for blacktip sharks at 72-percent followed by hammerhead sharks at 14-percent, and then bull sharks at 4-percent. Because NMFS did not have species-specific assessments on other species besides blacktip and sandbar sharks, and because the majority of the LCS catch, not including sandbar sharks, is blacktip sharks, NMFS created a non-sandbar LCS complex with its own quota. To account for differences in catch between the Gulf of Mexico and Atlantic region, NMFS is implementing a regional Gulf of Mexico non-sandbar LCS quota and an Atlantic non-sandbar LCS quota.
The recommended TAC associated with a 50-percent probability of rebuilding by 2070 is 172.7 mt dw (or 240 mt whole weight (ww)). However, given the life history of sharks including slow growth, late age of maturity, and relatively small litter sizes, as described in the 1999 Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (1999 FMP), a 50-percent probability of success is minimally acceptable for sharks. Thus, NMFS adopted the TAC corresponding to a 70-percent probability of rebuilding by 2070, or 158.3 mt dw (220 mt ww). This timeframe is consistent with the Magnuson-Stevens Act, the NS 1 guidelines at § 600.310, the 2006 Consolidated HMS FMP (which
Based on the latest shark stock assessments, NMFS is implementing a reduced shark trip limit from 4,000 lb of LCS per trip to 33 non-sandbar LCS per trip for directed permit holders operating outside the research fishery. NMFS expects that this reduced trip limit (approximately one quarter of what a directed fisherman lands on a shark trip under the status quo) and the prohibition on the retention of sandbar sharks will result in fishermen with directed shark permits no longer targeting LCS. Additionally, this trip limit is higher than the average number of sharks shark fishermen currently retain when targeting other species (i.e., 12 sharks from non-targeted trips). Thus, NMFS assumes that the reduced trip limit will allow fishermen with directed shark permits to keep all incidentally caught non-sandbar LCS as they target non-sharks species. Because fishermen will likely be allowed to keep all sharks caught when fishing for other species, the reduced trip limit should reduce the incentive to engage in highgrading.
Due to the severity of the overfished and overfishing status of dusky sharks, the collection of dusky sharks for public display will be prohibited. Aquariums that currently have dusky sharks will not be allowed to replace them. In addition, NMFS will review the allocation of dusky sharks for research under EFPs on a case by case basis. This should allow for research under EFPs on dusky sharks to continue, as appropriate.
As described in the response to Comment 18 in this section, the quantity of sandbar and dusky sharks authorized for display and research (outside of the shark research fishery) is limited under the final action. For sandbar sharks, the amount is limited to what has been landed, on average, under various EFPs during the past six years. Therefore, no negative economic impacts are anticipated with the EFP allocation of sandbar sharks. EFPs and display permits will no longer be issued for the collection of dusky sharks. This regulation is consistent with the prohibition on the harvest of dusky sharks by commercial and recreational fishermen and, because of the overfished status and length of time for rebuilding, is appropriate for dusky sharks.
Finally, because EFPs exempt fishermen from certain regulations that other fishermen must follow, NMFS will continue to issue EFPS, SRPs, and display permits only if the applicant has shown compliance with other relevant regulations regarding reporting, notifying enforcement, and tagging animals.
Other countries that have a directed fishery for porbeagle sharks have reduced their porbeagle quotas. For instance, the Canadian porbeagle quota was cut by 80-percent in 1998. It was cut back even further in 2001 and again in 2006. The current Canadian quota is 250 mt per year, 185 mt of which may be taken by the directed porbeagle shark fishery, with the rest of the quota being allocated for bycatch. In addition, according to the latest ICCAT Recommendation (07-06), all contracting parties are obligated to reduce mortality of porbeagle sharks in their directed porbeagle shark fisheries. NMFS may take additional management measures in the future, as necessary, if future stock assessments warrant such action.
In this final action, NMFS is using a higher base quota. After accounting for overharvests that occurred in 2007 (see Appendix C of the Final Environmental Impact Statement), NMFS is revising the retention limits based on the larger non-sandbar LCS quota. The final measures implement a 33 non-sandbar LCS trip limit for directed permit holders and a three non-sandbar LCS trip limit for incidental permit holders. While the trip limit for directed permit holder has increased from what was proposed in the Draft EIS, NMFS assumes that fishermen with directed shark permits will no longer target non-sandbar LCS outside the research fishery. Rather, a 33 non-sandbar LCS trip limit allows fishermen to keep non-sandbar LCS while they target other species, such as reef fish and snapper-grouper. Based on BLL observer program data from 2005 to 2007, fishermen with directed shark permits fishing for snapper/grouper kept, on average, 12 sharks per trip. Thus, this trip limit should help in preventing excess discards. However, this retention limit will be too low to create an incentive for fishermen to target non-sandbar LCS.
NMFS is aware that the revised retention limit of 33 non sandbar sharks per vessel/trip is a significant reduction from the current 4,000 lb dw LCS retention limit for directed permit holders. These measures are necessary, however, to rebuild overfished stocks, reduce bycatch, and end overfishing consistent with NMFS's obligations under the Magnuson-Stevens Act.
In order for NMFS to change retention limits for individual vessels based on their past landing history, NMFS would likely consider an IFQ or LAPP. However, as explained in response to Comment 2 under “Quotas” above and in Chapter 1, it would take NMFS several years to implement an ITQ system. Under the current timeline under the Magnuson-Stevens Act for establishing a plan amendment to end overfishing, NMFS has insufficient time to establish an IFQ or LAPP for sharks at this time. However, NMFS could consider developing an IFQ or LAPP for sharks as well as other highly migratory species in the future.
The five year incidental take statement (ITS) for the drift gillnet fishery in the 2003 Biological Opinion (BiOp) was 10 loggerhead sea turtles (with 1 mortality), 22 leatherback sea turtles (with 3 mortalities) and 1 smalltooth sawfish (with zero mortalities). The ITS was specific to drift gillnet gear as strikenet gear had not interacted with protected species, at that time, and sink nets were not considered to be part of the shark gillnet fishery. However from 2003 to 2007 (2003 being the start of the ITS period), vessels with shark permits using drift, sink, and strike gillnets interacted with a total of 13 loggerhead sea turtles (3 of which died or were unresponsive when discarded), 1 leatherback sea turtle and 2 bottlenose dolphins (1 of which died). In addition, in January 2006, an Atlantic right whale calf was caught and died in gillnet gear off the northeast coast of Florida. Therefore, NMFS is not establishing a higher specific gillnet retention limit at this time.
Based on public comment and to acknowledge differences among directed and incidental permit holders (e.g., on average, directed permit holders discard more sandbar and dusky sharks (8.1 mt dw and 25.7 mt dw per year, respectively) than incidental permit holders (1.5 mt dw and 3.8 mt dw per year, respectively)), NMFS' final action is to set separate retention limits based on permit type. Directed permit holders will be allowed a higher retention limit than incidental permit holders. This affords directed permit holders, who may have paid more for their directed shark permit and who presumably rely on shark products for a larger part of their income, a higher retention limit than if all permit holders had the same retention limit.
However, while the final action sets regional quotas for non-sandbar LCS, NMFS is not implementing regional non-sandbar LCS retention limits. Instead, the same retention limit for non-sandbar LCS would apply in the Atlantic and the Gulf of Mexico regions. NMFS believes that a single retention limit, regardless of region, will help with enforcement and be less confusing for fishermen. For example, with one retention limit, fishermen fishing near the Florida Keys could move between the two regions on one trip. If there were two different retention limits, then fishermen would need to stay in one area per trip or risk landing a higher trip limit in the wrong region. Finally, while the analyses for setting these retention limits used historical fishing effort as a proxy for determining the retention limit, it is uncertain how future effort would be allocated among regions, or even states. This added uncertainty makes it difficult to determine a region-specific or state-specific retention limit, given the other management measures that are changing as a result of this final action.
However, for trips outside the research fishery, sandbar sharks would be prohibited and there would be reduced non-sandbar LCS trip limits. Therefore, NMFS assumes that directed shark permit holders would no longer make trips targeting non-sandbar LCS because of the significant reduction in retention limits and the fact that sandbar sharks could not be retained, therefore, the catch composition and subsequent sandbar discards described in the comment above would not apply to trips occurring outside the research fishery. Given this assumption, and based on the best available science from logbook, dealer reports, and observer program data, NMFS estimates that incidental sandbar shark mortality outside the research fishery would be approximately 40 mt dw. This estimate was determined by evaluating logbook data and observer reports to estimate sandbar shark discards from pelagic longline (PLL) gear (4.3 mt dw), discards by recreational fishermen (27 mt dw), discards within the shark research fishery (0.3 mt dw), sandbar sharks discarded by fishermen without HMS permits (6.3 mt dw), and sandbar sharks that used to be landed by incidental fishermen (2.3 mt dw).
NMFS is currently capable of accepting electronic reports from some dealers who have access to that data system in the Southeast Fisheries Science Center and faxes of shark dealer landings. NMFS does not issue confirmation numbers when shark dealer reports are received; however, submitting dealer reports by FAX or electronically includes a date/time stamp in addition to whether the transmission was successful or not. Shark dealers may also consider using certified mail to provide verification that the correspondence was received.
NMFS proposed counting all unclassified sharks from shark dealer reports as sandbar sharks to provide dealers with an incentive to identify sharks to the species level because if the quota for sandbar sharks were filled, they would no longer be able to purchase sandbar sharks. However, NMFS believes that allocating landings to the appropriate complex/species based on observer data is a more accurate means of accounting for unclassified landings. Furthermore, NMFS is concerned that counting all unclassified sharks as sandbar sharks may result in the shark research fishery closing prematurely.
NMFS has been working with the State of Louisiana, and other states, to ensure consistent management strategies for sharks in state and Federal waters due to excessive landings that occurred in Louisiana state waters in 2007. In 2007, the State of Louisiana agreed with NMFS to close its state waters when the federal fishery closed during the third trimester of 2007. Additionally, ASMFC recently voted on final management measures for a coast-wide state shark plan for states in the Atlantic Ocean. The final measures included in the ASMFC Coastal Shark FMP are expected to be effective in 2009. Many of the final measures in the ASMFC Coastal Shark FMP are consistent with federal regulations and will require commercial state shark fisheries to open and close with federal openings and closures. The implementation of ASMFC's Coastal Shark FMP could potentially lead to similar measures being implemented in the Gulf of Mexico.
These final measures should reduce the mortality of pregnant females. Furthermore, the closed area off the coast of North Carolina, which is important habitat for dusky and sandbar sharks, will continue to be in effect. NMFS does not expect that fishermen will be able to make a profitable trip “targeting” sharks with the preferred retention limits and because of the fact that sandbar sharks may not be possessed outside the shark research fishery. The resulting incidental fishery will likely translate into significant benefits to shark populations as a whole while also eliminating the need to maintain trimesters.
NMFS believes that, given the two week reporting period for dealer reports and the potential for late reporting, closing the fishery when landings reach 90- to 95-percent of the quota would likely result in overharvests. Overharvests will result in reduced quotas in the future since all overharvests will be accounted for when establishing subsequent seasons and quotas.
NMFS also received several comments opposed to maintaining the three regions, including: NMFS should either divide quota equally among regions or have one region since quotas are so low; Gulf of Mexico and South Atlantic stocks should be managed as one unit.
NMFS received numerous comments from Texas Parks and Wildlife, the Gulf of Mexico Fishery Management Council, ASMFC, Mississippi Department of Marine Resources, and members of the general public in favor of maintaining more than one region. Commenters suggested reasons for maintaining more than one region, including: the best scientific evidence available indicates that the Gulf of Mexico and the South Atlantic stocks are separate; genetic evidence has shown separate stocks of some species between the Gulf and South Atlantic; shark management should account for separate stocks and separate the quota accordingly; blacktip sharks are healthy in the Gulf of Mexico; bycatch issues are unique to each region; and, moving to one region ignores stock assessments and the temporal nature of the fishery, which was identified during the previous amendment.
Based on public comment, NMFS has decided to implement two regions, the Gulf of Mexico and the Atlantic, rather than one region as originally proposed. Maintaining two regions has several advantages, including: it adheres to the stock assessment for blacktip sharks which assessed this species separately in the Gulf of Mexico and Atlantic; it accounts for overharvests that occurred in the Gulf of Mexico and Atlantic in 2007 more equitably; it allows for unique quotas to be implemented in each region that account for different species composition in each region; and it maintains the flexibility to implement unique regulations in the Gulf of Mexico and Atlantic Ocean.
The 2006 LCS assessment assessed blacktip sharks as two distinct populations in the Gulf of Mexico and Atlantic. Unique results were found for each population with the Gulf of Mexico population healthy and the Atlantic stock unknown. The assessment recommended maintaining current harvest levels in both regions. NMFS prefers measures consistent with the stock assessment by maintaining two regions: the Gulf of Mexico and Atlantic. The blacktip shark was the only species assessed as distinct, regional populations.
At this time, NMFS does not issue unique permits based on geography within the Atlantic, Caribbean, and Gulf of Mexico. This type of permit was not considered during this rulemaking.
Silky sharks are authorized for landing in commercial fisheries because there is a higher likelihood that these sharks may be discarded dead than if they were landed in recreational fisheries. Moreover, commercial fishermen are more adept at distinguishing between silky sharks and sandbar or dusky sharks. Prohibiting silky sharks in commercial fisheries would result in more significant economic consequences than prohibiting them in recreational fisheries because commercial fishermen are allowed to sell the fins and flesh of sharks that are caught in accordance with applicable regulations. There is not a significant targeted fishery among recreational or CHB anglers for spinner sharks, therefore, economic impacts would be less severe among this group of stakeholders.
NMFS is also working on additional outreach materials such as a one page quick identification guide to improve identification and understanding of regulations among recreational anglers. These outreach materials would be either free or available at a low cost to ensure that all permit holders have access to them. NMFS has recently implemented shark identification workshops for shark dealers and other interested members of the public. While not mandatory for recreational anglers, participants in any HMS sector or the general public may attend. These workshops provide anglers, dealers, and commercial fishermen with the ability to properly identify shark carcasses.
The IUCN determined that the scalloped hammerhead is “lower risk, near threatened” with an unknown population trend in 1994. In 2001, the IUCN listed great hammerhead sharks as “endangered” with a decreasing population trend. The recreational bag limit (1 vessel/day) and minimum size (> 54 inch fork length) should preclude overfishing of the scalloped hammerhead shark species. NMFS intends to improve outreach materials available so that recreational anglers would have the tools necessary to distinguish between scalloped and great hammerheads.
Some of the objectives for the research fishery are to continue to collect sandbar shark landings data to ensure consistent time-series data for future stock assessments and to answer specific research questions concerning shark life history and mechanisms to reduce bycatch, among others. Incidental permit holders have contributed to limited landings of sandbar sharks in the past; therefore, some landings data for sandbar sharks from incidental permit holders in the shark research fishery may be warranted.
Under alternative suite 2, porbeagle sharks would be added to the prohibited list for commercial and recreational fishing because porbeagle sharks were determined to be overfished based on the 2005 Canadian stock assessment. In addition, porbeagle sharks often look similar to other prohibited species (i.e., white sharks). Therefore, placing porbeagle sharks on the prohibited species list would prohibit landings and help rebuild this overfished species. It may also stop commercial and recreational landings of other look-alike shark species, such as white sharks, which are also prohibited.
Alternative suite 2 is not more protective of sandbar sharks than alternative suite 4 (the final action). In fact, it could result in more sandbar shark discards compared to alternative suite 4 (43.2 mt dw compared to 13.1 mt dw). In addition, allowing directed shark permit holders to fish for sandbar sharks with PLL gear, especially in the mid-Atlantic closed area, could increase discards and overall mortality of dusky sharks. Thus, sandbar sharks would be prohibited on PLL gear under alternative suite 2 to offer dusky sharks more protection. NMFS estimated that prohibiting the retention of sandbar sharks on PLL gear under alternative suite 2 could reduce dusky discards to 8.6 mt dw per year.
This final action also reduces quotas and retention limits to rebuild depleted shark stocks and end overfishing of several shark species, while minimizing regulatory discards. In addition, the final action should allow for the collection of fishery dependent data for future stock assessments and biological samples for shark research, while also allowing a few shark fishermen to continue to fish and generate revenues from shark landings as they have in the past.
Economic impacts under alternative suite 3 would vary depending on permit type. For instance, the retention limits under alternative suite 3 are higher than retention limits for incidental permit holders under alternative suite 4 (the final action), possibly resulting in positive economic impacts for incidental shark permit holders. In addition, under alternative suite 3, incidental and directed permit holders would have the same retention limit. This would presumably remove the difference and value between permit types, which may benefit incidental permit holders, but may be detrimental to directed permit holders. Under the final action, directed and incidental permit holders outside the research fishery would have different non-sandbar LCS retention limits based on permit type. This would allow the distinction and difference in value between directed and incidental permit types to continue. In addition, directed and incidental permit holders outside the research fishery would not be able to retain sandbar sharks. This would most likely result in fishermen no longer directing fishing effort on sharks outside the research fishery, which could have negative economic impacts on these fishermen. However, unlike alternative suite 3, in the final action, there will be a small research fishery, which would allow a few shark fishermen to direct effort on sharks and sell their catch. This research fishery would also allow the continuation of fishery dependent data collection to help with future stock assessments. Therefore, NMFS is implementing alternative suite 4 at this time.
Retention limits under alternative suites 3 and 4 were designed to keep the shark fishery open longer than it has been in the past. This could allow shark products to be available year-round, and possibly avoid gluts in the market, as were experienced in the past when a majority of the shark products were available for a short period of time.
In addition, under alternative suites 3 and 4, NMFS would change the dealer reporting requirements, requiring dealers to mail reports so that they are received by NMFS within 10 days after the reporting period ends. This change should ensure more timely reporting and potentially avoid overharvests. Under alternative suite 3, NMFS considered a list of species that recreational anglers could land; this list did not include blacktip, bull, or spinner sharks because of potential misidentification issues with overfished shark species. However, based on public comment, NMFS is revising this list to allow recreational fishermen to land these species. The diagnostic characteristic for recreational anglers will be the lack of an interdorsal ridge. Recreational fishermen would be allowed to land non-ridgeback LCS plus tiger sharks. This characteristic should allow fishermen to land blacktip, bull, and spinner sharks, but not mistakenly land sandbar or silky sharks, which have an interdorsal ridge and are often mis-identified as dusky sharks. Therefore, given public comment and the revision in the allowable species for recreational anglers, NMFS is implementing alternative suite 4 at this time.
The assessment assumed that fishing mortality from 2005 to 2007 would be maintained at levels similar to 2004 (the last year of data used in the stock assessment was from 2004) and that there would be a constant TAC between 2008 and 2070. Based in part on these assumptions, the assessment estimated that sandbars would have a 70-percent probability of rebuilding by 2070 with a TAC of 220 mt ww (158 mt dw)/year and a 50-percent probability of rebuilding by 2070 with a TAC of 240 mt ww (172 mt dw)/year. As described previously, NMFS is using the 70-percent probability of rebuilding to ensure that the intended results of a management action are actually realized given the life history traits of sandbar sharks.
Therefore, NMFS believes that the 2005/2006 LCS complex, blacktip and sandbar shark stock assessments represent the best available science and is not re-doing the stock assessments before implementing management measures in Amendment 2 to the Consolidated HMS FMP. Under the NS1 Guidelines, if a stock is overfished, NMFS is required to “take remedial action by preparing an FMP, FMP amendment, or proposed regulation...to rebuild the stock or stock complex to the MSY level within an appropriate time frame” (50 CFR 600.310(e)(3)(ii)). Additionally, “in cases where a stock or stock complex is overfished, [the] action must specify a time period for rebuilding the stock or stock complex that satisfies the requirements of section 304(e)(4)(A) of the Magnuson-Stevens Act.” Therefore, consistent with the results of the 2005/2006 LCS complex, blacktip and sandbar shark stock assessment results, the Consolidated HMS FMP and the Magnuson-Stevens Act, NMFS is implementing final management measures to rebuild sandbar, dusky, and porbeagle sharks while providing an opportunity for the sustainable harvest of blacktip sharks and other sharks in the LCS complex.
The American Elasmobranch Society (AES) is a non-profit organization that seeks to advance the scientific study of living and fossil sharks, skates, rays, and chimaeras, and the promotion of education, conservation, and wise utilization of natural resources. The Society holds annual meetings and presents research reports of interest to students of elasmobranch biology. Those meetings are held in conjunction with annual meetings of the American Society of Ichthyologists and Herpetologists each year at rotating North American venues. Membership in the AES is open to any person who has an interest in the object of AES. Members of AES include, but are not limited to, representatives from state and federal governmental and non-governmental organizations, and academic institutions. NMFS employees are not restricted from participating in professional societies and, to the extent that participation aids in the collaboration, communication, and peer-reviews in the scientific endeavors of NOAA's mission, employees are encouraged to participate. While participating, employees must differentiate between when they are providing their own personal opinion or when they are acting as a representative of NOAA. Therefore, participation of NMFS employees in AES activities does not necessarily constitute a conflict of interest. In this case, there is no evidence from which NMFS can conclude that a conflict of interest occurred.
In the proposed rule, NMFS proposed an authorized recreational species list that was limited to those species that are easy to identify or that could not be misidentified with other species. NMFS originally proposed to prohibit the retention of blacktip sharks because of the potential for misidentification with spinner sharks, but specifically asked for public comment on the proposed list of prohibited species. As a result, based on public comments received and because blacktip sharks are healthy in the Gulf of Mexico, NMFS is implementing an amended authorized shark species list in the recreational fishery. The amended list is based on readily identifiable characters such as the lack of an inter-dorsal ridge, and allows the landing of non-ridgeback LCS plus tiger sharks. This amended list adds blacktip, spinner, finetooth, porbeagle and bull sharks to the list of authorized species for recreational anglers in all regions.
Longer rebuilding periods are allowed under NS1 of Magnuson-Stevens Act when the following conditions specified in the NS 1 Guidelines (50 CFR 600.310(e)(4)(ii)(B)(
[i]f the lower limit is 10 years or greater, then the specified time period for rebuilding may be adjusted upward to the extent warranted by the needs of fishing communities....except that no such upward adjustment can exceed the rebuilding period calculated in the absence of fishing mortality, plus one mean generation time or equivalent period based on the species' life-history characteristics.
NMFS recognizes that the costs of managing the shark fishery relative to the level of future shark fishing activity will be high. However, there are non-monetary benefits associated with maintaining a limited commercial shark industry. These benefits include the ability to continue gathering fishery data, maintenance of industry knowledge regarding shark fishing practices, and other potential cultural and social benefits. The final action attempts to balance the economic needs of fishing communities with the recommendations of recent stock assessments. BLL and gillnet gear will continue to be deployed in other fisheries that interact with sharks. Setting a retention limit that allows fishermen to keep a portion of these fish without targeting non-sandbar LCS should minimize dead discards while discouraging targeting of non-sandbar LCS. Allocating the entire sandbar shark quota to a shark research fishery quota should result in collection of data that could improve future stock assessments and the development of management measures for the fishery.
The shark fishery did develop an industry “business plan” that examined options for a buyout, which is further described in Chapter 1 of the Draft EIS.
NMFS acknowledges that dealer impacts could also be substantial and could vary significantly by dealer, depending upon how important sharks are to their operations.
NMFS recognizes the importance of sandbar shark landings to the shark fishing sector. However, sandbar shark landings only comprised 30-percent of the estimated total value of the shark fishery in 2005 ($602,764 in sandbar shark meat and $1,181,803 in fins, versus a total shark fishery revenue of $6,027,516).
Under the Magnuson-Stevens Act, NMFS is required to develop management measures to rebuild overfished shark stocks and prevent overfishing. The final action attempts to balance the economic needs of fishermen and fishing communities with this requirement.
NMFS is reviewing existing data sources for recreational landings of porbeagle sharks. Efforts to expand recreational data collection may be necessary to improve information on porbeagle shark landings in recreational fisheries.
The final action allows recreational anglers to harvest blacktip, finetooth, bull, spinner, and porbeagle sharks.
The Economic Development Administration (EDA) was created to create new jobs and retain existing jobs in economically stressed communities. Through a series of grant programs, the EDA helps distressed communities develop strategies to improve their own economic situation through a multifaceted cooperative effort. Most of the EDA activity affecting the fishing industry has been funded through the EDA's Public Works Program and the EDA's Economic Adjustment Program. The Public Works Program has funded port and harbor improvements. The Economic Adjustment Program helps communities adjust to serious changes in their economic situation, and proceeds from this program are generally used for organization, business development, revolving loan funds, infrastructure, and market research. Interested parties can learn more about these programs, including
The U.S. Department of Labor's Economic Dislocation and Worker Adjustment Assistance Act provides funds to States and local substate grantees so they can help dislocated workers find and qualify for new jobs. It is part of a comprehensive approach to aiding workers who have lost their jobs that also includes provisions of the Worker Adjustment and Retraining Notification Act and the Trade Adjustment Assistance program. Workers who have lost their jobs and are unlikely to return to their previous industries or occupations are eligible for the program. This includes workers who lose their jobs because of plant closures or mass layoffs; long-term unemployed persons with limited job opportunities in their fields; and farmers, ranchers and other self-employed persons who become unemployed due to general economic conditions. Services include retraining services, readjustment services, and needs-related payments. Interested parties can obtain more information about services available and contact information by visiting the following website:
At the discretion of the Secretary or at the request of the Governor of an affected State or a fishing community, the Secretary shall determine whether there is a commercial fishery failure due to a fishery resource disaster as a result of natural causes, man-made causes beyond the control of fishery managers to mitigate through conservation and management measures, including regulatory restrictions (including those imposed as a result of judicial action) imposed to protect human health or the marine environment, or undetermined causes.
All analyses for determinations (which can be at the request of a Governor or at the Secretary's own discretion) under section 312(a) must undergo a three-prong test: first, the Secretary must determine if there has been a commercial fishery failure; he must also determine that any such failure is the result of a fishery resource disaster; finally, the cause of that disaster must meet the articulated causes outlined in the statute.
Note that under 50 CFR 635.4(a)(3), “Limited access vessel permits or any other permit issued pursuant to this part do not represent either an absolute right to the resource or any interest that is subject to the takings provision of the Fifth Amendment of the U.S. Constitution. Rather, limited access vessel permits represent only a harvesting privilege that may be revoked, suspended, or amended subject to the requirements of the Magnuson-Stevens Act or other applicable law.”
[i]f the lower limit is 10 years or greater, then the specified time period for rebuilding may be adjusted upward to the extent warranted by the needs of fishing communities....except that no such upward adjustment can exceed the rebuilding period calculated in the absence of fishing mortality, plus one mean generation time or equivalent period based on the species' life-history characteristics.
In addition to the correction of minor edits throughout, NMFS has made several changes to the proposed rule. These changes are outlined below.
1. In § 635.2, the definition of “naturally attached” was added. The definitions of “dress” and “dressed weight” were modified to clarify the regulation requiring commercial vessel operators to keep the fins on the shark carcass through offloading.
2. In § 635.2, the definition of “first receiver” was revised based on public comment and discussions with NOAA's Office of Law Enforcement. The revised definition matches more fully with other definitions of first receivers in other fishery regulations (see 50 CFR parts 622 and 648) and clarifies who needs to have a shark dealer permit.
3. In § 635.2, the definition of “shark research permit” was modified to specify that the permit is specific to the vessel and owner combination, not just the vessel. This change will ensure that owners who are chosen to participate in the shark research fishery and who are trying to sell their vessel, do not try to sell their shark research permit with their vessel, since the particular applicant was chosen by NMFS to conduct the research based on certain factors.
4. In § 635.5(b)(1)(i), a clarification is made that shark dealers must report fin weight and meat weight separately, as specified on the forms. Additionally, after publication of this final rule, NMFS intends to seek approval, pursuant to the Paperwork Reduction Act (PRA), to require dealers to check a box on the dealer form to indicate whether sharks were landed with the fins attached or not. This requirement would be made effective when OMB approves the information collection under Control Number 0648-0040. Notification of approval will be published in the
5. In § 635.21(d)(1)(iii), the definitions of the MPAs are modified to match the final areas recommended by the South Atlantic Fishery Management Council in the summer of 2007.
6. In § 635.22(c), the list of species that can be landed under the recreational retention limit was modified to include non-ridgeback species of LCS, tiger sharks, small coastal sharks, and pelagic sharks based on public comment. In the proposed rule, the harvest of certain species that NMFS felt were difficult to identify correctly, such as bull, spinner, and blacktip sharks, was proposed to be prohibited by recreational fishermen.
7. Section 635.24(a) was modified to update the commercial retention limits based on public comment, additional analyses, and changes to the proposed quotas. Specifically, an adjusted retention limit for non-sandbar LCS from the effective date of this rule through 2012 was added to account for overharvests in 2007. Additionally, a paragraph has been added to prohibit the highgrading of sharks by commercial fishermen based on public comment and a request from enforcement.
8. In § 635.27(b), the commercial quotas were modified based on public comment and additional analyses. Specifically, a porbeagle shark quota was added, unclassified sharks will be counted towards the appropriate species quota based on ratios in observer data and/or on shark dealer reporting forms, the non-sandbar LCS quota was split into two regions (modified from the current definition to clarify that the Florida Keys are located in the Gulf of Mexico region), and an adjusted base quota from the effective date of this rule through 2012 (five years) was added to account for overharvests in 2007. Future overharvests will generally be taken off the following year, as proposed. However, depending on the amount of future overharvests, NMFS may deduct the overharvests over several years up to a maximum of five years. Spreading the overharvests out should, among other things, ensure that the shark research fishery can continue to collect much-needed data each year.
Additionally, NMFS clarified the section on adjusting quotas based on underharvests to clarify that if a species in a particular quota group (e.g., non-sandbar LCS) were overfished, overfishing were occurring, or had an unknown status, then NMFS would not adjust the quota based on underharvests.
9. In § 635.28(b), the section was modified, based on public comment, to allow for all species groups and regions to be closed separately, instead of together as proposed, when the fishery is expected to reach 80 percent of the relevant quota.
10. In § 635.30(c)(2) and (3), sentences were added, corresponding to the added definitions of “naturally attached” and “dress,” to clarify the regulation to keep all fins attached to the corresponding shark carcass, including the upper lobe of the tail, through offloading and to state specifically that no shark fins are allowed on a vessel unless the fins are naturally attached to a shark carcass.
11. In § 635.31, paragraph (c)(1) was added to clarify that persons may only sell sharks if both the fishery and/or region is open.
12. In § 635.32(f), additional specifics regarding the required items on the application and the process for issuing shark research permits were added based on public comment, requests by NOAA's Office of Law Enforcement, and requests by NMFS scientists. These specifics include the requirement for vessels to have complied with observer coverage regulations and HMS fishery regulations to be eligible for a shark research permit under this part. Additional clarifications on how NMFS will select vessels have been added.
13. In § 635.71, various prohibitions have been updated or modified based on the changes listed above.
The 2008 adjusted commercial quotas for each shark species group is as follows: sandbar shark (shark research fishery only) = 87.9 mt dw; non-sandbar LCS = 615.8 mt dw; pelagic sharks other than blue or porbeagle = 488 mt dw; blue shark = 273 mt dw; porbeagle shark = 1.7 mt dw; and SCS = 454 mt dw. The non-sandbar LCS commercial quota is further split by region and fishery as follows: Atlantic region = 187.8 mt dw; Gulf of Mexico region = 390.5 mt dw; and shark research fishery = 37.5 mt dw.
On July 24, 2008, the sandbar, non-sandbar LCS, pelagic shark, blue shark, porbeagle shark, and SCS fisheries will open under the quotas noted above. All of these fisheries will remain open through December 31, 2008, unless the quota for that shark species group (or in the case of non-sandbar LCS, regional area) is projected to reach 80 percent of its available quota. When calculating the percent of the available quota caught for each species and/or region, NMFS will include landings from January 1, 2008, through July 24, 2008. As specified in § 635.27(b)(1), once the landings for that shark species group or regional area reach 80 percent of its quota, NMFS will file for publication with the Office of the Federal Register an appropriate rulemaking for that shark species group that will be effective no fewer than 5 days from date of filing. From the effective date and time of the closure, until NMFS announces via a notice in the
When the fishery for a shark species group and/or regional area is closed, a fishing vessel issued an Atlantic Shark LAP pursuant to § 635.4 may not possess or sell a shark of that species group, except under the conditions specified in § 635.22(a) and (c) or if the vessel possesses a valid shark research permit under § 635.32 and a NMFS-approved observer is onboard. A shark dealer issued a permit pursuant to § 635.4 may not purchase or receive a shark of that species group from a vessel issued an Atlantic Shark LAP, except that a permitted shark dealer or processor may possess sharks that were harvested, off-loaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage. In the case of non-sandbar LCS, during a regional fishing closure, a fishing vessel issued an Atlantic Shark LAP pursuant to § 635.4 and operating in region(s) closed to shark fishing may not possess or sell a shark of that species group, except under the conditions specified in § 635.22(a) and (c). A shark dealer issued a permit pursuant to § 635.4 and located in the closed region may not purchase or receive a shark of that species group from a vessel issued an Atlantic Shark LAP, except that a permitted shark dealer or processor may possess sharks that were harvested, off-loaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage. Under a closure for a shark species group and/or regional closure, a shark dealer issued a permit pursuant to § 635.4 may, in accordance with state regulations, purchase or receive a shark of that species group if the sharks were harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in state waters and that has not been issued a Shark LAP, HMS Angling permit, or HMS CHB permit pursuant to § 635.4. Additionally, under a closure for a shark species group and/or regional closure, a shark dealer issued a permit pursuant to § 635.4 may purchase or receive a shark of that species group if the sharks were harvested, off-loaded, and sold, traded, or bartered from a vessel issued a valid shark research permit (per § 635.32) that had a NMFS-approved observer on board during the trip during which sharks were collected.
The Assistant Administrator for Fisheries determined that Amendment 2 to the Consolidated HMS FMP is necessary for the conservation and management of the Atlantic shark fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
NMFS prepared a FEIS for this FMP amendment. The FEIS was filed with the Environmental Protection Agency on April 11, 2008. A notice of availability was published on April 18, 2008 (73 FR 21124). In approving the FMP amendment, NMFS issued a Record of Decision (ROD) on June 6, 2008, identifying the selected alternatives. A copy of the ROD is available from NMFS (see
This final rule has been determined to be not significant for purposes of Executive Order 12866.
This final rule contains a collection-of-information requirement subject to the PRA and which has been approved by OMB under Control Number 0648-0471. Public reporting burden for the HMS EFP, SRP, display permit, shark research permit, and letter of authorization information collection is estimated to average 2 hours per scientific research plan; 40 minutes per application, including the shark research permit application; 15 minutes per request for amendment to the EFP; 1 hour per interim report; 2 minutes per “no catch” report; 40 minutes per annual report; 5 minutes per departure notification regarding collection of display animals; 10 minutes per notification call for observer coverage for the shark research fishery; and 2 minutes per tag application. These burden estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.
This rule also contains revisions to collection of information 0648-0040. The revisions are subject to review and approval by OMB under PRA. Currently, this collection of information is under review at OMB for revisions other than those contained in this rule (73 FR 18473, April 4, 2008). Once OMB approves the revisions in that rule, NMFS will submit a PRA package to OMB for approval regarding the addition of a check box on the dealer form. This check box would allow the dealer to note whether the shark fins were attached to the shark at landing or not. NMFS does not expect that the addition of a check box regarding shark fins would add to the reporting burden. NMFS will publish a document in the
Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
With the release of the proposed rule on July 27, 2007, NMFS determined that the management measures in this rule will be implemented in a manner that is consistent, to the maximum extent practicable, with the enforceable policies of the approved coastal management programs of states with Coastal Zone Management Act (CZMA) programs that are located in the Atlantic Ocean and Gulf of Mexico. This determination was submitted for review by the responsible state agencies under section 307 of the CZMA. On October 10, 2007, Georgia's Department of Natural Resources (GDNR) objected to NMFS' consistency determination that the provisions in Amendment 2 to the Consolidated HMS FMP are consistent, to the maximum extent practicable, with the enforceable policies of the Georgia Coastal Zone Management Program (GCZMP). The October 10, 2007, letter stated that NMFS failed to consider the elimination of the use of shark gillnets in Amendment 2 to the Consolidated HMS FMP. GDNR claims that the use of gillnets in Federal waters is inconsistent with the GCZMP because the program bans the use of gillnet and longline gear in state waters to address bycatch of protected species and marine mammals.
NMFS considered the comments in the October 10, 2007, letter and, for the reasons stated below, has determined that the final actions in Amendment 2 to the Consolidated HMS FMP, including allowing the use of gillnet gear in the Atlantic shark fishery, are consistent to the maximum extent practicable with the enforceable policies of the GCZMP, 15 CFR 930.32.
NMFS shares the State of Georgia's concern regarding the impact of the shark gillnet fishery on threatened and endangered species. Given these impacts, NMFS will not implement measures that increase fishing effort with this gear type, such as setting gillnet specific retention limits for blacktip sharks. However, NMFS also recognizes that the data currently available indicate relatively low rates of bycatch and bycatch mortality of protected species and other finfish in the shark gillnet fishery compared to other HMS and non-HMS fisheries. It is worth noting that observer coverage rates in the shark gillnet fishery are higher than in other fisheries because of Atlantic Large Whale Take Reduction Plan requirements. Increased observer coverage reduces the associated error that can be introduced when calculating bycatch and protected resource interactions on non-observed trips. For instance, observer reports indicate that finfish bycatch in shark gillnet fishery during 2007 ranged from 1.7 to 13.3 percent of the total catch. In addition, observed protected species bycatch (sea turtles and marine mammals) was less than 0.1 percent of the total catch. Therefore, NMFS does not believe it is appropriate to eliminate this fishery and shift its associated effort to other fisheries that have higher interaction rates with protected resources and marine mammals.
In addition, according to recent observer reports, only four to six vessels use shark gillnet gear, therefore, the cumulative impact of this fishery is not expected to have significant ecological impacts on non-target species. The incidental capture of endangered species in the shark gillnet fishery is regulated under the Endangered Species Act (ESA). A BiOp issued May 20, 2008, in response to the actions taken in the Final Amendment 2 to the Consolidated Atlantic Highly Migratory Species Fishery Management Plan, concluded, that the continuation of the shark gillnet (including strikenets, drift gillnets, and sink gillnets) fishery would not likely jeopardize the continued existence of protected species or result in the destruction or adverse modification of critical habitat. Furthermore, the BiOp indicated that shark strikenets are not likely to have much impact on sea turtle or smalltooth sawfish takes because deployment of this gear currently results in very few takes. Interactions with protected resources occur more frequently with drift or sink gillnets than using strikenets, but gillnet gear interactions with protected resources are still minimal compared to longline fishing.
In addition, currently, all shark gillnet vessels are required to carry VMS and are subject to observer coverage during and outside of the right whale calving season. The most recent regulations amending the Atlantic Large Whale Take Reduction Plan were published in the
NMFS acknowledges the concerns raised by the State of Georgia regarding protected resources interactions and bycatch that occurs in gillnet gear. Under the Magnuson-Stevens Act National Standards (16 U.S.C. 1851(a)(1), (3), (8), and (9)), NMFS must, among other things, implement conservation and management measures to prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery; manage stocks throughout their range to the extent practicable; minimize adverse economic impacts on fishing communities to the extent practicable; and minimize bycatch and bycatch mortality to the extent practicable. Gillnets are the commercial gear that are used to primarily target small coastal sharks (SCS) and blacktip sharks. The SCS complex was assessed in 2007; three of the four species of SCS have been determined to not be overfished with overfishing not occurring. Blacknose sharks have been determined to be overfished with overfishing occurring; therefore, NMFS has initiated development of a rebuilding plan for this species and measures to end overfishing. These measures may include changes to the shark gillnet fishery, as necessary. However, the latest blacktip stock assessment recommended not changing catches of blacktip sharks in the Atlantic Ocean. Therefore, based on the best scientific information available, Amendment 2 to the Consolidated HMS FMP would manage the fishery for optimum yield by keeping the SCS quota at the status quo level and setting a non-sandbar large coastal shark (LCS) quota (including blacktip sharks) based on historical landings. Given that the non-sandbar LCS quota is based on the latest blacktip shark assessment, closing the shark gillnet fishery in Federal waters off Georgia would not facilitate achieving the optimum yield from the fishery and managing the stocks throughout their range. Thus, NMFS is not prohibiting shark gillnet gear at this time due to the negative social and economic impact this would have on the four to six vessels actively fishing in the shark gillnet fishery. In addition, NMFS has implemented high-levels of observer coverage on gillnet vessels targeting sharks as well as those targeting other species to monitor bycatch and interactions with protected resources; NMFS can take additional action if interactions with protected resources in the this fishery become a problem.
At this time, there is not sufficient information to support a closure of the shark gillnet fishery in Federal waters adjacent to Georgia, pursuant to the Coastal Zone Management Act. This decision is consistent with National Standard 2 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
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 economic analyses completed to support the action. A summary of the analysis, which addresses each of the requirements in 5 U.S.C. 604(a)(1)-(5), can be found below. A copy of the full analysis is available in Amendment 2 to the Consolidated HMS FMP (see
The need for and objectives of the final rule are fully described in the preamble of the proposed rule (72 FR 41392, July 27, 2007) and in Final Amendment 2 to the Consolidated HMS FMP and are not repeated here (5 U.S.C. 604(a)(1)). In summary, the selected actions in this final rule will rebuild overfished shark fisheries by: reducing the commercial quotas, adjusting the commercial retention limits, establishing a shark research fishery, requiring commercial vessels to maintain all fins on the shark carcasses through offloading, establishing two regional quotas for non-sandbar large coastal sharks (LCS), establishing one annual season for commercial shark fishing, changing the reporting requirements for dealers (including swordfish and tuna dealers), establishing additional time/area closures for BLL fishermen, and changing the authorized species for recreational fishermen. This rule also establishes the 2008 commercial quota for all shark species groups. These changes affect all commercial and recreational shark fishermen and shark dealers.
A FRFA is also required to include a summary of the significant issues raised by the public comments in response to the IRFA, a summary of the assessment of the issues raised, and a statement of any changes made in the rule as a result of the comments (5 U.S.C. 604(a)(2)). NMFS received many comments on the proposed rule and draft EIS during the public comment period. A summary of these comments and NMFS's responses are included above. The specific economic concerns raised in comments are also summarized here.
NMFS received a comment that NMFS should consider an alternative suite that incorporates a “phase out” of the commercial shark industry. NMFS did consider such an alternative in the Draft EIS that would have ended Atlantic commercial shark fishing, Alternative Suite 5. Under this alternative, shark landings would have been limited to research and the collection for public display via the HMS Exempted Fishing Program. Recreational fisheries would have been catch and release only. However, after careful consideration of the other alternatives, this alternative suite was not preferred due to the economic costs associated with a complete closure as discussed in Chapter 6 of Amendment 2 to the Consolidated HMS FMP.
NMFS received several comments regarding an industry buyout/buyback. NMFS recognizes that some participants of the Atlantic shark fishery expressed interest in reducing fishing capacity for sharks via some form of buyout program. Buyouts can occur via one of three mechanisms, including: through an industry fee, via appropriations from the United States Congress, and/or with funds provided from any State or other public sources or private or non-profit organization. A buyout plan is not proposed in this rulemaking, despite requests for consideration from the HMS Advisory Panel and other affected constituents, because NMFS is unable to independently implement a buyout as a management option. Buyouts must be initiated via one of the aforementioned
NMFS received several comments concerning the potential for severe economic impacts associated with all of the alternatives considered (other than status quo). Comments indicated a concern that many fishermen may not be able to survive economically until the next stock assessment. NMFS estimated that the alternatives considered, including the no action alternative, would result in economic consequences to the shark fishery. The severity of the economic consequences varies by alternative suite, with alternative suite 5, the complete closure of the Atlantic shark fishery, having the greatest economic impact.
It was also suggested that NMFS should include analysis of the negative economic impacts associated with prohibiting porbeagle sharks in shark tournaments, especially in New England. NMFS appreciates this additional information regarding the importance of porbeagle sharks in tournament fisheries. Additional information has been incorporated into the final EIS for Amendment 2 to the Consolidated HMS FMP to further address the potential economic impacts of a prohibition of porbeagle landings. However, based on strong support from the public not to prohibit retention of porbeagle sharks and NMFS' recognition of the negative impacts of such a prohibition, NMFS is choosing not to prohibit the recreational retention of porbeagle sharks.
Comments indicated that economic impacts on recreational fisheries would be significant if sandbar, bull, and blacktip sharks were prohibited in the recreational fishery. Comments indicated that the negative economic impacts resulting from the reduced number of sharks that could be legally landed by recreational anglers would be particularly pronounced in areas where blacktip sharks are frequently encountered. In addition, tournaments offering prize categories for sharks could also experience negative economic impacts as a result of not allowing six additional species to be retained in recreational fisheries. Due to a lack of information regarding the relative preferences of shark fishermen to retain shark species over practicing catch-and-release shark fishing, NMFS was unable to quantitatively estimate the economic impacts of the proposed recreational measures restricting the authorized list of species that could be retained. In part to mitigate these impacts, the final preferred alternative suite would allow recreational anglers to retain blacktip, finetooth, blacknose, bull, spinner, and porbeagle sharks.
Comments also indicated a concern that dealers will not likely be interested in continuing to buy shark products when the proposed measures go into place. NMFS acknowledges that some dealers may opt to no longer participate in the shark fishery due to the decrease in volume of shark product that is anticipated under the reduced quotas. Handling low volumes of shark product may not be profitable for some dealers. However, the information available to NMFS indicates that several shark dealers already handle small quantities of shark products, and therefore, changes in the shark fishery are unlikely to cause them to change their business practices. Reduced domestic harvest of sandbar sharks could potentially increase the value of shark product in the future due to reduced supplies. Furthermore, having the season open for a longer period of time each year, subject to reduced retention limits, may enhance the domestic shark meat market and increase prices.
Several comments suggested NMFS should implement a retraining program for fishermen and families that are displaced by this action. Others suggested that fishermen reconfigure their businesses towards providing tourism services. NMFS has worked with a number of other agencies/departments to explore programs that are available to fishermen and other businesses affected by fishery management measures. Some of these include retraining programs and financial assistance and would mitigate some of the economic impacts of this rule. These programs are further discussed in response to comments provided above.
Commenters also suggested that NMFS consider giving shark fishermen swordfish handgear permits in order to help offset negative economic impacts, while also increasing swordfish landings. NMFS did not propose changes to the permit system pursuant to the rulemaking; however, NMFS will take this suggestion under consideration for future actions. NMFS notes that the swordfish handgear permit is a limited access permit. Therefore, issuing new swordfish handgear permits may result in negative economic impacts to current holders of swordfish handgear permits. In addition, NMFS recently issued new regulations to revitalize the swordfish fishery and may consider additional measures in the future depending on the outcome of the current regulatory changes.
NMFS received a comment questioning whether shark permits will still have any value after the proposed management changes take place. It is difficult to predict the value of shark directed and incidental permits before management measures associated with this Amendment are implemented. It is likely that the value of shark permits may be decreased as a result of quota reductions and reduced retention limits. However, there will still be some demand for shark permits by new entrants into the commercial swordfish and tuna fisheries who will need all three HMS permits to fish.
NMFS received comments indicating that requiring fishermen to land sharks with fins on will change the entire pricing of shark product. Commenters suggested that NMFS could be changing the whole valuation process by requiring that sharks have their fins on. The requirement to land sharks with their fins attached would allow fishermen to leave the fins attached by just a small piece of skin so that the shark could be packed efficiently on ice at sea. Shark fins could then be quickly removed at the dock without having to thaw the shark. Sharks may be eviscerated, bled, and the head removed from the carcass at sea. These measures should prevent any excessive amounts of waste at the dock, since dressing the shark (except removing the fins) can be performed while at sea. While this will result in some changes to the way fishermen process sharks at sea, the transfer of shark product to dealers could remain relatively unchanged because the fins can be removed quickly once the shark has been offloaded. NMFS expects that the market will continue to receive sharks in their log form. While there may be some changes in the way sharks are marketed and priced, it is unlikely that the total ex-vessel value of sharks will change significantly due to the requirement to land sharks with their fins attached.
NMFS considers all HMS commercial permit holders to be small entities because they either had average annual receipts less than $4.0 million for fish-harvesting, average annual receipts less than $6.5 million for charter/party boats, 100 or fewer employees for wholesale dealers, or 500 or fewer employees for seafood processors (5 U.S.C. 604(a)(3)). These are the Small Business Administration (SBA) size standards for defining a small versus
The final rule would apply to the 527 commercial shark permit holders in the Atlantic shark fishery based on an analysis of permit holders on October 1, 2007. Of these permit holders, 231 have directed shark permits and 296 hold incidental shark permits. Not all permit holders are active in the fishery in any given year. NMFS estimates that there are 143 vessels with directed shark permits and 155 vessels with shark incidental permits that could be considered actively engaged in fishing, since they reported landing at least one shark in the Coastal Fisheries Logbook from 2003 to 2005.
In addition, the reporting requirements in the final alternatives would also apply to Federal shark dealers. As of October 1, 2007, there were a total of 269 Atlantic shark dealer permit holders. Based on NMFS' understanding of HMS dealer operations, NMFS assumes that each of these dealers would be considered a small business entity with 100 or fewer employees.
The final measures being considered may also impact the types of services HMS CHB permit holders may provide. As of October 1, 2007, there were 4,899 HMS CHB permit holders. It is unknown what portion of these permit holders actively participate in shark fishing or market shark fishing services for recreational anglers.
In addition, some businesses, such as marinas or specialized tournament organizers that hold tournaments may be considered small entities. HMS tournaments are required to register with NMFS. As such, NMFS has estimates on the number of HMS tournaments. However, NMFS may not necessarily know the number of businesses behind the tournament name and contact. Tournaments offering prize categories for sharks may also experience negative economic impacts as a result of NMFS prohibiting two additional species of sharks for retention in recreational fisheries in alternative suites 2 through 4, as well as alternative suite 5 which would allow no possession of any sharks and only allow catch and release fishing. The majority of tournaments specializing in sharks are in the North Atlantic region, specifically Rhode Island, New York, and Massachusetts. In 2007, there were 59 tournaments with prize categories for pelagic sharks and 42 (combined) tournaments for LCS and SCS.
The final action requires modifying existing reporting and recordkeeping requirements (5 U.S.C. 604(a)(4)). The research program component in this final rule requires modifications to the existing EFP program and dealer reporting requirements.
The final action modifies the reporting frequency for dealers. The current requirement for dealer reports to be post-marked within 10 days after each reporting period (1
The final rule would also create a limited shark research program that would result in changes to existing reporting requirements. Entry into the shark research program would require vessels to submit an application, which would add to the reporting burden for those vessels wishing to apply. Applicants selected to participate in the shark research program under this alternative would also be subject to 100 percent observer coverage as a requirement for eligibility to participate in the program. In addition, selected vessels would continue to report in their normal logbook in addition to the observer program. Vessels in the shark research program, however, would not need to report in the same way as other EFP holders even though they are being issued permits under the EFP program. For example, vessels in the research fishery would not be required to submit interim or annual reports describing their fishing activities. Rather, they would only be required to submit their logbooks per current regulations. Vessels outside the shark research program would still be required to carry an observer if selected and all vessels would still be required to complete logbooks within 48 hours of fishing activity and then submit the logbooks to NMFS within seven days.
One of the requirements of a FRFA is to describe any alternatives to the proposed rule which would accomplish the stated objectives and which minimize any significant economic impacts (5 U.S.C. 604(a)(5)). Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(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.
In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act and the Endangered Species Act (ESA), NMFS cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are considered small entities. Thus, because NMFS considers all HMS permit holders to be small entities, there are no alternatives discussed that fall under the first and fourth categories described above. NMFS does not know of any performance or design standards
The alternatives considered and analyzed have been grouped into five alternative suites. Alternative suite 1 would maintain the current Atlantic shark fishery (no action). Alternative suite 2 would allow only directed shark permit holders to land sharks. Alternative suite 3 would allow directed and incidental shark permit holders to land sandbar and non sandbar LCS as well as SCS and pelagic sharks. Alternative suite 4 would establish a program where vessels with directed or incidental shark permits could participate in a research fishery for sandbar sharks. Only vessels participating in this program could land sandbar sharks. Vessels not participating in the research program could land non-sandbar LCS, SCS, and pelagic sharks. Finally, alternative suite 5 would shut down the commercial Atlantic shark fishery and only allow a catch and release recreational shark fishery. The preferred alternative is suite 4, which would establish a program where a limited number of vessels with directed or incidental shark permits could participate in a research fishery for sharks dependent on the research needs of NMFS.
Alternative suite 1, the status quo alternative, would not impose any significant new economic impacts to small businesses in the HMS Atlantic shark fishery because under this alternative the current LCS quota of 1,017 mt dw, in conjunction with the 4,000 lb LCS directed shark permit trip limit, would be maintained. Under this alternative, the current fishing effort would not likely change which could lead to economic benefits from reduced market uncertainty for fishermen and related businesses in the short term. If gross revenues for directed and incidental permit holders is averaged across the approximately 298 active directed and incidental shark permit holders, then the average annual gross revenues per shark fishing vessel is just over $20,000. However, long term, negative economic impacts could occur if current fishing mortality of sandbar sharks, an economically important species, is not decreased as recommended by the LCS stock assessment, and this species continues to be overfished.
The status quo alternative would maintain the existing closures and would not add any new closures. The three management regions would also remain unchanged. There would also be no additional reporting requirements. Alternative suite 1 would also maintain the trimester seasons, which provides fishermen and dealers with more open seasons. With an annual LCS quota of 1,017 mt dw, spreading the seasons out over the calendar year could potentially result in greater economic stability for fishermen and associated communities. However, if quotas are reduced to those in the final action to comply with the recommendations from the LCS stock assessment, while also maintaining the trimester seasons under status quo, trimester seasons could become less economically stable for fishermen and dealers because of the reduced amount of quota and fishing effort during the calendar year. Maintaining existing closures, reporting requirements, and management regions would likely have little to no economic impacts on effected small businesses.
Alternative suite 1 would also maintain the current bag limit for HMS Angling permit holders at one shark greater than 54 inches per vessel per trip as well as one sharpnose and one bonnethead shark (both of which are in the SCS complex) per person per trip. This would likely result in no new economic impacts for businesses operating recreational fishing charter trips targeting sharks and shark fishing tournaments in the short term.
Overall, alternative suite 1 would likely have the lowest economic impact on small businesses. However, this alternative would likely not meet the objectives of this action. Maintaining the LCS quota of 1,017 mt dw would be inconsistent with the Magnuson-Stevens Act and the recent LCS stock assessment that recommended a TAC of 158.3 mt dw for sandbar sharks for this species to rebuild by 2070. Current fishing effort, under the status quo alternative, would lead to continued overfishing of sandbar, porbeagle and dusky sharks, which could potentially prevent these species from rebuilding in the recommended timeframe. As a result, this alternative was not selected.
Alternative suite 2 would allow only directed shark permit holders to land sharks. In addition, this alternative would remove sandbar sharks from the LCS complex and establish a separate category for sandbar sharks from the LCS complex. The quotas for landing sandbar and non-sandbar LCS would also be reduced. Incidental shark permit holders would not be permitted to land sharks under alternative suite 2. As of 2007, there were 231 directed shark permit holders, 296 incidental shark permit holders, and 269 shark dealer permit holders. One hundred forty-three vessels with directed shark permits and 155 vessels with shark incidental permits reported landing at least one shark in the Coastal Fisheries Logbook from 2003 to 2005 and could be considered active.
Data on gross annual revenues indicate that implementation of alternative suite 2 would result in a significant reduction in revenue for directed shark permit holders. On average, directed permit holders landed 1,286,447 lb dw of sandbar sharks and 1,498,111 lb dw of non-sandbar LCS from 2003 to 2005 based on Federal and state shark dealer reports (landings by permit type were based on percentage of total landings by permit type in the Coastal Fisheries and HMS logbooks). In 2006 ex-vessel prices, this is equivalent to gross revenues of $4,702,031 (assuming 5 percent of the landings are fins and 95 percent of the landings are carcass weight). If gross revenues for directed permit holders are averaged across the approximately 143 active directed shark permit holders, then the average annual gross revenues per shark fishing vessel is just under $33,000 from shark revenues. Under alternative suite 2, gross revenues for directed permit holders would be estimated to be $1,333,417. This is a 72-percent overall reduction in gross revenues compared to the period from 2003 to 2005. These reduced gross revenues averaged across the 143 active directed permit holders are just over $9,000 per directed shark fishing vessel. This estimated reduction in revenue from shark landings could affect the profitability and even viability of some marginal shark fishery operations. Operations that have permits in other fisheries and can easily diversify are less likely to be as affected as those marginal operations. Nevertheless, the profitability of all directed shark fishing vessels would likely be reduced. Because the states of Florida, New Jersey, and North Carolina have the most directed shark permits, these states would be most negatively impacted by alternative suite 2.
Directed shark permit holders using PLL gear would also see reduction of revenues under alternative suite 2 because retention of sandbar sharks on PLL gear would be prohibited. On average, 80,825 lb dw of sandbar sharks were reported landed on PLL gear by
Data on the reduction of per trip revenues also show a decline in revenue for directed permit holders. Under alternative suite 2, directed permit holders would be limited to 8 sandbar sharks per trip and 21 non-sandbar LCS per trip. In comparison, data indicate that under status quo, which has a 4,000 lb dw LCS trip limit, the average number of sandbars and non-sandbar LCS landed per trip is 35 sandbars and 32 non-sandbar LCS for all gear types reported in the Coastal Fisheries and HMS Logbooks. Based on 2006 ex-vessel prices, this is equivalent to $4,101 per trip. Revenue estimates on a regional trip basis of the status quo alternative were also based on species composition data attained from the BLL observer program data. Observer data indicate that between 2005 and 2006, 69 sandbar sharks and 35 non-sandbar LCS were caught per trip in the South Atlantic region, and 30 sandbar sharks and 83 non-sandbar LCS were caught per trip in the Gulf of Mexico region. Based on these numbers and 2006 ex-vessel prices, revenues from South Atlantic trips are currently averaged at $4,743/trip and Gulf of Mexico trip revenues averaged $4,101 per trip.
Thus, given that the retention limits under alternative suite 2 (8 sandbars/trip and 21 non-sandbar LCS/trip), the average revenue per trip is estimated to decrease. The reduced non-sandbar LCS retention limit of 21 sharks per trip is based on the average ratio of sandbars to non-sandbar LCS caught in the South Atlantic and Gulf of Mexico regions to limit sandbar shark discards by fishermen deploying non-selective gear. In the Gulf of Mexico, the ratio of sandbars to other LCS caught is 1:4 which, based on an 8 sandbar per trip retention limit, would equal 32 non-sandbar LCS per trip. However, such a high non-sandbar LCS retention limit would result in sandbar discards in the South Atlantic (approximately 65.3 mt dw). Therefore, a 21 non-sandbar LCS/trip retention limit was set to balance discards versus catch in the two regions. This results in approximately 5 sandbar sharks being caught in the Gulf of Mexico region when the non-sandbar LCS retention limit/trip is filled (and therefore, only 86.1 mt dw of the sandbar quota would be filled). Therefore, gross revenues on a trip basis are estimated to be $1,262 per trip in the South Atlantic and $1,333 per trip in the Gulf of Mexico. From 2003 to 2005, there were 124 vessels that averaged more than 324 lb dw (or 8 sandbar sharks) of sandbar/trip.
Incidental permit holders would also experience revenue declines under alternative suite 2 because they would be prohibited from landing sharks. On average, 66 incidental permit holders landed 12,994 lb dw per year of sandbar sharks and 46,333 lb dw per year of non-sandbar LCS from 2003 to 2005 based on Federal and state shark dealer reports and Coastal Fisheries and HMS logbook data. Using 2006 ex-vessel prices, this is equivalent to gross revenues of $106,491 (assuming 5 percent of the landings are fins and 95 percent of the landings are carcass weight). Gross revenues averaged across the 66 vessels with incidental permits landing sharks were $1,614 per vessel. Since incidental permit holders would not be able to land any sharks under alternative suite 2, the 66 active vessels would be most negatively affected by this alternative suite. The states of Florida, Louisiana, New Jersey, and North Carolina had the most incidental shark permit holders as of 2007 (144, 37, 20, and 16, respectively).
Alternative suite 2 would also require dealers to submit reports within 24 hours of shark products being purchased. There could be negative economic impacts to Atlantic shark dealers as a result of the increased reporting requirement associated with this alternative. Currently, shark dealer reports are required to submit bimonthly reports, regardless of whether the dealer actually purchased any shark products. Reporting frequency would be increased to 24 hours of when shark products were purchased. While the increased reporting burden would not result in direct costs to the shark dealer, it would result in additional time spent submitting dealer reports. This represents an opportunity cost for dealers since that time could have been spent conducting other activities related to their business. Furthermore, since submitting the reports via regular mail would no longer be feasible, in order to comply with the requirement that dealer reports must be received by NMFS within 24 hours, it is assumed that dealers would have to submit dealer reports electronically or via facsimile. Dealers that do not currently possess a computer or fax machine would have to purchase one of these items. The increased reporting burden implemented in this alternative suite would be subject to approval under the PRA. Reporting requirements for shark vessel permit holders, including the need to carry an observer if selected and the need to submit vessel logbooks within seven days of completing a fishing trip would not be modified, resulting in neutral economic impacts.
The other provisions of alternative suite 2 are the same as in alternative suite 4, which is the final action for this rulemaking. These provisions include: maintaining the 60 mt shark display and research quota; placement of porbeagle sharks on the prohibited list; quota carryover limited to 50 percent of base quota for species not overfished; no carryover for overfished, overfishing or unknown species; sharks fins must remain on the shark; removal of regions and seasons; and limiting the shark species that can be landed recreationally. The effects of these provisions are set forth in the discussion of alternative suite 4.
This alternative suite was not selected for two primary reasons. First, this alternative does not address the impacts of continuing to catch sandbar sharks incidentally. These vessels will likely continue to incidentally catch sandbar sharks but then, under this alternative, those sharks would be required to be discarded. These discards would reduce potential revenues and possibly operating efficiency of vessels possessing incidental shark permits. Regulatory discards would likely lead to increases in mortality and slow efforts to end overfishing. Second, the 24 hour dealer reporting that would be required to effectively manage quotas would result in a significant increase in reporting burden for dealers. This alternative would therefore not minimize the economic cost to dealers in comparison to the preferred alternative.
Under alternative suite 3, the quotas for landing sandbar and non-sandbar LCS would also be reduced to the same level as that in alternative suite 2. However, because alternative suite 3 would allow directed and incidental shark permit holders to land sandbar and non-sandbar LCS as well as SCS and pelagic sharks, the available sandbar and non-sandbar LCS quota would be spread over a larger universe of commercial permit holders. Unlike the status quo or alternative suite 2, the retention limits for sandbar sharks and non-sandbar LCS would be the same for both directed and incidental permit holders. Since directed permit holders presumably make a greater percentage of their gross revenues from shark landings, they are expected to have larger negative socioeconomic impacts
As stated under alternative suite 2, on average, directed permit holders landed 1,286,447 lb dw of sandbar sharks per year and 1,498,111 of non-sandbar LCS per year from 2003 to 2005 based on Federal and state shark dealer reports and logbook data. In 2006 ex-vessel prices, this is equivalent to gross revenues of $4,702,031 (assuming 5 percent of the landings are fins and 95 percent of the landings are carcass weight). However, under alternative 3, the available sandbar and non-sandbar LCS quota would be spread over directed and incidental permit holders. Based on the retention limit of 4 sandbar sharks and 10 non-sandbar LCS per vessel per trip, it is estimated that 105.9 mt dw (233,467 lb dw) of the sandbar quota and 229.2 mt dw (505,294 lb dw) of the non-sandbar LCS quota could be landed under alternative suite 3. Logbook data from 2003 and 2005 showed that directed permit holders take, on average, 1,108 trips per year; the total number of shark trips taken by all permit holders was 1,143 trips. Thus, directed permit holders exhibited approximately 78 percent of the total fishing effort for sharks from 2003-2005. Based on this past effort, NMFS estimates that of the total sandbar and non-sandbar LCS quotas, approximately 83 mt dw (183,073 lb dw) of sandbar quota and 180 mt dw (396,225 lb dw) of the non-sandbar LCS quota would be harvested by directed permit holders. Based on 2006 ex-vessel prices, this is equivalent to $1,015,162 gross revenues for directed permit holders. These gross revenues indicate a 78 percent overall reduction compared to the period from 2003 to 2005 (gross revenues based on current directed permit holders' landings were $4,702,031). Again, the states of Florida, New Jersey, and North Carolina have the most directed permit holders.
The data indicate that directed shark permit holders would experience a loss in revenue under alternative suite 3 greater than under alternative suite 2, given that the available quota is shared with incidental permit holders under alternative suite 3. As stated in alternative 2, the status quo revenue was based on a 4,000 lb dw LCS trip limit for directed shark permit holders with average gross revenues in the South Atlantic of $4,743 per trip and average gross revenues in the Gulf of Mexico of $5,853 per trip. Under alternative suite 3, the retention limits would be 4 sandbars per trip and 10 non-sandbar LCS per trip. However, since the ratio of sandbars to non-sandbar LCS caught in the Gulf of Mexico is 1:4, NMFS estimates that approximately 3 sandbar sharks would be caught in the Gulf of Mexico region when the 10 non-sandbar LCS retention limit/trip is filled (10 non-sandbar LCS / 4 = 2.5 sandbar sharks). Therefore, gross revenues on a trip basis are estimated to be $610 per trip in the South Atlantic and $670 per trip in the Gulf of Mexico. From 2003 to 2005, there were 128 vessels that averaged more than 163 lb dw (or 4 sandbar sharks) of sandbar/trip. Therefore, these vessels would be most negatively affected by retention limits under alternative suite 3.
The revenue of incidental shark permit holders is expected to increase under alternative suite 3. On average, incidental permit holders landed 12,994 lb dw of sandbar sharks and 46,333 lb dw of non-sandbar LCS based on Federal and state shark dealer reports and logbook data. In 2006 ex-vessel prices, this is equivalent to gross revenues of $106,491 (assuming 5 percent of the landings are fins and 95 percent of the landings are carcass weight). The available sandbar and non-sandbar LCS quotas would be averaged over directed and incidental permit holders under alternative suite 3. Based on past effort, it was assumed 305 trips could be made by incidental permit holders. This is 22 percent of the expected fishing effort. Therefore, given the 105.9 mt dw (233,467 lb dw) of the sandbar quota and 229.2 mt dw (505,294 lb dw) of the non-sandbar LCS quota that could be landed under alternative suite 3, approximately 23 mt dw (50,395 lb dw) of sandbar quota and 50 mt dw (109,069 lb dw) of the non-sandbar LCS quota are anticipated to be landed by incidental permit holders. Based on 2006 ex-vessel prices, this is equivalent to $279,441 gross revenues for incidental permit holders. This would result in gross revenues that are 2.7 times higher compared to 2003 to 2005 (gross revenues based on current incidental permit holders' landings were $106,491).
This increase in gross revenues is due to the increase in retention limits for incidental permit holders. Under the status quo, incidental permit holders can retain 5 sharks from the LCS complex. However, under alternative suite 3, incidental permit holders would be able to retain 4 sandbars and 10 non-sandbar LCS or 14 LCS total. This retention limit is almost 3 times higher than what is currently allowed under the status quo. On average, incidental permit holders have been landing 2 sandbar sharks and 3 non-sandbar LCS per trip. Based on 2006 ex-vessel prices, this is equivalent to $307 per trip. However, under alternative suite 3, incidental permit holders would make equivalent gross revenues per trip as directed permit holders: $610 per trip in the South Atlantic and $670 per trip in the Gulf of Mexico. This would result in gross revenues for incidental permit holders that are 2 to 3 times higher than gross revenues in 2003 to 2005 depending on future fishing effort and catch composition. Therefore, there would be positive economic impacts for incidental permit holders under alternative suite 3. Since approximately 66 vessels with incidental permit holders landed sandbar sharks or non-sandbar LCS in 2003 to 2005 in the Coastal Fisheries and HMS Logbooks, these 66 vessels would have the largest economic benefits under alternative suite 3. However, if sharks become profitable for incidental permit holders under alternative suite 3, then more vessels with incidental permits may actively land sandbars and non-sandbar LCS in the future. Finally, the states of Florida, Louisiana, New Jersey, and North Carolina had the most incidental shark permit holders in 2007. Therefore, these states would see the largest socioeconomic benefits for incidental permit holders under alternative suite 3.
The other provisions of alternative suite 3 are the same as alternative suite 4, which is the final action for this rulemaking. These provisions include maintaining the 60 mt shark display and research quota; placement of porbeagle sharks on the prohibited list; quota carryover limited to 50 percent of base quota for species not overfished; no carryover for overfished, overfishing or unknown species; sharks fins must remain on the shark; dealer reports received within 10 days of purchase; removal of regions and seasons; and limiting the shark species that can be landed recreationally.
This alternative suite was not selected as the preferred alternative primarily based on its failure to achieve the ecological objectives of this rule and its economic impacts. Despite the time/area closures, alternative suite 3 would have a smaller reduction in dead discards of dusky sharks compared to alternative suite 2 since sandbar sharks would be allowed to be retained on PLL gear under alternative suite 3.
Negative economic impacts under alternative suite 3 are expected for directed permit holders (78-percent reduction in gross revenues compared to the status quo) as a result of the four sandbar per vessel per trip retention limit. Given that retention limits for sandbar and non-sandbar LCS are significantly lower than the limit under the status quo (91 and 69-percent reduction in sandbar and non-sandbar LCS retention limits, respectively, for directed permit holders), it is anticipated that there would be no directed shark fishery as a result of alternative suite 3. While an observer program would still operate under alternative suite 3, without a directed shark fishery, it is anticipated that the fishery dependent data collection would be limited, which could compromise data collection for future stock assessments. Alternative suite 4 should accomplish the necessary reductions in quota, retention limits, and fishing effort to prevent overfishing and allow stocks to rebuild while collecting valuable scientific data for NMFS. Therefore, due to concerns over dusky discards, quota monitoring, and data collection, NMFS is not implementing alternative suite 3 at this time.
Alternative suite 4, the final action, establishes a program where vessels with directed or incidental shark permits could participate in a small research fishery for sandbar sharks that would harvest the entire 116.6 mt dw sandbar quota. There would be 100 percent observer coverage on each research vessel, and only vessels participating in this program could land sandbar sharks. Vessels not participating in the research program could land non-sandbar LCS, SCS, and pelagic sharks.
Alternative suite 4 was selected because it meets the objectives of this rulemaking while minimizing some of the economic impacts. Those objectives include: implement rebuilding plans for sandbar, dusky, and porbeagle sharks; provide an opportunity for the sustainable harvest of blacktip sharks and other sharks, as appropriate; prevent overfishing of Atlantic sharks; analyze BLL time/area closures and take necessary action, as appropriate; and improve, to the extent practicable, data collections or data collection programs. As detailed in the economic analysis in chapters 4 and 6 of Amendment 2 to the Consolidated HMS FMP, it is estimated that vessels in the shark research fishery could make $437,963 in gross revenues of sandbar and non-sandbar LCS landings under the adjusted quota. Since 5 to 10 vessels are anticipated to participate in the research fishery, NMFS estimates that an individual vessel could make between $87,593 (i.e., 5 boats) to $43,796 (i.e., 10 boats) in gross revenues on sandbar shark and non-sandbar LCS landings. However, the vessels operating outside of the research fishery would have an adjusted regional non-sandbar LCS base quota of 187.8 mt dw in the Atlantic region and 390.5 mt dw in the Gulf of Mexico region. In 2006 ex-vessel prices, this is equivalent to $516,285 in the Atlantic region and $1,273,269 in gross revenues in the Gulf of Mexico region. Divided by the remaining vessels it is estimated that the average gross revenues from shark per vessel would be just over $2,000 per trip.
In addition, under the final action, porbeagle sharks would be authorized in recreational and commercial fisheries, but under a reduced TAC of 11.3 mt dw. Of the TAC, 1.7 mt dw would be available for harvest in commercial fisheries. Currently, the commercial quota for porbeagle sharks is 92 mt dw per year, however, this commercial quota has never been met. NMFS set new TAC and commercial quotas for porbeagle sharks based on present effort levels. Based on quota monitoring (which includes vessel trip reports) from 2003 to 2006, on average, 3,867 lb dw (1.7 mt dw) of porbeagle sharks were landed per year. Based on 2006 ex-vessel prices, this is equivalent to $7,378 in gross revenues. Since commercial fishermen would be allowed to continue to land porbeagle sharks at this level, there are no anticipated economic impacts of implementing the TAC. In addition, recreational anglers would still be allowed to land porbeagle sharks. Therefore, there are no negative economic impacts for recreational fishermen associated with the TAC.
Data indicate that the preferred alternative maintains the annual gross revenues per vessel for vessels operating in the research fishery, while allowing other vessels outside of the research fishery to generate revenues at reduced levels. For example, in the no action alternative, it was estimated that if gross revenues for directed and incidental permit holders are averaged across the approximately 296 active directed and incidental shark permit holders, then the average annual gross revenues per shark fishing vessel is just over $20,000. Using the average landings for directed permit holder from 2003 to 2005, it is estimated that the 143 active directed permit holders generated average annual gross shark revenues of just under $33,000 from sharks. Under alternative 2, the reduced gross revenues averaged across the 143 active directed permit holders are estimated to be just over $9,000 per directed shark fishing vessel and $1,221 per vessel per year for incidental permit holders that land sharks. Under alternative 3 this is reduced further to approximately $7,000 ($1,015,162 gross revenues/143 vessel) per directed shark fishing vessel per year.
Alternative suite 4 has less economic impact on shark fishermen than alternative suite 5 (discussed below), but has greater impacts in the short-run than the status quo alternative. By allowing a limited number of historical participants to continue to harvest sharks under the research fishery, NMFS ensures that data for stock assessments and life history samples would continue to be collected. After comparing the alternative suites, NMFS determined that alternative suite 4 is the alternative that best meets the objectives of this rule while minimizing the economic impacts to shark permit holders.
Alternative suite 5 would have significant economic and social impacts on a variety of small entities, including: commercial shark permit holders, shark dealers, CHB and tournament operators, gear manufacturers, bait and ice suppliers, and other secondary industries dependent on the shark fishery. The level of economic impact would be directly proportional to the amount of revenues that each entity has realized from past participation in the shark fishery. Permit holders would be impacted differently depending on the quantity of sharks landed in the past.
Vessels targeting sharks (directed permit holders) landed an average of 1,263 mt dw of LCS, 223 mt dw SCS, and 173 mt dw pelagic sharks per year between 2003 to 2005 based on shark dealer landings and effort data from the Coastal Fisheries and HMS logbooks. The gross revenues based on 2006 ex-vessel prices of these landings are estimated at $4,702,031, $681,880, and $764,512 for LCS, SCS, and pelagic sharks, respectively. While it is assumed that few directed shark permit holders subsist entirely on revenues attained from the shark fishery, impacts would still be severe for those participants that depend on income from the directed shark fishery at certain times of the year. Because of the extensive economic impacts to shark directed permit holders as a result of this alternative suite, it is assumed that directed permit holders would likely pursue one of the following options as a result of closing
Incidental permit holders would face negative economic and social impacts as a result of closing the Atlantic shark fishery; however, these impacts would not be as severe as those experienced by directed permit holders. It is assumed that incidental permit holders receive the majority of their fishing income from participation in other fisheries, depending on the region and the type of gear predominantly fished (i.e., swordfish, tunas, snapper grouper, tilefish, dolphin/wahoo, lobster, etc.). NMFS estimates that, on average, between 2003 and 2005 incidental permit holders landed 26.9 mt dw LCS, 17.3 mt dw SCS, and 45.5 mt dw pelagics per year based on shark dealer landings and effort data from the Coastal Fisheries and HMS logbooks. This equates in gross revenues, based on 2006 ex-vessel prices for these landings, of $106,491, $52,882, and $201,061 for the respective species complexes. Incidental permit holders would likely have to increase effort in these other fisheries to replace lost revenues from landing sharks. Furthermore, these vessels may seek other permits (open access or limited access transferred from another vessel) or leave the fishing industry entirely.
This alternative suite could also have negative economic and social impacts for shark dealers as they would no longer be authorized to purchase shark products from Federally permitted shark fishermen. Shark dealers also maintain permits to purchase other regionally caught fish products. Due to the brevity of the LCS shark fishing season, which is the shark fishery that accounts for the majority of the shark product revenue due to the fin value, many dealers also get revenue from purchasing fish products other than sharks. The majority of shark dealer permit holders hold permits to purchase other fish products, including swordfish, tunas, snapper grouper, tilefish, mackerel, lobster, and dolphin/wahoo among others. It is difficult to estimate, on an individual dealer basis, the percentage of revenues received exclusively from shark products.
Shark fin dealers, specializing in the purchase of shark fins from Federal and state permitted dealers, would also experience negative social and economic impacts as a result of closing the shark fishery. These dealers receive virtually all of their income from purchasing shark fins and shipping them to exporters. Exporters then transport the fins to global and domestic markets. This alternative suite would likely force shark fin dealers to leave the industry or focus on purchasing other fishery products, resulting in significant economic impacts to the individuals involved in this trade.
It is difficult to estimate the economic and social impacts that would be experienced by various small entities that support the shark fishery, e.g., purveyors of bait, ice, fishing gear, and fishing gear manufactures. However, these impacts would likely be negative. It is difficult to estimate these impacts as it is uncertain to what extent vessels that were fishing for sharks would redistribute their fishing effort to other fisheries, or simply cease fishing operations. If the majority of vessels affected by a shark fishery closure simply displace effort to other fisheries, it is assumed that they would still be dependent on small entities for their bait, ice, and gear as these are products essential for fishing excursions targeting any species. Redistributing effort to other fisheries would mitigate negative economic impacts. However, if a significant number of vessels simply cease fishing operations or scale back considerably, then severe economic consequences would be imparted on these support industries as a result.
Reporting and observer requirements would also change under alternative suite 5. Alternative suite 5 would increase the proportion of fishermen completing the Coastal Fisheries Logbook who are then selected to report information on fish that are discarded. Currently, 20 percent of the fishermen completing this logbook are selected. This percentage would be increased to facilitate improved data available for shark interactions with longline and gillnet gear. This information would be especially useful because sharks could no longer be landed and the existing logbook only requires fishermen to provide data on landed fish. Increasing the number of fishermen who are selected to provide this data would result in negative economic and social impacts because it would require additional paperwork to be filled out. Because NMFS would close the fishery under this alternative suite, vessels would no longer be required to take an observer. Shark dealers would also no longer be required to submit dealer reports regarding sharks purchased.
Seasons and regions for the commercial Atlantic shark fishery would no longer apply as this alternative suite would close the fishery.
Closing the Atlantic recreational shark fishery would have negative economic and social impacts, particularly for CHB operators who specialize in landing sharks and operators of shark tournaments that have prize categories for landing sharks. It is difficult to estimate the number of CHB operators that specialize in shark charters as the permit covers any participant targeting swordfish, sharks, tunas, and billfish. Many CHB operators target a variety of species depending on client interests, weather, time of year, and oceanographic conditions. CHB operators specializing in shark fishing charters would have to target other HMS or non HMS species to replace revenues lost as a result of customers not being able to land sharks. However, not all customers necessarily want to land sharks. CHB operators would still be able to catch sharks; however, all sharks (regardless of species) would need to be released in a manner that maximizes their chances of survival. Catering business operations to clientele interested in catch and release fishing for sharks might mitigate some of the negative economic impacts. Shark tournaments that reward prizes for landing sharks would be negatively impacted as a result of this alternative suite. In 2007, there were 59 tournaments with prize categories for pelagic sharks and 42 (combined) tournaments for LCS and SCS. The majority of these tournaments target pelagic sharks and are held in the North Atlantic and Gulf of Mexico regions. These tournaments would either modify their rules to only allow points/prizes for released sharks or these tournaments would cease to exist. Economic impacts on small entities such as restaurants, hotels, gear manufacturers, retail stores selling fishing supplies, and marinas in the vicinity of where these tournaments are held would also experience negative economic impacts.
HMS Angling permit holders would also experience negative impacts, despite the fact that they would still be able to catch and release sharks. Landings would not be permitted by any recreational anglers as a result of this alternative suite.
Closing the Atlantic shark fishery would have negative economic impacts on global shark fin markets. As a result of this alternative suite, U.S. flagged vessels would no longer be able to contribute to the global demand for shark fins. This would disadvantage U.S. shark fishermen as global markets would likely need to purchase their shark fins from other markets. However,
While alternative suite 5 would meet the objectives of this rule, it would have the highest negative economic impacts of the alternatives considered. There would be significant reductions in revenues for shark dealers and fishing vessels involved in the shark fishery. Some small businesses dependent on commercial shark fishing may cease operating as a result of prohibiting the commercial harvest of shark species. Therefore, this alternative was not selected.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The Agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. Copies of the compliance guide for this final rule are available (see
Fisheries, Fishing, Fishing vessels, Foreign relations, Penalties, Reporting and recordkeeping requirements.
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
5 U.S.C. 561 and 16 U.S.C. 1801
(a) * * *
(9) Fail to maintain a shark in the form specified in §§ 600.1204(h) and 635.30(c) of this chapter.
(h) A person who owns or operates a vessel that has been issued a Federal Atlantic commercial shark limited access permit and who lands shark in or from the U.S. EEZ in an Atlantic coastal port must comply with regulations found at § 635.30(c) of this chapter.
(j) No person aboard a vessel that has been issued a Federal Atlantic commercial shark limited access permit shall possess on board shark fins without the fins being naturally attached to the corresponding carcass(es), although sharks may be dressed at sea.
16 U.S.C. 971
(a) * * *
(5)
(g) * * *
(2)
(b) * * *
(1) * * *
(i) Dealers that have been issued or should have been issued an Atlantic
(ii) Reports of Atlantic tunas, swordfish, and/or sharks received by dealers from U.S. vessels, as defined under § 600.10 of this chapter, on the first through the 15
(iv) The dealer may mail or fax such report to an address designated by NMFS or may hand-deliver such report to a state or Federal fishery port agent designated by NMFS. If the dealer hand-delivers the report to a port agent, the dealer must deliver such report for Atlantic tunas, swordfish, or sharks no later than the prescribed received-by date for the reporting period, as required in paragraphs (b)(1)(i) and (ii) of this section.
(d) * * *
(1) * * *
(i) The mid-Atlantic shark closed area from January 1 through July 31 each calendar year;
(ii) The areas designated at § 622.33(a)(1) through (3) of this chapter, year-round; and
(iii) The areas described in paragraphs (d)(1)(iii)(A) through (H) of this section, year-round.
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(3) * * *
(ii)
(c)
(2) In addition to the shark listed under paragraph (c)(1) of this section, one Atlantic sharpnose shark and one bonnethead shark may be retained per person per trip. Regardless of the length
(3) No prohibited sharks, including parts or pieces of prohibited sharks, which are listed in Table 1 of Appendix A to this part under prohibited sharks, may be retained regardless of where harvested.
(4) The recreational retention limit for sharks applies to any person who fishes in any manner, except to persons aboard a vessel that has been issued an Atlantic incidental or directed shark LAP under § 635.4. If a commercial Atlantic shark quota is closed under § 635.28, the recreational retention limit for sharks and no sale provision in paragraph (a) of this section may be applied to persons aboard a vessel issued an Atlantic incidental or directed shark LAP under § 635.4, only if that vessel has also been issued an HMS Charter/Headboat permit issued under § 635.4 and is engaged in a for-hire fishing trip.
(a)
(2) From July 24, 2008 through December 31, 2012, a person who owns or operates a vessel that has been issued a directed LAP for sharks and does not have a valid shark research permit, or a person who owns or operates a vessel that has been issued a directed LAP for sharks and that has been issued a valid shark research permit but does not have a NMFS-approved observer on board, may retain, possess, or land no more than 33 non-sandbar LCS per vessel per trip if the fishery is open per § 635.27 and § 635.28. Such persons may not retain, possess, or land sandbar sharks. As of January 1, 2013, a person who owns or operates a vessel that has been issued a directed LAP for sharks and does not have a valid shark research permit, or a person who owns or operates a vessel that has been issued a directed LAP for sharks and that has been issued a shark research permit but does not have a NMFS-approved observer on board, may retain, possess, or land no more than 36 non-sandbar LCS per vessel per trip if the fishery is open per § 635.27 and § 635.28. Such persons may not retain, possess, or land sandbar sharks.
(3) A person who owns or operates a vessel that has been issued an incidental LAP for sharks and does not have a valid shark research permit, or a person who owns or operates a vessel that has been issued an incidental LAP for sharks and that has been issued a valid shark research permit but does not have a NMFS-approved observer on board, may retain, possess, or land no more than 3 non-sandbar LCS per vessel per trip if the fishery is open per § 635.27 and § 635.28. Such persons may not retain, possess, or land sandbar sharks.
(4) A person who owns or operates a vessel that has been issued a directed shark LAP may retain, possess, or land SCS and pelagic sharks if the SCS or pelagic shark fishery is open per § 635.27 and § 635.28. A person who owns or operates a vessel that has been issued an incidental LAP for sharks may retain, possess, or land no more than 16 SCS and pelagic sharks, combined, per trip, if the fishery is open per § 635.27 and § 635.28.
(5) A person who owns or operates a vessel that has been issued an incidental or directed LAP for sharks may not retain, possess, land, sell, or purchase prohibited sharks, including any parts or pieces of prohibited sharks, which are listed in Table 1 of Appendix A to this part under prohibited sharks.
(6) A person who owns or operates a vessel that has been issued either an incidental or directed LAP for sharks, and who decides to retain sharks, must retain, subject to the trip limits, all dead, legal-sized, non-prohibited sharks that are brought onboard the vessel and cannot replace those sharks with sharks of higher quality or size that are caught later in the trip. Any fish that are to be released cannot be brought onboard the vessel and must be released in the water in a manner that maximizes survival.
(b) * * *
(1)
(i)
(ii)
(B) Except for non-sandbar LCS landed by a vessels issued a valid shark research permit with a NMFS-approved observer onboard, any non-sandbar LCS reported by dealers located in the Florida Keys areas or in the Gulf of Mexico will be counted against the non-sandbar LCS Gulf of Mexico regional quota. Except for non-sandbar LCS landed by a vessels issued a valid shark research permit with a NMFS-approved observer onboard, any non-sandbar LCS reported by dealers located in the Atlantic region will be counted against the non-sandbar LCS Atlantic regional quota. Non-sandbar LCS landed by a vessel issued a valid shark research permit with a NMFS-approved observer onboard will be counted against the non-sandbar LCS research fishery quota using scientific observer reports.
(iii)
(iv)
(v)
(vi)
(vii)
(A)
(B)
(2)
(b) * * *
(1) If quota is available as specified by a publication in the
(2) When NMFS calculates that the fishing season landings for sandbar shark, non-sandbar LCS, SCS, blue sharks, porbeagle sharks, or pelagic sharks other than blue or porbeagle sharks has reached or is projected to reach 80 percent of the available quota as specified in § 635.27(b)(1), NMFS will file for publication with the Office of the Federal Register a notice of closure for that shark species group and/or region that will be effective no fewer than 5 days from date of filing. From the effective date and time of the closure until NMFS announces, via a notice in the
(3) When the fishery for a shark species group and/or region is closed, a fishing vessel, issued an Atlantic Shark LAP pursuant to § 635.4, may not possess or sell a shark of that species group and/or region, except under the conditions specified in § 635.22(a) and (c) or if the vessel possesses a valid shark research permit under § 635.32 and an NMFS-approved observer is onboard. A shark dealer, issued a permit pursuant to § 635.4, may not purchase or receive a shark of that species group and/or region from a vessel issued an Atlantic Shark LAP, except that a permitted shark dealer or processor may possess sharks that were harvested, off-loaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage. Additionally, a permitted shark dealer or processor may possess non-sandbar sharks that were harvested by a vessel issued a valid shark research permit with a NMFS-approved observer onboard as long as the non-sandbar shark research
(c) * * *
(1) Notwithstanding the regulations issued at part 600, subpart N of this chapter, a person who owns or operates a vessel issued a Federal Atlantic commercial shark LAP must maintain all the shark fins including the tail on the shark carcass until the shark has been offloaded from the vessel. While sharks are on board and when sharks are being offloaded, persons issued a Federal Atlantic commercial shark LAP are subject to the regulations at part 600, subpart N, of this chapter.
(2) A person who owns or operates a vessel that has a valid Federal Atlantic commercial shark LAP must maintain the shark intact through offloading except that the shark may be dressed. All fins, including the tail, must remain naturally attached to the shark through offloading. While on the vessel, fins may be sliced so that the fin can be folded along the carcass for storage purposes as long as the fin remains naturally attached to the carcass via at least a small portion of uncut skin. The fins and tail may only be removed from the carcass once the shark has been landed and offloaded.
(3) A person who owns or operates a vessel that has been issued a Federal Atlantic commercial shark LAP and who lands sharks in an Atlantic coastal port must have all fins and carcasses weighed and recorded on the weighout slips specified in § 635.5(a)(2) and in accordance with regulations at part 600, subpart N, of this chapter. Persons may not possess any shark fins not naturally attached to a shark carcass on board a fishing vessel at any time.
(4) Persons aboard a vessel that does not have a commercial permit for shark must maintain a shark in or from the EEZ intact through landing with the head, tail, and all fins attached. The shark may be bled.
(c) * * *
(1) Persons that own or operate a vessel that possesses a shark from the management unit may sell such shark only if the vessel has a valid commercial shark permit issued under this part. Persons may possess and sell a shark only when the fishery for that species group and/or region has not been closed, as specified in § 635.28(b).
(4) Only dealers that have a valid shark dealer permit may purchase shark from the owner or operator of a fishing vessel. Dealers may purchase a shark only from an owner or operator of a vessel who has a valid commercial shark permit issued under this part, except that dealers may purchase a shark from an owner or operator of a vessel that does not have a commercial permit for shark if that vessel fishes exclusively in state waters. Dealers may purchase a sandbar shark only from an owner or operator of a vessel who has a valid shark research permit and who had a NMFS-approved observer onboard the vessel for the trip in which the sandbar shark was collected. Dealers may purchase a shark from an owner or operator of fishing vessel that has a permit issued under this part only when the fishery for that species group and/or region has not been closed, as specified in § 635.28(b).
(a) * * *
(2) Activities subject to the provisions of this section include, but are not limited to: scientific research resulting in, or likely to result in, the take, harvest, or incidental mortality of Atlantic HMS; exempted fishing and educational activities; programs under which regulated species retained in contravention to otherwise applicable regulations may be donated through approved food bank networks; or chartering arrangements. Such activities must be authorized in writing and are subject to all conditions specified in any letter of acknowledgment, EFP, scientific research permit, display permit, chartering permit, or shark research permit issued in response to requests for authorization under this section.
(f)
(2) Notwithstanding the provisions of § 600.745 of this chapter and other provisions of this part, a valid shark research permit is required to fish for, take, retain, or possess Atlantic sharks, including sandbar sharks, in excess of the retention limits described in § 635.24(a). A valid shark research permit must be on board the harvesting vessel, must be available for inspection when the shark is landed, and must be presented for inspection upon request of an authorized officer. A shark research permit is only valid for the vessel and owner(s) combination specified and cannot be transferred to another vessel or owner(s). A shark research permit is only valid for the retention limits, time, area, gear specified, and other terms and conditions as listed on the permit and only when a NMFS-approved observer is onboard. Species landed under a shark research permit shall be counted against the appropriate quota specified in § 635.27 or as otherwise provided in the shark research permit.
(3) Regardless of the number of applicants, NMFS will issue only a limited number of shark research permits depending on available quotas as described in § 635.27, research needs for stock assessments and other scientific purposes, and the number of sharks expected to be harvested by vessels issued LAPs for sharks.
(4) In addition to the workshops required under § 635.8, persons issued a shark research permit, and/or operators of vessels specified on the shark research permit, may be required to attend other workshops (e.g., shark identification workshops, captain's meeting, etc.) as deemed necessary by NMFS to ensure the collection of high quality data.
(5) Issuance of a shark research permit does not guarantee the permit holder that a NMFS-approved observer will be deployed on any particular trip. Rather, permit issuance indicates that a vessel is eligible for a NMFS-approved
(6) The shark research permit may be revoked, limited, or modified at any time, does not confer any right to engage in activities beyond those authorized by the permit, and does not confer any right of compensation to the holder.
(g)
(2) For the shark research permit, NMFS will publish annually, in a
(h)
(2) For chartering permits, written reports of fishing activities must be submitted to NMFS by a date specified, and to an address designated, in the terms and conditions of each chartering permit.
(3) An annual written summary report of all fishing activities, and disposition of all fish captured, under the permit must be submitted to NMFS for all EFPs, scientific research permits, display permits, and chartering permits issued under this section within 30 days after the expiration date of the permit.
(4) For shark research permits, all owners and/or operators must comply with the recordkeeping and reporting requirements specified in § 635.5 per the requirement of holding a LAP for sharks.
(5) As stated in § 635.4(a)(6), failure to comply with the recordkeeping and reporting requirements of this section could result in the EFP, scientific research permit, display permit, chartering permit, or shark research permit being revoked, suspended, or modified, and in the denial of any future applications.
(a)
(a) * * *
(2) Fish for, catch, possess, retain, or land Atlantic HMS without the appropriate valid vessel permit, LAP, EFP, scientific research permit, display permit, chartering permit, or shark research permit on board the vessel, as specified in §§ 635.4 and 635.32.
(4) Sell or transfer or attempt to sell or transfer, for commercial purposes, an Atlantic tuna, shark, or swordfish other than to a dealer that has a valid dealer permit issued under § 635.4, except that this does not apply to a shark harvested by a vessel that has not been issued a permit under this part and that fishes exclusively within the waters under the jurisdiction of any state.
(6) Falsify or fail to record, report, or maintain information required to be recorded, reported, or maintained, as specified in §§ 635.5 and 635.32 or in the terms and conditions of a permit issued under § 635.4 or an EFP, scientific research permit, display permit, chartering permit, or shark research permit issued under § 635.32.
(d) * * *
(3) Retain, possess, or land a shark of a species group when the fishery for that species group and/or region is closed, as specified in § 635.28(b).
(4) Sell or purchase a shark of a species group when the fishery for that species group and/or region is closed, as specified in § 635.28(b).
(6) Fail to maintain a shark in its proper form, as specified in § 635.30(c). Fail to maintain naturally attached shark fins through offloading as specified in § 635.30(c).
(7) Sell or purchase shark fins that are disproportionate to the weight of shark carcasses, as specified in § 635.30(c) and § 600.1204(e) and (l) of this chapter.
(8) Fail to have shark fins and carcasses weighed and recorded, as specified in § 635.30(c).
(10) Retain, possess, sell, or purchase a prohibited shark, including parts or pieces of prohibited sharks, as specified under §§ 635.22(c), 635.24(a), and 635.27(b), or fail to disengage any hooked or entangled prohibited shark with the least harm possible to the animal as specified at § 635.21(d).
(15) Sell or transfer or attempt to sell or transfer a shark or sharks or part of a shark or sharks in excess of the retention limits specified in § 635.24(a).
(16) Purchase, receive, or transfer or attempt to purchase, receive, or transfer a shark or sharks or part of a shark or sharks landed in excess of the retention limits specified in § 635.24(a).
(17) Replace sharks that are onboard the vessel for retention with sharks of higher quality or size that are caught later in a particular trip as specified in § 635.24(a).
Federal Register rule document E8-13961, originally published at pages 35778 to 35833 in the issue of Tuesday, June 24, 2008, included several pages of duplicated text and deleted material. This document is being republished in its entirety.