Animal and Plant Health Inspection Service
Cooperative State Research, Education, and Extension Service
Food Safety and Inspection Service
Forest Service
Committee for Purchase From People Who Are Blind or Severely Disabled
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Federal Energy Regulatory Commission
Presidential Documents
Science and Technology Policy Office
Agency for Healthcare Research and Quality
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Fish and Wildlife Service
Geological Survey
Land Management Bureau
National Park Service
Reclamation Bureau
Surface Mining Reclamation and Enforcement Office
Employment and Training Administration
Labor Statistics Bureau
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Office of the Secretary, USDA.
Final rule.
This document sets forth the revised appendices to the Dairy Tariff-Rate Import Quota Licensing Regulation for the 2008 quota year reflecting the cumulative annual transfers from Appendix 1 to Appendix 2 for certain dairy product import licenses permanently surrendered by licensees or revoked by the Licensing Authority.
Jorge Martinez, Dairy Import Licensing Program, Import and Trade Support Programs Division, STOP 1021, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Washington, DC 20250-1021 or telephone at (202) 720-9439 or e-mail at
The Foreign Agricultural Service, under a delegation of authority from the Secretary of Agriculture, administers the Dairy Tariff-Rate Import Quota Licensing Regulation codified at 7 CFR 6.20-6.37 that provides for the issuance of licenses to import certain dairy articles under tariff-rate quotas (TRQs) as set forth in the Harmonized Tariff Schedule of the United States. These dairy articles may only be entered into the United States at the low-tier tariff by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The Import and Trade Support Programs Division, Foreign Agricultural Service, U.S. Department of Agriculture, issues these licenses and, in conjunction with the U.S. Customs and Border Protection, U.S. Department of Homeland Security, monitors their use.
The regulation at 7 CFR 6.34(a) states: “Whenever a historical license (Appendix 1) is not issued to an applicant pursuant to the provisions of § 6.23, is permanently surrendered or is revoked by the Licensing Authority, the amount of such license will be transferred to Appendix 2.” Section 6.34(b) provides that the cumulative annual transfers will be published in the
Agricultural commodities, Cheese, Dairy products, Imports, Reporting and recordkeeping requirements.
Additional U.S. Notes 6, 7, 8, 12, 14, 16-23 and 25 to Chapter 4 and General Note 15 of the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), Pub. L. 97-258, 96 Stat. 1051, as amended (31 U.S.C. 9701), and secs. 103 and 404, Pub. L. 103-465, 108 Stat. 4819 (19 U.S.C. 3513 and 3601).
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the regulations regarding the importation of live horses, ruminants, swine, and dogs by removing Panama from the lists of regions where screwworm is considered to exist. We are taking this action because the eradication of screwworm from Panama has been confirmed. This action will relieve certain screwworm-related certification and inspection requirements for live animals imported into the United States from Panama.
Dr. Julia Punderson, Regionalization Evaluation Services—Import, Sanitary Trade Issues Team, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231; (301) 734-0757.
The regulations in 9 CFR part 93 (referred to below as the regulations), prohibit or restrict the importation of certain animals into the United States to prevent the introduction of pests and diseases of livestock and poultry, including New World screwworm (
Screwworm, a pest native to tropical areas and currently found in South America and the Caribbean, causes extensive damage to livestock and other warm-blooded animals. Subparts C, D, E, and F of the regulations govern the importation of horses, ruminants, swine, and dogs, respectively, and include provisions for the inspection and treatment of these animals if imported from any region of the world where screwworm is considered to exist. Sections 93.301, 93.405, 93.505, and 93.600 list all the regions of the world where screwworm is considered to exist.
On May 16, 2008, we published in the
We solicited comments concerning our proposal for 60 days ending July 15, 2008. We received one comment by that
Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.
This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
This final rule amends the regulations regarding the importation of live horses, ruminants, swine, and dogs by removing Panama from the lists of regions where screwworm is considered to exist. We are taking this action because the eradication of screwworm from Panama has been confirmed. This action will relieve certain screwworm-related certification and inspection requirements for live animals imported into the United States from Panama.
No significant change in program operations is anticipated as a result of this rule, nor will this action affect other Federal agencies, State governments, or local governments. The cost of all technical support activities, including establishment of animal quarantine control measures, treatment stations, maintenance of livestock census, screwworm surveillance, establishment and maintenance of laboratory support, and aerial dispersion of sterile screwworm flies in Panama is provided by the Commission for the Eradication and Prevention of Screwworm and the cooperative agreement funded by the U.S. Department of Agriculture and Panama's Ministry of Agriculture and Livestock Development. When importing live animals from a region where screwworm is considered to exist, the cost of any required testing (and treatment, if needed) is paid by the owner of the animals being shipped. Our removal of Panama from the list of regions where screwworm is considered to exist will reduce the cost for producers and others in Panama to export ruminants, swine, horses, and dogs to the United States.
The economic effects associated with this rule are likely to be limited. This is because the number of live animals exported into the United States from Panama is likely to remain small. Trade statistics indicate that since 2001, the United States has not imported any ruminants, swine, or dogs from Panama. Equine imports from Panama over this period have numbered only 163, which is approximately 0.06 percent of all horse imports.
According to Small Business Administration size standards for beef cattle ranching and farming (North American Industry Classification System (NAICS) 112111), dairy cattle and milk production (NAICS 112120), hog and pig farming (NAICS 112210), sheep farming (NAICS 112410), goat farming (NAICS 112420),
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal diseases, Imports, Livestock, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements.
7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.
Office of Governmentwide Policy, General Services Administration (GSA).
Final rule.
The General Services Administration is amending the Federal Management Regulation (FMR) by updating coverage on the replacement of personal property pursuant to the exchange/sale authority. The changes were prompted by recommendations of
This final rule is effective August 29, 2008.
For clarification of content, contact Mr. Robert Holcombe, Office of Governmentwide Policy, Office of Travel, Transportation, and Asset Management (MT), (202) 501-3828 or e-mail at
The General Services Administration’s (GSA’s) Office of Governmentwide Policy (OGP) facilitated the interagency Federal Asset Management Evaluation (FAME) initiative during 2004 and 2005. Discussions with GSA’s Federal customers during this initiative revealed a perception that there were too many unnecessary restrictions and “hurdles” hindering the effective use of this authority. One of the recommendations of the FAME report (March 31, 2005) was to “increase the flexibility of the exchange/sale program to promote the use of this authority throughout the Government.”
A proposed rule was published in the
This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and,
This final rule is not required to be published in the
The Paperwork Reduction Act does not apply because these final changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
This final rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Government property management, Reporting and recordkeeping requirements, and Government property.
40 U.S.C. 121(c); 40 U.S.C. 503.
Old section New section
102-39.5 102-39.15
102-39.15 102-39.40
102-39.25 102-39.30
102-39.30 102-39.45
102-39.35 102-39.50
102-39.40 102-39.55
102-39.45 102-39.60
102-39.60 102-39.70
102-39.65 102-39.75
102-39.70 102-39.80
102-39.75 102-39.85
The exchange/sale authority is a statutory provision, (40 U.S.C. 503), which states in part: “In acquiring personal property, an executive agency may exchange or sell similar items and may apply the exchange allowance or proceeds of sale in whole or in part payment for the property acquired.”
(1) No longer adequately performs the tasks for which it is used; or
(2) Does not meet the agency’s need as well as the personal property to be acquired.
(1) Are identical; or
(2) Fall within a single Federal Supply Classification (FSC) Group of property (includes any and all forms of property within a single FSC Group); or
(3) Are parts or containers for similar end items; or
(4) Are designed or constructed for the same purpose (includes any and all forms of property regardless of the FSC Group to which they are assigned).
All of the provisions in this part are subject to deviation (upon presentation of adequate justification) except those mandated by statute. See the link on “Exchange/Sale” at
See part 102-2 of this chapter (41 CFR part 102-2) to request a deviation from the requirements of this part.
You should consider using the exchange/sale authority when replacing personal property.
You should consider using the exchange/sale authority to reduce the cost of replacement personal property. When you have personal property that is wearing out or obsolete and must be replaced, you should consider either exchanging or selling that property and using the exchange allowance or sales proceeds to offset the cost of the replacement personal property. Conversely, if you choose not to replace the property using the exchange/sale authority, you may declare it as excess and dispose of it through the normal disposal process as addressed in part 102-36 of this chapter. Keep in mind, however, that any net proceeds from the eventual sale of that property as surplus generally must be forwarded to the miscellaneous receipts account at the United States Treasury and thus would not be available to you. You may use the exchange/sale authority in the acquisition of personal property even if the acquisition is under a services contract, as long as the property
Unless a deviation is requested of and approved by GSA as addressed in part 102-2 of this chapter and the provisions of §§ 102-39.25 and 102-39.30, you must not use the exchange/sale authority for:
(a) The following FSC groups of personal property:
10 Weapons.
11 Nuclear ordnance.
12 Fire control equipment.
14 Guided missiles.
15 Aircraft and airframe structural components (except FSC Class 1560 Airframe Structural Components).
42 Firefighting, rescue, and safety equipment.
44 Nuclear reactors (FSC Class 4470 only).
51 Hand tools.
54 Prefabricated structure and scaffolding (FSC Class 5410 Prefabricated and Portable Buildings, FSC Class 5411 Rigid Wall Shelters, and FSC Class 5419 Collective Modular Support System only).
68 Chemicals and chemical products, except medicinal chemicals.
84 Clothing, individual equipment, and insignia.
(i) Flight Safety Critical Aircraft Parts (FSCAP) and Critical Safety Items (CSI) unless you meet the provisions of § 102-33.370 of this title.
You may use the exchange/sale authority only if you meet all of the following conditions:
(a) The property exchanged or sold is similar to the property acquired;
(b) The property exchanged or sold is not excess or surplus and you have a continuing need for similar property;
(c) The property exchanged or sold was not acquired for the principal purpose of exchange or sale;
(d) When replacing personal property, the exchange allowance or sales proceeds from the disposition of that property may only be used to offset the cost of the replacement property, not services; and
(e) Except for transactions involving books and periodicals in your libraries, you document the basic facts associated with each exchange/sale transaction. At a minimum, the documentation must include:
(1) The FSC Group of the items exchanged or sold, and the items acquired;
(2) The number of items exchanged or sold, and the number of items acquired;
(3) The acquisition cost and exchange allowance or net sales proceeds of the items exchanged or sold, and the acquisition cost of the items acquired;
(4) The date of the transaction(s);
(5) The parties involved; and
(6) A statement that the transactions comply with the requirements of this part 102-39.
You must account for exchange allowances or proceeds of sale in accordance with the general finance and accounting rules applicable to you. Except as otherwise authorized by law, all exchange allowances or proceeds of sale under this part will be available during the fiscal year in which the property was sold and for one fiscal year thereafter for the purchase of replacement property. Any proceeds of sale not applied to replacement purchases during this time must be deposited in the United States Treasury as miscellaneous receipts.
Federal Emergency Management Agency, DHS.
Reopening of comment period.
The Management Cost Interim Rule implemented the management cost provisions in section 324 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended. The Federal Emergency Management Agency (FEMA) is reopening the public comment period on its Management Cost Interim Rule. FEMA is taking this action to solicit data from grantees and subgrantees to use in reevaluating the fixed management cost rates established in the rule.
Comments are due on or before September 29, 2008.
You may submit comments, identified by Docket ID FEMA-2006-0035, by one of the following methods:
Jonna M. Long, Office of the Chief Financial Officer, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, 202-646-7057, (facsimile) (202) 646-4268 (phone), or (e-mail)
Under the provisions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5121-5207, and its implementing regulations, the Federal Emergency Management Agency (FEMA) has the authority to assist State and local governments in carrying out their responsibilities pursuant to a Presidentially-declared major disaster or emergency. Two of the major programs authorized by the Stafford Act that provide assistance to State and local governments are the Public Assistance (PA) program (grants for emergency protective measures, debris removal, and repair, replacement, or restoration of facilities not met by insurance) and the Hazard Mitigation Grant Program (HMGP) (grants for sustained mitigation measures such as acquisition for open space, elevations of flood prone properties, and wind or seismic retrofitting of structures that will reduce or permanently eliminate the long-term risk to people and property from natural hazards and their effects).
Section 324 of the Stafford Act, 42 U.S.C. 5165b, required FEMA to establish management cost rates for PA and HMGP grantees and subgrantees to be used in determining contributions for management costs. On August 30, 2002, FEMA published a Notice of Proposed Rulemaking that proposed a methodology for calculating the management cost rates, as well as guidance for the implementation of section 324 of the Stafford Act (67 FR 56130). FEMA provided a 30 day comment period for the Notice of Proposed Rulemaking and considered the comments received in drafting the Interim Rule that was published on October 11, 2007 (72 FR 57869). For the Interim Rule, FEMA again provided a 30 day comment period. FEMA received 34 public comments on the Interim Rule (all of which are available in the docket for public inspection). Although FEMA continues to review those comments and will address them in the final rule, FEMA realized that it would be useful to solicit more specific information to properly address issues that were raised in those comments.
“Management costs,” for purposes of the implementing regulation, include any indirect costs, any administrative expenses and any other expenses not directly chargeable to a specific project that are reasonably incurred by a grantee or subgrantee in administering and managing a PA program or HMGP grant award. As established by the Interim Rule, FEMA determines the amount of management costs based on a flat percentage rate of the Federal share of projected eligible program costs for financial assistance. The flat percentage rate for PA is 3.34 percent for major disaster declarations, and 3.90 percent for emergencies. The HMGP rate is 4.89 percent for major disaster declarations. The management cost funds provided are in addition to the grantee's PA and HMGP funds and do not require a non-Federal cost share.
The management cost rates set forth in the Interim Rule replaced what FEMA previously paid State and local governments for associated costs through the “sliding scale,” State management costs, and grantee indirect costs. The percentages for reimbursement are based on historical average obligations. To create the figures in the Interim Rule, FEMA used data collected in the National Emergency Management Information System (NEMIS) for declarations from August 1998 to July 2004. FEMA added together actual obligations representing the Federal share of all PA projects for major disasters declared during that period. Obligations for sliding scale, State management costs, and grantee indirect costs were excluded from project obligations and were added together separately. Those totals were used to calculate the percentage of “pure” project dollars that historically has been required for administration and management.
The same calculations were performed for HMGP projects under major disaster declarations and PA projects under emergency declarations.
Although comments on other aspects of the interim rule will not be rejected, FEMA solicits data in response to the specific requests set out below:
Prior to November 13, 2007, FEMA used three mechanisms to reimburse grantees and subgrantees for management and administration costs:
a.
FEMA reimbursed subgrantees for associated expenses including necessary costs of requesting, obtaining, and administering Federal assistance. Such funds were 100 percent federally-funded.
b.
c.
FEMA requests that grantees and subgrantees submit data on unreimbursed management costs incurred in the management and administration of Public Assistance (PA) and/or the Hazard Mitigation Grant Program (HMGP) prior to implementation of the Interim Rule on November 13, 2007. Specific costs and descriptions are needed and all costs must be attributable to and identified by a specific FEMA declaration number (DR-XXXX-ST or EM-XXXX-ST).
To assist grantees and subgrantees in answering this request, unreimbursed costs might include items eligible for sliding scale funds when such funds were insufficient, or subgrantee costs not eligible for sliding scale funds and therefore not eligible for FEMA reimbursement. Unreimbursed costs must have been incurred in support of the management and administration of
FEMA requests that grantees and subgrantees submit available data on unreimbursed management costs incurred in the management and administration of Public Assistance (PA) and/or the Hazard Mitigation Grant Program (HMGP) under a specific Presidential declaration (major disaster or emergency for PA or major disaster for HMGP) since November 13, 2007. Specific costs and descriptions are needed and must be identified by FEMA declaration number.
For access to the docket to submit comments, read the Notice of Proposed Rulemaking, Interim Rule, background documents and all comments received, go to the Federal eRulemaking Portal at
Federal Railroad Administration (FRA), DOT.
Interpretation.
FRA is issuing this notice of interpretation to inform interested parties of its application and enforcement of the requirements for each railroad responsible for controlling joint operations territory to maintain a list of person(s) certified as a qualified locomotive engineer for the purposes of the joint operations. FRA has discovered that a number of controlling railroads are not maintaining accurate lists primarily because foreign railroads are not providing the controlling railroads with accurate information and the controlling railroads are not demanding it. If an accurate list is not maintained, a controlling railroad has little chance of preventing an uncertified or unqualified person from operating a locomotive or train in the joint operations territory. This document is intended to inform interested parties of what information is required to be maintained on the required list and provides information as to how often the listings should be updated.
You may submit comments to Douglas Taylor, Staff Director, Operating Practices Division, or John Conklin, Program Manager Locomotive Engineer Certification, FRA Office of Safety Assurance and Compliance, by facsimile (202-493-6216) or e-mail (
Douglas H. Taylor, Staff Director, Operating Practices Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, Washington, DC 20590 (telephone 202-493-6255); John Conklin, Program Manager Locomotive Engineer Certification, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, Washington, DC 20590 (telephone 202 493-6318); or Alan H. Nagler, Senior Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6038).
In 1991, FRA published a final rule requiring each railroad to qualify and certify each person the railroad would allow to operate a locomotive or train over its system.
Overall, the industry is in substantial compliance with the requirements for identification of qualified persons under § 240.221. FRA has not noticed significant non-compliance with maintaining the lists required for a railroad's own employees, i.e., its own supervisors of locomotive engineers or its own certified locomotive engineers. Again, for its own employees, most railroads periodically update the listing with all the required information “so that it retains its usefulness” which FRA described as the goal of the listing in the section-by-section analysis when the rule was published.
The purpose of this document is to address issues related to maintaining the listing of those locomotive engineers employed by other railroads (foreign locomotive engineers) that have been designated as certified and qualified for the purposes of joint operations pursuant to § 240.221(c). Several railroads that have been found not properly maintaining a listing of foreign locomotive engineers certified and qualified for joint operations have taken some affirmative actions to come into compliance. However, the number of railroads in partial non-compliance is sufficiently wide-spread that FRA believes that clarification of the
Unless a foreign locomotive engineer solely operates in the joint operation with a certified pilot or the regulatory requirements for “minimal joint operations” exist, the foreign locomotive engineer is required to be certified and qualified for purposes of the joint operations and is required to be on the listing required by § 240.221(c).
A controlling railroad that directly certifies and qualifies foreign locomotive engineers is likely to be in compliance with maintaining the required listing because it controls the information that is needed to maintain the list under § 240.221(c). Controlling railroads that choose to directly certify and qualify foreign locomotive engineers are typically short line or regional railroads with either a small number of foreign locomotive engineers or with limited joint operations. Railroads that choose to directly certify and qualify are able to maintain greater control over who is allowed to operate over the railroad's system.
In contrast, a controlling railroad that indirectly certifies and qualifies foreign locomotive engineers is reliant on the foreign railroad to provide accurate and complete information. It is standard practice on the major railroads to indirectly certify and qualify foreign locomotive engineers. Controlling railroads that choose to indirectly certify and qualify are willing to relinquish some control over who is allowed to operate over the railroad's system. Despite being reliant on another railroad for information about foreign locomotive engineers, a controlling railroad is obligated to maintain the required listing. Thus, the controlling railroad must ensure and demand that accurate and complete information is provided from foreign railroads that engage in joint operations.
FRA has not previously issued any specific written guidance on how to comply with the requirements related to maintaining accurate lists of qualified and certified locomotive engineers contained in § 240.221. FRA acknowledges that its personnel may have incorrectly instructed some controlling railroads that compliance was achieved when it accepted a complete list of each engineer certified by a foreign railroad even though the list failed to indicate which engineers were certified and qualified to operate in the joint operations territory. In order to ensure a consistent, nation-wide policy, we are publishing this notice of interpretation to clarify the agency's position.
FRA's interprets § 240.221(c) as requiring the controlling railroad to maintain a list that specifically identifies each foreign railroad locomotive engineer that is deemed certified and qualified to operate over the joint operation. Thus, it is unacceptable for a foreign railroad to simply provide a list of all its certified engineers without distinguishing which engineers are certified and qualified in the joint operations. Section 240.221(c) does not require that the listing kept by a controlling railroad of a joint operation identify each locomotive engineer that a foreign railroad has certified on the foreign railroad's system. The regulation only requires that a person be added to the controlling railroad's listing if the person is a foreign locomotive engineer who is certified and qualified for the purposes of joint operations. Although railroads may choose to exchange more information that identifies different types of qualified persons than what is required by the regulation, a list that is over-inclusive is simply not an accurate list. If a foreign railroad decides to provide a controlling railroad with a complete listing of all its certified locomotive engineers, the foreign railroad and the controlling railroad must specifically distinguish those locomotive engineers who are certified and qualified to operate in the joint operations territory from those who are not so certified and qualified.
The provision contained in § 240.221(d) states that “[t]he listing required by paragraphs (a), (b), and (c) shall be updated at least annually” and several railroads have complained that it is not useful to keep a listing that only needs to be updated annually. These parties have argued that even if a listing is updated annually, it will likely become outdated quickly because the number of certified and qualified engineers is in a constant state of flux. FRA disagrees with this interpretation and believes the rule requires maintenance of the listing so it retains its usefulness.
The plain language of the regulation does not state that the “listing only needs to be updated annually” but, instead, specifically requires that it “shall be updated
With regard to updating the listing of foreign locomotive engineers in joint operation territories, it should be noted that FRA considers it more important to remove the name of any foreign engineer who is no longer considered certified or qualified for joint operations territory then to fail to add a person who has recently become certified and qualified. When a controlling railroad questions a foreign engineer's certification or qualifications and the engineer's name is not found on the list, the controlling railroad would be expected to immediately contact the foreign railroad in order to confirm the person's status before allowing the foreign engineer to proceed into the joint operations territory. Alternatively, if a controlling railroad were to question a foreign engineer's certification or qualifications and the engineer's name is found on the list, the controlling railroad would likely be expected to rely on the list and would be exercising due diligence in doing so. If the list is incorrect and the person's name should have been removed, the controlling railroad cannot be expected to prevent an unqualified person from operating in the joint operations territory.
Several major railroads have voiced concern that because the listing is in such a constant state of flux, it would be extremely difficult to maintain an accurate listing at all times. In the joint operation context, a major railroad may face the challenge of coordinating a listing that includes separate lists submitted by more than 100 foreign railroads. Although FRA agrees that it will be challenging for some railroads that allow extensive joint operations to maintain an accurate written list, such railroads may find it easier to comply by maintaining the listing electronically. Maintaining the listing electronically has always been an option pursuant to § 240.221(f), but it has not been extensively utilized. There is no question that modern technology has greatly improved since the rule's issuance in 1991, and thus the ability and desire to electronically maintain the listing should be much greater. For example, it is possible to maintain a secure Web site where a controlling railroad can search a foreign railroad's uploaded list of locomotive engineers to check: (1) Whether the person is certified and qualified for the joint operations territory; (2) the person's class of service; and, (3) the date of the railroad's certification decision. Another option may be for a foreign railroad to tap into its railroad crew management tracking system to produce a more detailed written or electronic list of its engineers to controlling railroads than what is currently being made available. Other electronically maintained options may be available and FRA encourages railroads controlling joint operations to consider options that would improve the usefulness of the required listing. Any railroad that would like to maintain the listing electronically is required to obtain approval from FRA pursuant to the requirements in § 240.221(f).
While FRA recognizes that recent changes in status to any particular engineer might not be reflected in the listing immediately, FRA expects the listing to be updated with enough regularity so that it retains its usefulness.
FRA believes that this notice provides sufficient information to guide parties that may have been confused by the requirements of § 240.221. However, FRA seeks comments on this notice from interested parties including any suggestions for providing more clarity, if necessary. Please refer to the Addresses section for additional information regarding the submission of comments.
In rule document E8-18890 beginning on page 47847 in the issue of Friday, August 15, 2008, make the following correction:
On page 47849, in Appendix A-I to Part 541, in the second column of the table, in the 44th line entry, “Genesis
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason retention limit adjustment.
NMFS has determined that the Atlantic tunas General category daily Atlantic bluefin tuna (BFT) retention limit should be adjusted for the September, October-November, and December time periods of the 2008 fishing year, based on consideration of the determination criteria regarding inseason adjustments.
The effective dates for the adjusted BFT daily retention limits are September 1, 2008, through December 31, 2008.
Sarah McLaughlin or Brad McHale, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
The 2008 fishing year began on January 1, 2008, and ends December 31, 2008. NMFS published final specifications on December 31, 2007 (72 FR 74193) and increased the default General category retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) per vessel per day/trip to three large medium or giant BFT, measuring 73 inches CFL or greater, per vessel per day/trip for June 1 through August 31, 2008. Regardless of the duration of a fishing trip, no more than the daily retention limit may be on board a vessel. In addition, NMFS stated that it would consider adjustment of retention limits for future time periods, if warranted. In 2007, NMFS followed a similar course of action and raised General category retention limits via inseason actions to allow for a continuous three BFT retention limit, including for the January 2008 time period (72 FR 50257, August 31, 2007 and 72 FR 61565, October 31, 2007) .
Under 50 CFR 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of three per vessel based on consideration of the criteria provided under § 635.27(a)(8), which include: the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made; the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of BFT before the end of the fishing year; the estimated amounts by which quotas for other gear categories of the fishery might be exceeded; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal distribution, abundance, or migration patterns of BFT; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and a review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds.
As of August 1, 2008, the coastwide General category has landed 50.8 metric tons (mt) out of a possible 740 mt, and landings rates remain less that 1.0 mt per day even though the General category retention limit was increased to three BFT per vessel per trip, measuring 73 inches (185 cm) CFL or greater for January and for June through August 2008. Starting on September 1, 2008, the General category daily retention limit, located at 50 CFR 635.23(a)(2), is scheduled to revert back to the default retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) CFL) or greater per vessel per day/trip. This scheduled retention limit applies to General category permitted vessels and HMS Charter/Headboat category permitted vessels (when fishing commercially for BFT).
Each of the General category time periods (January, June-August, September, October-November, and December) is allocated a portion of the annual General category quota, thereby ensuring extended fishing opportunities in years when catch rates are high. In consideration of the rollover of unused quota from the January and June-August time periods, current catch rates, and the daily retention limit reverting to one large medium or giant BFT per vessel per day on September 1, 2008, NMFS anticipates the full 2008 fishing year General category quota will not be harvested. Adding an excessive amount of unused quota from one time-period subquota to the subsequent time-period subquota is undesirable because it effectively changes the time-period subquota allocation percentages established in the Consolidated HMS FMP and may contribute to excessive carryovers to subsequent fishing years.
NMFS has considered the set of criteria cited above and their applicability to the commercial BFT retention limit for the remainder of the 2008 fishing year. Based on these considerations, NMFS has determined that the General category retention should be adjusted to allow for retention of the established General category quota. Therefore, NMFS increases the General category retention limit from the default limits effective September 1, 2008, through December 31, 2008. This adjustment increases the General category daily retention limit to three large medium or giant BFT, measuring 73 inches (185 cm) CFL or greater, per vessel per day/trip. This General category retention limit is effective in all areas, except for the Gulf of Mexico, and applies to those vessel permitted in the General category as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.
This adjustment is intended to provide a reasonable opportunity to harvest the U.S. landings quota of BFT while maintaining an equitable distribution of fishing opportunities, to help achieve optimum yield in the General category BFT fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the Consolidated HMS FMP.
NMFS selected the daily retention limit and the duration after examining an array of data as it pertains to the determination criteria. These data included, but were not limited to, current and previous catch and effort rates, quota availability, previous public comments on inseason management measures, stock status, etc. NMFS will continue to monitor the BFT fishery closely through the mandatory dealer landing reports, which NMFS requires to be submitted within 24 hours of a dealer receiving BFT. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas.
Closures or subsequent adjustments to the daily retention limits, if any, will be published in the
The Assistant Administrator for NMFS (AA), finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
NMFS continues to receive information refining its understanding of the commercial sector's specific needs regarding retention limits through the latter portions of the 2008 season. NMFS assessments and analyses show catch rates to date have been low and that there is sufficient quota for an increase to the General category retention limit during the months of September through December 2008.
The regulations implementing the Consolidated HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT
Delays in increasing these retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day and may exacerbate the problem of low catch rates and quota rollovers. Limited opportunities to harvest the respective quotas may have negative social and economic impacts to U.S. fishermen that either depend upon catching the available quota within the time periods designated in the Consolidated HMS FMP. Adjustment to the retention limit needs to be effective September 1, 2008, to minimize any unnecessary disruption in fishing patterns and for the impacted sectors to benefit from the adjustments so as to not preclude fishing opportunities from fishermen who only have access to the fishery during this time period.
Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (i.e., current default retention limit is one fish per vessel/trip but this action increases that limit and allows retention of more fish), there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
This action is being taken under 50 CFR 635.23(a)(4) and (b)(3) and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the C season allowance of the 2008 total allowable catch (TAC) of pollock for Statistical Area 630 in the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), August 26, 2008, through 1200 hrs, A.l.t., October 1, 2008.
Jennifer Hogan, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The C season allowance of the 2008 TAC of pollock in Statistical Area 630 of the GOA is 4,431 metric tons (mt) as established by the 2008 and 2009 harvest specifications for groundfish of the GOA (73 FR 10562, February 27, 2008). In accordance with § 679.20(a)(5)(iv)(B) the Administrator, Alaska Region, NMFS (Regional Administrator), hereby decreases the C season pollock allowance by 753 mt, the amount of the B season allowance of the pollock TAC that was exceeded in Statistical Area 630. Therefore, the revised C season allowance of the pollock TAC in Statistical Area 630 is 3,678 mt (4,431 mt minus 753 mt).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the C season allowance of the 2008 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,518 mt, and is setting aside the remaining 160 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 25, 2008.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule: agency decision.
NMFS announces the approval of Amendment 72 to the Fishery Management Plan for Groundfish of the Gulf of Alaska. Amendment 72 amends the FMP to state that the Council will annually review information on the discard of shallow-water flatfish in Gulf of Alaska groundfish fisheries. After review of this annual information, the Council may recommend revisions to retention and utilization requirements if the discard rate for shallow-water flatfish falls above or below a specified threshold. This action is necessary to support the Council's initiatives to monitor and reduce bycatch in the Gulf of Alaska groundfish fisheries. The intended effect of this action is to conserve and manage the groundfish resource in the Gulf of Alaska in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.
This agency decision is effective on August 25, 2008.
Copies of Amendment 72 and the Categorical Exclusion for this action may be obtained from the NMFS Alaska Region website at
Jeff Hartman, 907-586-7442.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fisheries management plan amendment, immediately publish a notice in the
The Council submitted Amendment 72 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) to NMFS on May 15, 2008. The notice of availability (NOA) for Amendment 72 was published in the
In April 2003, the Council unanimously recommended Amendment 72 to the GOA FMP. The purpose of Amendment 72 is to annually provide the best available data to the Council on discards of shallow-water flatfish as a percentage of total groundfish catch by area and target fishery. Based on that data, the Council could review the effectiveness of existing Improved Retention/Improved Utilization (IR/IU) regulations for shallow-water flatfish, or consider recommendations to change IR/IU regulations for shallow-water flatfish.
A Categorical Exclusion was prepared for Amendment 72 concluding that the amendment will not result individually or cumulatively in significant impacts on the quality of the human environment (see
Food Safety and Inspection Service, USDA.
Proposed rule.
On May 20, 2008, the Secretary of Agriculture announced that the Food Safety and Inspection Service (FSIS) would begin working on a proposed rule to prohibit the slaughter of all non-ambulatory disabled cattle, without exception. As announced by the Secretary, FSIS is proposing to amend the Federal meat inspection regulations to remove the provision that states that FSIS inspection personnel will determine the disposition of cattle that become non-ambulatory disabled after they have passed ante-mortem inspection on a case-by-case basis. This proposed rule will require that all cattle that are non-ambulatory disabled at the time they are presented for ante-mortem inspection at an official establishment, and all those that become non-ambulatory disabled after passing ante-mortem inspection, be condemned and properly disposed of.
Submit comments on or before September 29, 2008.
FSIS invites interested persons to submit comments on this proposed rule. Comments may be submitted by either of the following methods:
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Individuals who do not wish FSIS to post their personal contact information—mailing address, e-mail, telephone number—on the Internet may leave this information off their comments.
Dr. Daniel Engeljohn, Deputy Assistant Administrator, Office of Policy and Program Development, FSIS, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Washington, DC 20250-3700, (202) 205-0495.
On July 13, 2007, FSIS published the final rule, “Prohibition of the Use of Specified Risk Materials for Human Food and Requirements for the Disposition of Non-Ambulatory Disabled Cattle; Prohibition of the Use of Certain Stunning Devices Used To Immobilize Cattle During Slaughter” (72 FR 38700). Hereafter in this preamble, that rule will be referred to as the Specified Risk Material (SRM) final rule. The SRM final rule affirmed, with certain amendments, interim regulations implemented by FSIS in 2004 to prevent potential human exposure to the bovine spongiform encephalopathy (BSE) agent (see “Prohibition of the Use of Specified Risk Materials for Human Food and Requirements for the Disposition of Non-Ambulatory Disabled Cattle” (69 FR 1862, January 12, 2004)). One of the interim measures that the SRM final rule affirmed was the prohibition of the slaughter of non-ambulatory disabled cattle offered for slaughter for human food (9 CFR 309.3(e)).
Consistent with the interim final rule, the SRM final rule requires that non-ambulatory disabled cattle be condemned on ante-mortem inspection because these animals present a sufficient risk of introducing the BSE agent into the human food supply to render their carcasses “unfit for human food” under section 1(m)(3) of the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601(m)(3)) (72 FR 38700). In the preamble to the SRM final rule, FSIS also acknowledged that requiring the condemnation of non-ambulatory disabled cattle that are offered for slaughter may be necessary to ensure that these animals are humanely handled in connection with slaughter as required under the Humane Methods of Slaughter Act (HMSA) of 1978 (7 U.S.C. 1901
In addition to affirming the requirement that non-ambulatory disabled cattle be condemned on ante-mortem inspection, the SRM final rule amended 9 CFR 309.3(e) to provide that FSIS personnel would determine, on a case-by-case basis, the disposition of cattle that become non-ambulatory disabled after they have passed ante-mortem inspection. The Agency made this revision to codify existing practices formerly described in FSIS Notice 5-04 (“Interim Guidance for Non-Ambulatory Disabled Cattle and Age Determination”) and FSIS Notice 05-06 (“Re-examination of Bovine that become Non-Ambulatory After Passing Ante-mortem Inspection”). These notices instructed FSIS public health veterinarians (PHVs) on the actions they were to take when cattle became non-ambulatory disabled after passing ante-mortem inspection.
Under the current regulations, slaughter establishments are expected to notify inspection personnel when cattle that have passed ante-mortem
All provisions in the SRM final rule, including the prohibition on the slaughter of non-ambulatory disabled cattle, apply to official establishments and custom slaughter operations. As discussed in the preamble to the SRM final rule, although custom slaughter operations are exempt from inspection under section 23(a) of the Federal Meat Inspection Act, the meat and meat food products prepared in custom operations are still subject to the FMIA's adulteration and misbranding provisions (21 U.S.C. 623). Thus, custom operators are prohibited from slaughtering and preparing products from non-ambulatory disabled cattle because the carcasses of these animals are considered unfit for human food (72 FR 38704). In the preamble to the SRM final rule, FSIS noted that FSIS inspectors are not available to determine the disposition of cattle that become non-ambulatory disabled in a custom operation. Therefore, as explained in the SRM final rule preamble, if an animal becomes non-ambulatory disabled from an acute injury after its owner has delivered it to a custom operation for slaughter, the custom operator may slaughter the animal for human food if both the operator and the owner of the animal did not observe any other clinical abnormalities that could be consistent with BSE before the animal sustained the acute injury (72 FR 38704).
The SRM final rule allowed a case-by-case reinspection of cattle to address the rare situations where an animal that is deemed by FSIS as fit for human food at ante-mortem inspection subsequently suffers an acute injury. However, a recent significant event highlighted a vulnerability in the inspection system that needs to be addressed. This event indicated that the case-by-case disposition provision in 9 CFR 309.3(e) does not always ensure the proper disposition of cattle that become non-ambulatory disabled after ante-mortem inspection. Establishments may present weakened cattle for slaughter in the hope that such cattle will remain ambulatory long enough to enter the slaughter operation.
Although establishments must notify FSIS inspection program personnel when cattle become acutely injured after ante-mortem inspection so that FSIS inspection personnel can determine the disposition of the cattle, FSIS became aware of an incident in which inspection personnel were not notified. On January 30, 2008, FSIS received allegations regarding the inhumane handling of non-ambulatory disabled cattle at the Hallmark/Westland Meat Packing Company. An investigation into the allegations found evidence that the establishment did not consistently notify FSIS inspection personnel when cattle became non-ambulatory disabled after initial ante-mortem inspection. Instead of notifying FSIS inspectors, the establishment attempted to force animals that had gone down after passing ante-mortem inspection to rise by using electric prods and water sprays. Under the FMIA (21 U.S.C. 603(b)), any cattle that are slaughtered must be handled in accordance with the Humane Methods of Slaughter Act (HMSA) (7 U.S.C. 1901
Also, following the Hallmark/Westland incident, on March 10, 2008, FSIS issued new instructions to inspection personnel concerning humane handling activities. FSIS Notice 16-08 instructs inspection personnel to vary from day-to-day the times during their tour of duty that they verify that animals are being handled and treated humanely. The notice also instructs inspection personnel to encourage establishments to develop and implement a systematic approach for the humane handling of animals.
On April 22, 2008, FSIS received a petition submitted jointly by three meat and dairy industry associations requesting that the Agency amend its regulations to prohibit the case-by-case determination of the status of non-ambulatory disabled cattle that have passed ante-mortem inspection. According to the petition, consumer confidence in the U.S. beef supply has been damaged because the re-inspection of cattle did not occur as required under the current regulations. The petition asserts that the requested amendment is needed to bolster public confidence in the U.S. beef supply. FSIS has also received letters supporting this change to the regulations from an animal welfare organization and members of Congress.
However, FSIS also received five letters, from State meat processors associations and a national meat processors association, opposing the petition. These letters request that the current regulations remain unchanged. The letters state that it is important to have the option for re-inspection of cattle that become non-ambulatory disabled after they have passed ante-mortem inspection to address situations where accidents may occur or animals may become exhausted during the stress of travel.
FSIS is proposing to remove the provision in 9 CFR 309.3(e) that allows FSIS inspection personnel to determine the disposition of cattle that become non-ambulatory disabled after they have passed ante-mortem inspection on a case-by-case basis. If FSIS finalizes this proposed rule, cattle that become non-ambulatory disabled from an acute injury after ante-mortem inspection will no longer be eligible to proceed to slaughter as “U.S. Suspects.” Instead, FSIS inspectors will tag these cattle as “U.S. condemned” and prohibit these animals from proceeding to slaughter.
If this proposal is adopted as a final rule, all non-ambulatory disabled cattle would be considered unfit for human food and thus adulterated. Moreover, cattle that become non-ambulatory disabled cattle after ante-mortem inspection will always be condemned. The case-by-case disposition determinations of non-ambulatory disabled cattle by inspection program personnel will be discontinued, increasing the time inspection program personnel can focus on other inspection activities. Because all non-ambulatory disabled cattle would be considered adulterated, FSIS would expect custom
In addition to proposing that all non-ambulatory disabled cattle be condemned, FSIS is also proposing to require in 9 CFR 309.3(e) that establishments notify FSIS inspection personnel when cattle become non-ambulatory disabled after passing ante-mortem inspection. The Agency is doing so to make clear that establishments have an affirmative obligation to make FSIS personnel aware when an animal goes down. This regulatory requirement should preclude establishments from attempting to force such animals to rise.
FSIS is proposing this rule under 21 U.S.C. 621, which gives FSIS the authority to adopt regulations for the efficient administration of the FMIA. The amendment in this proposal would better ensure effective implementation of ante-mortem inspection pursuant to 21 U.S.C. 603(a) and of humane handling requirements established pursuant to 21 U.S.C. 603(b).
This proposed rule has been reviewed under the Executive Order 12988, Civil Justice Reform. Under this proposed rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no retroactive proceedings will be required before parties may file suit in court challenging this rule.
This rule was reviewed by the Office of Management and Budget under Executive Order 12866 and was determined to be significant.
This proposed rule will require that all cattle that are non-ambulatory disabled at any time prior to slaughter, including those that become non-ambulatory disabled after passing ante-mortem inspection, be condemned and properly disposed of. This rule is necessary to better ensure effective implementation of ante-mortem inspection pursuant to 21 U.S.C. 603(a) and of humane handling requirements established pursuant to 21 U.S.C. 603(b).
Under this proposed rule, the beef industry will lose the market value of the non-ambulatory disabled cattle that the establishments could have slaughtered and harvested for human food after the cattle passed the re-inspection. Based on the Agency's 2007 survey data, out of the approximately 33.7 million cattle slaughtered in 2007,
Although the above discussion focuses on costs to the beef industry, the industry eventually will pass at least some part of the additional cost to consumers through higher prices or reduced production. This is an indirect cost to the consumers and is difficult to estimate ex-ante without data.
This rule is expected to have an insignificant impact on U.S. trading partners, because the number of animals affected is extremely small, particularly given the existing ban on non-ambulatory disabled cattle and the overall quantity of animals involved in the U.S. beef trade.
If adopted as a final rule, the proposed amendment would ensure effective implementation of ante-mortem inspection. This action will provide additional efficiencies to food safety inspection by removing the step that requires the inspection workforce to determine whether cattle can be tagged as “U.S. Suspect” if those cattle become non-ambulatory disabled after passing ante-mortem inspection. Countries exporting beef to the U.S. would realize the same efficiencies in their inspection programs dedicated to the inspection of beef destined for the U.S. The Agency believes that the total benefits (quantifiable and unquantifiable) of this proposed rule exceed the cost.
The FSIS Administrator has made an initial determination that this proposed rule will not have a significant impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). In the Final Regulatory Impact Analysis of SRM final rule
The estimated total annual cost of this proposed rule of $930,000 to $1,370,000 is for the entire beef industry. The Agency estimates that small and very small establishments slaughter about 95% to 98% of the 1,300 downers estimated from the survey. Therefore, the estimated annual cost to the small and very small establishments would be about $883,500 to $1,342,600, which is insignificant compared to the value of their annual production of about $8.4 billion.
This proposed rule has been reviewed under the Paperwork Reduction Act and imposes no new paperwork or record-keeping requirements.
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of
Ante-Mortem Inspection.
For the reasons discussed in the preamble, FSIS is proposing to amend 9 CFR Chapter III as follows:
1. The authority citation for part 309 continues to read as follows:
21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
2. Section 309.3(e) is revised to read as follows:
(e) Establishment personnel must notify FSIS inspection personnel when cattle become non-ambulatory disabled after passing ante-mortem inspection. Non-ambulatory disabled cattle that are offered for slaughter must be condemned and disposed of in accordance with § 309.13.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) for all Dowty Rotol propellers. That AD currently requires, for all Dowty Rotol propellers, visual inspections for seizure and for cadmium plating of the blade pitch change operating links and eyebolt fork assemblies. That AD also requires replacement or heat-treatment of the blade pitch change operating links and eyebolt fork assemblies, if necessary. This proposed AD would require the same actions, but only for certain model Dowty Propellers. This proposed AD results from the FAA determining that AD 70-16-02 does not apply to all propellers, since current Dowty Rotol propellers are differently designed. We are proposing this AD supersedure to specify the affected propeller models, and to prevent seizure or embrittlement and cracking of the blade pitch change operating links and eyebolt fork assemblies, which could result in reduced controllability of the airplane.
We must receive any comments on this proposed AD by October 28, 2008.
Use one of the following addresses to comment on this proposed AD.
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Contact Dowty Propellers, Anson Business Park, Cheltenham Road East, Gloucester GL 29QN, UK;
Terry Fahr, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
The FAA proposes to amend 14 CFR part 39 by superseding AD 70-16-02, Amendment 39-1503 (37 FR 16535, August 16, 1972). That AD requires, for all Dowty Rotol propellers, visual inspections for seizure and for cadmium plating of the blade pitch change operating links and eyebolt fork assemblies. That AD also requires replacement or heat-treatment of the blade pitch change operating links and eyebolt fork assemblies, if necessary. That AD was the result of reports of incorrect and unauthorized cadmium plating of propeller pitch change operating links, link pins, and eyebolt fork assemblies on their case-hardened surfaces. Those conditions, if not corrected, could result in seizure or embrittlement and cracking of blade pitch change operating links and eyebolt fork assemblies, which could result in reduced controllability of the airplane.
Since AD 70-16-02 was issued, we determined that at the time of issuance, the applicability to all Dowty Rotol propellers was accurate. However, other Dowty propeller models which are differently designed have been type certificated since that AD was issued, and are not affected by that AD. This proposed AD would clarify the propeller model applicability by only affecting Dowty Propellers R175/4-30; R184/4-30-4; R193/4-30-4; R.209/4-40-4.5; R212/4-30-4; R.245/4-40-4.5; R251/4-30-4; R257/4-30-4; and R.259/4-40-4.5 model propellers. AD 70-16-02 has a compliance time of within the next 100 hours time-in-service. This proposed AD would require a compliance time of before further flight, as the affected propellers should have already complied with AD 70-16-02.
We have reviewed and approved the technical contents of Dowty Rotol Service Bulletin (SB) No. 61-754, dated June 12, 1970. That SB describes procedures for heat-treating the blade pitch change operating links and eyebolt fork assemblies.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For that reason, we are proposing this AD, which would require visual inspections before further flight of the blade pitch change operating links and eyebolt fork assemblies and replacement or heat-treatment of them, if necessary, for Dowty Propellers R175/4-30; R184/4-30-4; R193/4-30-4; R.209/4-40-4.5; R212/4-30-4; R.245/4-40-4.5; R251/4-30-4; R257/4-30-4; and R.259/4-40-4.5 model propellers.
We anticipate that this proposed AD would affect no propellers installed on airplanes of U.S. registry, as the affected propellers should already be in compliance with AD 70-16-02 since it became effective, on August 21, 1972. Based on this information, we estimate the total cost of the proposed AD to U.S. operators to be $0.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-1503 (37 FR 16535, August 16, 1972) and by adding a new airworthiness directive to read as follows:
(a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by October 28, 2008.
(b) This AD supersedes AD 70-16-02, Amendment 39-1503.
(c) This AD applies to Dowty Propellers R175/4-30; R184/4-30-4; R193/4-30-4; R.209/4-40-4.5; R212/4-30-4; R.245/4-40-4.5; R251/4-30-4; R257/4-30-4; and R.259/4-40-4.5 model propellers. These propellers are installed on, but not limited to, Fairchild F-27, Fairchild-Hiller FH-227, Grumman G-159, Nihon YS-11, Convair 240, 340, 440, 600, and BAe HS 748 Series 2 airplanes.
(d) This AD results from the FAA determining that AD 70-16-02 does not apply to all propellers, since current Dowty Rotol propellers are differently designed. We are issuing this AD supersedure to specify the affected propeller models, and to prevent seizure or embrittlement and cracking of the blade pitch change operating links and eyebolt fork assemblies, which could result in reduced controllability of the airplane.
(e) You are responsible for having the actions required by this AD performed before further flight after the effective date of this AD, unless the actions have already been done.
(f) Inspect the blade pitch change operating link and eyebolt fork assembly for:
(1) Seizure (the link and eyebolt are seized if the torque required to move the link is 300 inch pounds or more); and
(2) Cadmium plating on the mating surfaces between the operating link and eyebolt fork and the holes through the eyebolt fork and the operating link.
(g) If the link and eyebolt fork are not seized and have not been cadmium plated, they may remain in service.
(h) If the link and eyebolt fork are not seized but cadmium plating is found in the prohibited areas, remove the plating by means of wet or dry silicon carbide paper, fine or medium grade, and conduct a magnetic crack test. If no cracks are found, the assembly may remain in service until the next propeller overhaul for air carrier airplanes and airplanes under a continuous maintenance program or for 3,300 hours time-in-service after the effective date of this AD for all other airplanes. At the next propeller overhaul for air carrier airplanes and airplanes under a continuous maintenance program, or within 3,300 hours time-in-service after the effective date of this AD for all other airplanes, heat treat the links and eyebolt forks found to have been cadmium plated, to remove embrittlement. Use Dowty Rotol Service Bulletin No. 61-754, dated June 12, 1970, to perform the heat treatment.
(i) If the link and eyebolt fork are seized, remove the link and eyebolt fork from service and replace them with an assembly having a part number approved for that model propeller that has not been cadmium plated in the prohibited areas.
(j) If the link or eyebolt fork are found to be cracked during the inspection in paragraph (h) of this AD, remove the cracked part from service and replace it with a part having a part number approved for that model propeller that has not been cadmium plated.
(k) The inspection required by paragraph (f) of this AD need not be performed and the propeller may remain in service if:
(1) The operator can show that no cadmium plating exists in the prohibited areas of that propeller; or
(2) It is a new propeller that has never been overhauled.
(l) The Manager, Boston Aircraft Certification Office, FAA, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(m) Contact Terry Fahr, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the McDonnell Douglas airplanes listed above. This proposed AD would require modifying the fuel boost pumps for the center wing, and forward or aft auxiliary fuel tanks. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to prevent possible sources of ignition in a fuel tank caused by an electrical fault or uncommanded dry operation of the fuel boost pumps. An ignition source in the fuel tank could result in a fire or an explosion and consequent loss of the airplane.
We must receive comments on this proposed AD by October 14, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846,
You may examine the AD docket on the Internet at
Serj Harutunian, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5254; fax (562) 627-5210.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design
Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
Boeing has determined a need to protect the fuel boost pump stator lead wires from contacting the pump rotor/shaft assembly. Lead wire contact and the resulting chafing may result in an ignition source (energized rotor assembly) being produced in the fuel boost pump inlet that could propagate into the fuel tank when the fuel boost pump inlet is not fully covered by fuel. Replacement of the fuel boost pumps will minimize the risk of potential ignition sources that may occur within the fuel tanks at critical fuel boost pump locations in the center wing, and forward or aft auxiliary fuel tanks. An ignition source in the fuel tank could result in a fire or an explosion and consequent loss of the airplane.
We have reviewed Boeing Service Bulletins DC9-28-212 (for Model DC-9-30, DC-9-40, and DC-9-50 series airplanes, and Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes) and MD90-28-010, (for MD-90-30 airplanes), both dated February 22, 2008. The service bulletins describe procedures for modifying the fuel boost pumps for the center wing, and forward or aft auxiliary fuel tanks. The modification includes changing or replacing the boost pumps, as applicable. The change includes incorporating a stator lead wire position retention feature.
The Boeing service bulletins recommend concurrent accomplishment of the modification in Argo-Tech Service Bulletin 398000-28-2, dated November 8, 2007. The Argo-Tech Service Bulletin describes procedures for modifying the fuel boost pumps.
We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs. This proposed AD would require accomplishing the actions specified in the Boeing service information described previously.
We estimate that this proposed AD would affect 804 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with the modification specified in this proposed AD. The fleet cost is estimated to be between $1,246,200 and $13,087,512.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by October 14, 2008.
(b) None.
(c) This AD applies to McDonnell Douglas Model DC-9-31, DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-32F (C-9A, C-9B), DC-9-33F, DC-9-34, DC-9-34F, DC-9-41, DC-9-51, DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87), MD-88, and MD-90-30 airplanes; certificated in any category; as identified in Boeing Service Bulletins DC9-28-212 and MD90-28-010, both dated February 22, 2008.
(d) This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent possible sources of ignition in a fuel tank caused by electrical fault or uncommanded dry operation of the fuel boost pumps. An ignition source in the fuel tank could result in a fire or an explosion and consequent loss of the airplane.
(e) Comply with this AD within the compliance times specified, unless already done.
(f) Within 60 months after the effective date of this AD: Modify the fuel boost pumps for the center wing, and forward or aft auxiliary fuel tanks, as applicable, by doing all the applicable actions specified in the Accomplishment Instructions of Boeing Service Bulletin DC9-28-212 or MD90-28-010, both dated February 22, 2008, as applicable.
(g) Prior to or concurrently with accomplishing the modification required by paragraph (f) of this AD: Do the modification specified in Argo-Tech Service Bulletin 398000-28-2, dated November 8, 2007.
(h)(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA,
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) that applies to all Boeing Model 777 airplanes. The existing AD requires, for the drive mechanism of the horizontal stabilizer, repetitive detailed inspections for discrepancies, repetitive lubrication of the ballnut and ballscrew, repetitive measurements of the freeplay between the ballnut and the ballscrew, and corrective action if necessary. This proposed AD would revise the compliance times of the existing AD. This proposed AD results from a report of extensive corrosion of a ballscrew in the drive mechanism of the horizontal stabilizer on a Boeing Model 757 airplane, which is similar in design to the ballscrew on Model 777 airplanes. We are proposing this AD to prevent an undetected failure of the primary load path for the ballscrew in the drive mechanism of the horizontal stabilizer and subsequent wear and failure of the secondary load path, which could lead to loss of control of the horizontal stabilizer and consequent loss of control of the airplane.
We must receive comments on this proposed AD by October 14, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You may examine the AD docket on the Internet at
Kelly McGuckin, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6490; fax (425) 917-6590.
We invite you to send any written relevant data, views, or arguments about
We will post all comments we receive, without change, to
On August 14, 2007, we issued AD 2007-17-12, amendment 39-15170 (72 FR 49158, August 28, 2007), for all Boeing Model 777 airplanes. That AD requires, for the drive mechanism of the horizontal stabilizer, repetitive detailed inspections for discrepancies, repetitive lubrication of the ballnut and ballscrew, repetitive measurements of the freeplay between the ballnut and the ballscrew, and corrective action if necessary. That AD resulted from a report of extensive corrosion of a ballscrew in the drive mechanism of the horizontal stabilizer on a Boeing Model 757 airplane, which is similar in design to the ballscrew on Model 777 airplanes. We issued that AD to prevent an undetected failure of the primary load path for the ballscrew in the drive mechanism of the horizontal stabilizer and subsequent wear and failure of the secondary load path, which could lead to loss of control of the horizontal stabilizer and consequent loss of control of the airplane.
Since we issued AD 2007-17-12, Boeing submitted a letter asking that we clarify the compliance times specified in that AD. In this letter Boeing states that the wording in the existing AD has resulted in some confusion and may not adequately account for airplanes that have replacement actuators that are new or have been overhauled. Boeing proposes that the AD use the following three different categories for the horizontal stabilizer trim actuator (HSTA):
• HSTA not replaced;
• HSTA replaced with a new or overhauled HSTA; and
• HSTA replaced with a HSTA that was not new or overhauled.
Boeing further states that the existing AD does not account for airplanes receiving a certificate of airworthiness after the effective date of the AD. Boeing suggests that the following changes be made to the existing AD to address the three different categories and revise the compliance times.
Boeing proposes that we make changes to paragraph (g) of AD 2007-17-12 to include subparagraphs (g)(1), (g)(2), and (g)(3) as follows:
(g) For airplanes that have received a certificate of airworthiness prior to the effective date of this AD: Within 180 days or 3,500 [flight hours] after the effective date of this AD, whichever occurs first, perform a maintenance records check or inspect to determine the status of the horizontal stabilizer trim actuator as follows:
(1) Original horizontal stabilizer trim actuator still installed;
(2) Original horizontal stabilizer trim actuator replaced with a new or overhauled horizontal stabilizer trim actuator;
(3) Original horizontal stabilizer trim actuator replaced with a serviceable horizontal stabilizer trim actuator that was not new or overhauled, and has not received a detailed inspection and freeplay measurement since the replacement conducted per the Service Bulletin identified in paragraph (f) of this AD.
Boeing further suggests that we change paragraphs (h)(1), (h)(2), (i)(1), (i)(2), (j)(1), and (j)(2) of AD 2007-17-12, as follows:
(1) For airplanes identified in sub-paragraph (g)(1) of this AD and those receiving a certificate of airworthiness on or after the effective date of this AD: Before the accumulation of 15,000 total flight hours or within 18 months after the effective date of this AD, whichever occurs later.
(2) For airplanes identified in sub-paragraph (g)(2) of this AD: Before the accumulation of 15,000 flight hours since replacement of the horizontal stabilizer trim actuator, or within 18 months after the effective date of this AD, whichever occurs later.
(3) For airplanes identified in sub-paragraph (g)(3) of this AD: Before the accumulation of 3,500 flight hours or within 12 months after the effective date of this AD, whichever occurs later.
We agree with Boeing that the compliance times need to be clarified. Therefore, we are proposing this AD, which would supersede AD 2007-17-12, and retain the actions specified in the existing AD but with revisions to paragraphs (g), (h), (i), and (j) to reflect Boeing's suggestions and to clarify the compliance times. This proposed AD also contains new paragraphs (h)(4), (i)(4), and (j)(4) to address airplanes that received an original airworthiness certificate or original export certificate of airworthiness on or after the effective date of this AD.
We have also determined that an additional category is needed to account for airplanes on which the HSTA has been replaced with an actuator that is not new or not overhauled but that has received a detailed inspection and freeplay measurement as described in paragraphs (h) and (i) of this proposed AD since that replacement. Accordingly, we have added paragraph (g)(4) to this proposed AD.
We have also clarified the wording in paragraph (l) of this proposed AD to specify that the credit is for replacement of the HSTA.
We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2007-17-12, to retain the actions specified in the existing AD but with new initial inspection compliance times.
There are about 596 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 203 airplanes of U.S. registry. The new requirements of this proposed AD add no additional economic burden. The current costs of the existing AD are repeated for the convenience of affected operators, as follows.
The maintenance records check would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the maintenance records check for U.S. operators is $16,240, or $80 per airplane.
The proposed detailed inspection would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the inspection for U.S. operators is $16,240, or $80 per airplane, per inspection cycle.
The proposed freeplay measurement would take about 5 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the freeplay measurement for U.S. operators is $81,200, or $400 per airplane, per measurement cycle.
The proposed required lubrication would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the lubrication for U.S. operators is $16,240, or $80 per airplane, per lubrication cycle.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by removing amendment 39-15170 (72 FR 49158, August 28, 2007) and adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by October 14, 2008.
(b) This AD supersedes AD 2007-17-12.
(c) This AD applies to all Boeing Model 777 airplanes, certificated in any category.
(d) This AD results from a report of extensive corrosion of a ballscrew in the drive mechanism of the horizontal stabilizer on a Boeing Model 757 airplane, which is similar in design to the ballscrew on Model 777 airplanes. We are issuing this AD to prevent an undetected failure of the primary load path for the ballscrew in the drive mechanism of the horizontal stabilizer and subsequent wear and failure of the secondary load path, which could lead to loss of control of the horizontal stabilizer and consequent loss of control of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “service bulletin,” as used in this AD, means Boeing Alert Service Bulletin 777-27A0059, Revision 1, dated August 18, 2005.
The service bulletin refers to the Boeing 777 Aircraft Maintenance Manual (AMM), Subjects 12-21-05, 27-41-13, and 29-11-00, as additional sources of service information for accomplishing the actions required by this AD.
(g) For airplanes that have received an original airworthiness certificate or original export certificate of airworthiness prior to the effective date of this AD: Within 180 days or 3,500 flight hours after the effective date of this AD, whichever occurs first, perform a maintenance records check or inspect to determine the status of the horizontal stabilizer trim actuator (HSTA) as specified in paragraph (g)(1), (g)(2), (g)(3), or (g)(4) of this AD, as applicable:
(1) The original HSTA has been neither replaced nor overhauled;
(2) The original HSTA has been replaced with a new or overhauled HSTA;
(3) The original HSTA has been replaced with a serviceable HSTA that was not new or not overhauled, and which has not received a detailed inspection and freeplay measurement as described in paragraphs (h) and (i) of this AD since that replacement; or
(4) The original HSTA has been replaced with a serviceable HSTA that was not new or not overhauled, and which has received a detailed inspection and freeplay measurement as described in paragraphs (h) and (i) of this AD since that replacement.
(h) Within the compliance time specified in paragraph (h)(1), (h)(2), (h)(3), or (h)(4) of this AD, as applicable: Perform a detailed inspection for discrepancies of the horizontal stabilizer trim actuator ballnut and ballscrew in accordance with Part 1 of the Accomplishment Instructions of the service bulletin. Repeat the detailed inspection thereafter at intervals not to exceed 3,500 flight hours or 12 months, whichever occurs first. If any discrepancy is found during any inspection required by this AD, before further flight, replace the actuator with a new or serviceable actuator, in accordance with the Accomplishment Instructions of the service bulletin.
(1) For airplanes identified in paragraph (g)(1) of this AD: Before the accumulation of 15,000 total flight hours, or within 18 months after the effective date of this AD, whichever occurs later.
(2) For airplanes identified in paragraph (g)(2) or (g)(4) of this AD: Before the accumulation of 15,000 flight hours since the replacement of the HSTA, or within 18 months after the effective date of this AD, whichever occurs later.
(3) For airplanes identified in paragraph (g)(3) of this AD: Before the accumulation of 3,500 flight hours since the replacement of the HSTA, or within 12 months after the effective date of this AD, whichever occurs later.
(4) For airplanes that have received an original airworthiness certificate or original export certificate of airworthiness on or after the effective date of this AD: Before the accumulation of 15,000 total flight hours, or within 18 months after the issuance of the original airworthiness certificate or original export certificate of airworthiness, whichever occurs later.
(i) Within the compliance times specified in paragraphs (i)(1), (i)(2), (i)(3), and (i)(4) of this AD, as applicable: Perform a freeplay measurement of the ballnut and ballscrew in accordance with Part 2 of the Accomplishment Instructions of the service bulletin. Repeat the freeplay measurement thereafter at intervals not to exceed 18,000 flight hours or 60 months, whichever occurs first. If the freeplay is found to exceed the limits specified in the service bulletin during any measurement required by this AD, before further flight, replace the actuator with a new or serviceable actuator in accordance with the Accomplishment Instructions of the service bulletin.
(1) For airplanes identified in paragraph (g)(1) of this AD: Before the accumulation of
(2) For airplanes identified in paragraph (g)(2) or (g)(4) of this AD: Before the accumulation of 15,000 flight hours since the replacement of the HSTA, or within 18 months after the effective date of this AD, whichever occurs later.
(3) For airplanes identified in paragraph (g)(3) of this AD: Before the accumulation of 3,500 flight hours since the replacement of the HSTA, or within 12 months after the effective date of this AD, whichever occurs later.
(4) For airplanes that have received an original airworthiness certificate or original export certificate of airworthiness on or after the effective date of this AD: Before the accumulation of 15,000 total flight hours, or within 18 months after the issuance of the original airworthiness certificate or original export certificate of airworthiness, whichever occurs later.
(j) Within the compliance times specified in paragraphs (j)(1), (j)(2), (j)(3), and (j)(4) of this AD, as applicable: Lubricate the ballnut and ballscrew in accordance with Part 3 of the Accomplishment Instructions of the service bulletin. Repeat the lubrication thereafter at intervals not to exceed 2,000 flight hours or 12 months, whichever occurs first.
(1) For airplanes identified in paragraph (g)(1) of this AD: Before the accumulation of 15,000 total flight hours, or within 18 months after the effective date of this AD, whichever occurs later.
(2) For airplanes identified in paragraph (g)(2) or (g)(4) of this AD: Before the accumulation of 15,000 flight hours since the replacement of the HSTA, or within 18 months after the effective date of this AD, whichever occurs later.
(3) For airplanes identified in paragraph (g)(3) of this AD: Before the accumulation of 3,500 flight hours since the replacement of the HSTA, or within 12 months after the effective date of this AD, whichever occurs later.
(4) For airplanes that have received an original airworthiness certificate or original export certificate of airworthiness on or after the effective date of this AD: Before the accumulation of 15,000 total flight hours, or within 18 months after the issuance of the original airworthiness certificate or original export certificate of airworthiness, whichever occurs later.
(k) Actions performed prior to the effective date of this AD, in accordance with Boeing Alert Service Bulletin 777-27A0059, dated September 18, 2003, are considered acceptable for compliance with the corresponding actions specified in paragraphs (h), (i), and (j) of this AD.
(l) Any HSTA overhauled within the compliance times specified in paragraphs (h), (i), and (j) of this AD or before the effective date of this AD—as part of a “hard-time” replacement program that includes removal of the HSTA from the airplane and overhaul of the stabilizer ballscrew in accordance with original equipment manufacturer component maintenance manual instructions—meets the intent of one detailed inspection, one freeplay inspection, and one lubrication of the HSTA. Therefore, any such HSTA is considered acceptable for compliance with the initial accomplishment of the actions specified in paragraphs (h), (i), and (j) of this AD, and repetitions of those actions may be determined from the performance date of that overhaul.
(m) As of the effective date of this AD, no person may install, on any airplane, a horizontal stabilizer trim actuator that is not new or overhauled, unless a detailed inspection, freeplay measurement, and lubrication of that actuator are performed in accordance with paragraphs (h), (i), and (j) of this AD, as applicable.
(n)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, ATTN: Kelly McGuckin, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 917-6490; fax (425) 917-6590; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The original NPRM would have required doing repetitive internal eddy current and detailed inspections to detect cracked stringer tie clips; measuring the fastener spacing and the edge margin if applicable, and doing applicable corrective and related investigative actions. As a temporary alternative to doing the actions described previously, the original NPRM would have required repetitive inspections of the skin and lap joints for cracks and evidence of overload resulting from cracked stringer tie clips, and applicable corrective actions if necessary. The original NPRM resulted from a report of several cracked stringer tie clips. This action revises the original NPRM by including repetitive external eddy current sliding probe inspections of the lap joints for cracks and evidence of overload resulting from cracked stringer tie clips. We are proposing this supplemental NPRM to detect and correct multiple adjacent cracked stringer tie clips and damaged skin and frames, which could lead to the skin and frame structure developing cracks and consequent decompression of the airplane.
We must receive comments on this supplemental NPRM by September 23, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You may examine the AD docket on the Internet at
Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6447; fax (425) 917-6590.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued a notice of proposed rulemaking (NPRM) (the “original NPRM”) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That original NPRM was published in the
We gave the public the opportunity to participate in developing this AD. We considered the comments received from the four commenters.
US Airways requests that, for certain airplane configurations, the grace period for accomplishing the initial inspections specified in paragraph (g) of the original NPRM (Inspection A) be extended from 2 years to 4 years. KLM requests that the grace period of Inspection A be extended to 8 years, and that the intervals for accomplishing the temporary alternative inspection specified in paragraph (h) of the original NPRM (Inspection B) be reduced.
US Airways states that it has been successfully inspecting the same area for corrosion and other damage per the Corrosion Prevention and Control Program (CPCP), as required by AD 90-25-01, amendment 39-6789 (55 FR 49263, November 27, 1990). US Airways states that the compliance time should be extended for operators accomplishing the CPCP. US Airways and KLM state extending the compliance time for accomplishing Inspection A would allow operators to better schedule that inspection, and thus would limit the economic impact. US Airways also states that temporary alternative inspections specified in paragraph (h) of the original NPRM (Inspection B) are not as desirable as Inspection A. US Airways believes Inspection B would increase the risk of damage to airplanes due to operators' need to use various lift equipment to reach the inspection area.
We do not agree with the commenters' request to extend the compliance time specified in paragraph (g) of the supplemental NPRM (Inspection A) or to reduce the compliance time specified in paragraph (h) of the supplemental NPRM (Inspection B). We have determined that the visual inspections required by AD 90-25-01 do not detect multiple adjacent cracks at stringer tie clips, which is the identified unsafe condition of this supplemental NPRM. The CPCP inspections cited do not focus on the areas of affected stringer tie clips. In developing an appropriate compliance time for this supplemental NPRM, we considered not only the degree of urgency associated with addressing the identified unsafe condition, but the practical aspect of incorporating the proposed inspections into affected operators' maintenance schedules in a timely manner. Further, deferral of Inspection A for multiple clip failures does not provide an acceptable level of safety. In light of these items, we have determined that the applicable compliance times identified in paragraphs (g) and (h) of the supplemental NPRM are appropriate. However, paragraph (o) of the supplemental NPRM provides affected operators the opportunity to apply for an adjustment of the compliance time if the operator also presents data that justify the adjustment.
The Air Transport Association (ATA), on behalf of one of its members, United Airlines, and Boeing request that paragraph (h) of the NPRM be clarified as to which affected airplanes the temporary alternative inspections specified in paragraph (h) of the original NPRM (Inspection B) may be done on. The commenters state that a note in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1268, dated August 25, 2006 (referred to as the appropriate source of service information for doing the proposed actions), limits Inspection B to airplanes having stringer tie clips replaced in accordance with Boeing Service Bulletin 737-53-1085, Revision 1, dated May 10, 1990. The commenters note that the AD does not have such a limitation.
We agree with the commenters that clarification is necessary. Paragraph (h) of the supplemental NPRM specifies to do all “applicable” actions in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1268. As noted by the commenters, a note in the Accomplishment Instructions states, “The Option B Inspection is not allowed on airplanes that have not accomplished terminating action of replacing the stringer tie clips as given in Service Bulletin 737-53-1085.” However, the note does not explain that Boeing Service Bulletin 737-53-1085 affects only airplanes having line numbers 1 through 1000 inclusive. Without such an explanation, operators could misinterpret that paragraph (h) of the supplemental NPRM may be done on airplanes having line numbers 1001 and subsequent, which are also subject to the proposed actions of this supplemental NPRM. Therefore, we have added Note 3 to this supplemental NPRM to clarify this point.
Boeing also requests that the first sentence of paragraph (h) of the NPRM be revised to include eddy current inspections of the lap joints. Boeing states that, for Inspection B, Boeing Special Attention Service Bulletin 737-53-1268 specifies eddy current inspections of the lap joints.
We agree. It was our intent that the proposed inspections align with those specified in Boeing Special Attention Service Bulletin 737-53-1268. Therefore, we have revised paragraph (h) of the supplemental NPRM accordingly.
Boeing requests that, for clarification purposes, the unsafe condition throughout the original NPRM be revised from “* * * multiple cracked stringer tie clips * * *.” to “* * * multiple adjacent cracked stringer tie clips * * *.” Boeing states that the safety concern is when there are multiple “adjacent” stringer tie clips (three or more) that are cracked.
We agree and have revised the supplemental NPRM accordingly.
Boeing requests several editorial changes to the Relevant Service Information section of the original NPRM for clarification purposes.
We partially agree. We acknowledge that Boeing's suggested changes to that section would further clarify the information specified in the service bulletin. However, the Relevant Service Information section of the original NRPM does not reappear in the supplemental NPRM. Therefore, we have made no change to this supplemental NPRM in this regard.
Boeing requests that the work hours for Inspection A in the Costs of Compliance section of the original NPRM be revised from between 40 and 103 to between 253 and 307. Boeing states that Inspection A requires internal access, which requires many more hours than that shown in the Estimated Costs table.
We do not agree. The Costs of Compliance section describes only the direct costs of the specific actions proposed by this supplemental NPRM. The estimated work hours represent the time necessary to perform only the actions actually proposed by this supplemental NPRM. We recognize that, in doing the actions required by an AD, operators might incur incidental costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which might vary significantly among operators, are almost impossible to calculate. Therefore, we have made no change to the supplemental NPRM in this regard.
The Summary section and paragraph (d) of the NPRM state, “We are proposing this supplemental NPRM to prevent multiple cracked stringer tie clips and damaged skin and frames * * *” For clarification purposes, we have changed the phrase “to prevent” to “to detect and correct” in that section and paragraph of this supplemental NPRM.
We are proposing this supplemental NPRM because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the original NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
We estimate that this proposed AD would affect 787 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by September 23, 2008.
(b) AD 93-08-04, amendment 39-8551.
(c) This AD applies to Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 737-53-1268, dated August 25, 2006.
(d) This AD results from a report of several cracked stringer tie clips. We are issuing this AD to detect and correct multiple adjacent cracked stringer tie clips and damaged skin and frames, which could lead to the skin and frame structure developing cracks and consequent decompression of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “the service bulletin,” as used in this AD, means the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1268, dated August 25, 2006.
(g) Do repetitive internal eddy current and detailed inspections to detect cracked stringer tie clips; measure the fastener spacing and the edge margin if applicable; and do applicable corrective and related investigative actions. Do all applicable actions at the applicable compliance times and repeat intervals identified in Tables 2 through 8 inclusive of paragraph 1.E., “Compliance,” of the service bulletin; except as provided by paragraphs (i) through (l) of this AD. Do all applicable actions in accordance with the Accomplishment Instructions of the service bulletin, except as provided by paragraph (m) of this AD.
The service bulletin refers to Boeing Service Bulletin 737-53A1177, Revision 6, dated May 31, 2001, as an additional source of service information for doing an internal eddy current inspection of the lap joint for certain airplane configurations.
(h) As a temporary alternative to doing the actions required by paragraph (g) of this AD, do repetitive external general visual inspections of the skin and lap joints and repetitive external eddy current sliding probe inspections of the lap joints for cracks and evidence of overload resulting from cracked stringer tie clips, and applicable corrective actions if necessary. Do all applicable actions at the applicable compliance times and repeat intervals identified in Tables 9 through 12 inclusive of paragraph 1.E., “Compliance,” of the service bulletin, but not to exceed the flight cycles in the “Inspection Period Allowed” column of the tables; except as provided by paragraphs (i) and (l) of this AD. Do all applicable actions in accordance with the Accomplishment Instructions of the service bulletin, except as provided by paragraph (m) of this AD.
The eddy current inspection along the stringer tie clip radius to detect damage and replacement, as applicable, specified in paragraph 3.B.5. of the Accomplishment Instructions of the service bulletin are not required by this AD. The actions are optional and can be done in addition to and at the same time as the actions required by paragraph (g) of this AD.
Inspection B may be used on affected airplanes having line numbers 1 through 1000 inclusive on which the terminating action (i.e., replacement of stringer tie clips) specified in Boeing Service Bulletin 737-53-1085, Revision 1, dated May 10, 1990, has been done; and on affected airplanes having line numbers 1001 and subsequent. The service bulletin contains a similar note.
(i) Where the service bulletin specifies a compliance time after the date of the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD.
(j) For Model 737-100, -200, and -200C series airplanes, on which Boeing Service Bulletin 737-53-1085, Revision 1, dated May 10, 1990, has not been done in accordance with AD 93-08-04: As of the effective date of this AD, do the applicable inspections from station (STA) 559 to STA 887 in accordance with paragraph (g) of this AD, at the applicable compliance times specified in paragraph (b) of AD 93-08-04.
(k) In the first row of Tables 5 and 6 of paragraph 1.E., “Compliance,” of the service bulletin, where the service bulletin specifies a compliance time of before 25,000 total airplane flight cycles, this AD requires a compliance time of before the accumulation of 25,000 total flight cycles, or within 2 years after the effective date of this AD, whichever occurs later.
(l) Where the service bulletin specifies no starting point (e.g., “after the date on the service bulletin”) for a grace period, this AD requires compliance within the specified grace period after the effective date of this AD.
(m) Where the service bulletin specifies to contact Boeing for appropriate action: Before further flight, repair the discrepancy using a method approved in accordance with the procedures specified in paragraph (o) of this AD.
(n) Accomplishment of the internal eddy current and detailed inspections for STA 559 to STA 887 in accordance with paragraph (g) of this AD constitutes compliance with the inspections required by paragraph (a) of AD 93-08-04, as it pertains to Boeing Service Bulletin 737-53-1085, Revision 1, dated May 10, 1990. Accomplishment of the internal eddy current and detailed inspections does not terminate the remaining requirements of AD 93-08-04, as it applies to other service bulletins. Operators are required to continue to inspect and/or modify per the other service bulletins listed in that AD.
(o)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, ATTN: Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6447; fax (425) 917-6590; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier NPRM for the products listed above. This action revises the earlier NPRM by expanding the scope. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
One Part Number (P/N) LM-219-92 Centre Bracket from a P/N LM-219-SA28 Aft Engine Mounting assembly was found to be cracked while installed on the aircraft.
This reduces the effectiveness of the mounting assembly and could eventually cause it to fail.
We must receive comments on this proposed AD by September 23, 2008.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1112; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the
Since that NPRM was issued, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2008-0068, dated April 11, 2008 (referred to after this as “the MCAI”). The MCAI states:
One Part Number (P/N) LM-219-92 Centre Bracket from a P/N LM-219-SA28 Aft Engine Mounting assembly was found to be cracked while installed on the aircraft.
This reduces the effectiveness of the mounting assembly and could eventually cause it to fail.
EASA Airworthiness Directive (AD) was issued to require inspection and rework in order to make the centre bracket less sensitive to external damage that may result in a crack.
This AD, superseding AD 2007-0204, has been issued to introduce an alternative repeatable inspection procedure.
Saab has issued Saab Service Bulletin 2000-71-025, dated June 13, 2007, and Saab Service Bulletin 2000-71-023, Revision 01, dated June 13, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
We have considered the following comments received on the earlier NPRM.
Rolls-Royce Corporation and Saab Aerosystems point out that the unsafe condition is stated incorrectly in the earlier NPRM. The unsafe condition in the earlier NPRM says “a failed mounting assembly, if not corrected, could result in loss of the engine.” The commenters state that the engine mounting assembly is designed as a redundant, multiple point mounting system and, in case of loss of one mount, the loads are transferred through the remaining mounts. Therefore, the mounting system is capable of flight with one mounting assembly completely inoperative, though the failure increases the load applied to the other mounting assemblies. Rolls-Royce states that Saab issued Service Bulletin 2000-71-025 (which we cited in the earlier NPRM) to ensure that the system redundancies are maintained.
We disagree with the request to change the wording of the unsafe condition. In an unsafe condition we define the end-level effect that condition could have on. In this case, a failed mounting assembly could compromise safety as the first in a
Rolls-Royce and Saab also state that the “Differences” section in the NPRM incorrectly implies that Saab Service Bulletin 2000-71-025, and European Aviation Safety Agency (EASA) Airworthiness Directive 2007-0204, dated August 8, 2007, allow continued flight if a cracked center bracket is found. The commenters state that if any crack is found, the mounting assembly should be replaced before further flight.
When we evaluated the original EASA airworthiness directive, we found that it states that corrective actions are to be applied within 4,000 flight hours after its effective date. Because the EASA airworthiness directive does not specify that corrective actions are to be completed before further flight after the visual inspection, this means that operators can wait 4,000 flight hours to do the replacement, even though the inspection was required within 1,000 flight hours after the effective date. The service bulletin states that “If any cracks are found, replace the Aft Engine Mounting Assembly,” but does not give a specific time for doing that replacement. Therefore, we concluded that both documents can be interpreted to allow further flight with cracks. We also note that EASA Airworthiness Directive 2008-0068 maintains this same wording. Therefore, we have not changed the supplemental NPRM in this regard.
Saab states that it is working jointly with Rolls-Royce to develop an alternative means of compliance to the current non-destructive test (NDT) inspection specified in Saab Service Bulletin 2000-71-025. The proposed revision has been submitted to EASA and will most probably result in EASA issuing a revised airworthiness directive.
As stated earlier, EASA has issued Airworthiness Directive 2008-0068, and we have revised this supplemental NPRM accordingly. However, this supplemental NPRM still refers to Saab Service Bulletin 2000-71-025 because the service bulletin has not been revised. This supplemental NPRM also now refers to Saab Service Bulletin 2000-71-023, Revision 01 as an acceptable source of service information for doing certain actions. Once new service information is developed, approved, and available, we might consider additional rulemaking. We have not changed the AD in this regard.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 6 products of U.S. registry. We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,840, or $640 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by September 23, 2008.
(b) None.
(c) This AD applies to Saab Model SAAB 2000 airplanes, certificated in any category, serial number 004 through 063.
(d) Air Transport Association (ATA) of America Code 71: Powerplant.
(e) The mandatory continuing airworthiness information (MCAI) states:
One Part Number (P/N) LM-219-92 Centre Bracket from a P/N LM-219-SA28 Aft Engine Mounting assembly was found to be cracked while installed on the aircraft.
This reduces the effectiveness of the mounting assembly and could eventually cause it to fail.
EASA Airworthiness Directive (AD) was issued to require inspection and rework in order to make the centre bracket less sensitive to external damage that may result in a crack.
This AD, superseding AD 2007-0204, has been issued to introduce an alternative repeatable inspection procedure.
(f) Unless already done, do the following actions.
(1) Within 1,000 flight hours after the effective date of this AD, do visual inspections of both the aft engine mounting assemblies to find if the center bracket is correct (no sharp edges) from the manufacturer.
(2) If no sharp edge is found during the inspection required by paragraph (f)(1) of this AD, before further flight, inspect to determine if the aft engine mounting assembly and center bracket are identified with a “-1” and before further flight re-identify the parts that are not identified with a “-1” in accordance with the Accomplishment Instructions of Saab Service Bulletin 2000-71-025, dated June 13, 2007. Following the re-identification, no further action is required by this AD for airplanes on which no sharp edge is found during the inspection required by paragraph (f)(1) of this AD.
(3) If any sharp edge is found during the inspection required by paragraph (f)(1) of this AD, before further flight, do the action in paragraph (f)(3)(i) or (f)(3)(ii) of this AD in accordance with the Accomplishment Instructions of Saab Service Bulletin 2000-71-025, dated June 13, 2007.
(i) Do a general visual inspection for cracking of the center bracket of both of the aft engine mounting assemblies, with the bracket on the wing, and repeat the inspection thereafter at intervals not to exceed 250 flight hours until the action required by paragraph (f)(4) of this AD is accomplished.
(ii) Do general visual and penetrant inspections for cracking of the center bracket of both of the aft engine mounting assemblies, with the bracket off the wing.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(4) At the applicable time in paragraph (f)(4)(i) or (f)(4)(ii) of this AD, do the applicable actions in those paragraphs in accordance with the Accomplishment Instructions of Saab Service Bulletin 2000-71-025, dated June 13, 2007. Doing the applicable action terminates the repetitive inspection requirements of paragraph (f)(3)(i) of this AD.
(i) If no cracking is found during any inspection required by paragraph (f)(3) of this AD: Within 4,000 flight hours after the effective date of this AD, rework the center bracket, and re-identify the aft engine mounting assembly and center bracket.
(ii) If any cracking is found during any inspection required by paragraph (f)(3) of this AD, before further flight, replace the aft engine mounting assembly with an assembly and bracket identified with a “-1” part number.
(5) Actions done before the effective date of this AD in accordance with Saab Service Bulletin 2000-71-023, Revision 01, dated June 13, 2007, are acceptable for compliance with the corresponding requirements of paragraph (f)(3) of this AD.
This AD differs from the MCAI and/or service information as follows:
(1) Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, paragraph (f)(4) of this AD requires that you replace a cracked aft engine mounting assembly before further flight.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency (EASA) Airworthiness Directive 2008-0068, dated April 11, 2008, and Saab Service Bulletin 2000-71-025, dated June 13, 2007, for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
The FAA is revising an earlier NPRM for an airworthiness directive (AD) that applies to all McDonnell Douglas Model DC-8 airplanes. The original NPRM would have superseded an existing AD that currently requires, among other things, revision of an existing program of structural inspections. The original NPRM proposed to require implementation of a revised program of structural inspections of baseline structure to detect and correct fatigue cracking in order to ensure the continued airworthiness of these airplanes as they approach the manufacturer's original fatigue design life goal. The original NPRM resulted from a significant number of these airplanes approaching or exceeding the design service goal on which the initial type certification approval was predicated. This new action revises the original NPRM by reducing the inspection threshold for certain principal structural elements. We are proposing this supplemental NPRM to detect and correct fatigue cracking that could compromise the structural integrity of these airplanes.
We must receive comments on this supplemental NPRM by September 23, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024).
You may examine the AD docket on the Internet at
Dara Albouyeh, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5222; fax (562) 627-5210.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with a notice of proposed rulemaking (NPRM) for an AD (the “original NPRM”) to supersede AD 93-01-15, amendment 39-8469 (58 FR 5576, January 22, 1993). The original NPRM applied to all McDonnell Douglas Model DC-8 airplanes. The original NPRM was published in the
Since we issued the original NPRM, we have reviewed Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 7, dated March 2008 (hereafter “Revision 7”). The procedures specified in Revision 7 are identical to those specified in Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 6, dated July 2005 (referred to in the NPRM as the appropriate source of service information for accomplishing certain required actions). Revision 7 revises the inspection threshold for certain principal structural elements from landings to flight hours, which reduces the inspection threshold. Therefore, we have revised the supplemental NPRM to refer to Revision 7 as the appropriate source of service information for accomplishing certain proposed actions.
The change discussed above expands the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.
There are about 194 airplanes of the affected design in the worldwide fleet. The following table provides the
The number of inspection work hours, as indicated above, is presented as if the accomplishment of the actions in this proposed AD is to be conducted as “stand alone” actions. However, in actual practice, these actions for the most part will be done coincidentally or in combination with normally scheduled airplane inspections and other maintenance program tasks. Therefore, the actual number of necessary additional inspection work hours will be minimal in many instances. Additionally, any costs associated with special airplane scheduling will be minimal.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by removing amendment 39-8469 (58 FR 5576, January 22, 1993) and adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by September 23, 2008.
(b) This AD supersedes AD 93-01-15.
(c) This AD applies to all McDonnell Douglas airplanes identified in Table 1 of this AD, certificated in any category.
(d) This AD results from a significant number of these airplanes approaching or exceeding the design service goal on which the initial type certification approval was predicated. We are issuing this AD to detect and correct fatigue cracking that could compromise the structural integrity of these airplanes.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 6 months after February 26, 1993 (the effective date of AD 93-01-15), incorporate a revision of the FAA-approved maintenance inspection program that provides no less than the required inspection of the Principal Structural Elements (PSEs) defined in Sections 2 and 3 of Volume I of McDonnell Douglas Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” dated March 1991, in accordance with Section 2 of Volume III-91, dated April 1991, of that document. The non-destructive inspection techniques set forth in Sections 2 and 3 of Volume II, dated March 1991, of that SID provide acceptable methods for
(g) Cracked structure detected during the inspections required by paragraph (f) of this AD must be repaired before further flight, in accordance with a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA, Transport Airplane Directorate.
(h) Within 12 months after the effective date of this AD, incorporate a revision of the FAA-approved maintenance inspection program that provides for inspection(s) of the PSEs, in accordance with Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 7, dated March 2008. Incorporation of this revision ends the requirements of paragraphs (f) and (g) of this AD.
(i) For all PSEs listed in Section 2 of Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 7, dated March 2008, perform an NDI for fatigue cracking of each PSE, in accordance with the NDI procedures specified in Section 2 of McDonnell Douglas Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” Volume II, Revision 8, dated January 2005, at the times specified in paragraph (i)(1), (i)(2), or (i)(3) of this AD, as applicable.
(1) For airplanes that have less than three quarters of the fatigue life threshold (
(i) Perform an initial NDI no earlier than one-half of the threshold (
(ii) Repeat the NDI no earlier than
The DC-8 SID and this AD refer to the repetitive inspection interval as ΔNDI/2. However, the headings of the tables in Section 4 of Volume I of the DC-8 SID refer to the repetitive inspection interval of NDI/2. The values listed under NDI/2 in the tables in Section 4 of Volume I of the DC-8 SID are the repetitive inspection intervals, ΔNDI/2.
(2) For airplanes that have reached or exceeded three-quarters of the fatigue life threshold (
(3) For airplanes that have reached or exceeded the fatigue life threshold (N
(j) If any discrepancy (e.g., differences on the airplane from the NDI reference standard, such as PSEs that cannot be inspected as specified in McDonnell Douglas Report No. L26-011, “DC-8 Supplemental Inspection Document (SID),” Volume II, Revision 8, dated January 2005, or do not match rework, repair, or modification descriptions in Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 7, dated March 2008) is detected during any inspection required by paragraph (i) of this AD, do the action specified in paragraph (j)(1) or (j)(2) of this AD, as applicable.
(1) If a discrepancy is detected during any inspection done before
(2) If a discrepancy is detected during any inspection done after N
(k) All negative or positive findings of the inspections done in accordance with paragraph (i) of this AD must be reported to Boeing at the times specified in, and in accordance with, the instructions contained in Section 4 of Boeing Report No. L26-011, “DC-8 All Series Supplemental Inspection Document (SID),” Volume I, Revision 7, dated March 2008. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(l) Any cracked structure of a PSE detected during any inspection required by paragraph (i) of this AD must be repaired before further flight using a method approved in accordance with the procedures specified in paragraph (p) of this AD. Accomplish the actions described in paragraphs (l)(1), (l)(2), and (l)(3) of this AD, at the times specified.
(1) Within 18 months after repair, do a damage tolerance assessment (DTA) that defines the threshold for inspection of the repair and submit the assessment for approval.
(2) Before reaching 75% of the repair threshold as determined in paragraph (l)(1) of this AD, submit the inspection methods and repetitive inspection intervals for the repair for approval.
(3) Before the repair threshold, as determined in paragraph (l)(1) of this AD, incorporate the inspection method and repetitive inspection intervals into the FAA-approved structural maintenance or inspection program for the airplane.
For the purposes of this AD, we anticipate that submissions of the DTA of the repair, if acceptable, should be approved within 6 months after submission.
FAA Order 8110.54, “Instructions for Continued Airworthiness,” dated July 1, 2005, provides additional guidance about the approval of repairs to PSEs.
(m) Before any airplane that has exceeded the fatigue life threshold (N
(1) For airplanes that have been inspected in accordance with this AD: The inspection of each PSE must be done by the new operator in accordance with the previous operator's schedule and inspection method, or the new operator's schedule and inspection method, at whichever time would result in the earlier accomplishment date for that PSE inspection. The compliance time for accomplishing this inspection must be measured from the last inspection done by the previous operator. After each inspection has been done once, each subsequent inspection must be done in accordance with the new operator's schedule and inspection method.
(2) For airplanes that have not been inspected in accordance with this AD: The inspection of each PSE required by this AD must be done either before adding the airplane to the air carrier's operations specification, or in accordance with a schedule and an inspection method approved by the Manager, Los Angeles ACO. After each inspection has been done once, each subsequent inspection must be done in accordance with the new operator's schedule.
(n) McDonnell Douglas Report No. MDC 91K0262, “DC-8 Aging Aircraft Repair Assessment Program Document,” Revision 1, dated October 2000, provides inspection/replacement programs for certain repairs to the fuselage pressure shell. Accomplishing these repairs and inspection/replacement programs before the effective date of this AD is considered acceptable for compliance with the requirements of paragraphs (g) and (l) of this AD for repairs subject to that document.
(o) Actions done before the effective date of this AD in accordance with Boeing Report No. L26-011, “DC-8 All Series Supplemental
(p)(1) The Manager, Los Angeles ACO, FAA, ATTN: Dara Albouyeh, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5222; fax (562) 627-5210; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane and 14 CFR 25.571, Amendment 45, and the approval must specifically refer to this AD.
(4) AMOCs approved previously in accordance with AD 93-01-15 are approved as AMOCs for the corresponding provisions of this AD.
Office of the Assistant Secretary for Policy, Office of the Secretary, Department of Labor.
Notice of proposed rulemaking.
Pursuant to the Secretary of Labor's authority at 5 U.S.C. section 301, the Department of Labor (Department or DOL) is proposing to compile its existing best practices related to risk assessment into a single, easy to reference regulation, and to include two requirements to establish consistent procedures for conducting risk assessments that promote greater public input and awareness of the Department's health rulemakings. DOL proposes to issue an Advanced Notice of Proposed Rulemaking soliciting public information on relevant data when developing risk assessments for health standards regulating occupational exposure to toxic substances and hazardous chemicals, and to electronically post rulemaking documents and underlying studies used in a risk assessment. The proposed regulation implements recommendations of the 1997 Presidential/Congressional Commission on Risk Assessment and Risk Management Report,
Comments must be submitted on or before September 29, 2008.
You may submit comments, identified by RIN, by one of the following methods:
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Copies of the proposed rule are available in alternative formats of large print and electronic file on computer disk, which may be obtained at the above-stated address.
Kathleen Franks, Office of Regulatory and Programmatic Policy, Office of the Assistant Secretary for Policy, U.S. Department of Labor, (202) 693-5959. This is not a toll-free number. Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The Secretary of Labor (Secretary) is charged with ensuring safe and healthful working conditions for every working man and woman in the Nation. To that end, the Secretary has broad authority to promulgate health standards. In Section 6(b)(5) of the Occupational Safety and Health Act of 1970 (OSH Act)
This proposed regulation compiles in one easy-to reference regulation, all of the Department's existing best practices related to risk assessment, and includes two requirements to establish consistent procedures that promote greater public input and awareness of the Department's health rulemakings. The Department is proposing this rulemaking pursuant to the Secretary's authority at 5 U.S.C. section 301 to prescribe regulations related to the performance of the agency's business and the conduct of its employees. Because the Department is not required to seek public comment on its internal procedures under the Administrative Procedure Act (APA),
Federal risk assessment and management policies were thoroughly studied by the Presidential/Congressional Commission on Risk Assessment and Risk Management (Commission on Risk), which was created by the 1990 Clean Air Act Amendments, “to make a full investigation of the policy implications and appropriate uses of risk assessment and risk management in regulatory programs under various Federal laws to prevent cancer and other chronic human health effects which may result from exposure to hazardous substances.”
This proposal is drawn from the agency's historical experience promulgating rules under the OSH Act
The core principles underlying this rulemaking are:
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The underlying principles of this proposed rulemaking are not new, but rather reflect existing agency best practices and broad scientific consensus. This proposed rulemaking will reinforce those existing best practices and by compiling DOL's procedures into a single, easy to reference, policy statement reflects the agency's historical commitment to public accountability.
Currently, the Department does not have comprehensive regulations or internal guidance laying out its scientific and policy defaults with regard to risk assessment and characterization. The Department has, however, developed best practices related to risk assessment. It also follows internal DOL guidelines governing the information quality aspects of risk assessments, and conducts peer review of important scientific information in accordance with OMB's Government-wide Information Quality Bulletin for Peer Review.
Within the Department, risk assessments related to the regulation of occupational exposure to toxic substances and hazardous chemicals are performed primarily by OSHA and the Mine Safety and Health Administration (MSHA). This section provides a summary of the Department's risk assessment paradigm and existing best practices. For the purposes of this rulemaking, “risk assessment” is defined as the overall process of evaluating the risk associated with a health hazard from a toxic substance or hazardous chemical. A “hazard” is an intrinsic property of a substance or event, which has the potential to cause harm. “Risk” is the probability of the occurrence of harm given exposure to the hazard.
DOL's risk assessment paradigm incorporates the following steps:
a. Hazard identification. The hazard identification step examines whether a substance or chemical is a health hazard;
b. Dose-response assessment. The dose response assessment step examines the relationship between exposure to a hazardous substance and an adverse health outcome.
c. Exposure assessment. The exposure assessment step estimates exposure to the hazardous substance in the workplace.
d. Risk characterization. The risk characterization step provides estimates of risk to workers from occupational exposure scenarios of interest. The risk characterization also summarizes the key findings and discusses the limitations of the data, the choice of assumptions, the inherent uncertainties associated with the estimates of risk, limitations of the database, and how these factors impact the risk assessment.
Under the Department's existing current Information Quality Guidelines,
The foundation for every risk assessment is a thorough compilation of relevant studies and information. Currently, the Department's agencies start the process of risk assessment by reviewing applicable scientific information to determine whether a toxic substance or hazardous chemical is a health hazard. Risk assessors gather applicable information directly from the National Institute for Occupational Safety and Health (NIOSH), the Environmental Protection Agency (EPA), other Federal agencies, academic researchers, stakeholders, petitioners, and other experts. Also, relevant studies may be provided to the DOL's agencies as part of a petition for rulemaking. Supplementary searches may be performed using scientific literature databases to obtain a complete profile of the chemical of interest.
An important component of hazard identification is the selection of health endpoints, which are the outcomes that result from exposure to a hazard. Endpoints can be selected for chemicals based on observational studies (epidemiologic studies), industrial hygiene assessments, medical assessments, experimental studies (toxicological studies), surveillance data, and toxicological screening batteries. The hazard identification discussion includes an explanation of the basis for selecting the particular health endpoints and an analysis of the overall reliability of studies relied upon. Given that there are many different designs for studies, simple rules for their evaluation do not exist. However, key factors that affect the reliability of the epidemiological studies include: the power of the study to detect the endpoint, biases that may make the study data not representative of the whole population, and confounders (e.g., age, smoking, or drug use). For animal studies, key considerations include quality of the study design, number of dose groups, number of animals per dose group, range of dose levels employed, route of exposure, and human relevance of health outcomes found in the studies.
The hazard identification phase of a risk assessment is currently published by DOL in the “Health Effects” chapter of the preamble to proposed and final rules. The discussion includes a summary of the database and an opinion as to the confidence with which conclusions can be drawn from this database, any alternative conclusions that are supported by the database, and any significant data gaps.
A dose-response assessment examines the relationship between exposure to the toxin or chemical agent in question and the health effects of concern. Under the Department's current procedures, the quantitative estimation of health risk may involve the use of dose-response mathematical models which extrapolate scientifically observable data in humans or animals to a variety of exposure scenarios. The dose-response assessment ultimately strives to quantitatively estimate health risk in the range of occupational exposures of interest, e.g. the current exposure limit or exposure levels being considered for new or revised limits. The process generally involves: Selection of suitable study data, exposure metrics, and health endpoints; selection and application of appropriate risk models to the data; characterization of the uncertainties and limitations in the assessment; and a discussion of how the results compare to other published dose-response assessments for the same agent under similar exposure conditions.
While many studies may add to the overall weight of evidence, the Department often finds that only select data are suitable for making quantitative estimates of risk. Dose-response assessments must be conducted with complete scientific objectivity and transparency. The criteria and rationale for the selection of studies and health endpoints used in the analysis should be fully explained. The assessment should explore a range of plausible risk models and exposure metrics consistent with scientific understanding about the agent and its mode of action. If physiologically based models are applied to the data, the chosen input parameters should be well supported
The risk assessment should characterize strengths, limitations and uncertainties in the data sets and models employed in the dose-response assessment, as well as important sources of variability in risk from occupational exposures. The assessment should discuss the impact of key assumptions, uncertainties, and factors that interact with the agent of concern. Quantitative uncertainty and sensitivity analyses should be considered if adequate information is available and its use would add value to the risk management decision. Population variability in risk should be characterized when appropriate, given adequate information and analytical approaches. The assessment should address vulnerable and/or susceptible workers populations where there is scientific evidence to support potential differences in risk. The dose-response assessment is currently published by the Department in the “Risk Assessment” chapter of the preamble to proposed and final rules.
In the exposure assessment phase of risk assessment, the Department identifies all industry sectors where employees may be potentially exposed to the substance of interest, and estimates current exposures by industry and job title. Exposure parameters include the level, duration, route, and frequency of exposure. In past rulemakings, OSHA and MSHA have found relatively few peer-reviewed studies from which they could reliably construct exposure profiles for all or most affected industry sectors. Instead, the agencies have typically relied on exposure data generated by enforcement activity, data obtained by the agencies or their contractors during site visits, exposure data submitted to the record by industry or labor organizations, and industry studies conducted by NIOSH. To develop a profile of the population at risk, the Department usually relies on statistics published by the Bureau of Labor Statistics (BLS) or the U.S. Bureau of the Census.
There should be included adequate characterization of relevant information in determining exposure to an agent. Where there are known differences in exposure for different individuals or subpopulations, the Department's agencies characterize this variability. Risk managers are better informed when an understanding of variability and the key contributors to the cause of this variability are presented in the exposure analysis.
Finally, the risk characterization phase of a risk assessment summarizes the findings of the hazard identification, dose-response assessment, and the exposure assessment steps, and ultimately serves as a bridge between the risk assessment and risk management processes. Risk characterization conveys to agency risk managers, stakeholders, and the public, the key findings that risk assessors have derived about the nature and magnitude of the health risks from occupational exposure to a particular toxin or hazardous chemical. It also includes a discussion of the empirical strengths and weaknesses of the risk assessment. With this knowledge, a risk manager is prepared to make policy decisions about how to best manage the particular risk.
The Department's risk characterizations indicate the range of risks posed to workers. Specifically, the occupational exposure profiles and the quantitative estimates of risk are used to estimate the adverse health impacts, e.g., number of lung cancers, associated with current exposure conditions, and to analyze the benefits in terms of health risk avoided, e.g., lung cancers prevented, that are expected to arise from compliance with the proposed occupational standard. In the case of OSHA, the risk characterization also shows how those risks pertain to the legal requirement that the agency determine whether a significant risk exists that can be eliminated or lessened by a change in practices, and the reduction of risk that is necessary to eliminate significant risk.
OSHA and MSHA historically report their “best estimate” of the risk to workers exposed to a health hazard. This is typically an estimate that the agencies refer to as a “maximum likelihood” estimate (MLE) derived from using the statistical method of maximum likelihood estimation to fit a mathematical exposure-response curve to dose-response data. The agencies also typically report statistical upper and lower limits of their estimates of the MLE of risk.
Once a risk assessment is complete, the agencies then turn to reduction of the identified risk through risk management. For the purposes of this rulemaking, “risk management” is defined as policy decision-making that applies the findings of risk assessment within statutory and other legal parameters to reduce, control or mitigate health hazards. The Supreme Court has interpreted the OSH Act to require that the Department find there is a “significant risk” that can be eliminated or lessened by a change in practices before promulgating any health
Risk management integrates risk characterization results with Department policies and directives, and other information to assess policy options and recommend regulatory action. This may include consideration of both positive and negative studies, in light of each study's technical quality. The scientific community continues to develop techniques for weight of evidence evaluations, and DOL risk assessors and managers should make every effort to keep apprised of developments and recommended best practices.
As mentioned previously, the Department currently has internal guidance on information quality that seeks to assure that the best available evidence and most up to date scientific information is used in setting health standards to protect American workers. In the 1996 Amendments to the Safe Drinking Water Act (SDWA Amendments), Congress emphasized that risk analyses under the SDWA should be based upon the best available scientific methodologies, information, data, and weight of the available scientific evidence.
The Department's internal Information Quality Guidelines mandate that:
1. In taking agency actions that are based on the use of science in the analysis of health risks, the agency shall use:
a. The best available peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and
b. Data collected by accepted methods or best available methods (if the reliability of the method and the nature of the decision justify use of the data), including:
i. Exposure data such as that generated by enforcement activity, contained in published literature, and submitted to the rulemaking record; and
ii. Testimony and comment from experts familiar with the underlying scientific information related to the risk analysis and other relevant information in the rulemaking record.
2. In the dissemination of public information about risks, the agency shall ensure that the presentation of information about risk effects is comprehensive, informative, and understandable, within the context of its intended purpose.
3. In a quantitative analysis of health risks made available to the public, the agency shall specify, to the extent practicable:
a. Each population addressed by any estimate of public health effects;
b. The expected risk or central estimate of risk for the specific populations;
c. Each appropriate upper-bound or lower-bound estimate of risk;
d. Each significant uncertainty identified in the assessment of public health effects and studies that would assist in resolving the uncertainty; and
e. Information, data, or studies, peer-reviewed where available, known to the agency that support, are directly relevant to, or fail to support any estimate of risk effects and a discussion that reconciles inconsistencies in the data or information, and explains the rationale used by the agency to rely on the data or information used for the risk analysis.
During the course of rulemaking, OSHA and MSHA consider and address data, expert testimony, and public comments pointing out uncertainties in the risk assessment and conflicting scientific evidence. The agencies present their reasons for accepting certain studies or data, rejecting others, and reconcile apparent discrepancies or conflicts in the available data to the extent possible. The Department strives to obtain the best available evidence in all key assumptions and defaults underlying its risk assessments, but the use of assumptions is invariably necessary if information is lacking. For example, the Department identifies all industry sectors where employees may be potentially exposed to the substance of interest and uses the best available data, combined with reasonable assumptions to fill data gaps, to characterize current exposures by industry and job title, and the frequency, intensity and duration of exposure to workers.
The Department's internal Information Quality Guidelines are consistent with the principles of the OMB/OSTP 2007 Memorandum on Updated Principles for Risk Analysis. The agency also complies with OMB's Government-wide Information Quality Bulletin for Peer Review, which requires the peer review of important scientific information before dissemination or use by qualified, independent specialists or scientists who were not involved in producing the product under review. The Department posts on its Web site a public agenda of peer review plans for all planned and ongoing influential scientific information,
The Department requests public comment on the following proposals:
The Department believes that any health rulemaking should involve the open and vigorous exchange of information and ideas among technical experts in the relevant disciplines, policy makers, and the public. In light of the OSH Act's and Mine Act's mandates that the Secretary set health standards based on the best scientific information available at the time of the agency action, it is particularly important that the Department seek out and receive all relevant data before proposing a health standard. Therefore, the Department is proposing that when developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical, its agencies shall issue an Advance Notice of Proposed Rulemaking (ANPRM) soliciting public input on studies,
Any public comments received in response to the ANPRM shall be reviewed by the agencies, and the strength or weakness of any data received shall be carefully evaluated by agency scientists and experts in the same manner that comments in response to an NPRM are reviewed. The Department expects that the publication of the ANPRM, collection of public comments, and review will occur simultaneously with the ordinary development of the standard in order to ensure that the rulemaking process is not delayed or slowed. For instance, publication of the ANPRM could occur soon after the proposed standard is placed on the regulatory agenda which is the period of time when the agency would typically be gathering information related to the proposed rulemaking, or concurrently with the Small Business Regulatory Enforcement Fairness Act (SBREFA)
Transparency and easy public access to all rulemaking information is a key principle of this rulemaking and also consistent with the existing DOL and OMB guidelines. Accordingly, the Department proposes to electronically post together in an easily accessible and well-organized format on
The Department invites comment from the public on two proposed procedural requirements: (1) To issue an ANPRM seeking public input on key data and assumptions when developing a health standard; and (2) to electronically post all relevant documents after each regulatory step in a health rulemaking.
We encourage the submission of comments and other relevant information to the Federal eRulemaking Portal at
This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulations. The agency has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, there is no requirement for an assessment of potential costs and benefits under section 6(a)(3) of that order.
Because no notice of proposed rulemaking is required for this rule under section 553(b) of the Administrative Procedure Act (APA), the requirements of the Regulatory Flexibility Act (5 U.S.C. 601) pertaining to regulatory flexibility do not apply to this rule. See 5 U.S.C. 601(2).
This rule is not subject to section 350(h) of the Paperwork Reduction Act (44 U.S.C. 3501) since it does not contain any new collection of information requirements.
This rule is not classified as a “rule” under Chapter 8 of the Small Business Regulatory Enforcement Fairness Act of 1996, because it is a rule pertaining to agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. See 5 U.S.C. 804(3)(C).
Administrative practice and procedure, Claims, Courts, Government employees.
For the reasons outlined in the preamble, the Department of Labor proposes to amend 29 CFR part 2 as follows:
1. The authority citation for part 2 continues to read as follows:
5 U.S.C. 301; Executive Order 13198, 66 FR 8497, 3 CFR 2001 Comp., p. 750; Executive Order 13279, 67 FR 77141, 3 CFR 2002 Comp., p. 258.
2. Add § 2.9 to subpart A to read as follows:
(a)
(b)
(c)
(1) Department agencies shall issue an Advance Notice of Proposed Rulemaking (ANPRM) soliciting public input on relevant studies and scientific information, data regarding the frequency, intensity, duration and other parameters of worker exposure in the affected industries, occupations and activities, key default factors and assumptions, and other relevant information related to the development of a health standard regulating occupational exposure to a particular toxic substance or hazardous chemical prior to issuing a Notice of Proposed Rulemaking (NPRM) or other regulatory action in that health rulemaking, except when promulgating an emergency temporary standard under section 6(c) of the OSH Act, 29 U.S.C. 655(c) (2000) or section 101(b)(1) of the Mine Act, 30 U.S.C. 811(b)(1) (2000).
(2) In its risk assessments, the Department's agencies shall identify and discuss key issues including, but not limited to, the reliability of data, significant uncertainties, choice of assumptions and default factors, and shall address all related comments from the public and peer reviewers in the subsequent Notice of Proposed Rulemaking (NPRM) and Final Rule.
(3) Risk assessments shall utilize the best available evidence, and the latest available scientific data in the field, including industry-by-industry evidence relating to working life exposures.
(4) Department risk assessments shall include and identify the following four components:
(i)
(ii)
(iii)
(iv)
(5)
(d)
(1) The Department shall post together in an easily accessible and well organized format on
(2) The documents posted shall include but are not limited to any underlying scientific studies relied upon in the rulemaking, to the extent possible given copyright limitations; all risk assessment analyses underlying the NPRM and Final Rule; the text of the ANPRM; SBREFA process documents; the text of the NPRM; all public hearing transcripts and briefs; all public comments; the final docket of the rulemaking; and the text of the Final Rule.
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment revises the Virginia Coal Surface Mining Reclamation Regulations pertaining to ownership and control, valid existing rights, self-bonding, and availability of records. Virginia intends to revise its program to be consistent with the corresponding Federal regulations and SMCRA and is responding, in part, to 30 CFR Part 732 letters.
This document gives the times and locations that the Virginia program and this submittal are available for your inspection, the comment period during which you may submit written comments, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments until 4 p.m., local time, September 29, 2008. If requested, we will hold a public hearing on September 23, 2008. We will accept requests to speak until 4 p.m., e.s.t., on September 15, 2008.
You may submit comments, identified by “VA-126-FOR/OSM-2008-0012” by any of the following methods:
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Earl Bandy, Telephone: (865) 545-4103. Internet:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act* * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Virginia program on December 15, 1981. You can find background information on the Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Virginia program in the December 15, 1981,
By letter dated June 11, 2008, the Virginia Department of Mines, Minerals, and Energy (DMME) sent us an informal proposed amendment to its program for a pre-submission review (VA-126-INF). We reviewed the pre-submission and responded to DMME, with comments, via electronic mail on July 2, 2008. By letter dated July 17, 2008, DMME formally submitted the proposed amendments to its program (Administrative Record No. VA-1089.) The full text of the program amendment is available for you to read at the location listed above under “
The corresponding Federal regulations for this section are 30 CFR 701.5, 761.5 and 880.5.
DMME proposes to either add, delete or modify the following definitions:
(a) Contain the date of execution.
(b) Be payable to the “Treasurer of Virginia.”
(c) Be immediately due and payable in the event of bond forfeiture of the permit.
(d) Be payable in a sum certain of money.
(e) Be signed by the makers.
“
(a) For an underground mining operation, an indemnity agreement in a sum certain payable on demand to the Treasurer of Virginia, executed by the applicant and by each individual and business organization capable of influencing or controlling the investment or financial practices of the applicant by virtue of this authority as an officer or ownership of all or a significant part of the applicant, and supported by a certification that the applicant participating in the Pool Bond Fund has a net worth, total assets minus total liabilities equivalent to $1 million. Such certification shall be by an independent certified public accountant in the form of an unqualified opinion.
This definition in the Virginia regulation is being amended to delete the reference to “cognovit note” and replace such with “indemnity agreement”, as the approved bonding instrument under 4VAC25-130-801.13, as being amended.
The DMME is proposing to delete “in ownership or other effective control over the right to conduct surface coal mining operations under a permit issued by the division” and add “of a permittee” after “change.” As proposed, the definition will read as follows:
The DMME is proposing to add the following definition of “
“
(a) Except as provided in paragraph (c) of this definition, a demonstration of the legally binding conveyance, lease, deed, contract, or other document which vests the person, or predecessor in interest, with the right to conduct the type of surface coal mining operations intended. The right must exist at the time the land came under the protection of § 4VAC25-130-761.11 and § 45.1-252 D;
(b) A demonstration of compliance with one of the following—
(1) That all permits and other authorizations required to conduct surface coal mining operations had been obtained, or a good faith attempt to obtain all necessary permits and authorizations had been made, before the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11.
(2) That the land needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations had been obtained, or a good faith attempt made to obtain such permits and authorizations occurred before the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11. The person must demonstrate that prohibiting the expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of § 45.1-252 D or § 4VAC25-130-761.11 when the division approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the division may consider—
(i) The extent to which coal supply contracts or other legal and business commitments that occurred before the land came under the protection of §§ 45.1-252 D or § 4VAC25-130-761.11 depend upon the use of the land for surface coal mining operations.
(ii) The extent to which plans used to obtain financing for the operation before the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11 relied upon use of that land for surface coal mining operations.
(iii) The extent to which investments in the operation made before the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11 relied upon the use of that land for surface coal mining operations.
(iv) Whether the land lies within the area identified on the life-of-mine map under § 4VAC25-130-779.24(c) that was submitted before the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11.
(c) For haulroads, a person who claims valid existing rights to use or construct a road across the surface of lands protected by § 45.1-252 D or § 4VAC25-130-761.11 must demonstrate that one or more of the following circumstances exist, the road—
(1) Existed when the land upon which it is located came under the protection of § 45.1-252 D or § 4VAC25-130-761.11, and the person has the legal right to use the road for surface coal mining operations.
(2) Was under a properly recorded right of way or easement for a road in that location at the time the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11, and under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations.
(3) Was used or contained in a valid permit that existed when the land came under the protection of § 45.1-252 D or § 4VAC25-130-761.11.
(d) That an interpretation of the terms of the document(s) that are relied upon to establish valid existing rights shall be based either upon applicable Virginia statutory or case law concerning interpretation of documents conveying mineral rights or, where no applicable state law exists, upon the usage and custom at the time and place it came into existence. This amendment would apply to permit applications submitted on and after the date the amendment is approved by the Secretary of Interior and becomes effective upon promulgation pursuant to the Federal and Virginia Administrative Process Acts.
The DMME is proposing to add the following definition:
“
(1) A failure to comply with an applicable provision of a Virginia, Federal, or other State law or regulation pertaining to air or water environmental protection, as evidenced by a written notification from a governmental entity to the responsible person; or
(2) A noncompliance for which the division has provided one or more of the following types of notice or OSM or a State regulatory authority has provided equivalent notice under corresponding provisions of a Federal or State regulatory program—
(i) A notice of violation under § 4VAC-25-130-843.12.
(ii) A cessation order under § 4VAC-25-130-843.11.
(iii) A final order, bill, or demand letter pertaining to a delinquent civil penalty assessed under Part 4VAC-25-130-845 or 4VAC-25-130-846.
(iv) A bill or demand letter pertaining to delinquent reclamation fees owed under 30 CFR Part 870.
(v) A notice of bond forfeiture under § 4VAC-25-130-800.50 when—
(A) One or more violations upon which the forfeiture was based have not been abated or corrected;
(B) The amount forfeited and collected is insufficient for full reclamation under § 4VAC-25-130-800.50 or § 4VAC-25-130-801.19, the division orders reimbursement for additional reclamation costs, and the person has not complied with the reimbursement order.
The DMME is proposing to add the following definition:
“
(1) A failure to comply with a condition of an issued permit or the regulations implementing those sections; or
(2) A failure or refusal to comply with any order issued under Part 4VAC25-130-843, or any order incorporated in a final decision issued by the Director, except an order incorporated in a decision issued under § 45.1-246 of the Act.
The DMME is proposing to add “or regulation” after “law” in the definition of
“
The DMME proposes to add the definition of “
(1) Intentionally, voluntarily, or consciously; and
(2) With intentional disregard or plain indifference to legal requirements.
The DMME is proposing to delete the following definitions:
“
(a) Contain the date of execution.
(b) Be payable to the “Treasurer of Virginia.”
(c) Be due and payable in the event of bond forfeiture of the permit.
(d) Be payable in a sum certain of money.
(e) Be signed by the makers.
This definition in the Virginia regulations is being deleted, as the indemnity agreement will be the bonding instrument utilized under 4VAC25-130-801.13 (as being amended).
“
(a)(i) Being a permittee of a surface coal mining operation; (ii) based on instrument of ownership or voting securities, owning of record in excess of 50% of an entity; or (iii) having any other relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator, or other entity conducts surface coal mining operations.
(b) The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface coal mining operation is conducted:
(1) Being an officer or director of an entity;
(2) Being the operator of a surface coal mining operation;
(3) Having the ability to commit the financial or real property assets or working resources of an entity;
(4) Being a general partner in a partnership;
(5) Based on the instruments of ownership or the voting securities of a corporate entity, owning of record 10 through 50% of the entity; or
(6) Owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts a surface coal mining operation.
The corresponding Federal regulation for this section is 30 CFR 773.6. The DMME proposes to add “or the last publication date of the newspaper notice required by Paragraph (a) of this section, whichever is later” after “notification”. As proposed, it reads as follows:
(b) Comments and objections on permit application.
(1) Within 30 days after notification or the last publication date of the newspaper notice required by Paragraph (a) of this section, whichever is later, written comments or objections on an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by public entities notified under Paragraph (a)(3) of this section with respect to the effects of the proposed mining operations on the environment within their areas of responsibility.
This change in the Virginia regulation will allow public entities to have the same period of time to review and comment on the application as afforded the public.
The corresponding Federal regulation for this section is 30 CFR 773.7.
The DMME proposes to delete from (a)(1) “, unless a later time is necessary to provide an opportunity for a hearing under subdivision (b)(2) of this section.”
The DMME proposes to add to (a) subdivisions (3) and (4) which state:
(3) The division shall review the information submitted under §§ 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the applicant's and/or operator's permit histories, business structure, and ownership and control relationships.
(4) If the applicant or operator does not have any previous mining experience, the division may conduct additional reviews to determine if someone else with surface coal mining experience controls or will control the mining operation.
The DMME proposes to delete from subdivision (b)(1) “by any person who owns or controls the applicant” after “operator”; proposes to add “; or if a surface coal mining and reclamation operation indirectly owned or controlled by the applicant or operator has an unabated or uncorrected violation and the applicant's or operator's control was established or the violation was cited after November 2, 1988.” after “subdivision”; proposes to delete subsection (b)(4)(i)(C)(1) entirely and join (2) to the end of the sentence at (C). This change is to reflect the deletion of the last sentence of Section 510(e) of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1260(e)) per the “Tax Relief and Health Care Act of 2006.” As proposed, this section will read as follows:
(a) General.
(1) The division shall review the application for a permit, revision, or renewal; written comments and objections submitted; information from the AVS; and records of any informal conference or hearing held on the application and issue a written decision, within a reasonable time, either granting, requiring modification of, or denying the application. If an informal conference is held under 4VAC25-130-773.13(c), the decision shall be made within 60 days of the close of the conference.
(2) The applicant for a permit or revision of a permit shall have the burden of establishing that the application is in compliance with all the requirements of the regulatory program.
(3) The division shall review the information submitted under §§ 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the applicant's and/or operator's permit histories, business structure, and ownership and control relationships.
(4) If the applicant or operator does not have any previous mining experience, the division may conduct additional reviews to determine if someone else with surface coal mining experience controls or will control the mining operation.
(b) Review of violations.
(1) Based on available information concerning Federal and state failure-to-abate cessation orders, unabated Federal
(i) Submit to the division proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or
(ii) Establish for the division that the applicant or operator or any person who owns or controls the applicant, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority under 4VAC25-130-775.13 affirms the violation, then the applicant shall within 30 days of the judicial action submit the proof required under subdivision (b)(1)(i) of this section.
(2) Any permit that is issued on the basis of proof submitted under subdivision (b)(1)(i) of this section that a violation is in the process of being corrected, or pending the outcome of an appeal described in subdivision (b)(1)(ii) of this section, shall be conditionally issued.
(3) If the division makes a finding that the applicant or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, no permit shall be issued. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in 4VAC25-130-775.11.
(4)(i) Subsequent to October 24, 1992, the prohibitions of subsection (b) of this section regarding the issuance of a new permit shall not apply to any violation that:
(A) Occurs after that date;
(B) Is unabated; and
(C) Results from an unanticipated event or condition that arises from a surface coal mining and reclamation operation on lands that are eligible for remining under a permit held by the person making application for the new permit.
The corresponding Federal regulation for this section is 30 CFR 773.21.
The DMME proposes to amend subsection (c)(3) by deleting “Suspend the permit until” and delete (c)(4) entirely. As amended, it will read as follows:
(3) Serve the permittee with a preliminary finding that shall be based on evidence sufficient to establish a
The corresponding Federal regulation for this section is 30 CFR 773.23.
The DMME proposes to add “service of the notice of” after “After” and “as set forth in the notice” after “permit” in subsection (b). A new subsection (c) is added; subsection (e) is renamed to (d) and “or person aggrieved by the division's notice or decision” is added after “permittee”; “§ 4 VAC 25-130-775.11 of this chapter and” is added after “under”. As amended, it will read as follows:
If the division, under 4VAC25-130-773.20(c)(
(a) Automatic suspension and rescission. After a specified period of time not to exceed 90 days the permit automatically will become suspended, and not to exceed 90 days thereafter rescinded, unless within those periods the permittee submits proof, and the division finds, that:
(1) The finding of the division under 4VAC25-130-773.20(b) was erroneous;
(2) The permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the responsible agency;
(3) The violation, penalty or fee is the subject of a good faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; or
(4) Since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty or fee.
(b) Cessation of operations. After service of the notice of permit suspension or rescission, the permittee shall cease all surface coal mining and reclamation operations under the permit as set forth in the notice, except for violation abatement and for reclamation and other environmental protection measures as required by the division; and
(c) A person may challenge an ownership or control listing or finding by submitting to the division a written explanation of the basis for the challenge, along with any evidence or explanatory materials that substantiates that the person did not or does not own or control the entire surface coal mining operation or relevant portion or aspect thereof. The person may request that any information submitted to the division under this section be held as confidential, if it is not required to be made public under the Act. The division shall review the information and render a written decision regarding the person's ownership or control listing or link within 60 days from receipt of the challenge.
(d) Right to appeal. The permittee or person aggrieved by the division's notice or decision may file an appeal for administrative review of the notice or decision under subparagraph (c) under
The corresponding Federal regulation for this section is 30 CFR 774.11.
The DMME proposes to add this entire new section to the Virginia regulations and will read as follows:
(a) For purposes of future permit eligibility determinations and enforcement actions, the division will utilize the AVS, retrieving and entering appropriate data regarding ownership, control, and violation information. The division shall enter into the AVS—
(b) In the event the permittee is issued enforcement action under § 4VAC25-130-843.11, and fails to timely comply with the order's remedial measures, the division shall instruct the permittee to provide or update all the information required by § 4VAC25-130-778.11. However, the permittee would not be required to submit this information if a court of competent jurisdiction has granted a stay of the cessation order and the stay remains in effect.
(c) The permittee shall notify the division within 60 days of any addition, departure, or change in position of any person identified under § 4VAC25-130-778.13. The permittee shall provide the date of such addition, departure, or change of such person(s).
(d) Should the division discover that the permittee, or a person listed in an ownership or control relationship with the permittee, owns or controls an operation with an unabated or uncorrected violation, it will determine whether enforcement action is appropriate under Parts 4VAC25-130-843 and 4VAC25-130-846, or other applicable provisions under the Act. The division may issue a preliminary finding of permit ineligibility under § 45.1-238(C) of the Act, if it finds that the person had control relationships and violations that would have made the person ineligible for a permit under § 4VAC25-130-773.15. The finding shall be in accordance with 4VAC25-130-773.20(c)(3).
(e) If a determination of permit ineligibility is rendered by the division, the person would have 30 days from service of the written finding to submit any information that would tend to demonstrate the person's lack of ownership or control of the surface coal mining operation. The division would issue a final determination regarding the permit eligibility within 30 days of receiving any information from the person or from the expiration date that the person could submit the information under this subparagraph. A person aggrieved by the division's eligibility finding would have the right to request review under Part 4VAC25-130-775.
The corresponding Federal regulation for this section is 30 CFR 774.17.
As amended, it reads as follows:
(a) General. No transfer, assignment, or sale of rights granted by a permit shall be made without the prior written approval of the division. At its discretion, the division may allow a prospective successor in interest to engage in surface coal mining and reclamation operations under the permit during the pendency of an application for approval of a transfer, assignment, or sale of permit rights submitted under paragraph (b) of this section, provided that the prospective successor in interest can demonstrate to the satisfaction of the division that sufficient bond coverage will remain in place.
The corresponding Federal regulation for this section is 30 CFR 778.11.
An application shall contain the following information:
(a) A statement as to whether the applicant and/or the operator, if different from the applicant, is a corporation, partnership, single proprietorship, association, or other business entity.
(b) The name, address, telephone number and, as applicable, employer identification number of the:
(1) Applicant;
(2) Applicant's resident agent;
(3) Operator, if different from the applicant; and
(4) Each business entity in the applicant's and operator's organizational structure, up to and including the ultimate parent entity of the applicant and operator; for every such business entity provide the required information for every president, chief executive officer, partner, member, and/or director (or persons in similar positions), a positions), and every person who owns of record 10 percent or more of the entity.
(c) For the applicant and operator, if different from the applicant, information required by paragraph (d) of this section for every:
(1) Officer.
(2) Partner.
(3) Member.
(4) Director.
(5) Person performing a function similar to a director.
(6) Person who owns, of record, 10 percent or more of the applicant or operator.
(d) For each person listed from paragraph (c) of this section:
(1) The person's name, address, and telephone number.
(2) The person's position title and relationship to the applicant or operator, including percentage of ownership and location in the organizational structure.
(3) The date the person began functioning in that position.
(e) A list of all the names under which the applicant, operator, partners, or principal shareholders, and the operator's partners or principal shareholders operate or previously operated a surface coal mining operation in the United States within a five-year period preceding the date of submission of the application, including the name, address, identifying numbers, including employer identification number, Federal or State permit number and MSHA number, the date of issuance of the MSHA number, and the regulatory authority.
(f) For the applicant and operator, if different from the applicant, a list of any pending permit applications for surface coal mining operations filed in the United States, identifying each application by its application number,
(g) For any surface coal mining operation the applicant and/or operator owned or controlled within a five year period preceding the submission of the permit application, and for any surface coal mining operation the applicant and/or operator controlled on that date, the:
(1) Permittee's and operator's name and address, tax identification numbers;
(2) Name of the regulatory authority with jurisdiction over the permit(s) with the corresponding Federal or State permit number(s) and MSHA number(s); and
(3) The permittee's and operator's relationship to the operation, including the percentage of ownership and location in the organizational structure.
(h) The name and address of each legal or equitable owner of record of the surface and mineral property to be mined, each holder of record of any leasehold interest in the property to be mined, and any purchaser of record under a real estate contract for the property to be mined.
(i) The name and address of each owner of record of all property (surface and subsurface) contiguous to any part of the proposed permit area.
(j) The Mine Safety and Health Administration (MSHA) numbers for all mine-associated structures that require MSHA approval.
(k) A statement of all lands, interest in lands, options, or pending bids on interests held or made by the applicant for lands contiguous to the area described in the permit application. If requested by the applicant, any information required by this Paragraph which is not on public file pursuant to State law shall be held in confidence by the division, as provided under 4VAC25-130-773.13(d)(3)(ii).
(l) Each application shall contain a list of all other licenses and permits needed by the applicant to conduct the proposed surface mining activities.
This list shall identify each license and permit by—
(1) Type of permit or license;
(2) Name and address of issuing authority;
(3) Identification numbers of applications for those permits or licenses or, if issued, the identification numbers of the permits or licenses; and
(4) If a decision has been made, the date of approval or disapproval by each issuing authority.
(m) After an applicant is notified that his application is approved, but before the permit is issued, the applicant shall, as applicable, update, correct or indicate that no change has occurred in the information previously submitted under Paragraphs (a) through (d) of this section.
(n) The applicant shall submit the information required by this section and by 4VAC25-130-778.14 in any prescribed OSM format that is issued.
The corresponding Federal regulation for this section is 30 CFR 778.14.
As proposed the amendment reads as follows:
(c) For any violation of a provision of the Federal Act or this chapter, or of any law, rule or regulation of the United States, or of any State law, rule or regulation enacted pursuant to Federal law, rule or regulation pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, a list of all violation notices received by the applicant during the three year period preceding the application date, and a list of all unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by any surface coal mining and reclamation operation owned or controlled by either the applicant or operator. For each violation notice or cessation order reported, the lists shall include the following information, as applicable:
There is no direct Federal counterpart regulation for this section.
As proposed, it reads as follows:
(a) Any person who owns or controls or has owned or controlled any operation on which the bond has been forfeited or the permit revoked pursuant to this chapter or pursuant to Chapters 15 [repealed], 17 (§ 45.1-198
(5) Pay to the Director a reinstatement fee of $5,000 assessed by the Director on each site forfeited. These fees shall be used by the Director to accomplish reclamation on other forfeited or abandoned surface coal mining operations or conduct such other investigations, research or abatement actions relating to lands and waters affected by coal surface mining activities.
(b) Reinstatement by the Director shall be a prerequisite to the filing by the person (applicant for reinstatement) of any new permit application or renewal under this chapter or Chapters 15 [repealed], 17 (§ 45.1-198
There is no direct Federal counterpart regulation for this section.
As proposed, it reads as follows:
(c) The Director may accept the bond of an applicant of an underground mining operation without separate surety, as provided by 4VAC25-130-801.13, upon a showing by such applicant of a net worth, total assets minus total liabilities (certified by an independent certified public accountant), equivalent to $1 million. Such net worth shall be, during the existence of the permit, certified annually by an independent certified public accountant and the certification submitted to the division on the anniversary date of the permit.
(d) The Director may accept the bond of an applicant of a surface mining operation or associated facility without separate surety, upon a showing by the applicant of those conditions set forth in 4VAC25-130-801.13(b). The financial solvency of the permittee shall be, during the existence of the permit, certified annually by an independent certified public accountant and the certification submitted to the division by June 1st or by such other date that the division may set.
There is no direct Federal counterpart regulation for this section.
As proposed, it reads as follows:
(a) The division may accept a self-bond from the applicant of a proposed surface coal mining operation in the form of an indemnity agreement.
(1) The applicant shall provide the:
(i) Name and address of a suitable agent to receive service of process in the Commonwealth.
(ii) Name and address of the certified public accountant(s) who prepared the statement required by this section.
(iii) Location of the financial records used to prepare the C.P.A. statement required by this section.
(iv) Evidence indicating a history of satisfactory continuous operation.
(2) For a proposed underground mining operation, the applicant has a net worth, certified by an independent certified public accountant in the form of an unqualified opinion appended to the financial statement submitted, of no less than $1 million after total liabilities are subtracted from total assets. If the applicant is a subsidiary corporation, the applicant's parent organization's net worth need only be certified by the independent certified public accountant, if the applicant uses or includes any assets or liabilities of the parent organization in computing or arriving at the applicant's net worth. Where the division has a valid reason to believe that the permittee's net worth is less than required by this subsection, it may require a new certified public accountant's statement and certification.
(3) The applicant of a proposed surface mining operation or associated facility shall submit evidence substantiating the applicant's financial solvency, with the appropriate financial documentation required by Paragraph (a)(4) of this section.(4)(i) An indemnity agreement must be executed by the applicant, and said agreement must also be executed by:
(A) If a corporation, two corporate officers who are authorized to sign the agreement by a resolution of the board of directors, a copy of which shall be provided;
(B) To the extent that the history or assets of a parent organization are relied upon to make the showings of this Part, the parent organization of which it is a subsidiary, whether first-tier, second-tier, or further removed, in the form of (A) above;
(C) If the applicant is a partnership, all of its general partners and their parent organization or principal investors; and
(D) If the applicant is a married individual, the applicant's spouse;
(ii) Any person who occupies more than one of the specified positions shall indicate each capacity in which he signs the agreement;
(iii) The agreement shall be a binding obligation, jointly and severally, on all who execute it;
(iv) For the purposes of this Paragraph, principal investor or parent organization means anyone with a 10 percent or more beneficial ownership interest, directly or indirectly, in the applicant.
(b) Whenever a participant in the Pool Bond Fund applies for an additional permit or permits, the C.P.A. certification required by Paragraph (a)(2) or (
(c) If at any time the conditions upon which the self-bond was approved no longer prevail, the division shall require the posting of a surety or collateral bond before coal surface mining operations may continue. The permittee shall immediately notify the division of any change in his total liabilities or total assets which would jeopardize the support of the self-bond. If the permittee fails to have sufficient resources to support the self-bond, he shall be deemed to be without bond coverage in violation of 4VAC25-130-800.11(b).
The corresponding Federal regulation for this section is 30 CFR 840.14.
The DMME is proposing to add “or electronic transmittal” after “mail”; add “the division offices and on its Internet site” after “at”; delete “a Federal, State or local government office in the county where the mining is occurring or proposed to occur” after “at”; add “or electronic transmittal” after “mail”; and delete “A list of government offices where information may be inspected can be obtained on request by contacting the division's Big Stone Gap office.” As proposed, it reads as follows:
(2) At the division's option in accordance with the Virginia Freedom of Information Act (Chapter 21 (§ 2.1-340
This Virginia regulation is amended to provide for electronic transmittal of information and the maintenance of the description of available information from the division offices and via the agency Internet site.
The Division has 2 offices located in the coalfield counties of Southwest Virginia which are readily available to the public and an Internet site to serve industry, other governmental agencies, and the public.
The corresponding Federal regulation for this section is 30 CFR 701.5.
The following revised definitions are being moved to § 4VAC25-130-700.5 Definitions.
(1) A violation of a condition of the permit issued pursuant to the Act and the regulations promulgated thereunder; or, (2) A failure or refusal to comply with any order issued under § 45.1-245 of the Act, or any order incorporated in a decision issued by the Director under the Act, except an order incorporated in a decision issued under § 45.1-246(B) of the Act.
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the submission satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Virginia program.
If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent Tribal or Federal laws or regulations, technical literature, or other relevant publications. We cannot ensure that comments received after the close
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If there is limited interest in participation in a public hearing, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the submission, please request a meeting by contacting the person listed under
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian Tribes.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute a major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4321
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State or local governmental agencies; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based on the analysis performed under various laws and executive orders for the counterpart Federal regulations.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based on the analysis performed under various laws and executive orders for the counterpart Federal regulations.
Intergovernmental relations, Surface mining, Underground mining.
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.
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.
Cooperative State Research, Education, and Extension Service, USDA.
Notice of public meeting and request for stakeholder input.
The Cooperative State Research, Education, and Extension Service (CSREES) is creating a new research, education, and extension program called the Agriculture and Food Research Initiative (AFRI). By this notice, CSREES is designated to act on behalf of the Secretary of Agriculture in soliciting public comment from interested persons regarding the implementing regulation to be developed for this new program as required under section 7406 of the
The meeting will be held on Wednesday, September 10, 2008, from 9:30 a.m. to 3 p.m. All comments must be received by close of business Wednesday, September 24, 2008, to be considered.
The meeting will be held in Room 1410 A/B/C/D; Waterfront Centre Building; Cooperative State Research, Education, and Extension Service; United States Department of Agriculture; 800 9th Street, SW.; Washington, DC 20024. Meeting participants will need to provide photo identification to be admitted to the building. Please allow sufficient time to go through security.
Ms. Terri Joya, (202) 401-1761 (phone), (202) 401-1782 (fax), or
Because of the diversity of subjects, and to aid participants in scheduling their attendance, the following schedule is anticipated for the September 10, 2008, meeting:
9:30 a.m.-10 a.m.-Introduction to AFRI.
10 a.m.-3 p.m.-General administration of AFRI including solicitation of proposals, types of projects and awards, length of awards, evaluation criteria, and protocols to ensure the widest program participation. Allocation of funds including protocols to solicit and consider stakeholder input, determination of priority areas, and determination of activities to be supported—applied research, fundamental research, extension, education and integrated. A break is scheduled for 12 p.m. to 1 p.m.
Persons wishing to present oral comments at the September 10, 2008, meeting are requested to pre-register by contacting Ms. Terri Joya at (202) 401-1761, by fax at (202) 401-1782 or by e-mail to
Section 7406 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246) amends subsection (b) of the Competitive, Special, and Facilities Research Grant Act (7 U.S.C. 450i(b)) to authorize the Secretary of Agriculture to establish a new competitive grant program to provide funding for fundamental and applied research, extension, and education to address food and agricultural sciences. Subject to the availability of appropriations to carry out this program, the Secretary may award grants to State agricultural experiment stations; colleges and universities; university research foundations; other research institutions and organizations; Federal agencies; national laboratories; private organizations or corporations; individuals; or any group consisting of two or more of the aforementioned entities. Grants shall be awarded to address priorities in United States agriculture in the following areas: (A) Plant health and production and plant products; (B) Animal health and production and animal products; (C) Food safety, nutrition, and health; (D) Renewable energy, natural resources, and environment; (E) Agriculture systems and technology; and (F) Agriculture economics and rural communities. To the maximum extent practicable, CSREES, in coordination with the Under Secretary for Research, Education, and Economics (REE), will make awards for high priority research, education, and extension, taking into consideration, when available, the determinations made by the National Agricultural Research, Extension, Education, and Economics Advisory Board. The authority to carry out this program has been delegated to CSREES through the Undersecretary for REE.
CSREES is holding a public meeting to obtain comments to use in developing the implementing rule for the new AFRI competitive grants program. The meeting is open to the public. Written comments and suggestions on issues that may be considered in the meeting may be submitted to the CSREES Docket Clerk at the address above.
The program authorizes for appropriation $700 million in grants for FY 2008-12, of which the Secretary may retain no more than 4% for administrative costs. Funds will be available for obligation for a two-year period beginning in the fiscal year for which funds are first made available. Grants will be awarded on the basis of merit, quality, and relevance and may have terms of up to 10 years.
Of the AFRI funds allocated to research activities, section 7406 directs 60 percent toward grants for fundamental (or basic) research, and 40 percent toward applied research. Of the AFRI funds allocated to fundamental research, not less than 30 percent of AFRI grants will be directed toward research by multidisciplinary teams. In addition, the law specifies that of the total amount appropriated for AFRI, not less than 30 percent is to be used for integrated programs.
CSREES plans to consider stakeholder input received from this public meeting as well as other written comments in developing an implementing regulation for this program. CSREES anticipates releasing a Request for Applications (RFA) by mid-January 2009.
Cooperative State Research, Education, and Extension Service, USDA.
Notice of public meeting and request for stakeholder input.
The Cooperative State Research, Education, and Extension Service (CSREES) is soliciting stakeholder input on the implementation of the Veterinary Medicine Loan Repayment Program (VMLRP), which is authorized under section 1415A of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3151a). The purpose of this program is for the U.S. Department of Agriculture (USDA) to enter into agreements with veterinarians under which the veterinarians agree to provide, for a specific period of time as identified in the agreement, veterinary services in veterinarian shortage situations. As part of the stakeholder input process, CSREES is conducting a public meeting to solicit comments regarding the implementing regulations to be developed for this program.
The meeting will be held on Monday, September 15, 2008, from 9 a.m. to 3:30 p.m. All comments must be received by close of business Tuesday, September 30, 2008, to be considered.
The meeting will be held in room 1410B-C-D of the Waterfront Centre Building, Cooperative State Research, Education, and Extension Service, United States Department of Agriculture, 800 9th St., SW., Washington, DC 20024. Meeting participants will need to provide photo identification to be admitted to the building. Please allow sufficient time to go through security. You may submit comments, identified by CSREES-2008-0001, by any of the following methods:
Ms. Lisa Stephens, (202) 401-6438, or
Because of the diversity of subjects, and to aid participants in scheduling their attendance, the following schedule is anticipated for the September 15, 2008, meeting:
9-9:30 a.m.—Introduction to VMLRP.
9:30-12 p.m.—Identification and prioritization of veterinarian shortage situations (e.g., geographically and by expertise).
1-3:30 p.m.—Administration of the VMLRP including eligible applicant criteria; number, size, and length of VMLRP agreements; solicitation for VMLRP applications; application prioritization and review; execution of VMLRP agreements, including service to the Federal government in emergency situations; agreement terms and conditions; reimbursement for tax liability; and monitoring and oversight of VMLRP agreements.
Persons wishing to present oral comments at this meeting are requested to pre-register by contacting Ms. Lisa Stephens at (202) 401-6438, by fax at (202) 401-6156 or by e-mail to
In December, 2003, the National Veterinary Medical Service Act (NVMSA) was passed into law adding section 1415a to the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (NARETPA). This law established a new Veterinary Medicine Loan Repayment Program (7 U.S.C. 3151a) authorizing the Secretary of Agriculture (secretary) to carry out a program of entering into agreements with veterinarians under which they agree to provide veterinary services in veterinarian shortage situations. In November 2005, the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006 (Pub. L. 109-97), appropriated $495,000 (after the 1 percent rescission) for CSREES to implement the Veterinary Medicine Loan Repayment Program and represented the first time funds had been appropriated for this program. In February 2007, the Revised Continuing Appropriations Resolution, 2007 (Pub. L. 110-5), appropriated an additional $495,000 to CSREES for support of the program, and in December 2007, the Consolidated Appropriations Act, 2008 (Pub. L. 110-161), appropriated an additional $868,875 (after the .7 percent rescission) to CSREES for support of this program. Consequently, there is approximately $1.8 million available for CSREES to administer this program.
As enacted on June 18, 2008, section 7105 of the Food, Conservation, and Energy Act of 2008 (FCEA) amended section 1415A to revise the determination of veterinarian shortage situations to consider (1) geographical areas that the Secretary determines have
Section 1415A of the NARETPA requires the Secretary, when determining the amount of repayment for a year of service by a veterinarian, to consider the extent to which such determination affects the ability of USDA to maximize the number of agreements from the amounts appropriated and provides an incentive to serve in veterinary service shortage areas with the greatest need. This section also provides that loan repayments may consist of payments of the principal and interest on government and commercial loans received by the individual for the attendance of the individual at an accredited college of veterinary medicine resulting in a degree of Doctor of Veterinary Medicine or the equivalent. Loans eligible for repayment include loans for tuition expenses; other reasonable educational expenses, including fees, books, and laboratory expenses, incurred by the individual; or reasonable living expenses as determined by the Secretary. In addition, the Secretary is directed to make such additional payments to participants as the Secretary determines appropriate for the purpose of providing reimbursements to participants for individual tax liability resulting from participation in this program. Finally, this section requires USDA to promulgate regulations within 270 days of the enactment of FCEA. The Secretary delegated the authority to carry out this program to CSREES.
CSREES is holding a public meeting to obtain comments to use in developing the proposed regulations for the VMLRP. The meeting is open to the public. Written comments and suggestions on issues that may be considered during the meeting may be submitted to the CSREES Docket Clerk at the address above.
To meet the legislatively-mandated date to promulgate regulations (i.e., within 270 days of enactment or March 14, 2009), CSREES plans to promulgate two regulations: Determination of Veterinary Shortage Situations for the Veterinary Medicine Loan Repayment Program; and Veterinary Medicine Loan Repayment Program (VMLRP)—Administrative Provisions. CSREES plans to release a Solicitation for VMLRP Applications by May 31, 2009.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Department of Agriculture, Forest Service has initiated the process to prepare an Environmental Impact Statement (EIS) for a road easement issuance to McKinley County for Forest Roads (FRs) 191 and 191D. The proposed action would grant an easement to McKinley County for FRs 191 and 191D and reassign an existing easement (dated December 21, 2001, from David Polich
Comments concerning the scope of the analysis must be received by 30 days after the publication of the NOI. The draft environmental impact statement is expected November, 2008 and the final environmental impact statement is expected March, 2009.
Send written comments to Nancy Rose, Forest Supervisor, Cibola National Forest, 2113 Osuna Road NE, Albuquerque, NM 87113, or fax (505) 346-3901. Copies of the proposed action, project location map, or the Environmental Impact Statement, when available, may be obtained from the Cibola National Forest, 2113 Osuna Road, NE, Albuquerque, NM 87110-1001; or from the Mount Taylor Ranger District Office (Cibola NF), 1800 Lobo Canyon Road, Grants, NM 87020 or electronically from the Forest Service Web site at
For further information, mail correspondence to Keith Baker, NEPA Coordinator, Cibola National Forest, 2113 Osuna Road NE, Albuquerque, NM 87113-1001 or phone (505) 346-3820.
There is a need to provide for public safety and adequate access to private inholdings. The desired condition is to have FR191 and FR191D under a County easement. This would allow McKinley County to upgrade FR191D to County “B-2” type road standards, with an aggregate surface in place of a paved surface. An upgrade of this nature would make FR191D an all-weather road but maintain it as a rural road. It would also place these roads under McKinley County jurisdiction, which would be appropriate due the existing and anticipated traffic type and volume from the private landowners who live in the area and use the road. The current road condition limits access for public services, such as school buses and fire and emergency service vehicles to reach these people. An improved, all-weather road would allow safe, year-round access for the people living on private land and provide access for public services and emergency service vehicles.
The U.S. Forest Service, Cibola National Forest, Mount Taylor Ranger District proposes to grant an easement to McKinley County for access across forest lands and transfer an existing Forest Service easement across private land to the County. The right-of-way would be 2.78 miles long and 66 feet wide, covering approximately 22 acres. About 2.23 miles of the roads are on national forest lands. About one-quarter mile of the easement would be on FR 191 from its intersection with New Mexico State Highway 400 to the intersection of FR191D. The remaining 2.53 miles would be on FR191D from its intersection with FR191 to private land.
The responsible official is Nancy Rose, Forest Supervisor, Cibola National Forest Supervisor's Office, 2113 Osuna Road NE., Albuquerque, NM 87113-1001.
The decision to be made is whether to implement the proposed action as described above, to vary the design of the proposed action to meet the purpose and need through some other combination of activities, or to take no action at this time.
The Council on Environmental Quality (CEQ) emphasizes an early and open process for determining the scope of issues to be addressed and for identifying significant issues related to the proposed action. To meet the intent of the CEQ regulations, the Cibola National Forest will do the following to ensure early and open public involvement: (1) Include the proposed action on the list of projects for annual tribal consultation and address concerns identified during tribal consultation as part of the analysis, (2) submit the proposed action to the public during scoping, and request comments or issues (points of dispute, debate, or disagreement) regarding the potential effects, (3) include the proposal on the Cibola National Forest Schedule of Proposed Actions quarterly report, (4) use comments received to determine significant issues and additional alternatives to address within the analysis, (5) consult with the U.S. Fish and Wildlife Service and the State Historical Preservation Office regarding potential effects to listed species and heritage sites as needed, and (6) prepare and distribute a draft environmental impact statement for a 45-day public comment period. No public meeting is planned.
One preliminary issue has been identified. The project and other actions in the area could affect habitat for the Zuni bluehead sucker, a New Mexico state-endangered fish, which exists downstream from the project area.
This notice of intent initiates the scoping process which guides the development of the environmental impact statement. Comments should be focused on the nature of the action proposed and should be relevant to the decision under consideration. Comments received from the public will be evaluated for significant issues and used to assist in the development of additional alternatives, if any.
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21.
Committee for Purchase from People Who Are Blind or Severely Disabled.
Publication of the quarterly update of the A-list and movement of products between the A-list, B-list and C-list as of October 1, 2008.
The Committee for Purchase From People Who Are Blind or Severely Disabled, in accordance with the procedures published on December 1, 2006 (71 FR 69535-69538), has updated the scope of the Program's procurement preference requirements for the products listed below between and among the Committee's A-list, B-list and C-list. A-list products are suitable for the Total Government Requirement as aggregated by the General Services Administration, the B-list are those products suitable for the Broad Government Requirement as aggregated by the General Services Administration, and C-list products are suitable for the requirements of one or more specified agency(ies). The lists below track changes to A-, B-, C-designations that occurred between May 28, 2008 and August 29, 2008.
The effective date for the quarterly update of the A-list and movement of products between and among the A-list, B-list and C-list is October 1, 2008.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259
Emily A. Covey, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
The complete A-list is available at ht
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to the Procurement List.
The Committee is proposing to add to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
September 28, 2008.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Kimberly M. Zeich,
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice for each product or service will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Kimberly M. Zeich,
On June 20 and June 27, 2008, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (73 FR 35119; 36492) of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the services and impact of the additions on the current or most recent contractors, the Committee has determined that the services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. The action will result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts.
United States Commission on Civil Rights.
Notice of meeting.
Date and Time: Saturday, September 6, 2008; 11 a.m.
Place: Via Teleconference, Public Dial In—1-800-597-7623. Conference ID# 62348365.
Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376-8582.
The Transportation and Related Equipment Technical Advisory Committee will meet on September 11, 2008, 9:30 a.m., in the Herbert C. Hoover Building, Room 6087B, l4th Street between Constitution & Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to transportation and related equipment or technology.
1. Welcome and introductions.
2. Review status of working groups.
3. Comments from the Public.
4. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via e-mail.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on July 17, 2008, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 §§ (10)(d)), that the portion of the meeting dealing with matters the disclosure of which would be likely to frustrate significantly implementation of an agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)1 and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
Import Administration, International Trade Administration, Department of Commerce.
August 29, 2008.
Erin Begnal or Susan Pulongbarit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1442 or (202) 482-4031, respectively.
On January 22, 2008, the Department of Commerce (“Department”) initiated
Section 735(a)(2) of the Tariff Act of 1930, as amended, (“Act”) provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by petitioner. In addition, the Department's regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a request for extension of provisional measures from a four-month period to not more than six months.
On August 12, 2008, Nanhai Animal By-Products Imp. & Exp. Co., Ltd. (“Nanhai Animal”) and Foshan Jingxin Steel Wire & Spring Co., Ltd. (“Foshan Jingxin”)
This notice is issued and published pursuant to sections 777(i) and 735(a)(2) of the Act and 19 CFR 351.210(g).
Import Administration, International Trade Administration, Department of Commerce.
August 29, 2008.
Paul Stolz, 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) 482-4474.
On June 6, 2008, the Department of Commerce (“the Department”) published the preliminary results of the new shipper reviews of the antidumping duty order on wooden bedroom furniture from the People's Republic of China, covering the period January 1, 2007, through July 1, 2007, and the following exporters: Dongguan Mu Si Furniture Co., Ltd. (“Mu Si”) and Dongguan Bon Ten Furniture Co., Ltd.
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.214(i)(1) require the Department to issue the final results of a new shipper review within 90 days after the date on which the preliminary results were issued. The Department may, however, extend the 90-day period for completion of the final results of a new shipper review to 150 days if it determines that the case is extraordinarily complicated.
As a result of issues raised in these new shipper reviews, specifically Mu Si and Petitioners have raised multiple issues with regard to certain consumption factor(s), average unit values of certain surrogate values, and conversion factors in their respective case briefs, the Department determines that these new shipper reviews are extraordinarily complicated and it cannot complete these new shipper reviews within the current time limit. Accordingly, the Department is extending the time limit for the completion of the final results by 60 days until October 24, 2008, in accordance with section 751(a)(2)(B)(iv) of the Act and 19 CFR 351.214(i)(2).
We are issuing and publishing this notice in accordance with section 751(2)(B) and 777(i)(1) of the Act.
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 Thailand. This review covers 45
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.”
August 29, 2008.
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 45 producers/exporters.
On March 6, 2008, the Department published in the
We invited parties to comment on our preliminary results. 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 Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (
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.
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 Lucky Union Foods Co., Ltd. (Lucky Union), Songkla Canning PCL (Songkla), and Thai Union Manufacturing Co., Ltd. (Thai Union Manufacturing), which are affiliated with Thai Union, a respondent in this review. The Department initiated a review of these three companies and requested that they supply data on the quantity and value of their exports of shrimp during the POR. On April 23, 2007, Thai Union submitted a response to the Department's quantity and value (Q&V) questionnaire, in which it indicated that only two of its companies, TUF and TUS, exported subject merchandise to the United States during the POR, while Lucky Union, Songkla, and Thai Union Manufacturing did not produce or export frozen shrimp to the United States during the POR. We confirmed this information at Thai Union's sales verification.
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 Intersia Foods is the successor-in-interest to Y2K Frozen Foods.
In its April 24, 2007, response to the Q&V questionnaire, I.T. Foods claimed that it had no shipments or entries of subject merchandise into the United States during the POR. However, when we attempted to confirm this claim with data obtained from CBP, we found that there were entries of merchandise into the United States produced and/or exported by I.T. Foods that appeared to be within the scope of the antidumping duty order.
On August 16, 2007, I.T. Foods provided information to the Department indicating that it did, in fact, have reportable transactions of subject merchandise during the POR of “tiny shrimp.”
In addition, based on the information provided by I.T. Foods, we also have determined certain other merchandise produced/exported by I.T. Foods (
In the preliminary results, we determined that, in accordance with section 776(a)(2)(A) of the Act, the use of facts available was appropriate as the basis for the dumping margins for certain producer/exporters.
In April 2007, the Department requested that all companies subject to the 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 142 companies subject to this review, 60 companies did not respond to the Department's initial request for information. Subsequently in May and June 2007, the Department issued two letters to these companies affording them additional opportunities to submit a response to the Department's Q&V questionnaire.
By failing to respond to the Department's requests, the above-mentioned companies withheld requested information and significantly impeded the proceeding. Therefore, as in the preliminary results, the Department finds that the use of total facts available for Applied DB, Chonburi LC, Haitai, High Way International, Merkur, Ming Chao, Nongmon, SCT, Search and Serve, Shianlin Bangkok, Star Frozen Foods, and Wann Fisheries is appropriate pursuant to sections 776(a)(2)(A) and (C) of the Act.
According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Section 776(b) of the Act provides that the Department may use as adverse facts available (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 57.64 percent, which is the highest rate alleged in the petition, as adjusted at the initiation of the less-than-fair-value (LTFV) investigation, to the non-responsive companies (
For the reasons stated in the
We preliminarily determined that it was appropriate to use facts available for certain of Thai Union's U.S. sales transactions which had not been reported in the U.S. sales listing: (1) Certain export price (EP) transactions and constructed export price (CEP) sales made from inventory; and (2) certain direct CEP transactions which were sold during the POR, but did not enter until after the POR. With respect to the sales described in (1) above, for purposes of the final results, we have continued to base the margin for these unreported sales on facts available because the information necessary to calculate a final dumping margin for these U.S. sales is not on the record of this review. With respect to certain direct CEP sales, as described in (2) above, we note that the Department's instructions in the original questionnaire differed from those issued in supplemental questionnaires with respect to a key reporting requirement, the universe of sales. Because these instructions appear to have confused the respondent, we have determined to rely on the direct CEP sales listing as submitted by Thai Union for purposes of these final results. Thus, application of facts available with respect to certain direct CEP sales is neither necessary nor warranted.
Regarding the unreported EP and CEP inventory sales, in the preliminary results, we determined the facts
In the preliminary results, we found that antidumping duties have been absorbed by the Rubicon Group, Thai I-Mei, and Thai Union on all U.S. sales made through their affiliated importers of record. For the percentage of such sales, see Memoranda to the File from Kate Johnson and Rebecca Trainor entitled “Second Administrative Review of Certain Frozen Warmwater Shrimp from Thailand: Preliminary Results Margin Calculation for the Rubicon Group,” dated February, 28, 2008, at Attachment 2; “2006-2007 Administrative Review of Certain Frozen Warmwater Shrimp from Thailand: Preliminary Results Margin Calculation for Thai I-Mei Frozen Foods Co., Ltd” at Attachment 1; and Memorandum to the File from Brianne Riker, entitled “Calculations Performed for Thai Union Frozen Products Co., Ltd./Thai Union Seafood Co., Ltd. for the Preliminary Results of the 2006-2007 Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from Thailand,” dated February, 28, 2008, at Attachment 2. We have not received any further information regarding this issue for the final results. Therefore, for the final results, we continue to find that antidumping duties have been absorbed by the Rubicon Group, Thai I-Mei, and Thai Union on all U.S. sales made through their affiliated importers of record.
With respect to Pakfood, it did not sell subject merchandise in the United States through an affiliated importer. Therefore, it is not appropriate to make a duty-absorption determination in this segment of the proceeding within the meaning of section 751(a)(4) of the Act.
As discussed in the preliminary results, we conducted an investigation to determine whether Pakfood, the Rubicon Group, and Thai Union made comparison market sales of the foreign like product during the POR at prices below their costs of production (COPs) within the meaning of section 773(b)(1) of the Act. We performed the cost test for these final results following the same methodology as in the
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 Pakfood, Rubicon, and Thai Union 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 percentage margins exist for the period February 1, 2006, through January 31, 2007:
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
For the responsive companies which were not selected for individual examination, we have calculated an assessment rate based on the weighted average of the cash deposit rates calculated for the companies selected for individual examination 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. See
Further, the following deposit requirements will be effective for all shipments of shrimp from Thailand 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
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.
August 29, 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
On April 30, 2008, the Department extended the deadlines for parties to submit case briefs and rebuttal briefs. As a result of these extensions and to allow the Department additional 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
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.
In response to a request from petitioner GEO Specialty Chemicals, Inc. (“GEO”), the Department of Commerce (“the Department”) initiated an administrative review of the antidumping duty order on glycine from the People's Republic of China (“PRC”).
August 29, 2008.
Dena Crossland or Stephen Bailey, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Room 7866, Washington, DC 20230; telephone: (202) 482-3362 or (202) 482-0193, respectively.
On March 29, 1995, the Department published in the
On July 21, 2008, petitioner timely withdrew its request for review for all companies except Baoding Mantong Fine Chemistry Co., Ltd. (“Baoding”) and Nantong Dongchang Chemical Industry Corp. (“Nantong”).
Pursuant to 19 CFR § 351.213(d)(1), the Secretary will rescind an administrative review under this section, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so.
This notice serves as a 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 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.
This notice is published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR § 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
August 29, 2008.
Patrick Edwards, Dena Crossland (Republic of Korea), Jeffrey Pedersen, or Rebecca Pandolph (People's Republic of China), Office 7 and Office 4, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-8029, (202) 482-3362, (202) 482-2769, and (202) 482-3627, respectively.
On April 23, 2008, the Department of Commerce (the Department) initiated the antidumping duty investigations of certain circular welded carbon quality steel line pipe (line pipe) from the Republic of Korea (Korea) and the People's Republic of China (PRC).
On August 12, 2008, Maverick Tube Corporation, Tex-Tube Company, and United States Steel Corporation (collectively, the petitioners) made a timely request pursuant to 19 CFR 351.205(e) for a postponement of the preliminary determinations with respect to Korea and the PRC. Therefore, the Department is postponing the deadline for the preliminary determinations with respect to Korea and the PRC pursuant to section 733(c)(1)(A) of the Act by 50 days to October 30, 2008. The deadline for the final determination will continue to be 75 days after the date of the preliminary determination, unless extended.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Import Administration, International Trade Administration, Department of Commerce.
August 29, 2008.
Terre Keaton Stefanova (Canada) or Marin Weaver (the People's Republic of China), AD/CVD Operations, Offices 2 and 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1280 or (202) 482-2336, respectively.
On May 5, 2008, the Department of Commerce (the Department) initiated the antidumping investigations of Citric Acid and Certain Citrate Salts from Canada and the People's Republic of China.
The notice of initiation stated that unless postponed the Department would issue the preliminary determinations for these investigations no later than 140 days after the date of issuance of the initiation, in accordance with section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act). The preliminary determinations are currently due no later than September 21, 2008.
On August 19, 2008, the petitioners, Archer Daniels Midland Company, Cargill, Incorporated, and Tate & Lyle Americas, Inc., made a timely request pursuant to section 733(c)(1)(A) of the Act and 19 CFR 351.205(e) for a 50-day postponement of the preliminary determinations. The petitioners requested postponement of the preliminary determinations in order to ensure that the Department has ample time to thoroughly analyze the novel and complex issues involved in these investigations.
Because there are no compelling reasons to deny the request, the Department is postponing the deadline for the preliminary determinations pursuant to section 733(c)(1)(A) of the Act to November 12, 2008,
This notice is issued and published pursuant to sections 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Dr. Douglas Peterson, Warnell School of Forest Resources (Fisheries Division), University of Georgia, Athens, Georgia 30602, has been issued a permit to take shortnose sturgeon (
The permit and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and
Southeast Region, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; phone (727)824-5312; fax (727)824-5309.
Malcolm Mohead or Brandy Belmas, (301)713-2289.
On February 21, 2008, notice was published in the
Dr. Douglas Peterson is authorized to conduct a five-year scientific research (presence/absence) study of shortnose sturgeon in the Saint Marys and Satilla Rivers, Georgia and Florida. The purpose of the proposed research is to assess the current status of shortnose sturgeon in these rivers, as well as evaluate the current habitat availability in each river. If shortnose sturgeon are found, another objective of the research will be to quantify the genetic discreteness and effective population size of the extant stock.
Specifically, Dr. Peterson is authorized to capture (by gill or trammel nets), handle, measure, weigh, PIT tag, and genetic fin clip up to 85 shortnose sturgeon annually from each river for the duration of the permit, or five years. To document spawning in the rivers, up to 20 eggs or larvae may be lethally collected in each river with artificial substrates. No unintentional mortality for either river is authorized.
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of scoping meetings.
The Caribbean Fishery Management Council will hold scoping meetings to obtain input from fishers, the general public, and the local agencies representatives on the Regulatory Amendment to the Fishery Management Plan for the Reef Fish Fishery of Puerto Rico and the United States Virgin Islands Concerning Bajo de Sico Seasonal Closure including a Regulatory Impact Review and an Environmental Assessment.
The scoping meetings will be held on the following dates and locations:
•September 18, 2008, Mayaguez Resort and Casino, Rd. 104, Km. 0.3, Mayaguez, Puerto Rico
•September 19, 2008, Pierre Hotel at Gallery Plaza, De Diego Avenue, Santurce, Puerto Rico
•September 22, 2008, Frenchman's Reef and Morning Star Hotel, 5 Estate Bakkeroe, St. Thomas, USVI
•September 23, 2008, Buccaneer Hotel,,Estate Shoys, Christtiansted, St. Croix, USVI.
All meetings will be held from 7 p.m. to 10 p.m.
Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-2577, telephone: (787) 766-5926.
The Caribbean Fishery Management Council will hold Scoping meetings to receive public input on the Regulatory Amendment to the Fishery Management Plan for the Reef Fish Fishery of Puerto Rico and the United States Virgin Islands Concerning Bajo de Sico Seasonal Closure including a Regulatory Impact Review and an Environmental Assessment.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305 ( c ) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-2577, telephone: (787) 766-5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meetings.
The New England Fishery Management Council's (Council) Groundfish Advisory Panel and Recreational Advisory Panel will hold two meetings to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meetings will be held on September 16 and 17, 2008. For specific dates and times, see
The meetings will be held at the Holiday Inn, One Newbury Street, Route 1, Peabody, MA 01960; telephone: (978) 535-4600.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The panel's schedule and agenda for the following two meetings are as follows:
1. The Groundfish Advisory Panel will meet to develop recommendations for Amendment 16 to the Northeast Multispecies Fishery Management Plan. The Advisory Panel will review management options that are under development and current estimates of stock status. They will provide recommendations for the measures for the commercial fishery that will be considered by the Groundfish Oversight Committee and the full Council at a later date.
2. The Panel may make recommendations on any measure, such as days-at-sea limits, trip limits, closed areas, sector provisions, annual catch limits and accountability measures, etc.
3. Other business.
1. The Recreational Advisory Panel will meet to develop recommendations for Amendment 16 to the Northeast Multispecies Fishery Management Plan. The Advisory Panel will review management options that are under development and current estimates of stock status. They will provide recommendations for the measures for the recreational fishery that will be considered by the Groundfish Oversight Committee and the full Council at a later date.
2. The Panel may make recommendations on any measure, such as minimum fish sizes, possession (bag) limits, seasons, closed areas, annual catch limits and accountability measures, etc.
3. Other business.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council's (Council) Pacific Northwest Crab Industry Advisory Committee (PNCIAC) will meet in Seattle, WA.
The meeting will be held on September 22, 2008, from 9 a.m. to 12 noon.
The meeting will be held at the Leif Erikson Hall, 2245 NW 57th Street, 3rd Floor, Norna Room, Seattle, WA.
Diana Stram, North Pacific Fishery Management Council, telephone: (907) 271-2809 or Arni Thomson, Secretary of PNCIAC, telephone: (206) 769-3474.
The PNCIAC will review ongoing revisions of metadata tables that are integral to the Bering Sea Aleutian Islands Crab Rationalization Economic Data Reports.
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen, (907) 271-2809, at least 5 working days prior to the meeting date.
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice.
In compliance with section 3506(c)(2)(A) of the
Consideration will be given to all comments received by October 28, 2008.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Under Secretary of Defense (Personnel and Readiness) Defense Commissary Agency, ATTN DOB (Barry White) 1300 E Avenue, Fort Lee, VA 23801-1800, or call (804) 734-8974.
(All respondents are authorized patrons by DoD regulations, unless otherwise described.)
Surveys will support commissary renovation and new construction. Survey results will be used to help determine market potential and associated commissary size requirements.
Surveys will support commissary site decisions. Where applicable, commissary user preference can be incorporated into the site location decision process. Patrons will input their answers to questions concerning where they would like a new facility located, as well as give their opinions and concerns that will affect their shopping experience. The survey results will also be used to estimate where the commissary users are located through the use of population density maps.
These surveys will aid in predicting the impact to commissaries that are near a closing commissary or a commissary that is undergoing some kind of transformation that may cause commissary users to migrate to an alternative nearby commissary. The results will be used to determine requirements for the nearby receiving commissaries.
These surveys will supply information on various processes within the commissaries. The surveyed population could be commissary customers, employees within the Agency, venders, distributors, or contractors. Persons surveyed will not necessarily be authorized commissary users.
These surveys will be administered to commissary eligible personnel to assess their perception of our savings compared to local commercial supermarkets.
This survey will be conducted, as needed, to assess the demographic make-up of commissary users. The results may be used in conjunction with population data to reveal differences in key demographics such as status, family size, distance from a commissary, age, service membership, and military grade.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 29, 2008.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 29, 2008.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 29, 2008.
Written comments and recommendations on the proposed information collection should be sent to Ms. Mar at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503. Comments may be e-mailed to Ms. Mar at
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 29, 2008.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 29, 2008.
Written comments and recommendations on the proposed information collection should be sent to Ms. Mar at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503. Comments may be e-mailed to Ms. Mar at
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Health Affairs announces the proposed extension of a public information collection and seeks public comment on the provisions thereof. Comments are
Consideration will be given to all comments received by October 28, 2008.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to TRICARE Management Activity, Purchased Care Procurement Branch, ATTN: John J.M. Leininger, 16401 E. Centretech Parkway, Aurora, CO 80011-9066, telephone 303-676-3613.
This collection instrument is for use by medical institutions filing for reimbursement with the Defense Health Program, TRICARE, which includes the Civilian Health and Medical Program of the Uniformed Services (TRICARE/CHAMPUS). TRICARE/CHAMPUS is a health benefits entitlement program for the dependent of active duty members of the Uniformed Service, and deceased sponsors, retirees and their dependents, dependents of department of transportation (Coast Guard) sponsors, and certain North Atlantic treaty Organization, National Oceanic and Atmospheric Administration, and Public Health Service eligible beneficiaries. Use of the UB-04 CMS1450 continues TRICARE/CHAMPUS commitments to use the national standard claim form for reimbursement of medical services/supplies provided by institutional providers.
Director of Administration and Management, Office of the Secretary, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Director of Administration and Management, Office of the Secretary announces the proposed extension of a public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by October 28, 2008.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Director of Administration and Management, Directorate for Organizational and Management Planning,
The Biennial Review employs a survey to assess organizational-customer satisfaction with the associated business line and addresses overall responsiveness to customer requirements, satisfaction with specific products and services, and quality of coordination with organizational customers. The survey identifies distinct areas of business (business lines) for all Defense Agencies and DoD Field Activities participating in the Review, creates lists of organizational customers specific to each business line, and uses a set of standard evaluation questions across all business lines. Respondents covered by this announcement are private-sector customers of these business lines, such as for the Federal Voting Assistance Program and Defense Finance and Accounting Service.
Department of Defense, Office of Economic Adjustment.
Notice.
This Notice is provided pursuant to section 2905(b)(7)(B)(ii) of the Defense Base Closure and Realignment Act of 1990. It provides a partial list of military installations closing or realigning pursuant to the 2005 Defense Base Closure and Realignment (BRAC) Report. It also provides a corresponding listing of a successor Local Redevelopment Authority (LRA) for Newport Chemical Depot, Indiana recognized by the Secretary of Defense, acting through the Department of Defense Office of Economic Adjustment (OEA), as well as the point of contact, address, and telephone number for the successor LRA for this installation. Representatives of state and local governments, homeless providers, and other parties interested in the redevelopment of the installation should contact the person or organization listed. The following information will also be published simultaneously in a newspaper of general circulation in the area of the installation. There will be additional Notices providing this same information about LRAs for other closing or realigning installations where surplus government property is available as those LRAs are recognized by the OEA.
Director, Office of Economic Adjustment, Office of the Secretary of Defense, 400 Army Navy Drive, Suite 200, Arlington, VA 22202-4704, (703) 604-6020.
Department of Defense, Office of Economic Adjustment.
Notice.
This Notice is provided pursuant to section 2905(b)(7)(B)(ii) of the Defense Base Closure and Realignment Act of 1990. It provides a partial list of military installations closing or realigning pursuant to the 2005 Defense Base Closure and Realignment (BRAC) Report. It also provides a corresponding listing of the Local Redevelopment Authority (LRA) for SGT George D. Libby USARC, Connecticut recognized by the Secretary of Defense, acting through the Department of Defense Office of Economic Adjustment (OEA), as well as the point of contact, address, and telephone number for the LRA for this installation. Representatives of state and local governments, homeless providers, and other parties interested in the redevelopment of the installation should contact the person or organization listed. The following information will also be published simultaneously in a newspaper of general circulation in the area of the installation. There will be additional Notices providing this same information about LRAs for other closing or realigning installations where surplus government property is available as those LRAs are recognized by the OEA.
Director, Office of Economic Adjustment, Office of the Secretary of Defense, 400 Army Navy Drive, Suite 200, Arlington, VA 22202-4704, (703) 604-6020.
Department of Defense; National Defense University.
Notice of open meeting.
The National Defense University (NDU), Designated Federal Officer, has scheduled a meeting of the Board of Visitors. The National Defense University Board of Visitors is a Federal Advisory Board. The Board meets twice a year in proceedings that are open to the public.
The meeting will be held on December 2, 2008 from 0900 to 1500 and December 3, 2008 from 1000 to 1300.
The Board of Visitors meeting will be held at Building 62, Marshall Hall, Room 155, National Defense University, 300 5th Avenue, Fort McNair, Washington, DC 20319-5066.
Jeanette Tolbert at (202) 685-3955, Fax (202) 685-3328, or
The meeting is open to the public; limited space is made available for observers and will be allocated on a first-come, first-served basis.
Defense Logistics Agency, DoD.
Notice to alter a system of records.
The Defense Logistics Agency proposes to alter a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on September 29, 2008 unless comments are received which result in a contrary determination.
Send comments to the Privacy Act Officer, Headquarters, Defense Logistics Agency,
Ms. Jody Sinkler at (703) 767-5045.
The Defense Logistics Agency systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system reports, as required by 5 U.S.C. 552a(r), of the Privacy Act of 1974, as amended, were submitted on August 22, 2008, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Day Care Facility Registrant and Applicant Records (April 26, 2002, 67 FR 8012).
Delete entry and replace with “Day Care Facility Registrant, Applicant and Enrollee Records.”
Delete entry and replace with “Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060-6221 and participating DLA Field Activities. Mailing addresses for the DLA Field Activities may be obtained from the System manager below.”
Delete entry and replace with “
Delete entry and replace with “With the exception of family income data, the records are available to the Child and Youth Program Coordinator, the CDP Director and Assistant Director, the CDP Training and Curriculum Specialist, and applicable administrative and care giving staff for the purpose of providing safe, developmentally appropriate day care services and to ensure proper, effective response in the event of an emergency. These records may also be made available to subject matter experts during inspections.”
Individualized data on total family income is provided to employing Defense components for fiscal planning purposes, for subsidy computation, and to reimburse DLA for day care services rendered under a support agreement. Verification of family income data is also used for fee assessment purposes and is made available to DLA representatives during inspections.
Serious Event Forms, Incident Report Forms, and monthly injury logs are provided to the Child and Youth Programs Coordinator, the CDP Director, and the installation's safety and health office for the purpose of tracking all accidents/incidents that occur within the CDP center or during sponsored activities off-site. These reports are also made available to safety and health professionals during inspections.
Records pertaining to physical abilities and limitations; physical, emotional or other special care requirements to include restrictions or special precautions concerning diet; existing IDPs; and documentation of behavioral issues or other special needs will be provided to members of the SNRT for the purpose of determining staff training needs, appropriate classroom placement, necessity of contract modification, and appropriate follow-up, to include collaboration with community resources as needed. Based upon the severity of the special need, the installation's paramedic squad will be notified of the child's enrollment at the CDC and the specific condition that may require attention. Records will also be available to subject matter experts during inspections.
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DOD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To physicians, dentists, medical technicians, hospitals, or health care providers in the course of obtaining emergency medical attention.
To Federal, state, and local officials involved with childcare or health services for the purpose of reporting suspected or actual child abuse.
To Federal, state, and local agencies and private sector entities that employ individuals who are registered to use the day care center for the purpose of verifying income.
To State Public Health Authorities and/or the Center for Disease Control for the purpose of reporting communicable diseases. Information released does not contain any personally identifiable information.
The DOD “Blanket Routine Uses” apply to this system of records
Add a new element to the notice: “Disclosures to consumer reporting agencies:
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (14 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)). The purpose of this disclosure is to aid in the collection of outstanding debts owed to the Federal government; typically to provide an incentive for debtors to repay delinquent Federal government debts by making these debts part of their credit records.
“The disclosure is limited to information necessary to establish the identity of the individual, including name, address, and taxpayer identification number (Social Security Number); the amount, status, and history of the claim; and the agency or program under which the claim arose for the sole purpose of allowing the consumer reporting agency to prepare a commercial credit report.”
Delete entry and replace with “Records are maintained in areas accessible only to personnel who must use them in the performance of their official duties. Paper records are maintained in locked file cabinets, drawers, or offices in a locked building with controlled, monitored access. Personnel who use the records to perform their duties must complete Privacy Act/Personally Identifiable Information (PII) training prior to being granted access to records. Smart card technology is required to access records maintained on computer systems.”
Enrollee records (involving no serious accident or injury requiring emergency medical records) are sent to the Child and Youth Program Coordinator upon termination from the program and are destroyed 1 year later.
Enrollee records (involving a serious accident or injury requiring emergency medical records) are sent to the Child Development Services Coordinator upon termination from the program and are destroyed 3 years after the incident or 1 year after the enrollee withdraws from the program, whichever is later.
Employee and Volunteer Records are maintained at the Child Development Center and are destroyed 3 years after termination of employment or volunteer services.
Delete entry and replace with “Director, Child and Youth Programs, Morale, Welfare and Recreation, Headquarters Defense Logistics Agency, 8725 John J. Kingman Road,
Delete entry and replace with “Information is provided by the registrant, the registrant's sponsor, the sponsor's employer, the registrant's
Day Care Facility Registrant, Applicant and Enrollee Records.
Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060-6221 and the participating DLA Field Activities. Mailing addresses may be obtained from the System manager below.”
Individuals and their sponsors who are enrolled in, or have applied for admission to, DLA-managed day care facilities.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 133, Under Secretary of Defense for Acquisition, Technology, and Logistics; 10 U.S.C. 2809 and 2812, Military construction of child care facilities; 42 U.S.C. Chap. 127, Coordinated services for children, youth, and families; 40 U.S.C. 490b, Child care services for Federal employees; 42 U.S.C. Chap 67, Child abuse programs; Pub. L. 101-189, Title XV, Military Child Care Act of 1989; DOD Instruction 6060.2, Child Development Programs; and E.O. 9397 (SSN).
With the exception of family income data, the records are available to the Child and Youth Program Coordinator, the CDP Director and Assistant Director, the CDP Training and Curriculum Specialist, and applicable administrative and care giving staff for the purpose of providing safe, developmentally appropriate day care services and to ensure proper, effective response in the event of an emergency. These records may also be made available to subject matter experts during inspections. Individualized data on total family income is provided to employing Defense components for fiscal planning purposes, for subsidy computation, and to reimburse DLA for day care services rendered under a support agreement. Verification of family income data is also used for fee assessment purposes and is made available to DLA representatives during inspections.
Serious Event Forms, Incident Report Forms, and monthly injury logs are provided to the Child and Youth Programs Coordinator, the CDP Director, and the installation's safety and health office for the purpose of tracking all accidents/incidents that occur within the CDP center or during sponsored activities off-site. These reports are also made available to safety and health professionals during inspections.
Records pertaining to physical abilities and limitations; physical, emotional or other special care requirements to include restrictions or special precautions concerning diet; existing IDPs; and documentation of behavioral issues or other special needs will be provided to members of the SNRT for the purpose of determining staff training needs, appropriate classroom placement, necessity of contract modification, and appropriate follow-up, to include collaboration with community resources as needed. Based upon the severity of the special need, the installation's paramedic squad will be notified of the child's enrollment at the CDC and the specific condition that may require attention. Records will also be available to subject matter experts during inspections.
Routine uses of records maintained in the system, including categories of users and the purposes of such uses:
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DOD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To physicians, dentists, medical technicians, hospitals, or health care providers in the course of obtaining emergency medical attention.
To Federal, state, and local officials involved with childcare or health services for the purpose of reporting suspected or actual child abuse.
To Federal, state, and local agencies and private sector entities that employ individuals who are registered to use the day care center for the purpose of verifying income.
To State Public Health Authorities and/or the Center for Disease Control for the purpose of reporting communicable diseases. Information released does not contain any personally identifiable information.
The DOD “Blanket Routine Uses” apply to this system of records.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (14 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)). The purpose of this disclosure is to aid in the collection of outstanding debts owed to the Federal government; typically to provide an incentive for debtors to repay delinquent Federal government debts by making these debts part of their credit records.
The disclosure is limited to information necessary to establish the identity of the individual, including name, address, and taxpayer identification number (Social Security Number); the amount, status, and history of the claim; and the agency or program under which the claim arose for the sole purpose of allowing the consumer reporting agency to prepare a commercial credit report.
Records are stored on paper and in electronic storage media.
Records may be retrieved by the full name of the registrant/applicant/sponsor and Social Security Number. Volunteer records may be retrieved by their full name.
Records are maintained in areas accessible only to personnel who must use them in the performance of their official duties. Paper records are maintained in locked file cabinets, drawers, or offices in a locked building with controlled, monitored access. Personnel who use the records to perform their duties must complete Privacy Act/Personally Identifiable Information (PII) training prior to being granted access to records. Smart card technology is required to access records maintained on computer systems.
Enrollee records (involving no serious accident or injury requiring emergency medical records) are sent to the Child and Youth Program Coordinator upon termination from the program and are destroyed 1 year later.
Enrollee records (involving a serious accident or injury requiring emergency medical records) are sent to the Child Development Services Coordinator upon termination from the program and are destroyed 3 years after the incident or 1 year after the enrollee withdraws from the program, whichever is later.
Employee and Volunteer Records are maintained at the Child Development Center and are destroyed 3 years after termination of employment or volunteer services.
Director, Child and Youth Programs, Morale, Welfare and Recreation, Headquarters Defense Logistics Agency, 8725 John J. Kingman Road,
Individuals seeking to determine whether information about them is contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency,
Inquiries from registrants/applicants/sponsors should contain their full name and Social Security Number. Inquiries from volunteers should contain their full name.
Individuals seeking access to information about them contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency,
Inquiries from registrants/applicants/sponsors should contain their full name and Social Security Number. Inquiries from volunteers should contain their full name.
The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Office, Headquarters, Defense Logistics Agency,
Information is provided by the registrant, the registrant's sponsor, the sponsor's employer, the registrant's physician or health care provider, volunteers, and CDP employees.
None.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 29, 2008.
Written comments and recommendations on the proposed information collection should be sent to Ms. Mar at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503. Comments may be e-mail to Ms. Mar at
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by September 29, 2008.
Written comments and recommendations on the proposed information collection should be sent to Ms. Mar at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503. Comments may be e-mail to Ms. Mar at
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Advisory Board (EMAB). The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, September 25, 2008, 8:30 a.m.-5:30 p.m.
The Millennium Hotel Cincinnati, 150 West Fifth Street, Cincinnati, Ohio 45202-2393.
Terri Lamb, Designated Federal Officer, Environmental Management Advisory Board (EM-13), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585. Phone (202) 586-9007; fax (202) 586-0293 or e-mail:
• EM Consolidated Business Center.
• EM Program Update.
• EM Strategic Planning.
• EM Human Capital Initiatives.
• Acquisition and Project Management.
• EM Communications.
• Board Business and Subcommittee Reports.
Department of Energy, Office of Fossil Energy.
Notice of Open Meeting.
This notice announces a meeting of the National Petroleum Council (NPC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that notice of these meetings be announced in the
Wednesday, September 17, 2008, 9 a.m.
The Fairmont, Washington, DC, 2401 M Street, NW., Washington, DC 20037.
James Slutz, U.S. Department of Energy, Office of Oil and Natural Gas, Washington, DC 20585. Phone: 202-586-5600.
• Call to Order and Introductory Remarks.
• Remarks by the Honorable Samuel W. Bodman, Secretary of Energy.
• Review Status of the National Petroleum Council
• Administrative Matters.
• Discussion of Any Other Business Properly Brought Before the National Petroleum Council.
• Adjournment.
On April 15, 2008, FFP Ohio River 22, LLC each filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Ohio River 22 Project, to be located on the Ohio River in Dearborn County, Indiana and Boone County, Kentucky.
The proposed Ohio River 22 Project consists of: (1) 3,240 proposed 20 kilowatt Free Flow generating units having a total installed capacity of 64.8 megawatts, (2) a proposed transmission line, and (3) appurtenant facilities. The FFP Ohio River 22, LLC, project would have an average annual generation of 283.82 gigawatt-hours and be sold to a local utility.
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 Web site 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
On April 15, 2008, FFP Ohio River 14, LLC each filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Ohio River 12 and Ohio River 8 Projects, to be located on the Ohio River in Clark and Jefferson Counties, Indiana and Trimble County, Kentucky.
The proposed Ohio River 14 Project consists of: (1) 3,900 proposed 20 kilowatt Free Flow generating units having a total installed capacity of 78 megawatts, (2) a proposed transmission line, and (3) appurtenant facilities. The FFP Ohio River 14, LLC, project would have an average annual generation of 341.6 gigawatt-hours and be sold to a local utility.
Applicant Contact: Mr. Dan Irvin, FFP Ohio River 14, LLC, 69 Bridge Street, Manchester, MA 01944, phone (978) 232-3536.
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 Web site 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
On April 15, 2008, FFP Ohio River 16, LLC and FFP Ohio River 17, LLC each filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Ohio River 16 and Ohio River 17 Projects, to be located on the Ohio River in Switzerland County, Indiana and Carroll County, Kentucky.
Enter the docket number (P-13168 or P-13169) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3372.
On March 25, 2008, FFP Ohio River 21, LLC each filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Ohio River 21 Project, to be located on the Ohio River in Ohio County, Indiana and Boone County, Kentucky.
The proposed Ohio River 21 Project consists of: (1) 1,020 proposed 20 kilowatt Free Flow generating units having a total installed capacity of 20.4 megawatts, (2) a proposed transmission line, and (3) appurtenant facilities. The FFP Ohio River 21, LLC, project would have an average annual generation of 89.35 gigawatt-hours and be sold to a local utility.
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 Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. This application has been accepted, but is not ready for environmental analysis at this time.
l.
The proposed project would include a new 165-kW turbine unit in the waste gate slot located at the gatehouse adjacent to the project dam. This unit would operate off of a proposed minimum bypassed reach flow of 90 cubic feet per second (cfs) or inflow. In addition, the proposed project would provide additional recreational access through formal canoe portage facilities and parking.
The applicant estimates that the total average annual generation, with the proposed additional turbine, would be 5,800 megawatt-hours. The applicant proposes to continue to operate the project in run-of-river mode with an increase in minimum flow in the bypass reach from 10 cfs to 90 cfs or inflow, whichever is less. The purpose of the project is to produce electrical power for sale.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
n. You may also register online at
o. Scoping Process
The Commission staff intends to prepare a single environmental assessment (EA) for the Glendale Hydroelectric Project in accordance with the National Environmental Policy Act. The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed action.
Commission staff does not propose to conduct any on-site scoping meetings at this time. Instead, we are soliciting comments, recommendations, and information, on the scoping document issued on August 22, 2008.
Copies of the scoping document outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list and the applicant's distribution list. Copies of the scoping document may be viewed on the Web at
Take notice that on August 22, 2008, Texas Gas Transmission, LLC (Texas Gas), 3800 Frederica Street, Owensboro, Kentucky 42301, filed in the above referenced docket an application pursuant to section 7(c) of the Natural Gas Act (NGA), and section 157 of the Commission's regulations to amend the certificate of public convenience and necessity issued on May 2, 2008, in Docket No. CP07-417-000. Specifically, Texas Gas requests authorization to increase in the maximum design capability of the Fayetteville Lateral, located in Arkansas and Mississippi, from 841,000 MMBtu per day to 967,000 MMBtu/d, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Any questions concerning this application may be directed to Kathy D. Fort, Manager, Certificates and Tariffs, Texas Gas Transmission, LLC, 3800 Frederica Street, Owensboro, Kentucky 42301 at (270) 688-6825.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 27, 2008, Birchwood Power Partners, L.P., EFS Parlin Holdings LLC, Linden Holding L.L.C. and Technologies Linden Venture L.P. filed a triennial market power analysis pursuant to the Commission's Order 697.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On June 30, 2008, El Paso Natural Gas Company (El Paso) filed revised tariff sheets pursuant to section 4 of the Natural Gas Act and Part 154 of the Commission's regulations. In its filing, El Paso proposes a number of new services, a rate increase for existing services, and changes in certain terms and conditions of service. On August 5, 2008, the Commission issued an order
Take notice that a technical conference to discuss issues raised by El Paso's filing will be held on Thursday, September 11, 2008 at 9 a.m. (EST) and Friday, September 12, 2008 at 9 a.m. (EST), in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. If necessary, the conference will continue on Tuesday, October 21, 2008 at 9 a.m. (EST) and Wednesday, October 22, 2008 at 9 a.m. (EST).
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
All parties and staff are permitted to attend. For further information please contact April Ballou at (202) 502-6537 or
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's Final Work Plans and Proposed Registration Review Decisions for the pesticides cases Capric (Decanoic) Acid and Sodium Hydroxide (Mineral Bases, Strong), and opens a public comment period on the proposed registration review decisions. Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, that the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. Through this program, EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment.
Comments must be received on or before October 28, 2008.
Submit your comments, identified by docket identification (ID) numbers EPA-HQ-OPP-2007-0922 for Sodium Hydroxide (Mineral Bases, Strong) and EPA-HQ-OPP-2007-1040 for Capric (Decanoic) Acid, by one of the following methods:
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For information about the pesticides included in this document, contact the specific Chemical Review Manager as identified in the table in Unit II. for the pesticide of interest.
For general questions on the registration review program, contact Kevin Costello, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5026; fax number: (703) 308-8090; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This notice opens a 60-day public comment period on the subject proposed registration review decisions. The Agency is proposing registration review decisions for the pesticide cases shown in the following Table.
The dockets for registration review of these pesticide cases include earlier documents related to the registration review of the subject cases. For example, the review opened with the posting of a Summary Document, containing a Preliminary Work Plan (PWP), for public comment. Because no comments were received, and because the Agency required no further risk assessments to complete registration review of these cases, the Final Work Plan and Proposed Decision were combined into a single document. The documents in the initial docket described the Agency's rationale for not conducting new risk assessments for the registration review of Sodium Hydroxide (Mineral Bases, Strong) and Capric (Decanoic) Acid. These proposed registration review decisions now included in the dockets continue to be supported by those rationales included in documents in the initial dockets. Following public comment, the Agency will issue a final registration review decision for each case.
The registration review program is being conducted under congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. Section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) as amended in 1996 required EPA to establish by regulation procedures for reviewing pesticide registrations, originally with a goal of reviewing each pesticide's registration every 15 years to ensure that a pesticide continues to meet the FIFRA standard for registration. The Agency's final rule to implement this program was issued in August 2006 and became effective in October 2006 and appears at 40 CFR part 155.40
Background on the registration review program is provided at:
FIFRA Section 3(g) and 40 CFR part 155.40
Environmental protection, Pesticides and pests, Antimicrobials, capric acid, sodium hydroxide, Registration review.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's revised surface water exposure assessment for the pesticide carbofuran. This revised assessment reflects the most current soil input parameters for the surface water exposure modeling done for the dietary risk assessment for carbofuran. While the underlying information based on soil type has been updated, the Agency's ultimate risk conclusions have not changed. The new drinking water exposure assessment dated August 20, 2008, entitled “Updated Refinements of the Drinking Water Exposure Assessment for the Use of Carbofuran on Corn and Melons,” is in the carbofuran docket.
Jude Andreasen, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-9342; fax number: (703) 308-7070; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
Upon further review of its underlying assessments, the Agency has updated its drinking water exposure assessment for the pesticide carbofuran to reflect the most current soil input parameters for the surface water source drinking water exposure modeling. Soil information for 8 of the 11 scenarios has been updated to more closely resemble soils in the areas where the scenarios for these crops were modeled. Of the 11 scenarios, 2 resulted in concentrations that remained largely unchanged (Minnesota corn and Nebraska corn); and 6 scenarios resulted in concentrations that decreased slightly (Iowa corn, Indiana corn, Kansas corn, Michigan melon, Missouri melon, and New Jersey melon). The remaining 3 scenarios (Illinois corn, Texas corn, and Florida melons) were not modified and remain unchanged. Despite the revisions to certain of the underlying assessments from use of the more recent soil types, the Agency's ultimate risk conclusions regarding carbofuran's overall dietary risks remain unchanged. EPA is providing notice of its revised assessments to allow the public the opportunity to comment on the Agency's revisions during the comment period on its proposed tolerance revocations.
The updated exposure assessment, dated August 20, 2008, entitled “Updated Refinements of the Drinking Water Exposure Assessment for the Use of Carbofuran on Corn and Melons,” is in the carbofuran docket (EPA-HQ-OPP-2005-0162) at
21 U.S.C. 346a(e).
Environmental protection, Agricultural commodities, Pesticides and pests.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7146.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 6, 2008 (73 FR 19833).
Environmental Protection Agency.
Notice of meeting.
The Environmental Protection Agency (EPA) established the Clean Air Act Advisory Committee (CAAAC) on November 19, 1990, to provide independent advice and counsel to EPA on policy issues associated with implementation of the Clean Air Act of 1990. The Committee advises on economic, environmental, technical scientific, and enforcement policy issues.
Open meeting notice; pursuant to 5 U.S.C. App. 2 section 10(a)(2), notice is hereby given that the Clean Air Act Advisory Committee will hold its next open meeting on Thursday, September 18, 2008. The meeting is open to the public to attend and will begin at approximately 8:30 a.m. to 4 p.m. at the DoubleTree Hotel at 300 Army Navy Drive, in Arlington, Virginia. The Subcommittee meetings will be held on September 17, 2008 and will begin at approximately 8:30 a.m. to 4:30 p.m. at the same location as the full Committee. Seating will be available on a first come, first served basis. The agenda for the CAAAC full committee meeting on September 18, 2008, will be posted on the Clean Air Act Advisory Committee Web site at
Concerning the CAAAC, please contact Pat Childers, Office of Air and Radiation, U.S. EPA (202) 564-1082, Fax (202) 564-1352 or by mail at U.S. EPA, Office of Air and Radiation (Mail code 6102 A), 1200 Pennsylvania Avenue, NW., Washington, DC 20004. For information on the Subcommittees, please contact the following individuals: (1) Permits/NSR/Toxics Integration—Liz Naess, (919) 541-1892; (2) Economic Incentives and Regulatory Innovations— Pat Childers, (202) 564-1082; and (3) Mobile Source Technical Review—John Guy, (202) 343-9276. Additional Information on these meetings, CAAAC, and its Subcommittees can be found on the CAAAC Web site:
For information on access or services for individuals with disabilities, please contact Mr. Pat Childers at (202) 564-1082 or
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before September 29, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2008-0600 and the pesticide petition number (PP) 8F7403, by one of the following methods:
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Dianne Morgan, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6217; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
3.
EPA is printing notice of the filing of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that the pesticide petition described in this notice contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. Additional data may be needed before EPA rules on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition included in this notice, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available on-line at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice; extension of comment period.
On July 16, 2008, EPA issued a notice in the
Comments, identified by the docket identification (ID) number must be received on or before October 30, 2008.
Follow the detailed instructions as provided under
This document extends the public comment period for the fumigants chloropicrin, dazomet, metam potassium/sodium, and methyl bromide established in the
To submit comments, or access the public docket, please follow the detailed instructions as provided under
Section 4(g)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, directs that, after submission of all data concerning a pesticide active ingredient, the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration. Further provisions are made to allow a public comment period. However, the Administrator may extend the comment period if additional time for comment is requested. In this case, the Methyl Bromide Industry Panel (MBIP), California Specialty Crops Council, the Chloropicrin Manufacturers' Task Force (CMTF), the National Association of Manufacturers (NAM), the American Nursery and Landscape Association (ANLA), the California Strawberry Nurserymen's Association, the Agricultural Retailers Association, the American Forest and Paper Association, and McDermott, Will, and Emery LLP, on behalf of the Minor Crop Farmer Alliance (MCFA), have requested additional time to develop comments. These groups represent manufacturers and users of the soil fumigants. The Agency believes that an additional 45 days is warranted.
Environmental protection, Fumigants, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice of draft report for public review and comment.
On or about August 27, 2008, the Office of Air Quality Planning and Standards (OAQPS) of EPA is making available for public review and comment a draft document titled “Risk and Exposure Assessment to Support the Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Oxides of Sulfur: First Draft.” The purpose of this draft document is to convey the approach EPA has taken to assess environmental exposures to ambient oxides of nitrogen and sulfur and to characterize associated public welfare risks, as well as to present the results of those assessments. We anticipate the release of an additional chapter(s) on or about the week of September 15, 2008.
Comments on the above report must be received on or before October 15, 2008.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-1145, by one of the following methods:
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Dr. Anne Rea, Office of Air Quality Planning and Standards (Mailcode C539-02), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; e-mail:
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
Under section 108(a) of the Clean Air Act (CAA), the Administrator identifies and lists certain pollutants which “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” The EPA then issues air quality criteria for listed pollutants, which are commonly referred to as “criteria pollutants.” The air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air, in varying quantities.” Under section 109 of the CAA, EPA establishes NAAQS for each listed pollutant, with the NAAQS based on the air quality criteria. Section 109(d) of the CAA requires periodic review and, if appropriate, revision of existing air quality criteria. The revised air quality criteria reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. The EPA is also required to periodically review and revise the NAAQS, if appropriate, based on the revised criteria.
EPA is currently conducting a joint review of the existing secondary (welfare-based) national ambient air quality standards (NAAQS) for nitrogen dioxide (NO
As part of its review of the secondary NAAQS for NO
The first draft risk and exposure assessment for the secondary NO
The EPA is soliciting advice and recommendations from the CASAC by means of a review on the draft document at an upcoming public meeting of the CASAC scheduled for October 1-2, 2008 in Research Triangle Park, N.C. Following the CASAC
Notice of meeting.
This notice sets forth the schedule and summary agenda for a meeting of the President's Council of Advisors on Science and Technology (PCAST), and describes the functions of the Council. Notice of this meeting is required under the Federal Advisory Committee Act (FACA).
Information regarding agenda, time, and location is available at the PCAST Web site at:
The President's Council of Advisors on Science and Technology was established by Executive Order 13226, on September 30, 2001. The purpose of PCAST is to advise the President on matters of science and technology policy, and to assist the President's National Science and Technology Council in securing private sector participation in its activities. The Council members are distinguished individuals appointed by the President from non-Federal sectors. The PCAST is co-chaired by Dr. John H. Marburger, III, the Director of the Office of Science and Technology Policy, and by E. Floyd Kvamme, a Partner at Kleiner Perkins Caufield & Byers.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via Internet at
To view a copy of this information collection request (ICR) submitted to OMB: (1) go to the Web page
For additional information or copies of the information collection(s), contact Cathy Williams at (202) 418-2918, or via Internet at
In
In its 2004 Order, the Commission stated that Form 395-A conformed to the racial and employment categories contained in the then-existing Form EEO-1 Employer Information Report issued by Equal Employment Opportunity Commission (the “EEOC”), 2004 Order, at 9977-78. The Order noted that the EEOC had proposed to revise its EEO-1 form to incorporate new racial and employment categories approved by OMB. It also noted that, when the revised EEO-1 form was released, the Commission would review its Form 395-A to see what changes were needed to comply with the new OMB standards, and whether it could conform Form 395-A to those standards consistent with Section 634 of the Communications Act of 1934, as amended (the “Act”). 47 U.S.C. 554;
With the EEOC's release of the EEO-1 incorporating revised racial and employment categories, the Bureau sought public comment (“Media Bureau Seeks Comment on Possible Changes to FCC Forms 395-A and 395-B,” Public Notice DA 08-752, released April 11, 2008; 73 FR 21346, April 21, 2008) (the “Public Notice”) on whether to incorporate the EEOC's revised categories and whether such changes would be consistent with Section 634 of the Act. The public comment period ended on June 6, 2008, and the Commission has completed its review of all the comments and reply comments. The Commission did not receive any comments opposing the incorporation of the EEOC's revised categories in the FCC's annual employment reports.
The Commission has concluded that the proposed changes to FCC Form 395-A are consistent with the racial and job category data required by Section 634 of the Act because the revisions simply reflect different terminology for the same categories and more detailed sub-categories. 47 U.S.C. 554.
In
In its 2004 Order, the Commission stated that Form 395-B conformed to the racial and employment categories contained in the then-existing Form EEO-1 Employer Information Report issued by the Equal Employment Opportunity Commission (“EEOC”). 2004 Order, at 9977-78.
The Order noted that the EEOC had proposed to revise its EEO-1 form to incorporate new racial and employment categories approved by OMB. It also noted that, when the revised EEO-1 form was released, the Commission would review its Form 395-B to determine what changes were needed to comply with the new OMB standards, and whether it could conform Form 395-B to those standards consistent with Section 334 of the Communications Act of 1934, as amended (the “Act”). 47 U.S.C. 334;
With the EEOC's release of the EEO-1 incorporating revised racial and employment categories, the FCC's Media Bureau sought public comment (“Media Bureau Seeks Comment on Possible Changes to FCC Forms 395-A and 395-B,” Public Notice DA 08-752, released April 11, 2008; 73 FR 21346, April 21, 2008) (“Public Notice”) on whether to incorporate the EEOC's revised categories and whether such changes would be consistent with Section 334 of the Act. The public comment period ended on June 6, 2008, and the Commission has completed its review of all the comments and reply comments. The Commission did not receive any comments opposing the incorporation of the EEOC's revised categories in the FCC's annual employment reports.
The Commission has concluded that the proposed changes to FCC Form 395-B are consistent with Section 334 of the Act, which allows the FCC to make non-substantive technical or clerical revisions to annual employment reports in order to reflect changes in,
Federal Communications Commission.
Notice.
The Federal Communications Commission (the “Commission”) debars Mr. Allan Green from the schools and libraries universal service support mechanism (or “E-Rate Program”) for a period of three years based on his conviction of conspiracy to commit mail fraud in connection with his participation in the program. The Bureau takes this action to protect the E-Rate Program from waste, fraud and abuse.
Debarment commences on the date Mr. Allan Green receives the debarment letter or August 29, 2008, whichever date come first, for a period of three years.
Rebekah Bina, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445 12th Street, SW., Washington, DC 20554. Rebekah Bina may be contacted by phone at (202) 418-7931 or e-mail at
The Commission debarred Mr. Allan Green from the schools and libraries universal service support mechanism for a period of three years pursuant to 47 CFR 54.8 and 47 CFR 0.111. Attached is the debarment letter, DA 08-1862, which had the suspension letter, DA 08-1179 attached, and was mailed to Mr. Allan Green and released on August 7, 2008. The complete text of the notice of debarment is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portal II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. In addition, the complete text is available on the FCC's Web site at
The debarment letter, which attached the suspension letter, follows:
Dear Mr. Green: Pursuant to section 54.8 of the rules of the Federal Communications Commission (the “Commission”), by this Notice of Debarment you are debarred from the schools and libraries universal service support mechanism (or “E-Rate program”) for a period of three years.
On May 19, 2008, the Enforcement Bureau (the “Bureau”) sent you a Notice of Suspension and Initiation of Debarment Proceedings (the “Notice of Suspension”).
Pursuant to the Commission's rules, any opposition to your suspension or its scope or to your proposed debarment or its scope had to be filed with the Commission no later than thirty (30) calendar days from the earlier date of your receipt of the Notice of Suspension or publication of the Notice of Suspension in the
As discussed in the Notice of Suspension, you pled guilty to and were convicted of conspiracy to commit mail fraud, in violation of 18 U.S.C. 71, in connection with your participation in the Philadelphia Academy (“Academy”) E-Rate project (“Project”).
Dear Mr. Green: The Federal Communications Commission (“FCC” or “Commission”) has received notice of your conviction of conspiracy to commit mail fraud, in violation of 18 U.S.C. 371, in connection with your participation in the schools and libraries universal service support mechanism (“E-Rate program”).
The Commission has established procedures to prevent persons who have “defrauded the government or engaged in similar acts through activities associated with or related to the schools and libraries support mechanism” from receiving the benefits associated with that program.
Pursuant to section 54.8(a)(4) of the Commission's rules,
Suspension is immediate pending the Bureau's final debarment determination. In accordance with the Commission's debarment rules, you may contest this suspension or the scope of this suspension by filing arguments in opposition to the suspension, with any relevant documentation. Your request must be received within 30 days after you receive this letter or after notice is published in the
Your guilty plea and conviction of criminal conduct in connection with the E-Rate program, in addition to serving as a basis for immediate suspension from the program, also serves as a basis for the initiation of debarment proceedings against you. Your conviction falls within the categories of causes for debarment defined in section 54.8(c) of the Commission's rules.
As with your suspension, you may contest debarment or the scope of the proposed debarment by filing arguments and any relevant documentation within 30 calendar days of the earlier of the receipt of this letter or of publication in the
If and when your debarment becomes effective, you will be prohibited from participating in activities associated with or related to the schools and libraries support mechanism for three years from the date of debarment.
Please direct any response, if by messenger or hand delivery, to Marlene H. Dortch, Secretary, Federal Communications Commission, 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002, to the attention of Diana Lee, Attorney Advisor, Investigations and Hearings Division, Enforcement Bureau, Room 4-C330, with a copy to Vickie Robinson, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, Room 4-C330, Federal Communications Commission. If sent by commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail), the response should be sent to the Federal Communications Commission, 9300 East Hampton Drive, Capitol Heights, Maryland 20743. If sent by first-class, Express, or Priority mail, the response should be sent to Diana Lee, Attorney Advisor, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, SW., Room 4-C330, Washington, DC 20554, with a copy to Vickie Robinson, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, SW., Room 4-C330, Washington, DC 20554. You shall also transmit a copy of the response via e-mail to
If you have any questions, please contact Ms. Lee via mail, by telephone at (202) 418-1420 or by e-mail at
Petitions for Reconsideration have been filed in the Commission's Rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR Section 1.429(e). The full text of
E911 Requirements for IP-Enabled Service Providers (WC Docket No. 05-196).
Federal Communications Commission.
Notice.
In this document, comment is sought on a July 11, 2008 petition for Declaratory Ruling (Petition) filed by CTIA—The Wireless Association (Petitioner). The Petitioner asks the Federal Communications Commission to clarify the provisions of section 332(c)(7)(B)(v) of the Communications Act, as amended, that Petitioner contends are ambiguous and that have been unreasonably interpreted. Petitioner further requests that the Commission preempt local ordinances and state laws that Petitioner believes violate section 253(a) of the Communications Act, as amended.
Interested parties may file comments on or before September 15, 2008, and reply comments on or before September 30, 2008.
You may submit comments, identified by WT Docket No. 08-165, by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Michael Rowan, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau at (202) 418-1883 or
This is a summary of the Commission's public notice released on August 14, 2008. The full text of the public notice is available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; the contractor's Web site,
On July 11, 2008, CTIA—The Wireless Association (CTIA) filed a petition requesting that the Federal Communications Commission (Commission) issue a Declaratory Ruling clarifying provisions of the Communications Act of 1934, as amended (Communications Act) regarding state and local review of wireless facility siting applications.
Specifically, in its petition, CTIA asks the Commission to take four actions relating to the time frames in which zoning authorities must act on siting requests, their power to restrict competitive entry by multiple providers in a given area, and their ability to impose certain procedural requirements on wireless service providers. First, to eliminate an ambiguity that CTIA contends currently exists in section 332(c)(7)(B)(v) of the Communications Act, CTIA asks the Commission to clarify the time period in which a state or local zoning authority will be deemed to have failed to act on a wireless facility siting application. CTIA states that “the Commission should issue a declaratory ruling explaining that (1) a failure to act on a wireless facility siting application only involving collocation occurs if there is no final action within 45 days from submission of the request to the local zoning authority; and (2) a failure to act on any other wireless siting facility application occurs if there is no final action within 75 days from submission of the request to the local zoning authority.”
This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
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• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
Parties shall send one copy of their comments and reply comments to Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (800) 378-3160, e-mail
Notice is given that a complaint has been filed with the Federal Maritime Commission (“Commission”) by Tienshan, Inc. Complainant asserts that it is a corporation organized and existing pursuant to the laws of the State of Delaware with its principal place of business at 231 Wilson Avenue, South Norwalk, Connecticut 06854. Complainant alleges that Respondent, Tianjin Hua Feng Transport Agency Co., Ltd., is a foreign corporation organized and operating pursuant the laws of the People's Republic of China with its principal place of business at Rm. 1002, Bldg. A, International Commercial Trade Center, No. 59 Machang Road, Hexi District, Tianjin, China. Complainant also alleges that Respondent is operating as a bonded and tariffed foreign-based Non-Vessel-Operating Common Carrier under FMC No. 018117.
Complainant asserts that, in April 2008 it signed a sales contract for the purchase of stoneware from Henan Huatai Ceramic Technology Trading Co., Ltd. (“Henan Huatai” or “Shipper”), located in Henan, China, and that the terms of sale were FOB Tianjin Port, China. Complainant avers that it purchased the stoneware in order to perform its contracts with Wal-Mart Stores, Inc. (“Wal-Mart”) and other U.S. retailers. Complainant maintains that it paid the full contract price to Henan Huatai, and consequently, title to the goods was transferred to Complainant.
Complainant alleges that the goods were loaded on a Wan Hai Lines (Singapore) PTE Ltd. (“Wan Hai”) vessel, under a Wan Hai bill of lading naming Henan Huatai as Shipper, and Complainant as Consignee; and that the cargo arrived at the port of discharge, Long Beach, CA, mid-June 2008. Complainant further alleges that it paid the full amount of the ocean freight and other charges to Wan Hai. Complainant claims that Shipper, Henan Huatai, went out of business in June 2008, and Respondent, acting as a freight forwarder in China on behalf of the Shipper, is unlawfully holding the original bill of lading, alleging debts owed by Shipper to Respondent.
Complainant alleges that Respondent's refusal to provide the original bill of lading to Complainant, unless Complainant paid to Respondent the amount owed by the Shipper, constitutes an unreasonable regulation or practice related to the delivery of property in violation of 46 U.S.C. 41102(c) (formerly § 10(d)(1) of the Shipping Act of 1984). Complainant claims injury in the form of demurrage charges in the amount of $16,944.00; loss of its funds held in an escrow account required by Wan Hai in the amount of $47,801.42; and liquidated damages imposed by Wal-Mart for lost sales in the amount $106,115.00; for a total of $170,860.42, with liquidated damages continuing to accrue.
Complainant requests that the Commission issue as relief, an Order: (1) Compelling Respondent to answer the charges in the subject complaint, and scheduling a hearing in Washington, DC; (2) finding that Respondent's activities were unlawful and in violation of the Shipping Act; (3) compelling Respondent to pay reparations of $170,860.42 plus interest, costs, and attorney's fees; and (4) requiring Respondent to provide Complainant with the original bill of lading to allow Complainant to secure release of its escrow deposit from Wan Hai and stop other liquidated damages from accruing. Additionally, Complainant requests that the Commission issue further relief as it deems just and proper.
This proceeding has been assigned to the Office of Administrative Law Judges. Hearing in this matter, if any is held, shall commence within the time limitations prescribed in 46 CFR 502.61, and only after consideration has been given by the parties and the presiding officer to the use of alternative forms of dispute resolution. The hearing shall include oral testimony and cross-examination in the discretion of the presiding officer only upon proper showing that there are genuine issues of material fact that cannot be resolved on the basis of sworn statements, affidavits, depositions, or other documents or that the nature of the matter in issue is such that an oral hearing and cross-examination are necessary for the development of an adequate record. Pursuant to the further terms of 46 CFR 502.61, the initial decision of the presiding officer in this proceeding shall be issued by August 26, 2009, and the final decision of the Commission shall be issued by December 24, 2009.
Agency for Healthcare Research and Quality (AHRQ), DHHS.
Notice of Availability—Common Formats for Safety Data Collection and Event Reporting.
The Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) provides for the formation of Patient Safety Organizations (PSOs), which would collect and analyze confidential information reported by healthcare providers. The Patient Safety Act (at 42 U.S.C. 299b-23) authorizes the collection of this information in a standardized manner, as explained in the related Notice of Proposed Rulemaking published in the
Ongoing public input.
The Common Formats can be accessed electronically at the following Web site of the Department of Health and Human Services:
Susan Grinder, Center for Quality Improvement and Patient Safety, AHRQ, 540 Gaither Road, Rockville, MD 20850; Telephone (toll free): (866) 403-3697; Telephone (local): (301) 427-1111; TTY (toll free): (866) 438-7231; TTY (local): (301) 427-1130; E-mail:
The Patient Safety Act establishes a framework by which doctors, hospitals, and other health care providers may voluntarily report information on a privileged and confidential basis regarding patient safety events and quality of care. The Patient Safety Act provides for voluntary formation of PSOs, which can be public or private organizations, that collect, aggregate, and analyze information regarding the quality and safety of care delivered in any healthcare setting. Information that is assembled and developed by providers and PSOs—called “patient safety work product”—is privileged and confidential; it can be used to identify patient safety events and unsafe conditions that increase risks to patients.
The Patient Safety Act requires PSOs, to the extent practical and appropriate, to collect patient safety work product from providers in a standardized manner in order to permit valid comparisons of similar cases among similar providers.
One of the goals of the legislation is to allow aggregation of sufficient data to identify and address underlying causal factors of patient safety problems. In order to facilitate standardized data collection, the Secretary of DHHS requested AHRQ to coordinate the development of Common Formats for patient safety events.
Definitions and other details about PSOs and patient safety work product have been prepared for publication at 42 CFR Part 3; a Notice of Proposed Rulemaking was published in the
The term Common Formats is used to describe technical requirements developed for the uniform collection and reporting of patient safety data, including all supporting material:
• Descriptions of patient safety events and unsafe conditions to be reported,
• Delineation of data elements to be collected for specific types of events,
• Examples of patient safety population reports,
• A metadata registry with data element attributes and technical specifications,
• Paper forms to allow immediate implementation, and
• A users guide.
Common Formats delineate definitional and reporting specifications that will allow healthcare providers to collect and submit standardized information regarding patient safety events. The Common Formats are not intended to replace any current mandatory reporting system, collaborative/voluntary reporting system, research related reporting system, or other reporting/recording systems.
The scope of Common Formats will apply to all patient safety concerns including:
• Incidents—patient safety events that reached the patient, whether or not there was harm,
• Near misses or close calls—patient safety events that did not reach the patient, and
• Unsafe conditions.
In the interest of supporting PSO data collection from the outset, AHRQ is releasing Version 0.1 Beta of the Common Formats, which have a defined focus on patient safety reporting for hospital inpatients. It should be noted, however, that the Patient Safety Act confers both privilege and confidentiality on all patient safety work product developed under the aegis of a PSO with respect to healthcare in any setting. AHRQ anticipates expanding future versions of the Common Formats to include other settings such as: Nursing homes and other bedded facilities; ambulatory surgery centers; other ambulatory care settings, including community health centers, rehabilitation centers, and hemodialysis centers; physician and practitioner offices; and retail establishments such as pharmacies.
AHRQ has established a process to develop Common Formats that: (1) Is evidence based; (2) harmonizes across governmental health agencies; (3) incorporates feedback from the private sector, including professional associations/organizations, those who use the formats, and the public; and (4) permits timely updating of these clinically-sensitive formats. It is planned that updated versions of the formats will be released annually by AHRQ as guidance. While the dvelopment and release of Common Formats is outside the scope of the regulations implementing the Patient Safety Act, AHRQ described its proposed development process in the Notice of Proposed Rulemaking referenced above and sought public comment. There were a significant number of strongly supportive comments about the process; there were no negative comments.
In anticipation of the need for Common Formats, AHRQ began their development in 2005 by creating an inventory of functioning private and public sector patient safety reporting systems. This inventory provides an evidence base to inform construction of the Common Formats. The inventory now numbers 64 and includes many systems from the private sector, including prominent academic settings, hospital systems, and international reporting systems (e.g., from the United Kingdom and the Commonwealth of Australia). In addition, virtually all major Federal patient safety reporting systems are included, such as those from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), the Department of Defense (DoD), and the Department of Veterans Affairs (VA).
AHRQ convened an interagency Patient Safety Work Group (PSWG) to develop draft formats. Included in the PSWG are major health agencies within the Department—CDC, Centers for Medicare and Medicaid Services (CMS), FDA, Health Resources and Services Administration (HRSA), the Indian Health Service (IHS), the National Institutes of Health (NIH), the Office of the National Coordinator for Health Information Technology (ONC)—as well as the DoD and the VA.
The PSWG reviewed the AHRQ inventory, created draft Common Format data sets, harmonized individual data elements where possible, and created new data elements where necessary. From February through May of 2008, the draft Common Formats underwent two pilot tests in a significant number of healthcare facilities within DoD, IHS, and VA. These pilot tests were designed to provide guidance to refine the draft formats prior to their release as Version 0.1 Beta. The PSWG, acting as the focus for original development and continuing upgrading/maintenance will assure consistency of definitions/formats with those of relevant government agencies as refinement of the Common Formats continues.
The PSWG aligned the formats, to the extent practicable, with World Health Organization (WHO) concepts, framework, and definitions contained in their draft International Classification for Patient Safety (ICPS). The ICPS is currently under development.
AHRQ's initial construction of Common Formats thus draws on information from systems in both the public and private sectors, but was completed by a work group comprising only Federal agencies. To allow for greater participation by the private sector in the subsequent development of the Common Formats, AHRQ has engaged the National Quality Forum (NQF) to solicit comments and advice to guide future versions, as described below. It should be noted that the Common Formats Version 0.1 Beta can be implemented now, using AHRQ paper forms and the users guide. Other supporting materials will be made available shortly via the AHRQ Web site.
AHRQ is committed to continuing refinement of the Common Formats. The Agency is specifically interested in obtaining feedback from both the private and public sectors—particularly from those who use the Common Formats—and it has established a process to receive initial feedback that will guide rapid improvement of the formats.
AHRQ has contracted with the NQF, a non-profit organization focused on healthcare quality, to assist with gathering and analyzing feedback on the Common Formats. In this role, the NQF will assist AHRQ in updating future versions of the formats by: Soliciting public comments from providers, professional organizations, the general public, and PSOs; triaging comments in terms of immediacy of importance; setting priorities; and convening expert panel(s) to offer advice on suggested improvements to the formats. This process will be a continuing one, guiding periodic updates of the Common Formats and, most importantly, reflecting the feedback of those using the formats. This latter group, the users, will be the most sensitive to and aware of needed updates and improvements to the formats.
While AHRQ's Version 0.1 Beta has been developed based on evidence, consensus of the PSWG, and results from initial testing, this version does not reflect the refinement that will come from large-scale use and repeated revision. We anticipate that we may get much helpful guidance from early users of the formats. For this reason, AHRQ
AHRQ realizes that using Version 0.1 Beta paper forms is not the optimal way to collect patient safety data. Over time, computer software (developed in the private sector) will make use of the formats much more efficient. However, because the Agency plans an early second release of the Common Formats, it cautions software developers to understand that the first release of the formats will likely be substantially enhanced.
More information on the feedback process can be obtained through AHRQ's PSO Web site:
Centers for Medicare & Medicaid Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web site at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by
1.
2.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by September 29, 2008.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974, or e-mailed to
Denver Presley, Jr., Office of Information Management (HFA-710), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-796-3793.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 201 of the Medical Device User Fee and Modernization Act of 2002, (Public Law 107-250), amended section 704 of the Federal Food, Drug, and Cosmetic Act by adding subsection (g) (21 U.S.C. 374 (g)). This amendment authorized FDA to establish a voluntary third party inspection program applicable to manufacturers of class II or class III medical devices who meet certain eligibility criteria. On September 15, 2005, FDA issued a guidance entitled, “Requests for Inspection by an Accredited Person Under the Inspection by Accredited Persons Program Authorized by Section 201 of the Medical Device User Fee and Modernization Act 2002,”
In order to meet the eligibility criteria for requesting FDA approval to have an AP conduct a quality system regulations inspection of their establishment instead of FDA, applicants must submit a request with certain information. The following information must be submitted which shows that the applicant:
(1) “Manufactures, prepares, propagates, compounds, or processes” class II or class III medical devices,
(2) Markets at least one of the devices in the United States,
(3) Markets or intends to market at least one of the devices in one or more foreign countries when one or both of the following two conditions are met:
(a) One of the foreign countries certifies, accredits, or otherwise recognizes the selected AP applicant as a person authorized to conduct inspections of device establishments, or
(b) A statement that the law of a country where the applicant markets or intends to market the device recognizes an inspection conducted by the FDA or an AP.
(4) Provided the most recent inspection performed by FDA, or by an AP under the AP program and inspection was classified by FDA as either “No Action Indicated” or “Voluntary Action Indicated, “and,
(5) Provided notice advising FDA of their intent to use an AP, and identifying the AP applicant selected.
In the
FDA estimates the burden for this collection of information as follows:
There are approximately 8,000 foreign and 10,000 domestic manufacturers of medical devices. Approximately 5,000 of these firms only manufacture class I devices and are, therefore, not eligible for the AP program. In addition, 40 percent of the domestic firms do not export devices and therefore are not eligible to participate in the AP program. Further, 10 to 15 percent of the firms are not eligible due to the results of their previous inspection. FDA estimates there are 4,000 domestic manufacturers and 4,000 foreign manufacturers that are eligible for inclusion under the AP program. Based on communications with industry, FDA estimates that on an annual basis approximately 100 of these manufacturers may submit a request to use an AP in any given year.
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.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New Hampshire (FEMA-1782-DR), dated August 11, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 11, 2008, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of New Hampshire resulting from severe storms, a tornado, and flooding on July 24, 2008, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of New Hampshire.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. § 777. If Other Needs Assistance under Section 408 of the Stafford Act is later warranted, Federal funding under that program also will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Philip E. Parr, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of New Hampshire have been designated as adversely affected by this declared major disaster:
Belknap, Carroll, and Rockingham Counties for Public Assistance.
All counties within the State of New Hampshire are eligible to apply for assistance under the Hazard Mitigation Grant Program.
(The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.)
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New Mexico (FEMA-1783-DR), dated August 14, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated August 14, 2008, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of New Mexico resulting from severe storms and flooding beginning on July 26, 2008, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of New Mexico.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation for Lincoln County, and any other forms of assistance under the Stafford Act that you deem appropriate. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777. If Other Needs Assistance under Section 408 of the Stafford Act is later warranted, Federal funding under that program also will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Nancy M. Casper, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of New Mexico have been designated as adversely affected by this declared major disaster:
Lincoln and Otero Counties for Public Assistance.
Lincoln County in the State of New Mexico is eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Vermont (FEMA-1784-DR), dated August 15, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 15, 2008, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Vermont resulting from severe storms, a tornado, and flooding on July 18, 2008, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Vermont.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777. If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program also will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Philip E. Parr, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of Vermont have been designated as adversely affected by this declared major disaster:
Caledonia, Grand Isle, and Lamoille Counties for Public Assistance.
All counties within the State of Vermont are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Iowa (FEMA-1763-DR), dated May 27, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Iowa is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of May 27, 2008.
Audubon and Winnebago Counties for Individual Assistance.
Adair, Cass, Grundy, Guthrie, and Henry Counties for Individual Assistance (already designated for Public Assistance.)
Cherokee County for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Iowa (FEMA-1763-DR), dated May 27, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Iowa is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of May 27, 2008.
Winnebago County for Public Assistance (already designated for Individual Assistance).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Missouri (FEMA-1773-DR), dated June 25, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Missouri is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 25, 2008.
Mississippi, Perry, and Ste. Genevieve Counties for Public Assistance (already designated for emergency protective measures [Category B], limited to direct Federal assistance, under the Public Assistance program.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New Hampshire (FEMA-1782-DR), dated August 11, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of New Hampshire is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of August 11, 2008.
Merrimack and Strafford Counties for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-1780-DR), dated July 24, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of July 24, 2008.
Jim Hogg County for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Wisconsin (FEMA-1768-DR), dated June 14, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Wisconsin is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 14, 2008.
Walworth County for Public Assistance (already designated for Individual Assistance.)
Fish and Wildlife Service, Interior.
Notice of intent to prepare a comprehensive conservation plan and environmental assessment; request for comments.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a comprehensive conservation plan (CCP) and associated National Environmental Policy Act (NEPA) documents for Clarks River National Wildlife Refuge. We provide this notice in compliance with our CCP policy to advise other agencies, Tribes, and the public of our intentions, and to obtain suggestions and information on the scope of issues to consider in the planning process.
To ensure consideration, we must receive your written comments by October 14, 2008. An open house meeting will be held during the scoping phase of the CCP development process. The date, time, and place for the meeting will be announced in the local media.
Address comments, questions, and requests for more information to: Tina Chouinard, Natural Resource Planner, Fish and Wildlife Service, 6772 Hwy 76 South, Stanton, TN 38069.
Tina Chouinard;
With this notice, we initiate our process for developing a CCP for Clarks River National Wildlife Refuge in Marshall, McCracken, and Graves Counties, Kentucky.
This notice complies with our CCP policy to (1) advise other Federal and State agencies, Tribes, and the public of our intention to conduct detailed planning on this refuge; and (2) obtain suggestions and information on the scope of issues to consider in the environmental document and during development of the CCP.
The National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee) (Improvement Act), which amended the National Wildlife Refuge System Administration Act of 1966, requires us to develop a CCP for each national wildlife refuge. The purpose in developing a CCP is to provide refuge managers with a 15-year strategy for achieving refuge purposes and contributing to the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Improvement Act.
Each unit of the National Wildlife Refuge System is established for specific purposes. We use these purposes as the foundation for developing and prioritizing the management goals and objectives for each refuge within the National Wildlife Refuge System mission, and to determine how the public can use each refuge. The planning process is a way for us and the public to evaluate management goals and objectives for the best possible conservation approach to this important wildlife habitat, while providing for wildlife-dependent recreation opportunities that are compatible with the refuge's establishing purposes and the mission of the National Wildlife Refuge System.
Our CCP process provides participation opportunities for Tribal, State, and local governments; agencies; organizations; and the public. At this time we encourage input in the form of issues, concerns, ideas, and suggestions for the future management of Clarks River National Wildlife Refuge. Special mailings, newspaper articles, and other media outlets will be used to announce opportunities for input throughout the planning process.
We will conduct the environmental assessment in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321
On June 19, 1997, the Clarks River National Wildlife Refuge was established under the “Emergency Wetland Resources Act of 1986 (100 Stat. 3582-91.)” The purposes are “* * * the conservation of the wetlands of the Nation in order to maintain the public benefits they provide and to help fulfill international obligations contained in various migratory bird treaties and conventions * * *” 16 U.S.C. 3901(b), 100 Stat. 3583.
The refuge was first identified as a high priority site for protection in 1978 by the Service's bottomland hardwood conservation program. In 1991, the Kentucky Department of Fish and Wildlife Resources asked the Service to consider the site for protection as a unit of the National Wildlife Refuge System. The refuge currently consists of approximately 8,500 acres, with an approved acquisition boundary of approximately 18,000 acres that extends along the East Fork of the Clarks River from just south of Benton, Kentucky, northwest to within five miles of the city of Paducah, Kentucky. The office/visitor center and maintenance facilities are located on the refuge in Benton, Kentucky. The most common public use activities on the refuge consist of hunting, fishing, wildlife observation, wildlife photography, and hiking. Environmental education is also a significant use on the refuge.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105-57.
U.S. Geological Survey.
Notice of open public meeting.
Pursuant to Public Law 106-503, the Interim Steering Committee for the National Climate Change and Wildlife Science Center will hold a meeting to discuss priority wildlife climate change research needs of land management and natural resources agencies. Agenda topics will be provided under the
The meeting location is Main Interior Building, Department of the Interior, 1849 C Street, NW., Washington, DC 20240, Room B253.
September 23, 2008, commencing at 9:15 a.m. and adjourning at 12 p.m.
Robin Schrock, U.S. Geological Survey, 12201 Sunrise Valley Drive MS301, Reston, Virginia 20192, 703-648-4066,
The National Climate Change and Wildlife Science Center Interim Steering Committee is comprised of members from Federal and State government. The Interim Steering Committee shall advise the Director of the U.S. Geological Survey (USGS) on matters relating to the development of the National Climate Change and Wildlife Science Center.
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969 and the Federal Land Policy and Management Act of 1976, the Bureau of Land Management (BLM) has prepared a Proposed Resource Management Plan/Final Environmental Impact Statement (PRMP/FEIS) for Alabama and Mississippi.
The BLM planning regulations (43 CFR 1610.5-2) state that any person who meets the conditions as described in the regulations may protest the BLM's Proposed RMP. A person who meets the conditions and files a protest must file the protest within 30 days of the date that the Environmental Protection Agency publishes its notice in the
Copies of the Alabama and Mississippi PRMP/FEIS have been sent to affected Federal, State, and local government agencies and to interested parties. Copies of the Proposed RMP/FEIS are available for public inspection at the BLM-ES Jackson Field Office, 411 Briarwood Drive, Suite 404, Jackson, Mississippi 39206. Interested persons may also review the Proposed RMP/FEIS on the Internet at
Gary Taylor, Planning and Environmental Coordinator, Bureau of Land Management-Eastern States, Jackson Field Office, 411 Briarwood Drive, Jackson, Mississippi 39206. Mr. Taylor may also be contacted by telephone: (601) 977-5413.
This PRMP/FEIS covers all the public land resources administered by the BLM in the States of Alabama and Mississippi. The issues addressed in the PRMP/FEIS are mineral leasing and ownership adjustment of the scattered surface tracts. Within the two States combined, the BLM administers approximately 333 acres of public land surface and mineral estate and 621,090 acres of Federal minerals where the surface estate is in non-Federal ownership. The BLM also has responsibility for 2,081,880 acres of mineral estate where the surface is managed by other Federal agencies, including 1,871,550 acres of National Forest lands. On these lands, leasing of Federal minerals is subject to management as directed by the surface managing agency, and the decisions of this RMP will pertain only to the BLM's role in administering the minerals. The RMP will not make decisions on oil and gas leasing of National Forest acreage, because by regulation the U.S. Forest Service (USFS) is responsible for land use planning decisions on oil and gas leasing. Within the two States, there are also 9,788 acres of lands with uncertain title. These are public domain lands according to General Land Office records, but may have private claims of ownership. The RMP will not make management decisions on these lands per se; however, these lands will be available for disposal to qualified applicants under the Color-of-Title Act. Public participation was solicited during the formation of the Draft RMP/EIS through public meetings in Gulf Shore, AL; Birmingham, AL; and Jackson, MS.
Comments on the Draft RMP/EIS received from the public and internal BLM review were incorporated into the proposed plan. Public comments resulted in the addition of clarifying text, but did not significantly change proposed land use decisions.
Instructions for filing a protest with the Director of the BLM regarding the PRMP/FEIS may be found in the Dear Reader Letter of the Alabama and Mississippi PRMP/FEIS and at 43 CFR 1610.5. E-mail and faxed protests will not be accepted as valid protests unless the protesting party also provides the original letter by either regular or overnight mail postmarked by the close of the protest period. Under these conditions, the BLM will consider the e-mail or faxed protest as an advance copy and it will receive full consideration. If you wish to provide the BLM with such advance notification, please direct faxed protests to the attention of the BLM protest coordinator at 202-452-5112, and e-mails to
Before including your phone number, e-mail address, or other personal identifying information in your protest, you should be aware that your entire protest—including your personal identifying information—may be made publicly available at any time. While you can ask us in your protest to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
This document was received at the Office of the Federal Register on August 25, 2008.
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969 and the Federal Land Policy and Management Act of 1976, the Bureau of Land Management (BLM) has prepared a Proposed Resource Management Plan/Final Environmental Impact Statement (PRMP/FEIS) for the Price Field Office.
The BLM planning regulations (43 CFR 1610.5-2) state that any person who meets the conditions as described in the regulations may protest the BLM's PRMP/FEIS. A person who meets the conditions and files a protest must file the protest within 30 days of the date that the Environmental Protection Agency publishes this notice in the
Copies of the Price Field Office PRMP/FEIS were sent to affected Federal, state, and local government agencies and to interested parties. Copies of the PRMP/FEIS are available
Interested persons may also review the PRMP/FEIS on the Internet at
Floyd Johnson, Price Field Office, 125 South 600 West, Price, UT 84501;
The Price RMP planning area is located in central Utah. The BLM administers approximately 2.5 million acres of surface estate and 2.8 million acres of Federal mineral estate within the planning area.
The Price RMP will provide future broad-scale management direction for land use allocations and allowable uses on public lands within the planning area. Implementation of the decisions of the PRMP/FEIS would apply only to BLM-administered public lands and Federal mineral estate. In the Draft RMP/EIS (DRMP/DEIS), which was released for public review and comment in July 2004, five alternatives were analyzed, including a No Action alternative. These alternatives were developed through issue identification during the scoping process. Public involvement and collaboration began with scoping to identify issues, concerns, and opportunities to be resolved in the planning process. Input on planning issues was gathered from the public during a comment period and associated open houses. The major issues addressed in the PRMP/DEIS include: oil and gas leasing and development; management of recreation opportunities in Special Recreation Management Areas (SRMAs), designation of routes for off-highway vehicle (OHV) travel, livestock grazing, management of Areas of Critical Environmental Concern (ACECs), and recommendations for Wild and Scenic Rivers (WSR) designations. In September 2007 a Supplemental DEIS was released for public review and comment which considered an additional alternative emphasizing the protection of non-WSA lands with wilderness characteristics. The PRMP/FEIS would designate five new ACECs, and the continuation of eight existing ACECs, totaling 206,965 acres. Resource use limitations that apply to the proposed ACECs include a range of prescriptions as described in Table 1 below.
1. Closed to oil and gas leasing.
2. Closed to mineral materials disposal.
3. Proposed for withdrawal from locatable mineral entry.
4. Excluded from ROW grants.
5. Excluded from private or commercial use of woodland products.
6. Excluded from livestock use.
7. Excluded from land treatments.
8. Excluded from range improvements.
9. VRM Class I.
10. Closed to OHV use.
11. Block cultural surveys required.
12. Oil and gas leasing subject to No Surface Occupancy.
13. Avoidance area for ROW grants.
14. OHV use limited to designated routes.
15. Firewood collection not allowed.
16. Oil and gas subject to minor constraints.
17. Oil and gas leasing subject to No Surface Occupancy on federal surface, Controlled Surface Use on split estate.
18. VRM Class II and III.
19. Closed to public access without authorization (use fee).
20. Camping not allowed.
21. Fossil and mineral collection not allowed.
22. Hiking on developed trails only.
23. VRM Class II.
24. No historic structures to be disturbed.
Comments on the Price Field Office DRMP/DEIS received from the public and internal BLM review were considered and incorporated as appropriate into the PRMP/FEIS. Public comments resulted in the addition of clarifying text, but did not significantly change proposed land use plan decisions.
Instructions for filing a protest with the Director of the BLM regarding the PRMP/FEIS may be found in the Dear Reader Letter of the PRMP/FEIS and at 43 CFR 1610.5-2. E-mail and faxed protests will not be accepted as valid protests unless the protesting party also provides the original letter by either regular or overnight mail postmarked by the close of the protest period.
Under these conditions, the BLM will consider the e-mail or faxed protest as an advance copy and it will receive full consideration. If you wish to provide the BLM with such advance notification, please direct faxed protests to the attention of the BLM protest coordinator at 202-452-5112, and e-mails to
All protests, including the follow-up letter (if e-mailing or faxing) must be in writing and mailed to the appropriate
Before including your phone number, e-mail address, or other personal identifying information in your protest, you should be aware that your entire protest—including your personal identifying information—may be made publicly available at any time. While you can ask us in your protest to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 43 CFR 1610.2, 43 CFR 1610.5-1.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item in the possession of the Denver Museum of Nature & Science, Denver, CO, which meets the definitions of “sacred object” and “object of cultural patrimony” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the cultural item. The National Park Service is not responsible for the determinations in this notice.
The cultural item is a “piki stone” from the Pueblo of Cochiti, New Mexico (A661.1). The piki stone is a sandstone slab, measuring approximately 26 x 19 x 2 inches, with the top surface blackened from baking. On November 10, 1972, the museum purchased the stone for $150 from Mr. Juan Melchoir of Cochiti Pueblo. Museum accession notes indicate that the stone dates to about 1930 and “was used by his family for several generations for baking piki bread.” The stone has long been a part of the museum's “Hopi House” exhibit in the Crane American Indian Cultures Hall.
During a consultation in the early 1990s, a group of council representatives from the Pueblo of Cochiti, New Mexico visited the museum and identified the stone as coming from the pueblo and determined that it was a sacred object and object of cultural patrimony; however, a formal claim was not officially submitted until 2006. The claim states that the Pueblo of Cochiti believes the stone “was stored by Mr. Melchoir during remodeling phases of a traditional cooking building and sold to the individual who” sold it to the museum and could not have been alienated by Mr. Melchoir, and thus is an object of cultural patrimony. The formal claim also states that the stone “was used, and if repatriated would continue to be used, in traditional cooking ceremonies, conducted throughout the year by appointed Cochiti women, during times of traditional society events. These events involve many culturally sensitive ceremonies in which cooking, and piki bread, are of major significance to conduct the ceremony.” Thus, the claim asserts that the stone is also a sacred object.
“Piki” is a borrowed Hopi term to describe the wafer bread, while some use the Tewa term guayave, or a variation thereof; and at Cochiti it is ma'tzin. At Cochiti, the “piki stone” itself is also referred to as a comal or yo'asha. The anthropology and documentary literature has little information about yo'asha at the Pueblo of Cochiti. The few references that could be found would suggest that such stones are “privately owned real property” which can be owned, exchanged, traded, purchased, and inherited. Although the tribe concurs that some stones are privately held, during consultation, the Pueblo of Cochiti offered compelling evidence that a few special ones are communally owned and are stored in communal piki houses. They are used by community members for specific ceremonies, thus making them objects of cultural patrimony and sacred objects. Because museum documentation states that the stone in this notice was sold by Mr. Melchoir, the Pueblo knows its history, and that it was used by the entire community for religious events. Mr. Melchoir was responsible for the piki house in which the stone was placed, but the tribe claims that the people knew it was a house for everyone. Each year, specific leaders are appointed to do things on behalf of the entire community. According to tribal consultation, currently there is one communal piki house with one stone, an example of a shared place for making ma'tzin for ceremonies. The stone in the museum's possession came from a house of this type, and if returned, will go back into this particular house.
Anthropology and documentary literature does confirm that piki bread is used by many pueblos during religious ceremonies. For the people of Cochiti, ma'tzin was a traditional everyday foodstuff, but it was also eaten on religious feast days and for celebrations. The Pueblo of Cochiti concurs that ma'tzin was an everyday food item, but also emphasizes that it could have deep religious meanings at particular times and events. The Publeo of Chociti NAGPRA representative, Mr. Lee Suina, explained, “You can go to a restaurant and have wine and bread, but when you go to church and eat wine and bread, it has more meaning. Since we know the piki was for this specific reason, then it's special. It's not an everyday form of bread, in this case.” Mr. Suina explained that prayers were likely offered when the stone was quarried, and prayers were offered when the stone was used to make ma'tzin for numerous ceremonies.
Officials of the Denver Museum of Nature & Science have determined that, pursuant to 25 U.S.C. 3001 (3)(C), the cultural item is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. Officials of the Denver Museum of Nature & Science have also determined that, pursuant to 25 U.S.C. 3001 (3)(D), the cultural item has ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual. Lastly, officials of the Denver Museum of Nature & Science have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity which can be reasonably traced between the sacred object/object of cultural patrimony and the Pueblo of Cochiti, New Mexico.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the sacred object/object of cultural patrimony should contact Dr. Chip Colwell-Chanthaphonh, Curator of Anthropology and NAGPRA Officer, Department of Anthropology, Denver Museum of Nature & Science, 2001 Colorado Boulevard, Denver, CO 80205, telephone (303) 370-6378, before September 29, 2008. Repatriation of the sacred object/object of cultural patrimony to the Pueblo of Cochiti, New
The Denver Museum of Nature & Science is responsible for notifying the Pueblo of Cochiti, New Mexico that this notice has been published.
National Park Service, Interior.
Notice; correction.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the intent to repatriate cultural items in the possession of the Bishop Museum, Honolulu, HI, that meet the definition of “unassociated funerary objects” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice corrects the culturally affiliated Native Hawaiian organizations identified during the claimant process and provides new museum contact information for a Notice of Intent to Repatriate Cultural Items published in the
The
Officials of the Bishop Museum have determined that, pursuant to 25 U.S.C. 3001 (3)(B), the 97 cultural items are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native Hawaiian individual. Officials of the Bishop Museum also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Office of Hawaiian Affairs and Hui Kako`o. It has also been determined that Hui Kako`o is the most culturally affiliated Native Hawaiian organization for these unassociated funerary objects.
Representatives of any other Native Hawaiian organization that believes itself to be culturally affiliated with the unassociated funerary objects should contact Betty Lou Kam, Vice President of Cultural Resources, Bishop Museum, 1525 Bernice Street, Honolulu, HI 96718-2704, telephone (808) 848-4144, before September 29, 2008. Repatriation of the unassociated funerary objects to Hui Kako`o may proceed after that date if no additional claimants come forward.
The Bishop Museum is responsible for notifying Hui Kako`o, Hui Malama I Na Kupuna O Hawai`i Nei, Maui/Lana`i Island Burial Council, and the Office of Hawaiian Affairs that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Denver Museum of Nature & Science, Denver, CO, that meet the definition of “unassociated funerary objects” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
On February 24, 1965, the collectors Mary W.A. and Francis V. Crane acquired 18 silver Seminole pendants from the antiquities dealer Howard B. Roloff. Records from the purchase transaction noted that the “4 dark ones are from a burial over 100 years old.” In 1968, the Cranes donated the Seminole pendants to the Denver Museum of Nature & Science (then Denver Museum of Natural History) (Accession Numbers AC.7940A-D). The museum exhibited the four pendants in its “Seminole Silver Case” between 1976 and 1980.
Historical and archeological evidence establish that Seminole and Miccosukee people have been residents in central and southern Florida for at least several hundred years. In consultations, representatives of the Miccosukee Tribe of Indians of Florida; Seminole Nation of Oklahoma; and Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations confirmed their affiliation with earlier historic American Indians in Florida and confirmed that the four pendants were very likely Seminole burial objects. Descendants of the Seminole are members of the Miccosukee Tribe of Indians of Florida; Seminole Nation of Oklahoma; and Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations.
Officials of the Denver Museum of Nature & Science have determined that, pursuant to 25 U.S.C. 3001 (3)(B), the four cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed to have been removed from a specific burial site of a Native American individual. Officials of the Denver Museum of Nature & Science also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the cultural items and the Miccosukee Tribe of Indians of Florida; Seminole Nation of Oklahoma; and Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact Dr. Chip Colwell-Chanthaphonh, NAGPRA Officer, Department of Anthropology, Denver Museum of Nature & Science, 2001 Colorado Boulevard, Denver, CO 80205, telephone (303) 370-6378, before September 29, 2008. Repatriation of the unassociated funerary items to the Miccosukee Tribe of Indians of Florida; Seminole Nation of Oklahoma; and Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations may proceed after that date
The Denver Museum of Nature & Science is responsible for notifying the Miccosukee Tribe of Indians of Florida; Seminole Nation of Oklahoma; and Seminole Tribe of Florida, Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Denver Museum of Nature & Science, Denver, CO, which meet the definitions of “sacred objects” and “objects of cultural patrimony” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the cultural items. The National Park Service is not responsible for the determinations in this notice.
The first cultural item is called the Whale Hairpiece, carved from a section of mountain goat horn, measuring approximately 3 inches high, 1.5 inches in diameter at the base, and 1 inch in diameter at the top. Decorating the exterior of the horn are 18 abalone shell insets. The catalogue records term the object a “hair holder or ornament” and “braid wrap.” In August 1977, the cultural item was purchased by Mrs. Mary A. Crane from the art dealer Mr. Michael R. Johnson who had purchased the item from “Mrs. Dan Katzeek” in 1973. In a letter Mr. Johnson wrote to Mrs. Crane, dated August 30, 1977, he asserted,“I am convinced it is very old as the single braid or plaited hair in one clump has not been worn since the days of Cook and Vancouver. The style is evident in the early Webber drawings but seems to have faded out in Victorian times to the double braids or Victorian upsweeps and buns.” Mrs. Crane donated the hairpiece to the Denver Museum of Nature & Science (then Denver Museum of Natural History) on May 27, 1983.
The second cultural item is called the Strongman Housepost Robe, a painted moose hide blanket, approximately 66 x 44 inches in size, with two hide strings at top. The center area, about 36 x 24.5 inches in size, has a painted design and “VICTOR HOTCH KLUKWAN” is painted at the top and also the inside bottom. In 1974, the cultural item was purchased by Michael R. Johnson from Victor Hotch. Museum records suggest that the image represents Strongman (a Tlingit hero, Dukt'ootl) ripping apart a sea lion; that it was a robe for wearing; and that this image was also used on house posts. The last claim was verified during consultations and supported by photographs of a Whale House post, taken from Klukwan in 1984. Mr. Johnson, who claimed the robe dates to about 1930, donated it to the Denver Museum of Nature & Science on October 3, 1974.
In the mid-1970s a decades-long controversy began over the ownership of Whale House objects. The public and legal battle engulfed Klukwan, museums, and collectors alike. Although these objects left Alaska several years prior to the controversy, nonetheless, the Denver Museum of Nature & Science acknowledges that these two objects likely left Alaska under suspect circumstances.
During consultation, representatives of the Central Council of the Tlingit & Haida Indian Tribes provided detailed written documentation of tribal and clan histories, the significance of the hairpiece and robe to the Gaanaxteidi Clan, and the importance of these objects in ongoing ceremonial practices. The official claim explained the right of the Gaanaxteidi Clan and Whale House to the symbolism embedded in these objects. The claim confirms the museum's records that the robe's design replicates the image of the Strongman Housepost, which has been well documented as belonging to the Whale House. This particular image tells the story of the Gaanaxteidi Clan's migration history. The hairpiece represents the whale itself, and the whale is a crest of the Gaanaxteidi Clan. The whale character figures prominently into the “Raven Cycle” stories. Additionally, the claim offers that the hairpiece, or yaay che'eeni, was worn by women to bundle the hair and only worn on ceremonial occasions with the assistance of the “opposite” moiety. It then explains more specifically how it would be ceremonially used exclusively by a woman of the aanyadi (high caste).
The claim argues that these pieces are objects of cultural patrimony, that the Hit s'aati (Housemaster) is only the steward of these clan objects. Under Tlingit traditional property law (now codified in tribal law) the trustee does not have the authority to sell clan property. Rather, clan consent is necessary for decisions about clan property. The published literature, based on a wide range of ethnological, folkloric, linguistic, and anthropological sources, supports these claims.
At length, the claim explains that these two objects are sacred objects, as clan crests both symbolize and embody the spirit of the being depicted on these objects. Crests represent the spiritual affinity and kinship between the clan members and the animals or mythical figures being represented. Clan members sometimes refer to their clan crests as Ax Shuka (My Ancestor or Relative), and may call upon these spirits in time of need. A specific code of conduct is maintained around these crests, which Tlingits traditionally believe are not truly things, but rather “living beings.” The claim asserts that, if returned, these objects will be used in the ongoing ceremonies of the Gaanaxteidi Clan.
Consultation evidence acknowledges that many of the clan-owned and sacred objects were removed from the communities by members of their own tribe. Nevertheless, these individuals acted in contravention of traditional Tlingit cultural property law. It is only the Gaanaxteidi Clan that has the right to display these objects and tell of its own history. The museum cannot provide any evidence that the Tlingit individuals who sold the objects had authority of alienation or consent of the clan. Based on the evidence of the larger Whale House controversy, it is highly likely that many clan members explicitly objected to the sale of these kinds of clan objects when Johnson purchased them, and continue to be objects of cultural patrimony and sacred objects owned by the clan.
Officials of the Denver Museum of Nature & Science have determined that, pursuant to 25 U.S.C. 3001 (3)(C), the two cultural items are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. Officials of the Denver Museum of Nature & Science have also determined that, pursuant to 25 U.S.C. 3001 (3)(D), the two cultural items have ongoing historical, traditional, or
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the sacred objects/objects of cultural patrimony should contact Dr. Chip Colwell-Chanthaphonh, Curator of Anthropology, NAGPRA Officer, Department of Anthropology, Denver Museum of Nature & Science, 2001 Colorado Boulevard, Denver, CO 80205, telephone (303) 370-6378, before September 29, 2008. Repatriation of the sacred objects/objects of cultural patrimony to the Central Council of the Tlingit & Haida Indian Tribes on behalf of the Gaanaxteidi Clan, may proceed after that date if no additional claimants come forward.
The Denver Museum of Nature & Science is responsible for notifying the Central Council of the Tlingit & Haida Indian Tribes that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Logan Museum of Anthropology (Logan Museum), Beloit College, Beloit, WI, that meet the definition of “unassociated funerary objects” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1955, the Logan Museum of Anthropology acquired a large collection from the estate of Albert Green Heath. Heath lived in Chicago and had a second home in Harbor Springs, Emmet County, MI, near the Odawa community of Cross Village. Heath was acquainted with many Odawa tribal members and collected many Odawa objects in the early 20th century, including six found with human burials. The six cultural items are one catlinite (red pipestone) pipe bowl (catalogue number 7759), three silver armbands (30678.1, 30678.2, 30678.3), one silver cross pendant (30685.1), and one brass or bronze crucifix pendant (30688).
In 1956, the pipe bowl (7759) was sold by the Logan Museum to Herbert S. Zim and Sonia Bleeker Zim. In 1971, the pipe bowl was donated back to the Logan Museum by Sonia Bleeker Zim. The pipe bowl is L-shaped, 5 cm high by 6.9 cm long, and is made of red pipestone presumed to be catlinite. The bowl is flared, and the stem end features two grooves. Both the bowl and the stem end are heat-discolored on the interior and exterior, and the bowl interior contains charred residue. Heath's collection records indicate this object was a “grave find” from Emmet County and that its tribal affiliation is Ottawa (Odawa).
The silver armbands (30678.1, 30678.2, and 30678.3) are three of four objects Heath described as “early English trader's bracelets.” The fourth in this set was sold to the New York State Museum in 1956. Heath's records indicate these armbands are “grave finds” from Emmet County and are Ottawa (Odawa). Two of the armbands (30678.1 and 30678.2) are 4.7 cm wide, have fluted edges, and were cut from one original piece, as shown by partial coat-of-arms engravings that form a single complete engraving when the two armbands are placed side by side. The third armband (30678.3) is 2.7 cm wide and has fluted edges. It also has a stamped touchmark, “JS,” which indicates manufacture in the late 18th century by Jonas Schindler or his widow, of Quebec, Canada.
The silver cross pendant (30685.1) is also a “grave find” from Emmet County, and is identified as Ottawa (Odawa) by Heath. The single-bar cross measures 6.8 cm long by 4.2 cm wide. Each side contains eleven small circular stamps, but there is no identifying touchmark. This general type of cross was commonly traded in the Great Lakes area in the 18th century. Heath's records indicate he purchased the cross from Louise Assineway. Census records show that two Odawa individuals named Louise (or Louisa) Assineway (or Assinaway) lived in the Cross Village area in the early 20th century.
The crucifix pendant (30688) is probably made of brass, but possibly is bronze. It measures 7.0 cm long by 4.2 cm wide and features the Christ figure riveted onto a cross with fleur-de-lis style ends, a suspension loop, and small “INRI” plaque. Heath's records indicate this crucifix is a “grave find,” and it is also identified as Ottawa (Odawa). The record also indicated that the crucifix is from Cross Village, MI, and was purchased from Cynthia Shomin. Census records show that Cynthia Shomin was an Odawa tribal member who lived in the Cross Village area in the early 20th century.
Geographic, historic, and archeological evidence indicates that Odawa Indians occupied the area of Cross Village and Emmet County, MI, in the late 18th and early 19th centuries. Metal and catlinite objects such as those listed above are commonly noted funerary objects in Odawa burials of that period. The human remains from the specific burial sites are not in the possession of the Logan Museum. The Little Traverse Bay Bands of Odawa Indians, Michigan still resides in that area, and consultation with tribal representatives supports the identification of the cultural items as Odawa funerary objects.
Officials of the Logan Museum of Anthropology have determined that, pursuant to 25 U.S.C. 3001 (3)(B), the six cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual. Officials of the Logan Museum of Anthropology also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Little Traverse Bay Bands of Odawa Indians, Michigan.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact William Green, Director, Logan Museum of Anthropology, Beloit College, 700 College St., Beloit, WI 53511, telephone (608) 363-2119, before September 29, 2008. Repatriation of the unassociated
The Logan Museum of Anthropology is responsible for notifying the Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Ottawa Tribe of Oklahoma; Burt Lake Band of Ottawa & Chippewa Indians, a non-federally recognized Indian group; and Grand River Bands of Ottawa Indians, a non-federally recognized Indian group, that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the New York State Museum, Albany, NY, that meet the definition of “unassociated funerary objects” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the cultural items. The National Park Service is not responsible for the determinations in this notice.
The two cultural items are one small copper kettle and one silver wristband. The silver wristband bears the maker's mark “IS.”
In 1956, the New York State Museum purchased the kettle and wristband from the Logan Museum of Anthropology, Beloit College, WI. The cultural items were part of a larger collection made by Albert Green Heath who acquired the kettle and wristband from an individual named Lowell Lamkin between 1910 and 1916.
The Heath collection records indicate the kettle and wristband were found in a grave or graves in “Emmet County, Michigan.” The New York State Museum is not in possession of the human remains associated with the items. Therefore, based on museum records, the kettle and wristband are reasonably believed to be unassociated funerary objects. The style of the kettle and wristband date to the post-Contact period and are typical of metal trade items from the mid to late 18th century. Heath collection records identify the tribal identification of the items as Ottawa. Historical and traditional evidence indicates Ottawa people occupied Emmet County throughout the 18th century. The Ottawa people are also called Odawa. Descendants of the Odawa in Emmet County are members of the Grand Traverse Band of Ottawa and Chippewa Indians, Michigan, and Little Traverse Bay Bands of Odawa Indians, Michigan.
Officials of the New York State Museum have determined that, pursuant to 25 U.S.C. 3001 (3)(B), the two cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual. Officials of the New York State Museum also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and Grand Traverse Band of Ottawa and Chippewa Indians, Michigan, and Little Traverse Bay Bands of Odawa Indians, Michigan.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact Lisa Anderson, NAGPRA Coordinator, New York State Museum, 3122 Cultural Education Center, Albany, NY 12230, telephone (518) 486-2020, before September 29, 2008. Repatriation of the unassociated funerary objects to the Little Traverse Bay Bands of Odawa Indians, Michigan, may proceed after that date if no additional claimants come forward.
New York State Museum is responsible for notifying the Grand Traverse Band of Ottawa and Chippewa Indians, Michigan, and Little Traverse Bay Bands of Odawa Indians, Michigan that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Thomas Burke Memorial Washington State Museum (Burke Museum) University of Washington, Seattle, WA, and in the control of the U.S. Department of the Interior, San Juan Island National Historical Park, Friday Harbor, WA, that meet the definition of “unassociated funerary objects” under 25 U.S.C 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the superintendent, San Juan Island National Historical Park.
In 1946 and 1947, human remains and associated funerary objects were recovered during legally authorized excavations by University of Washington archeologist Arden King at the Cattle Point Site (45-SJ-01) on San Juan Island. Cattle Point is within the American Camp portion of San Juan Island National Historical Park on the southern part of San Juan Island. The funerary objects were transferred to the Burke Museum and later accessioned by the National Park Service. The whereabouts of the human remains is not known. The 249 unassociated funerary objects are 103 basalt flakes, 60 non-human mammalian bone fragments, 61 shell fragments, 2 bags of fish bones, 11 charcoal samples, 1 rock, 2 sediment samples, 1 piece of obsidian, 1 fire cracked cobble, 1 quartz flake, 1 piece of schist, 2 pieces of slate, 1 pebble, 1 sea urchin spine, and 1 sea lion humerus.
In 1970 and 1972, authorized excavations of a shell midden took place at the English Camp Site (45-SJ-24) on San Juan Island and within the English Camp portion of San Juan Island National Historical Park during a University of Idaho field school directed by Dr. Roderick Sprague.
Four objects were recovered in 1970 from the same stratum in which a burial
The 1972 excavation recovered 32 objects that were associated with three burials. The human remains were transferred to the University of Idaho and subsequently repatriated to the Lummi Tribe of the Lummi Reservation, Washington on June 26, 1991. The funerary objects were transferred to the Burke Museum and accessioned by the National Park Service. The 32 unassociated funerary objects are 2 fish vertebrae, 1 antler tine fragment, 1 fused bird wing bone, 24 fragments of non-human bone, 2 pieces of fire modified rock, 1 basalt shatter fragment, and 1 point fragment.
Arden King's analysis of archeological data from Cattle Point resulted in the identification of three prehistoric phases, with the most recent representing a maritime adaptation that is ancestral to historic native populations in the United States and Canada. Archeological research and analysis indicates continuous habitation of San Juan Island, including the two sites mentioned here, from approximately 2,000 years ago through the mid-19th century. Anthropologist Wayne Suttles has identified the occupants of San Juan Island as Northern Straits language speakers, a linguistic subset of a larger Central Coast Salish population, who were ancestors of the Lummi Tribe of the Lummi Reservation, Washington. Furthermore, Suttles' anthropological research in the late 1940s confirmed that the Lummi primarily occupied San Juan Island and other nearby islands in the European contact period and during the early history of the Lummi Reservation that was established on the mainland in 1855, through Article II of the Treaty of Point Elliott. San Juan Island is within the aboriginal territory of the Lummi Tribe of the Lummi Reservation, Washington. Lummi oral tradition, history and anthropological data clearly associate the Lummi with San Juan Island.
The Samish Indian Tribe, Washington is most closely associated with the Lummi Tribe of the Lummi Reservation, Washington linguistically and culturally, and the Samish regard San Juan Island to be within the usual and accustomed territory shared by both tribes at the time of negotiations for the Treaty of Point Elliott, in 1855. In 2006, the Samish Indian Tribe, Washington and the Lummi Tribe of the Lummi Reservation, Washington entered into a cooperative agreement to have the Lummi Tribe take the lead in receiving repatriated human remains and funerary objects from San Juan Island National Historical Park. The traditional territory of the Swinomish Indians of the Swinomish Reservation, Washington is on the mainland in the vicinity of La Conner, WA, on Whidbey Island and Fidalgo Island, the site of their reservation.
Officials of San Juan Island National Historical Park have determined that, pursuant to 25 U.S.C. 3001 (3)(B), the 285 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from specific burial sites of Native American individuals. Officials of San Juan Island National Historical Park also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Lummi Tribe of the Lummi Reservation, Washington.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact Peter Dederich, superintendent, San Juan Island National Historical Park, P.O. Box 429, Friday Harbor, WA 98250-04289, telephone (360) 378-2240, before September 29, 2008. Repatriation of the unassociated funerary objects to the Lummi Tribe of the Lummi Reservation, Washington may proceed after that date if no additional claimants come forward.
San Juan Island National Historical Park is responsible for notifying the Lummi Tribe of the Lummi Reservation, Washington; Samish Indian Tribe, Washington; and Swinomish Indians of the Swinomish Reservation, Washington that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the U.S. Department of the Interior, Bureau of Land Management, Buffalo Field Office, Buffalo, WY, that meet the definition of “unassociated funerary objects” under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the Federal agency that has control of the cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1986, human remains and cultural items were removed from a site adjacent to the location of the Dull Knife Battle, Johnson County, WY. The Bureau of Land Management, Buffalo Field Office, was required to analyze potential impacts from a proposed Federal action pursuant to Section 106 of the National Historic Preservation Act on a known burial site located on Bureau of Land Management public lands. The burial is adjacent to the location of the Dull Knife Battle of November 1876 between the U.S. Cavalry and a camp of Northern Cheyenne. The close proximity of the burial to the battle ground suggests a direct association. On June 29, 1987, the interment was removed and analyzed in the field. Osteological analysis showed that the human remains were of an adult female of Native American descent. The human remains and associated sediments were replaced into the original location. However, 15 funerary objects were removed for analysis, and subsequently stored in the Buffalo Field Office. The 15 funerary objects are 1 brown wool fabric fragment (appears to be from the late 19th century); 2 brown wool fragments from a horse blanket (appears to be from the 19th century); 7 blue wool fragments (appears to be from an 1876-era U.S. Army blanket); 1 red and white striped cotton fabric fragment; 2 tanned leather fragments; 1 fragment of rawhide or un-tanned leather; and 1 wood fragment.
A detailed assessment of the funerary objects was made by the Bureau of Land
Officials of the Bureau of Land Management have determined that, pursuant to 25 U.S.C. 3001 (3)(B), the 15 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual. Officials of the Bureau of Land Management also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact Chris Hanson, Bureau of Land Management, Buffalo Field Office, 1425 Fort Street, Buffalo, WY 82834, telephone (307) 684-1141, before September 29, 2008. Repatriation of the unassociated funerary objects to the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana may proceed after that date if no additional claimants come forward.
The Bureau of Land Management is responsible for notifying the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana that this notice has been published.
National Park Service, Interior.
Notice; correction.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Minnesota Indian Affairs Council, St. Paul and Bemidji, MN. The human remains were removed from Goodhue County, MN.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice is an addition of a minimum number individuals removed from the Bryan site (21GD4), Goodhue County, MN, which were previously described in a Notice of Inventory Completion published in the
In the
In 1983, human remains representing a minimum of six individuals were removed from the Bryan site (21GD4), Goodhue County, MN, during archeological excavations conducted by the University of Minnesota. No known individuals were identified. No associated funerary objects are present.
In 1999-2000, human remains representing a minimum of one individual were removed from the Bryan site (21GD4), Goodhue County, MN, during archeological excavations conducted by the Institute for Minnesota Archaeology. No known individual was identified. No associated funerary objects are present.
In the
Officials of the Minnesota Indian Affairs Council have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of 124 individuals of Native American ancestry. Officials of the Minnesota Indian Affairs Council have also determined that, pursuant to 25 U.S.C. 3001 (3)(A), the 57 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the Minnesota Indian Affairs Council have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Mr. James L. (Jim) Jones, Cultural Resource Director, Minnesota Indian Affairs Council, 3801 Bemidji Avenue North, Suite 5, Bemidji, MN 56601, telephone (218) 755-3223, before September 29, 2008. Repatriation of the human remains and associated funerary objects to the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma may proceed after that date if no additional claimants come forward.
The Minnesota Indian Affairs Council is responsible for notifying the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Central Washington University, Department of Anthropology professional staff in consultation with representatives of the Confederated Tribes and Bands of the Yakama Nation, Washington; Confederated Tribes of the Colville Reservation, Washington; Confederated Tribes of the Umatilla Indian Reservation, Oregon; and Confederated Tribes of the Warm Springs Reservation of Oregon.
In 1949, human remains representing a minimum of one individual were removed from site 35-UM-20, on the Techumtas Island in the Columbia River, Umatilla County, OR, by the Smithsonian River Basin Survey under the direction of Dr. Douglas Osborne. Site 35-UM-20 was one of eight sites tested during the summer of 1949. In 1974, the Thomas Burke Memorial Washington State Museum (Burke Museum), University of Washington, Seattle, WA, legally transferred the human remains to Central Washington University, Department of Anthropology. No known individual was identified. No associated funerary objects are present.
Roger Heglar, a University of Washington graduate student, conducted extensive osteometric analysis of human remains at the Burke Museum for his 1957 Master's Thesis, “A Racial Analysis of Indian Skeletal Material from the Columbia River Valley.” Dr. Osborne provided some of the skeletal remains for the analysis. Heglar identified one individual as “35-UM-20 Burial 2 from Cold Springs, Oregon (north).” Measurements recorded by Central Washington University, Department of Anthropology physical anthropologist match Heglar's measurements of the 35-UM-20 Burial 2.
Early and late ethnographic sources identify the area around Techumtas Island and Cold Springs as territory of the Cayuse, Walla Walla, and Umatilla tribes (Hale 1841; Stern 1998; Ray 1936). The Cayuse, Walla Walla, and Umatilla were separate tribes prior to the treaty of June 9, 1855, but were removed to the Umatilla Reservation under the terms of the Walla Walla Treaty. The three tribes were officially confederated in 1949.
The Cold Springs area was heavily utilized by the Umatilla, including the spring and summer camp,
The human remains have been determined to be Native American based on geographic, historical, and osteological evidence, and culturally affiliated to the Confederated Tribes of the Umatilla Indian Reservation, Oregon.
Officials of the Central Washington University, Department of Anthropology have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of one individual of Native American ancestry. Officials of the Central Washington University Department of Anthropology also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Confederated Tribes of the Umatilla Indian Reservation, Oregon.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Lourdes Henebry-DeLeon, NAGPRA Program Director, Central Washington University, Department of Anthropology, 400 East University Way, Ellensburg, WA 98926-7544, telephone (509) 963-2671, before September 29, 2008. Repatriation of the human remains to the Confederated Tribes of the Umatilla Indian Reservation, Oregon may proceed after that date if no additional claimants come forward.
The Central Washington University, Department of Anthropology is responsible for notifying the Confederated Tribes and Bands of the Yakama Nation, Washington; Confederated Tribes of the Colville Reservation, Washington; Confederated Tribes of the Umatilla Indian Reservation, Oregon; and Confederated Tribes of the Warm Springs Reservation of Oregon that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the Horner Collection, Oregon State University, Corvallis, OR. The human remains were removed from Lopez and Decatur Islands, San Juan County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Horner Collection, Oregon State University professional staff in consultation with representatives of the Samish Indian Tribe, Washington. The following tribes were notified, but did not participate in consultations concerning the human remains in this notice: Confederated Tribes of the Chehalis Reservation, Washington; Confederated Tribes of the Colville Reservation, Washington; Confederated Tribes of the Warm Springs Reservation of Oregon; Confederated Tribes and Bands of the Yakama Nation, Washington; Cowlitz Indian Tribe, Washington; Hoh Indian Tribe of the Hoh Indian Reservation, Washington; Jamestown S'Klallam Tribe of Washington; Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington; Lummi Tribe of the Lummi Reservation, Washington; Makah Indian Tribe of the Makah Indian Reservation, Washington; Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nez Perce Tribe, Idaho (formerly listed as Nez Perce Tribe of Idaho); Nisqually Indian Tribe of the Nisqually Reservation, Washington; Nooksack Indian Tribe of
At an unknown time, human remains representing a minimum of two individuals were removed from Lopez and Decatur Islands in San Juan County, WA. The human remains came into the Horner Collection at an unknown time, but are described in an inventory report conducted in the early 1970s. The human remains were located in Oregon State University's Anthropology Department during an inventory in 2006. No known individuals were identified. No associated funerary objects are present.
Both individuals appear to be part of the Ethan Allen Collection, as “Ethan Allen Collection” is written on each skull. The Ethan Allen Collection had been on loan to the Horner Collection sometime in the past. Ethan Allen was known to collect Native American artifacts from all over the Puget Sound area, including the San Juan Islands. Additional writing appears on both skulls. One individual has “Decatur Island, Puget Sound” and the other “Lopez Island, Puget Sound.” Osteologist professionals of the Anthropology Department at Oregon State University have determined that both skulls are of Native American ancestry. Traditional territory for the Samish Indian Tribe includes Samish Island, Guemes Island, eastern Lopez Island, Cypress Island, and Fidalgo Island. Both Lopez and Decatur Islands are within Samish traditional territory and continue to be used by the Samish Indian Tribe, Washington.
Officials of the Horner Collection, Oregon State University have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of two individuals of Native American ancestry. Officials of the Horner Collection, Oregon State University also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Samish Indian Tribe, Washington.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Sabah Randhawa, Executive Vice President and Provost, President's Office, Oregon State University, 600 Kerr Administration Building, Corvallis, OR 97331, telephone (541) 737-8260, before September 29, 2008. Repatriation of the human remains to the Samish Indian Tribe, Washington may proceed after that date if no additional claimants come forward.
The Horner Collection, Oregon State University is responsible for notifying the Confederated Tribes of the Chehalis Reservation, Washington; Confederated Tribes of the Colville Reservation, Washington; Confederated Tribes of the Warm Springs Reservation of Oregon; Confederated Tribes and Bands of the Yakama Nation, Washington; Cowlitz Indian Tribe, Washington; Hoh Indian Tribe of the Hoh Indian Reservation, Washington; Jamestown S'Klallam Tribe of Washington; Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington; Lummi Tribe of the Lummi Reservation, Washington; Makah Indian Tribe of the Makah Indian Reservation, Washington; Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nez Perce Tribe, Idaho; Nisqually Indian Tribe of the Nisqually Reservation, Washington; Nooksack Indian Tribe of Washington; Port Gamble Indian Community of the Port Gamble Reservation, Washington; Puyallup Tribe of the Puyallup Reservation, Washington; Quileute Tribe of the Quileute Reservation, Washington; Quinault Tribe of the Quinault Reservation, Washington; Samish Indian Tribe, Washington; Sauk-Suiattle Indian Tribe of Washington; Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington; Skokomish Indian Tribe of the Skokomish Reservation, Washington; Snoqualmie Tribe, Washington; Squaxin Island Tribe of the Squaxin Island Reservation, Washington; Stillaguamish Tribe of Washington; Suquamish Indian Tribe of the Port Madison Reservation, Washington; Swinomish Indians of the Swinomish Reservation, Washington; Tulalip Tribes of the Tulalip Reservation, Washington; and Upper Skagit Indian Tribe of Washington that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary object in the possession of the Minnesota Indian Affairs Council, St. Paul and Bemidji, MN. The human remains and associated funerary object were removed from Faribault and Goodhue Counties, MN.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Minnesota Indian Affairs Council professional staff in consultation with representatives of the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma.
In 1935, human remains representing a minimum of two individuals were removed from a mound on the Cady Farm (21GD17), Goodhue County, MN, by Edward Schmidt, an avocational archeologist. No known individuals were identified. No associated funerary objects are present.
Site records in the Minnesota Office of the State Archaeologist record a minimum of 226 mounds at the Cady Farm site, and suggest an Oneota cultural affiliation. Based on continuities of material culture, historical documents, and oral history, the Oneota phase of the Mississippian archeological culture has been determined to be ancestral to the present-day Otoe and Ioway.
At an unknown date, human remains representing a minimum of one
Site records in the Minnesota Office of the State Archaeologist indicate that the Bartron Site is a village site of Oneota cultural affiliation. Based on continuities of material culture, historical documents, and oral history, the Oneota phase of the Mississippian archeological culture has been determined to be ancestral to the present-day Otoe and Ioway.
In 1960-62, human remains representing a minimum of five individuals were removed from the Fort Sweney site (21GD86), Goodhue County, MN, during archeological excavations conducted by the Science Museum of Minnesota. No known individuals were identified. No associated funerary objects are present.
Site records in the Minnesota office of the State Archaeologist indicate that Fort Sweney is a multi-component cemetery and habitation site with Late Woodland and Oneota components. The mortuary styles of the burials excavated in 1960-62 indicate that they are associated with the Oneota component of the site. Based on continuities of material culture, historical documents, and oral history, the Oneota phase of the Mississippian archeological culture has been determined to be ancestral to the present-day Otoe and Ioway.
In 1998, human remains representing a minimum of two individuals were removed from the Vosburg site (21FA2), Faribault County, MN, during archeological excavations conducted by the University of Minnesota. No known individual was identified. The one associated funerary object is a segment of rib from a large mammal.
Site records in the Minnesota office of the State Archaeologist indicate that the Vosburg site is a cemetery and habitation site classified as belonging to the Blue Earth/Oneota phase. Based on continuities of material culture, historical documents, and oral history, the Oneota phase of the Mississippian archeological culture has been determined to be ancestral to the present-day Otoe and Ioway. Descendants of the Otoe and Ioway are members of the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma.
Officials of the Minnesota Indian Affairs Council have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of 10 individuals of Native American ancestry. Officials of the Minnesota Indian Affairs Council also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), the one object described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the Minnesota Indian Affairs Council have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary object and the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary object should contact James L. (Jim) Jones, Jr., Cultural Resource Director, Minnesota Indian Affairs Council, 3801 Bemidji Avenue North, Suite 5, Bemidji, MN 56601, telephone (218) 755-3223, before September 29, 2008. Repatriation of the human remains and associated funerary object to the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma may proceed after that date if no additional claimants come forward.
The Minnesota Indian Affairs Council is responsible for notifying the Iowa Tribe of Kansas and Nebraska, Iowa Tribe of Oklahoma, and Otoe-Missouria Tribe of Indians, Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of the Phoebe A. Hearst Museum of Anthropology, University of California, Berkeley, Berkeley, CA. The human remains and associated funerary objects were removed from Siskiyou County, CA.
This notice is published as part of the National Park Service's administration responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
An assessment of documents associated with the human remains and associated funerary objects was made by professional staff of the Phoebe A. Hearst Museum of Anthropology in consultation with representatives of the Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Reservation, Oregon; and Quartz Valley Indian Community of the Quartz Valley Reservation of California.
In 1955, human remains representing a minimum of 21 individuals were removed from CA-Sis-262 (also known as the Foster site), a site located along Bogus Creek in Siskiyou County, CA, by J. Foster, the landowner, and J.A. Bennyhoff and A.B. Elsasser of the University of California Archaeological Survey. The human remains and associated funerary objects were accessioned into the museum later that same year (Accession UCAS-357). No known individuals were identified. The 31,970 associated funerary objects are 4 lots of animal bones (including horse and dog burials); 3 arrow points; 1 fragment of baked clay; 2 bangles; 55 basketry fragments; 31,246 beads (approximate count); 73 bells; 1 belt fragment; 3 blades; 13 bracelets; 2 buckles; 226 buttons; 100 charcoal fragments (approximate count); 2 china fragments; 1 obsidian flake; 2 clappers; 32 cloth fragments; 12 cordage fragments; 1 glass fragment; 2 handles; 1 harness; 2 hatched handles; 2 hooks; 5 iron fragments; 1 lead or pewter fragment; 1 piece of leather; 2 nail fragments; 65 pendants; 2 pestles; 1 pipe fragment; 2 porcelain fragments; 2 pots; 1 rivet; 1 rod; 1 scissors fragment; 1 screw; 1 sheat; 1 shell fragment; 2 sherds; 1 shoe sole; 2 shots; 1 spool; 3 spoon fragments; 21 animal teeth; 66 thimbles; and 1 wire fragment.
CA-Sis-262 was an historic cemetery located on the west bank of Bogus Creek, a tributary of the Klamath River, about 1 mile south of Foster's Ranch. The site was destroyed during the process of diverting Bogus Creek from its original course between May 7 and
The antiquity of CA-Sis-262 is known through the presence of Desert side notched points that indicate that the site was in use during the Tule Lake Phase (after A.D. 1500). The recovery of some coins minted in A.D. 1776, 1781, and 1860, further refine the chronological timeline of some of the burials. Two newspaper articles, which were published at the time of the University of California Archaeological Survey excavation, reported that a woman of Indian descent recalled the story of a deadly ambush that happened sometime between 1863 and 1866 when a German peddler and a group of Shasta were killed by members of the Modoc (Sacramento Bee, May 11, 1955; Oakland Tribune, May 29, 1955). After the soldiers came and ran off the Modoc, the Shasta went back and buried their dead with the exception of the German peddler who was buried by the soldiers in a different location. These newspaper accounts suggest that (at least part of) the site is the result of a deadly skirmish between the Modoc and the Shasta sometime between 1863 and 1866.
The Shasta language belongs to the Hokan stock, which is probably the oldest language stock in California (Shipley 1978). At the time of contact with the Europeans, Shasta-speakers inhabited Siskiyou County, as well as parts of Oregon's Jackson and Klamath Counties. The first contact with Europeans came in the early part of the 19th century in the form of fur trappers, as indicated by the Shasta word for “White,” which is the Chinook Jargon word for “Boston” (Silver 1978:212). The first published personal account of the Shasta came from the United States Exploring Expedition that passed through Shasta territory in 1841 on its way to San Francisco (Dixon 1907:389). For the area and the native population, the biggest impact came with the Gold Rush in the 1850s. The destruction of food sources and the general hostility of the miners led to a rapid decline in the Shasta population. In 1851, the Shasta signed one of the infamous unratified treaties. In the agreement, their reservation was to be in Scott Valley, CA. In 1856, however, the Shasta were taken first to the Grande Ronde and then to the Siletz reservations in Oregon. In 1962, only a small number of surviving members were living on the Quartz Valley Rancheria in California, which is located in Siskiyou County (Silver 1978:212). The descendants of the Shasta are members of the Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Reservation, Oregon; and Quartz Valley Indian Community of the Quartz Valley Reservation of California.
Officials of the Phoebe A. Hearst Museum of Anthropology have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of 21 individuals of Native American ancestry. Officials of the Phoebe A. Hearst Museum of Anthropology have also determined that, pursuant to 25 U.S.C. 3001 (3)(A), the 31,970 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the Phoebe A. Hearst Museum of Anthropology have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Reservation, Oregon; and Quartz Valley Indian Community of the Quartz Valley Reservation of California.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Judd King, Interim Director of the Phoebe A. Hearst Museum of Anthropology, University of California, Berkeley, Berkeley, CA 94720, telephone (510) 642-3682, before September 29, 2008. Repatriation of the human remains and associated funerary objects to the Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Reservation, Oregon; and Quartz Valley Indian Community of the Quartz Valley Reservation of California may proceed after that date if no additional claimants come forward.
The Phoebe A. Hearst Museum of Anthropology is responsible for notifying the Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Reservation, Oregon; and Quartz Valley Indian Community of the Quartz Valley Reservation of California that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with of the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of the Phoebe A. Hearst Museum of Anthropology, University of California, Berkeley, Berkeley, CA. The human remains and associated funerary objects were removed from Tehama County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
An assessment of documents associated with the human remains and associated funerary objects was made by professional staff of the Phoebe A. Hearst Museum of Anthropology in consultation with representatives of the Grindstone Indian Rancheria of Wintun-Wailaki Indians of California; Paskenta Band of Nomlaki Indians of California; and Round Valley Indian Tribes of the Round Valley Reservation, California.
Between 1953 and 1955, human remains representing a minimum of 100 individuals were removed from CA-Teh-58, a site located on the northwest bank of the Sacramento River approximately 2.25 miles east of Red Bluff, Tehama County, CA. The human remains and associated funerary objects were accessioned into the museum in 1953 and 1955 (Accessions UCAS-246 and UCAS-337). No known individuals were identified. The 2,912 associated funerary objects are 18 animal bone and fragments, 6 abalone fragments, 8 abraders, 19 acorns, 1 arrow point, 1 arrow shaft straightener, 7 awls, 1 bar,
Site CA-Teh-58 is a burial mound, associated with at least one permanent village site. The University of California Archaeological Survey started its excavation in 1953. Although, in 1948, the land was privately owned, the National Park Service provided the permit and the project funding under the River Basin Survey program. The historic age of the site is confirmed by the presence of glass beads and other metallic objects that are associated with some of the burials. Site CA-Teh-58 lies entirely within the Nomlaki aboriginal territory whose northern border extends to Cottonwood Creek almost 10 miles to the north of the site. Descendants of the Nomlaki are members of the Grindstone Indian Rancheria of Wintun-Wailaki Indians of California; Paskenta Band of Nomlaki Indians of California; and Round Valley Indian Tribes of the Round Valley Reservation, California.
Officials of the Phoebe A. Hearst Museum of Anthropology have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of 100 individuals of Native American ancestry. Officials of the Phoebe A. Hearst Museum of Anthropology have also determined that, pursuant to 25 U.S.C. 3001 (3)(A), the 2,912 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the Phoebe A. Hearst Museum of Anthropology have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Grindstone Indian Rancheria of Wintun-Wailaki Indians of California; Paskenta Band of Nomlaki Indians of California; and Round Valley Indian Tribes of the Round Valley Reservation, California.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Judd King, Interim Director of the Phoebe A. Hearst Museum of Anthropology, University of California, Berkeley, Berkeley, CA 94720, telephone (510) 642-3682, before September 29, 2008. Repatriation of the human remains and associated funerary objects to the Grindstone Indian Rancheria of Wintun-Wailaki Indians of California; Paskenta Band of Nomlaki Indians of California; and Round Valley Indian Tribes of the Round Valley Reservation, California may proceed after that date if no additional claimants come forward.
The Phoebe A. Hearst Museum of Anthropology is responsible for notifying the Grindstone Indian Rancheria of Wintun-Wailaki Indians of California; Paskenta Band of Nomlaki Indians of California; and Round Valley Indian Tribes of the Round Valley Reservation, California that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of St. Lawrence University, Department of Anthropology, Canton, NY. The human remains were removed from St. Lawrence County, NY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal Agency that has control of the Native American human remain. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remain was made by professional staff of the Department of Anthropology at St. Lawrence University in consultation with representatives of the Saint Regis Mohawk Tribe, New York (formerly the St. Regis Band of Mohawk Indians of New York).
At an unknown date, but probably either in 1928 or 1948, a human remain representing a minimum of one individual was removed from private land near Gouverneur in St. Lawrence County, NY, by John Frank Murray. Mr. Murray kept the human remain safely stored in his basement until the 1980s. During the early 1980's (1983 at the latest), Mr. Murray turned over the human remain to Lauren (Foster) French, who was a student at St. Lawrence University. Ms. French then turned the human remain over to Dr. John Barthelme of the Department Anthropology at St. Lawrence University. On January 16, 2008, Dr. Richard A. Gonzalez took custody of the human remain. No known individual was identified. No associated funerary objects are present.
The human remain is the cranium of a single individual. After conducting morphological analysis on the cranium, Dr. Gonzalez determined that the cranium belonged to an individual of Native American descent, as the craniofacial features are consistent with features present in crania of individuals of Native American descent. Specifically, the cranium exhibits artificial remodeling of the occipital region of the cranium, which is consistent with cranial alterations resulting from cradle-boarding. Cradle-boarding was commonly practiced among the Iroquois.
The region of Gouverneur has been constantly occupied by Native Americans from 10,000 BP up to the historic period and beyond. The St. Lawrence River and its tributaries were continually used as part of Native American hunting and fishing grounds. During the French and Indian War, Native Americans who lived in the Oswegatchie River region (Oswegatchie is a tributary of the St. Lawrence River) were dislocated as a result of the war. Native American refugees were forced to settle at St. Regis, NY. Consultation with tribal representatives of the Saint Regis Mohawk Tribe, New York provided additional lines of evidence.
Through ongoing consultation with Native American groups and Lauren French, examination of the human remains, and review of the available literature, officials of St. Lawrence University have determined that the human remain is Native American and most likely culturally affiliated with the Saint Regis Mohawk Tribe, New York.
Officials of the Department of Anthropology at St. Lawrence University have determined that,
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remain should contact Dr. Richard A. Gonzalez, Department of Anthropology, St. Lawrence University, Canton, NY 13617, telephone (315) 229-5745, before September 29, 2008. Repatriation of the human remain to the Saint Regis Mohawk Tribe, New York may proceed after that date if no additional claimants come forward.
St. Lawrence University is responsible for notifying the Saint Regis Mohawk Tribe, New York that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession and control of the University of Wyoming Anthropology Department Human Remains Repository in Laramie, WY. The human remains and associated funerary objects were removed from Goshen County, WY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by University of Wyoming Anthropology Department Human Remains Repository professional staff in consultation with representatives of the Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.
In 1977, human remains representing a minimum of two individuals were removed from near the old Bordeaux Trading Post in Goshen County, WY, by personnel from Fort Laramie, Goshen County Sheriff's Office, and Goshen County Coroner, after the burial location had been disturbed by earth leveling activities associated with farming. No known individuals were identified. The four associated funerary objects are one set of glass trade beads, one brass button, one set of cloth fragments, and one set of wooden coffin fragments.
The remains are a partial skeleton of a female of probable mixed Native American/Euroamerican parentage. Some features on the cranium and mandible suggest that the individual has both Euroamerican and Native American aspects in her parentage. The cranial cap is partially mummified and a stripe of red ocher or vermillion had been painted down the center of the top of the head, approximately at the part of the hair. The woman was apparently pregnant or had just delivered a child at the time of her death. The child interred with her is also likely of mixed parentage and was likely a newborn infant.
Historic background research and ethnographic inquiries indicates that the human remains are most likely related to the Sioux groups that were known to have intermarried with the Bordeaux family and their employees at the old Bordeaux Trading Post a few miles below Fort Laramie near the North Platte River. The Bordeaux name is still carried by members of the Rosebud Sioux Tribe and tribal representatives identified specific bands of the Rosebud Sioux Tribe that had married Bordeaux Trading Post employees. Tribal evidence presented for cultural affiliation is based on review of records afforded to the tribe, contact with the Bordeaux family, and review of the information from the Human Remains Repository.
Officials of the University of Wyoming, Anthropology Department, Human Remains Repository have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of two individuals of Native American ancestry. Officials of the University of Wyoming, Anthropology Department, Human Remains Repository also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), the four objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the University of Wyoming, Anthropology Department, Human Remains Repository have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Rick L. Weathermon, NAGPRA Contact at the University of Wyoming Department 3431, Anthropology, 1000 E. University Ave., Laramie, WY 82071, telephone (307) 766-5136, before September 29, 2008. Repatriation of the human remains and associated funerary objects to the Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota may proceed after that date if no additional claimants come forward.
University of Wyoming Anthropology Department Human Remains Repository is responsible for notifying the Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota that this notice has been published.
Bureau of Reclamation, Interior.
Notice of intent (NOI) to prepare an environmental impact statement/environmental impact report (EIS/EIR) and notice of public scoping meetings.
Pursuant to the National Environmental Policy Act and the California Environmental Quality Act, the Bureau of Reclamation (Reclamation) and the Santa Clara Valley Water District, in coordination with the San Luis and Delta Mendota
The Low Point Project is designed to address water supply reliability issues in San Luis Reservoir associated with conditions occurring in summer months when water levels are low. During this time, reservoir-wide growth of algae makes the water unsuitable for certain agricultural and municipal and industrial users in the San Felipe Division with existing treatment facilities (also known as the “low point issue”).
A series of public scoping meetings will be held to solicit public input on alternatives, concerns, and issues to be addressed in the EIS/EIR. The meeting dates are as follows:
• September 10, 2008, 4:30 p.m. to 7:45 p.m., San Jose, CA.
• September 11, 2008, 10 a.m. to 12 p.m., Sacramento, CA.
• September 11, 2008, 5 p.m. to 9 p.m., Los Banos, CA.
Written comments must be received by October 28, 2008.
The public scoping meeting locations are:
• San Jose at the Rose Garden Public Library, 1580 Naglee Avenue.
• Sacramento at the Federal Building, 2800 Cottage Way, Cafeteria Conference Rooms C-1001 and C-1002.
• Los Banos at the Miller and Lux Community Center, 830 Sixth Street.
Written comments on the scope of the EIS/EIR should be sent to Ms. Lynnette Wirth, Bureau of Reclamation, 2800 Cottage Way, Public Affairs, Sacramento, CA 95825, e-mailed to
Ms. Sharon McHale, Reclamation Project Manager, at the above address, 916-978-5086 (TDD 916-978-5608), or via e-mail at:
San Luis Reservoir is a jointly shared off-stream storage facility providing Reclamation and the State of California the ability to store water during wet seasons and deliver it during dry seasons. Use of the reservoir helps to maximize Central Valley Project (CVP) and State Water Project supplies and contract deliveries. Any constraint in the release of water from San Luis Reservoir, including maintaining water levels to avoid the low point issue, could limit water supplies.
The Low Point Project is designed to address water supply reliability issues in San Luis Reservoir associated with the low point issue. The low point issue arises when water levels fall below 300 thousand acre-feet (TAF), creating a water quality restriction (algae blooms) that has the potential to interrupt a portion of the San Felipe Division's water supply. The low point issue may affect the ability of San Luis Reservoir to provide water supply reliability and deliveries to south-of-Delta contractors.
Conditions at San Luis Reservoir promote the growth of reservoir-wide algae during the summer months, when the reservoir reaches the lower water surface elevations (approximately 300 TAF). Algae blooms vary in size in different years, but generally reach diversion facilities when the reservoir has 300 TAF of water remaining in storage. The water quality within the algal blooms is not suitable for agricultural water users with drip irrigation systems in San Benito County or for municipal and industrial water users relying on existing water treatment facilities in Santa Clara County. Reaching 300 TAF creates a risk for the San Felipe Division contractors because the San Luis Reservoir is the only CVP water source point that they can access.
The project location is focused around San Luis Reservoir in Merced County. The project also includes the service areas of the CVP San Felipe Division in Santa Clara and San Benito Counties, and other CVP contractors within the San Luis and Delta Mendota Water Authority in the western San Joaquin Valley.
One of the options identified in the 2000 CALFED Programmatic Record of Decision was a bypass canal that would connect the San Felipe Division to water delivered by the Sacramento-San Joaquin River Delta pumping facilities, to increase use of water in San Luis Reservoir by up to 200 TAF.
Reclamation issued a Notice of Intent (NOI) for a similar project on July 17, 2002. The participating agencies conducted scoping meetings, and the results of those meetings have been incorporated into this project. After publishing the initial NOI, the project focus has broadened, which has resulted in new planning objectives. The agencies have decided to re-issue the NOI and conduct new scoping meetings because of the length of time that has passed and the change in project objectives.
The overall objective of the Low Point Project is to optimize the water supply benefit of San Luis Reservoir while reducing additional risks to water users by:
• Avoiding supply interruptions when water is needed by increasing the certainty of meeting the requested delivery schedule throughout the year to south-of-Delta contractors dependent on San Luis Reservoir;
• Increasing the reliability and quantity of yearly allocations to south-of-Delta contractors dependent on San Luis Reservoir; and
• Announcing higher allocations earlier in the season to south-of-Delta contractors dependent on San Luis Reservoir without sacrificing accuracy of the allocation forecasts.
The Low Point Project may also provide opportunities for ecosystem restoration.
Initial alternatives fall into seven general categories:
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If special assistance is required at the public hearings, please contact Ms. Lynnette Wirth at 916-978-5100, TDD 916-978-5608, or via e-mail at
Before including your name, address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Reclamation, Interior.
Notice of Availability of the Draft Environmental Impact Statement (Draft EIS) and Announcement of Public Hearings.
Pursuant to section 102(2)(C) of the National Environmental Policy Act, the Bureau of Reclamation (Reclamation) has completed the Windy Gap Firming Project Draft EIS. It is now available for public review and comment. Two public hearings are scheduled during the comment period. The Draft EIS describes and discloses the estimated environmental effects of five alternatives, including a no action alternative and four action alternatives that accomplish the purpose and need for the project.
The U.S. Army Corps of Engineers (Corps), the Western Area Power Administration (Western), and the Board of County Commissioners, Grand County, Colorado (Grand County) are cooperating agencies that are providing assistance in the preparation of the Environmental Impact Statement (EIS) under the National Environmental Policy Act.
A 60-day public comment period begins with the publication of this notice. Written comments on the Draft ES are due by October 28, 2008 and should be submitted to Reclamation listed in the
Comments on the Draft EIS should be sent to the attention of Will Tully, Bureau of Reclamation, 11056 West County Rd. 18E, Loveland, CO 80537. Comments may also be submitted in writing by fax, e-mail, or at the public hearings. Send faxes to the attention of Will Tully at 970-663-3212. Send e-mail to
Copies of the Draft EIS and related documents are available online from Reclamation's Web site at
Kara Lamb at 970-962-4326 or
Reclamation will hold public hearings, preceded by an open house, to receive oral and written comments on the Draft EIS at the following times and places:
• October 7, 2008, open house at 6 p.m., public hearing at 7 p.m., McKee Conference Center, 2000 Boise Avenue, Loveland, CO 80538, (ph. 970-669-4640).
• October 9, 2008, open house at 5 p.m., public hearing at 7 p.m., Inn at Silver Creek, 62927 U.S. Highway 40, Granby, CO 80446, (ph. 970-887-4080).
Public Hearing Process Information: Each public hearing will be preceded by an open house hosted by Reclamation to display project information and allow for questions. The meeting facilities are physically accessible to people with disabilities. People needing special assistance to attend and participate in the public hearings should contact Ms. Kara Lamb at 970-962-4326 as soon as possible. To allow sufficient time to process special requests, please call no later than one week before the public hearing of interest.
The purpose of the public hearings is to provide the public with an opportunity to comment on information presented in the Draft EIS. Oral comments may be limited to a specified period of time if deemed necessary by Reclamation to complete the hearing in an appropriate period of time. Written comments will also be accepted at the hearings. Information regarding this proposed action is available in alternative formats upon request.
Locations where the Draft EIS may be reviewed:
• Eastern Colorado Area Office, 11056 W. County Rd. 18E, Loveland, CO 80537 970-962-4410.
• Corps of Engineers, Chatfield Reservoir Office, 9307 South Wadsworth Blvd., Littleton, CO 80128.
• Morgan Library, Colorado State University, 501 University Avenue Fort Collins, CO 80523-1019.
• Berthoud, Berthoud Public Library, 236 Welch Avenue.
• Broomfield, Mamie Eisenhower Public Library, 3 Community Park Road.
• Ft. Collins, Fort Collins Public Library, 201 Peterson Street.
• Ft. Lupton, Ft. Lupton Public Library, 425 South Denver Avenue.
• Granby, Granby Branch Library, 13 East Jasper Avenue.
• Grand Lake, Juniper Library, 316 Garfield Street.
• Greeley, Centennial Park Branch, Weld Library District, 2227 23rd Avenue.
• Greeley, Fart Branch, Weld Library District, 1939 61st Avenue.
• Greeley, Lincoln Park Branch, Weld Library District, 919 7th Street.
• Hot Sulphur Springs, Hot Sulphur Springs Branch Library, 105 Moffat.
• Kremmling, Kremmling Branch Library, 300 South 8th Street.
• Longmont, Longmont Public Library, 409 4th Avenue.
• Louisville, Louisville Public Library, 950 Spruce St.
• Loveland, Loveland Public Library, 300 North Adams Avenue.
• Lyons, Lyons Depot Library, 5th and Broadway.
• Alternative 1 (No Action)—Continuation of existing operations and agreements between Reclamation and the Sub-district for conveyance of Windy Gap water through C-BT facilities and enlargement of Longmont's Ralph Price Reservoir by approximately 13,000 acre-feet.
• Alternative 2 (Proposed Action)—Chimney Hollow Reservoir (90,000 AF) with prepositioning.
• Alternative 3—Chimney Hollow Reservoir (70,000 AF) and Jasper East Reservoir (20,000 AF).
• Alternative 4—Chimney Hollow Reservoir (70,000 AF) and Rockwell/Mueller Creek Reservoir (20,000 AF).
• Alternative 5—Dry Creek Reservoir (60,000 AF) and Rockwell/Mueller Creek Reservoir (30,000 AF).
The No Action alternative is defined as what would happen if Reclamation declines to allow the proposed connection to C-BT facilities. It includes continuation of the existing Windy Gap agreement between Reclamation and the Sub-district and other predictable actions the participants would take individually to firm their Windy Gap units. Public Disclosure Statement: Before including your name, address, telephone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
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 February 5, 2008, applicable to workers of Drive Sol Global Steering, Inc., Steering Division, Watertown, Connecticut. 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 steering mechanical shafts.
New information shows that leased workers of Kelly Services, Inc. were employed on-site at the Watertown, Connecticut location of Drive Sol Global Steering, Inc., Steering Division, formerly known as Timken U.S. Corporation. The Department has determined that the Kelly Services, Inc. workers were sufficiently under the
Based on these findings, the Department is amending this certification to include leased workers of Kelly Services, Inc. working on-site at the Watertown, Connecticut location of the subject firm
The intent of the Department's certification is to include all workers employed at Drive Sol Global Steering, Inc., Steering Division, formerly known as Timken U.S. Corporation, who were adversely affect by increased imports of steering mechanical shafts.
The amended notice applicable to TA-W-62,515 is hereby issued as follows:
All workers of Drive Sol Global Steering, Inc., Steering Division, formerly known as Timken U.S. Corporation, including on-site leased workers of Kelly Services, Inc., Watertown, Connecticut, who became totally or partially separated from employment on or after November 29, 2006, through February 5, 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.
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 July 14, 2008, applicable to workers of American Dynamics, Access Control and Video Systems Division, Subsidiary of Sensormatic Electronics, San Diego, California. 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 produce computer software coding for digital video management systems.
The State reports that some of the workers wages are reported to the Unemployment Insurance (UI) tax account under the parent company's name, Tyco International. Further review of the file shows that the name of the firm was not correctly identified. American Dynamics is not a subsidiary of Sensormatic Electronics. The legal name for American Dynamics is Sensormatic Electronics which is a subsidiary of Tyco International.
Based on the findings above the Department is amending the certification to correctly identify the name of the subject firm and include those workers whose UI wages are reported under Tyco International.
The amended notice applicable to TA-W-63,520 is hereby issued as follows:
All workers of American Dynamics, Sensormatic Electronics, a subsidiary of Tyco International, Access Control and Video Systems Division, San Diego, California, who became totally or partially separated from employment on or after June 6, 2007 through July 14, 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.
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 July 31, 2008, applicable to workers of NewPage Corporation, Niagara Mill, including on-site leased workers from PSI, Naico and Gunville Trucking, Niagara, Wisconsin. 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 coated mechanical printing paper.
New information shows that a leased worker from Advanced Service Providers was employed on-site at the Niagara, Wisconsin location of NewPage Corporation, Niagara Mill. The Department has determined that this worker was sufficiently under the control of NewPage Corporation, Niagara Mill to be considered a leased worker.
Based on these findings, the Department is amending this certification to include a leased worker from Advanced Service Providers working on-site at the Niagara, Wisconsin location of the subject firm.
The intent of the Department's certification is to include all workers employed at NewPage Corporation, Niagara Mill, Niagara, Wisconsin who were adversely affected by increased imports of coated mechanical printing paper.
The amended notice applicable to TA-W-63,691 is hereby issued as follows:
All workers of NewPage Corporation, Niagara Mill, including on-site leased workers from PSI, Naico, Gunville Trucking, and Advanced Service Providers, Niagara, Wisconsin, who became totally or partially separated from employment on or after July 11, 2007, through July 31, 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.
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 November 7, 2007, applicable to workers of Robertshaw Controls Company, a division of Invensys Controls, Long Beach, California. 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 were engaged in the production of gas valve components.
New information shows that leased workers of Volt Services were employed on-site at the Long Beach, California location of Robertshaw Controls Company, a division of Invensys Controls.
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 of Volt Services working on-site at the Long Beach, California location of the subject firm.
The intent of the Department's certification is to include all workers employed at Robertshaw Controls Company, a division of Invensys Controls who were adversely affected by a shift in production of gas valve components to Mexico.
The amended notice applicable to TA-W-62,308 is hereby issued as follows:
All workers of Robertshaw Controls Company, a division of Invensys Controls, including on-site leased workers from Volt Services, Long Beach, California, who became totally or partially separated from employment on or after October 2, 2006, through November 9, 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) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on March 14, 2007, applicable to workers of The Seydel Companies, Seydel-Woolley & Co., Inc., Division, Pendergrass, Georgia. 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 produced textile chemicals.
New information shows that worker separations have occurred involving employees (Mr. Martin Folan and Mr. Dan Bull) in support of the and under the control of the Pendergrass, Georgia facility of The Seydel Companies, Seydel-Woolley & Co., Inc., Division working out of Portland, Maine and Greenville, South Carolina.
Based on these findings, the Department is amending this certification to include employees of the of the Pendergrass, Georgia location of the subject firm working out of Portland, Maine and Greenville, South Carolina.
The intent of the Department's certification is to include all workers of The Seydel Companies, Seydel-Woolley & Co., Inc., Division who were adversely affected by a shift in production textile chemicals to China.
The amended notice applicable to TA-W-61,004 is hereby issued as follows:
All workers of The Seydel Companies, Seydel-Woolley & Co., Inc., Division, Pendergrass, Georgia (TA-W-61,004), including employees in support of The Seydel Company, Seydel-Woolley & Co., Inc., Division, Pendergrass, Georgia working out of Portland, Maine (TA-W-61,004A) and Greenville, South Carolina (TA-W-61,004B), who became totally or partially separated from employment on or after February 12, 2006, through March 14, 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 May 4, 2007, applicable to workers of Valeo Engine Cooling, Jamestown, New York. 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 engine cooling products for heavy trucks.
New information shows that on May 31, 2008, EQT purchased Valeo Engine Cooling, Jamestown, New York and is currently known as TitanX Engine Cooling, Inc., Jamestown, New York. Workers wages at the subject firm are being reported under the
Accordingly, the Department is amending this certification to include workers of the subject firm whose UI wages are reported under the successor firm, Valeo Engine Cooling, currently known as TitanX Engine Cooling, Inc., Jamestown New York.
The amended notice applicable to TA-W-61,296 is hereby issued as follows:
All workers of Valeo Engine Cooling, currently known as TitanX Engine Cooling, Inc., Jamestown, New York, who became totally or partially separated from employment on or after April 11, 2006, through May 4, 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
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 separated, or are threatened to become totally or partially separated;
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 (
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.
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
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
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 8, 2008.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 8, 2008.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on August 19, 2008 in response to a worker petition filed by the state workforce office on behalf of workers at Magna Services of America, Inc., Troy, Michigan.
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 worker petition filed by a state agency representative on behalf of workers of Whirlpool Corporation, Fort Smith, Arkansas.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II, the Secretary of Labor has determined that reestablishment of the charter of the Federal Economic Statistics Advisory Committee (FESAC) is necessary and in the public interest in connection with the performance of duties imposed upon the Commissioner of Labor Statistics by 29 U.S.C. 1, 2, 3, 4, 5, 6, 7, 8, and 9. This determination follows consultation with the Committee Management Secretariat, General Services Administration.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
This notice announces the Occupational Safety and Health Administration's final decision expanding the recognition of Intertek Testing Services NA, Inc., (ITSNA) as a Nationally Recognized Testing Laboratory under 29 CFR 1910.7.
The expansion of recognition becomes effective on August 29, 2008.
MaryAnn Garrahan, Director, Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210, or phone (202) 693-2110.
The Occupational Safety and Health Administration (OSHA) hereby gives notice that it is expanding recognition of Intertek Testing Services NA, Inc., (ITSNA) as a Nationally Recognized Testing Laboratory (NRTL). ITSNA's expansion covers the use of additional test standards. OSHA's current scope of recognition for ITSNA may be found in the following informational Web page:
OSHA recognition of an NRTL signifies that the organization has met the legal requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products approved by the NRTL to meet OSHA standards that require testing and certification.
The Agency processes applications by an NRTL for initial recognition or for expansion or renewal of this recognition following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the
In an earlier action involving ITSNA, OSHA issued a
ITSNA submitted an application, dated August 25, 2005, (see Exhibit 48-1, as cited in the preliminary notice) to expand its recognition to include 56 additional test standards. One standard, however, is already included in ITSNA's scope and another has been withdrawn by the standards-developing organization. The NRTL Program staff has determined that the remaining 54 standards are “appropriate test standards” within the meaning of 29 CFR 1910.7(c). In connection with the expansion, OSHA staff performed an onsite visit of the NRTL's Cortland site
Based on this review, OSHA published a preliminary notice announcing the expansion application in the
You may obtain or review copies of all public documents pertaining to the ITSNA application by contacting the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC, 20210. Docket No. OSHA-2007-0039 (formerly NRTL1-89) contains all materials in the record concerning ITSNA's recognition.
The current addresses of the ITSNA facilities (sites) already recognized by OSHA are:
NRTL Program staff examined ITSNA's application, the assessor's recommendation, and other pertinent information. Based upon this examination and the assessor's recommendation, OSHA finds that ITSNA has met the requirements of 29 CFR 1910.7 for expansion of its recognition, subject to the limitation and conditions listed below. Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the recognition of ITSNA, subject to this limitation and these conditions.
OSHA limits the expansion of ITSNA's recognition to testing and certification of products for demonstration of conformance to the following test standards, each of which OSHA has determined is an appropriate test standard, within the meaning of 29 CFR 1910.7(c):
The designations and titles of the above test standards were current at the time of the preparation of this notice.
OSHA's recognition of ITSNA, or any NRTL, for a particular test standard is limited to equipment or materials (i.e., products) for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any product(s) for which OSHA does not require such testing and certification, an NRTL's scope of recognition does not include that product(s).
Test standards listed above may be approved as an American National Standard by the American National Standards Institute (ANSI). However, for convenience, we use the designation of the standards-developing organization for the standard as opposed to the ANSI designation. Under our procedures, any NRTL recognized for an ANSI-approved test standard may use either the latest proprietary version of the test standard or the latest ANSI version of that standard. You may contact ANSI to find out whether a test standard is currently ANSI-approved.
ITSNA must also abide by the following conditions of the recognition, in addition to those conditions already required by 29 CFR 1910.7:
OSHA must be allowed access to ITSNA's facilities and records to ascertain continuing compliance with the terms of its recognition and to perform investigations as OSHA deems necessary;
If ITSNA has reason to doubt the efficacy of any test standard it is using under this program, it must promptly inform the test standard-developing organization of this concern and provide that organization with appropriate relevant information upon which its concern is based;
ITSNA must not engage in, or permit others to engage in, any misrepresentation of the scope or conditions of its recognition. As part of this condition, ITSNA agrees that it will allow no representation that it is either a recognized or an accredited Nationally Recognized Testing Laboratory (NRTL) without clearly indicating the specific equipment or material to which this recognition applies, and also clearly indicating that its recognition is limited to certain products;
ITSNA must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major changes in its operations as an NRTL, including details of these changes;
ITSNA will meet all the terms of its recognition and will always comply with all OSHA policies pertaining to this recognition; and
ITSNA will continue to meet the requirements for recognition in all areas where it has been recognized.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
This notice announces the application of NSF International (NSF) for expansion of its recognition and presents the Agency's preliminary finding to grant this request. This preliminary finding does not constitute an interim or temporary approval of this application.
You must submit information or comments, or any request for extension of the time to comment, by the following dates:
•
•
You may submit comments by any of the following methods:
MaryAnn Garrahan, Director, Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210, or phone (202) 693-2110. Our Web page includes information about the NRTL Program (see
The Occupational Safety and Health Administration (OSHA) hereby gives notice that NSF International (NSF) has applied for expansion of its current recognition as a Nationally Recognized Testing Laboratory (NRTL). NSF's expansion request covers the use of an additional test standard. OSHA's current scope of recognition for NSF may be found in the following informational Web page:
OSHA recognition of an NRTL signifies that the organization has met the legal requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products approved by the NRTL to meet OSHA standards that require testing and certification.
The Agency processes applications by an NRTL for initial recognition, or for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the
In an earlier action involving NSF, OSHA granted NSF's most recent application, which was for an expansion of recognition (71 FR 70431, December 4, 2006).
The current address of the NSF facility (site) already recognized by OSHA is: NSF International, 789 Dixboro Road, Ann Arbor, MI 48105.
NSF has submitted an application, dated October 23, 2007 (see Exhibit 18-1), to expand its recognition to include one additional test standard. The NRTL Program staff has determined that this standard is an “appropriate test standard” within the meaning of 29 CFR 1910.7(c). In connection with this request, NRTL Program assessment staff performed an on-site review of NSF's testing facility in June 2007 and recommended that NSF's recognition be expanded to include the additional test standard listed below (see Exhibit 18-2). As a result, the Agency would approve the test standard for the expansion.
NSF seeks expansion of its recognition for testing and certification of products for demonstration of conformance to the following test standard:
The designation and title of the above test standard was current at the time of the preparation of this notice.
OSHA's recognition of NSF, or any NRTL, for a particular test standard is limited to equipment or materials (i.e., products) for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any product(s) for which OSHA does not require such testing and certification, an NRTL's scope of recognition does not include that product(s).
The test standard listed above may be approved as American National Standards by the American National Standards Institute (ANSI). However, for convenience, we use the designation of the standards-developing organization for the standard as opposed to the ANSI designation. Under our procedures, any NRTL recognized for an ANSI-approved test standard may use either the latest proprietary version of the test standard or the latest ANSI version of that standard. You may contact ANSI to find out whether a test standard is currently ANSI-approved.
NSF has submitted an acceptable request for expansion of its recognition as an NRTL. Our review of the application file, the assessor's recommendation, and other pertinent documents indicate that NSF can meet the requirements, as prescribed by 29 CFR 1910.7, for the expansion for the additional test standard listed above. This preliminary finding does not constitute an interim or temporary approval of the application.
OSHA welcomes public comments, in sufficient detail, as to whether NSF has met the requirements of 29 CFR 1910.7 for expansion of its recognition as a Nationally Recognized Testing Laboratory. Your comments should consist of pertinent written documents and exhibits. Should you need more time to comment, you must request it in writing, including reasons for the request. OSHA must receive your written request for an extension at the address provided above no later than the last date for comments. OSHA will limit any extension to 30 days unless the requester justifies a longer period. We may deny a request for an extension if it is not adequately justified. You may obtain or review copies of NSF's request, the assessor's recommendation, other pertinent documents, and all submitted comments, as received, by contacting the Docket Office, Room N-2625, Occupational Safety and Health Administration, U.S. Department of Labor, at the above address. Docket No. OSHA-2006-0048 (formerly NRTL2-98) contains all materials in the record concerning NSF's application.
The NRTL Program staff will review all timely comments and, after resolution of issues raised by these comments, will recommend whether to grant NSF's expansion request. The Assistant Secretary will make the final decision on granting the request and in making this decision, may undertake other proceedings that are prescribed in Appendix A to 29 CFR Section 1910.7. OSHA will publish a public notice of this final decision in the
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
This notice announces the Occupational Safety and Health Administration's final decision expanding the recognition of TUV America, Inc., (TUVAM) as a Nationally Recognized Testing Laboratory under 29 CFR 1910.7.
The expansion of recognition becomes effective on August 29, 2008.
MaryAnn Garrahan, Director, Office of
The Occupational Safety and Health Administration (OSHA) hereby gives notice that it is expanding recognition of TUV America, Inc., (TUVAM) as a Nationally Recognized Testing Laboratory (NRTL). TUVAM's expansion covers the use of additional test standards. OSHA's current scope of recognition for TUVAM may be found in the following informational Web page:
OSHA recognition of an NRTL signifies that the organization has met the legal requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products approved by the NRTL to meet OSHA standards that require testing and certification.
The Agency processes applications by an NRTL for initial recognition or for expansion or renewal of this recognition following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the
In an earlier action involving TUVAM, OSHA issued a
TUVAM submitted an application, dated October 6, 2005 (see Exhibit 11-1, as cited in the preliminary notice), to expand its recognition to include 142 additional test standards. It amended its application on February 17, 2006, to add two more test standards, and then in June 2006 and July 2007 further amended its application to reduce its request to 89 test standards (see Exhibits 11-2 through 11-4). One standard, however, has been withdrawn by the standards-developing organization. Thus, TUVAM's request includes 88 standards. The NRTL Program staff has determined that the remaining 88 standards are “appropriate test standards” within the meaning of 29 CFR 1910.7(c). In connection with this request, OSHA staff performed an on-site review of TUVAM's Massachusetts testing facility and recommended that TUVAM's recognition be expanded to include the additional 88 test standards listed below (see Exhibit 11-5).
Based on the review, OSHA published a preliminary notice announcing the expansion application in the
You may obtain or review copies of all public documents pertaining to the TUVAM application by contacting the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210. Docket No. OSHA-2007-0043 (formerly NRTL2-2001) contains all materials in the record concerning TUVAM's recognition.
The current addresses of the TUVAM's facilities (sites) already recognized by OSHA are: TUV Product Services (TUVAM), 5 Cherry Hill Drive, Danvers, MA 01923; TUV Product Services (TUVAM), 10040 Mesa Rim Road, San Diego, CA 92121; and TUV Product Services (TUVAM), 1775 Old Highway 8 NW, Suite 104, New Brighton (Minneapolis), MN 55112.
NRTL Program staff examined the TUVAM's application, the assessor's recommendation, and other pertinent information. Based upon this examination and the assessor's recommendation, OSHA finds that TUVAM has met the requirements of 29 CFR 1910.7 for expansion of its recognition, subject to the limitation and conditions listed below. Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the recognition of TUVAM, subject to this limitation and these conditions.
OSHA limits the expansion of TUVAM's recognition to testing and certification of products for demonstration of conformance to the following test standards, each of which OSHA has determined is an appropriate test standard, within the meaning of 29 CFR 1910.7(c):
The designations and titles of the above test standards were current at the time of the preparation of this notice.
OSHA's recognition of TUVAM, or any NRTL, for a particular test standard is limited to equipment or materials (i.e., products) for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any product(s) for which OSHA does not require such testing and certification, an NRTL's scope of recognition does not include that product(s).
Test standards listed above may be approved as an American National Standard by the American National Standards Institute (ANSI). However, for convenience, we use the designation of the standards-developing organization for the standard as opposed to the ANSI designation. Under our procedures, any NRTL recognized for an ANSI-approved test standard may use either the latest proprietary version of the test standard or the latest ANSI version of that standard. You may contact ANSI to find out whether a test standard is currently ANSI-approved.
TUVAM must also abide by the following conditions of the recognition, in addition to those conditions already required by 29 CFR 1910.7:
OSHA must be allowed access to TUVAM's facilities and records to ascertain continuing compliance with the terms of its recognition and to perform investigations as OSHA deems necessary;
If TUVAM has reason to doubt the efficacy of any test standard it is using under this program, it must promptly inform the test standard developing organization of this concern and provide that organization with appropriate relevant information upon which its concern is based;
TUVAM must not engage in, or permit others to engage in, any misrepresentation of the scope or conditions of its recognition. As part of this condition, TUVAM agrees that it will allow no representation that it is either a recognized or an accredited Nationally Recognized Testing Laboratory (NRTL) without clearly indicating the specific equipment or material to which this recognition applies, and also clearly indicating that its recognition is limited to certain products;
TUVAM must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major changes in its operations as an NRTL, including details of these changes;
TUVAM will meet all the terms of its recognition and will always comply with all OSHA policies pertaining to this recognition; and
TUVAM will continue to meet the requirements for recognition in all areas where it has been recognized.
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
Requests for copies must be received in writing on or before September 29, 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:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Laurence Brewer, Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
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 Commerce, National Oceanic and Atmospheric Administration (N1-370-07-5, 12 items, 9 temporary items). Records of the Hydrographic Surveys Division, including digital data working files used in preparation of bathymetric grids, wire drag supplements to smooth sheets, inputs and outputs for the Hydrographic Survey Index System, digital files and system outputs for the Hydrographic Survey Metadata Database, and digital files, inputs, and outputs for the Hydrographic Survey Tracker. Proposed for permanent retention are bathymetric grids, hydrographic descriptive reports and field examination reports in digital form, and digital files for the Hydrographic Survey Index System. The proposed disposition instructions are limited to paper records for some items and to electronic records for other items.
2. Department of Defense, Office of the Secretary of Defense (N1-330-08-7, 2 items, 1 temporary item). Master file associated with an electronic information system used to report sexual assault and prevention data. Data includes victim and perpetrator background information, actions taken, and final results. Proposed for permanent retention are annual reports on sexual assaults.
3. Department of Defense, Office of the Secretary of Defense (N1-330-08-8, 1 item, 1 temporary item). Master file associated with an electronic information system used to track human research protocol data. Data includes researcher and reviewer contact information, and protocol descriptions, reviews, approvals, and exemptions.
4. Department of Education, Office of Management (N1-441-08-4, 2 items, 2 temporary items). Records relating to civil rights cases docketed for hearing and resolution. Included are case files, motions, briefs, exhibits, transcripts of hearings, orders, decisions, and correspondence.
5. Department of Homeland Security, National Protection and Programs Directorate (N1-563-08-32, 1 item, 1 temporary item). Master file for an electronic information system of the Office of Emergency Communications, supporting interoperability of communications equipment between local, state and Federal first responders.
6. Department of the Interior, United States Geological Survey (N1-57-08-2, 41 items, 38 temporary items). Records associated with such administrative housekeeping functions as acquisition and supply; budgeting, financial management, and accounting; inventions, patents, and technology transfer; legal and congressional affairs; and information services. Included are information quality records, technology transfer agreements and supporting materials, financial management planning and project records, performance and accountability reports, and investigative case files. Proposed for permanent retention are biographical
7. Department of Justice, Federal Bureau of Investigation (N1-65-08-6, 1 item, 1 temporary item). Unsuccessful employment applications dated prior to 1921, for which the General Records Schedule does not apply.
8. Department of Justice, Federal Bureau of Investigation (N1-65-08-10, 6 items, 4 temporary items). Administrative records, background material, and working papers of the Strategic Execution Team, which analyzes and improves the Bureau's performance of its national security mission. Proposed for permanent retention are the briefings, reports, minutes, presentations, communications, and recommendations of the Steering Committee.
9. Department of the Navy, United States Marine Corps (N1-NU-07-15, 3 items, 2 temporary items). Outputs of an electronic information system that gathers joint lessons learned. Proposed for permanent retention are the master files of the electronic information system. The proposed disposition instructions for the master files are limited to electronic records.
10. Environmental Protection Agency, Enforcement and Compliance Assurance (N1-412-08-11, 1 item, 1 temporary item). Electronic data maintained in the Integrated Data for Enforcement Analysis system, a data warehouse for which recordkeeping copies of individual systems are maintained and scheduled elsewhere.
11. National Aeronautics and Space Administration, Agency-wide (N-255-08-1, 3 items, 3 temporary items). This schedule authorizes the agency to apply the existing disposition instructions to records regardless of the recordkeeping medium. Included are calibration records of equipment used as inspection, measuring, or test equipment, reference copies, and metrology compliance documents. Paper recordkeeping copies of these records were previously approved for disposal.
12. Nuclear Regulatory Commission, Office of Nuclear Security and Incident Response (N1-431-08-1, 4 items, 2 temporary items). Subject files containing correspondence and other records that are routine or below the Office Director level and that relate to policy and procedures for security of nuclear reactors and materials. Proposed for permanent retention are subject files containing records at the Office Director level, and site-specific case files relating to security of nuclear reactors and materials.
13. Tennessee Valley Authority, Financial Services (N1-142-08-1, 5 items, 5 temporary items). Records relating to financial planning, annual government performance and accounting reports, external audits, and Chief Financial Officer committee meetings. Included are such records as annual plans, financial reports, audit reports of financial statements, and meeting minutes.
National Science Foundation.
Notice of Permit Applications Received Under the Antarctic Conservation Act.
Notice is hereby given that the National Science Foundation (NSF) has received a waste management permit application for operation of a camp at Patriot Hills, Heritage Range, southern Ellsworth Mountains, Antarctica, by Antarctic Logistics & Expeditions, LLC, a company within the United States. The application is submitted to NSF pursuant to regulations issued under the Antarctic Conservation Act of 1978.
Interested parties are invited to submit written data, comments, or views with respect to this permit application within September 29, 2008. Permit applications may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Dr. Polly A. Penhale or Nadene Kennedy at the above address or (703) 292-8030.
NSF's Antarctic Waste Regulation, 45 CFR Part 671, requires all U.S. citizens and entities to obtain a permit for the use or release of a designated pollutant in Antarctica, and for the release of waste in Antarctica. NSF has received a permit application under this Regulation for operation of remote camp at Patriot Hills, Antarctica, and logistic support services for scientific and other expeditions, film crews, and tourists. These activities include aircraft support, cache positioning, camp and field support, resupply, search and rescue, medevac, medical support and logistic support for some National Operators. The camp can accommodate up to 100 people and is adjacent to a 100m x 2000m blue-ice runway. The blue-ice runway is a natural feature that requires limited amount of preparation and upkeep for aircraft use. There are standard programs offered on a regular basis. These include: Climbing trips to Vinson Massif, the Ellsworth Mountains and the Transantarctic Mountains; ski trips to the Ellsworth Mountains and the Geographic South Pole; and flights to the Geographic South Pole, and the Emperor Penguin Colony at the Dawson Lambton Glacier.
A several aircraft will be operated by Antarctic Logistics & Expeditions throughout the Antarctic. They may consist of the following: Twin Otter aircraft, and Ilyushin 76 (IL-76), and either a turbine DC-3 or a Cessna 185.
The permit applicant is: David Rootes, Environmental Manager, Antarctic Logistics & Expeditions, LLC, 4376 South 700 East, Suite 226, Salt Lake City, Utah 84107-3006. Permit application No. 2009 WM-004.
National Science Foundation.
Notice of permits issued under the Antarctic Conservation 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 July 24, 2008, the National Science Foundation published a notice in the
The U.S. Nuclear Regulatory Commission (NRC, or the Commission) is considering issuance of an amendment to Facility Operating License No. NPF-90 issued to Tennessee Valley Authority (the licensee) for operation of the Watts Bar Nuclear Plant Unit 1 located in Rhea County, Tennessee.
The proposed amendment would revise the Technical Specification (TS) requirements related to control room envelope (CRE) habitability in accordance with the NRC-approved Revision 3 of Technical Specification Task Force (TSTF) Standard Technical Specifications (STS) Change Traveler TSTF-448, “Control Room Habitability.”
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in Title 10 of the Code of Federal Regulations (10 CFR), Section 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 NRC staff published a notice of opportunity for comment in the
As required by 10 CFR 50.91(a), an analysis of the issue of no significant hazards consideration is presented below:
The proposed change does not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, or configuration of the facility. The proposed change does not alter or prevent the ability of structures, systems, and components (SSCs) to perform their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed change revises the TS for the CRE emergency ventilation system, which is a mitigation system designed to minimize unfiltered air leakage into the CRE and to filter the CRE atmosphere to protect the CRE occupants in the event of accidents previously analyzed. An important part of the CRE emergency ventilation system is the CRE boundary. The CRE emergency ventilation system is not an initiator or precursor to any accident previously evaluated. Therefore, the probability of any accident previously evaluated is not increased. Performing tests to verify the operability of the CRE boundary and implementing a program to assess and maintain CRE habitability ensure that the CRE emergency ventilation system is capable of adequately mitigating radiological consequences to CRE occupants during accident conditions, and that the CRE emergency ventilation system will perform as assumed in the consequence analyses of design basis accidents. Thus, the consequences of any accident previously evaluated are not increased. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not impact the accident analysis. The proposed change does not alter the required mitigation capability of the CRE emergency ventilation system, or its functioning during accident conditions as assumed in the licensing basis analyses of design basis accident radiological consequences to CRE occupants. No new or different accidents result from performing the new surveillance or following the new program. The proposed change does not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed) or a significant change in the methods governing normal plant operation. The proposed change does not alter any safety analysis assumptions and is consistent with current plant operating practice. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation as determined. The proposed change does not affect safety analysis acceptance criteria. The proposed change will not result in plant operation in a configuration outside the design basis for an unacceptable period of time without compensatory measures. The proposed change does not adversely affect systems that respond to safely shut down the plant and to maintain the plant in a safe shutdown condition. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis 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.
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
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
The filing of requests for hearing and petitions for leave to intervene is discussed below.
Within 60 days after the date of publication of this notice, the 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(s) 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 O1F21, 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 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/requestor 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. 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 to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
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, 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 on 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 ten (10) 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 license amendment application, see the application for amendment dated October 26, 2007, which is available for public inspection at the Commission's PDR, located at One White Flint North, File Public Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The Licensees identified in Attachment A
On September 11, 2001, terrorists simultaneously attacked targets in New York, NY, and Washington, DC, utilizing large commercial aircraft as weapons. In response to the attacks and intelligence information subsequently obtained, the Commission issued a number of Safeguards and Threat Advisories to Licensees in order to strengthen Licensees' capabilities and readiness to respond to a potential attack on this regulated activity. The Commission has also communicated with other Federal, State and local government agencies and industry representatives to discuss and evaluate the current threat environment in order to assess the adequacy of the current security measures. In addition, the Commission commenced a comprehensive review of its safeguards and security programs and requirements.
As a result of its initial consideration of current safeguards and security requirements, as well as a review of information provided by the intelligence community, the Commission has
It is also recognized that some measures may not be possible or necessary for all shipments of radioactive material quantities of concern, or may need to be tailored to accommodate the Licensees' specific circumstances to achieve the intended objectives and avoid any unforeseen effect on the safe transport of radioactive material quantities of concern.
In light of the continuing threat environment, the Commission concludes that the security measures must be embodied in an Order, consistent with the established regulatory framework. The Commission has determined that some of the security measures contained in Attachment B of this Order contain Safeguards Information and will not be released to the public as per NRC's “Order Imposing Requirements for the Protection of Certain Safeguards Information” (EA-08-161), issued specifically to the Licensees identified in Attachment A to this Order. Access to Safeguards Information is limited to those persons who have established a need-to-know the information, are considered to be trustworthy and reliable, have been fingerprinted and undergone a Federal Bureau of Investigation (FBI) identification and criminal history records check in accordance with the NRC's “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information” (EA-08-162). A need-to-know means a determination by a person having responsibility for protecting Safeguards Information that a proposed recipient's access to Safeguards Information is necessary in the performance of official, contractual, or licensee duties of employment. Individuals who have been fingerprinted and granted access to Safeguards Information by the reviewing official under the NRC's “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information” (EA-08-162) do not need to be fingerprinted again for purposes of being considered for unescorted access.
This Order also requires that a reviewing official must consider the results of the Federal Bureau of Investigations criminal history records check in conjunction with other applicable requirements to determine whether an individual may be granted or allowed continued unescorted access. The reviewing official may be one that has previously been approved by NRC in accordance with the “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information” (EA-08-162). Licensees may nominate additional reviewing officials for making unescorted access determinations in accordance with NRC Orders EA-08-162. The nominated reviewing officials must have access to Safeguards Information or require unescorted access to the radioactive material as part of their job duties.
To provide assurance that Licensees are implementing prudent measures to achieve a consistent level of protection to address the current threat environment, all Licensees identified in Attachment A to this Order shall implement the requirements identified in Attachments B and C to this Order. In addition, pursuant to 10 CFR 2.202, I find that in light of the common defense and security matters identified above, which warrant the issuance of this Order, the public health and safety require that this Order be immediately effective.
Accordingly, pursuant to Sections 53, 63, 81, 147, 149, 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 Parts 30, 32, 70 and 71, It is hereby ordered, effective immediately, that all licensees identified in attachment a to this order shall comply with the following:
A. All Licensees shall, notwithstanding the provisions of any Commission or Agreement State regulation or license to the contrary, comply with the requirements described in Attachments B and C to this Order. The Licensees shall immediately start implementation of the requirements in Attachments B and C to the Order and shall complete implementation by February 17, 2009, or before the first shipment of radioactive material quantities of concern, whichever is sooner.
B. 1. All Licensees shall, within twenty (20) days of the date of this Order, notify the Commission, (1) if they are unable to comply with any of the requirements described in Attachments B or C, (2) if compliance with any of the requirements is unnecessary in their specific circumstances, or (3) if implementation of any of the requirements would cause the Licensee to be in violation of the provisions of any Commission or Agreement State regulation or its license. The notification shall provide the Licensees' justification for seeking relief from or variation of any specific requirement.
2. Any Licensee that considers that implementation of any of the requirements described in Attachments B or C to this Order would adversely impact the safe transport of radioactive material quantities of concern must notify the Commission, within twenty (20) days of this Order, of the adverse safety impact, the basis for its determination that the requirement has an adverse safety impact, and either a proposal for achieving the same objectives specified in the Attachments B or requirement in question, or a schedule for modifying the activity to address the adverse safety condition. If neither approach is appropriate, the Licensee must supplement its response to Condition B.1 of this Order to identify the condition as a requirement with which it cannot comply, with attendant justifications as required in Condition B.1.
C. 1. In accordance with the NRC's “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information” (EA-08-162) only the NRC-approved reviewing official shall review results from an FBI criminal history records check. The licensee may use a reviewing official previously approved by the NRC as its reviewing official for determining access to Safeguards Information or the licensee may nominate another individual specifically for making unescorted access to radioactive material determinations, using the process
2. No person may have access to Safeguards Information or unescorted access to radioactive materials if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and criminal history records check, either that the person may not have access to Safeguards Information or that the person may not have unescorted access to a utilization facility, or radioactive material or other property subject to regulation by the NRC.
D. Fingerprints shall be submitted and reviewed in accordance with the procedures described in Attachment C to this Order. Individuals who have been fingerprinted and granted access to Safeguards Information by the reviewing official under Order EA-08-162, do not need to be fingerprinted again for purposes of being considered for unescorted access.
E. The Licensee may allow any individual who currently has unescorted access to radioactive materials, in accordance with this Order, to continue to have unescorted access without being fingerprinted, pending a decision by the reviewing official (based on fingerprinting, an FBI criminal history records check and a trustworthy and reliability determination) that the individual may continue to have unescorted access to radioactive materials that equal or exceed the quantities listed in Attachment B to this Order. The licensee shall complete implementation of the requirements of Attachments B and C to this Order by February 17, 2009.
F. 1. The Licensee shall, within twenty (20) days of the date of this Order, submit to the Commission a schedule for completion of each requirement described in Attachments B and C.
2. The Licensee shall report to the Commission when they have achieved full compliance with the requirements described in Attachments B and C.
G. Notwithstanding any provisions of the Commission's or an Agreement State's regulations to the contrary, all measures implemented or actions taken in response to this Order shall be maintained until the Commission determines otherwise.
Licensee responses to Conditions B.1, B.2, F.1, and F.2 above shall be submitted to the Director, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555. In addition, Licensee submittals that contain specific physical protection or security information considered to be Safeguards Information shall be put in a separate enclosure or attachment and, marked as “SAFEGUARDS INFORMATION—MODIFIED HANDLING” and mailed (no electronic transmittals
The Director, Office of Federal and State Materials and Environmental Management Programs, may, in writing, relax or rescind any of the above conditions upon demonstration by the Licensee of good cause.
In accordance with 10 CFR 2.202, the Licensee must, and any other person adversely affected by this Order may, submit an answer to this Order within twenty (20) days of the date of this Order. In addition, the Licensee and any other person adversely affected by this Order may request a hearing of this Order within twenty (20) days of the date of the Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made, in writing, to the Director, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension.
The answer may consent to this Order. If the answer includes a request for a hearing, it shall, under oath or affirmation, specifically set forth the matters of fact and law on which the Licensee relies and the reasons as to why the Order should not have been issued. 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).
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process requires participants to submit and serve all adjudicatory 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 associated with E-Filing, at least ten (10) 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
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, 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.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
If a hearing is requested by the Licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to requesting a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section III above shall be final twenty (20) days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section III shall be final when the extension expires if a hearing request has not been received. An answer or a request for hearing shall not stay the immediate effectiveness of this Order.
For the Nuclear Regulatory Commission.
These Additional Security Measures (ASMs) are established to delineate licensee responsibility in response to the current threat environment. The following security measures apply to Nuclear Regulatory Commission (NRC) and Agreement States licensees, who ship Radioactive Material Quantities of Concern (RAMQC) as defined in Section A.1. Shipments of RAMQC that do not fall within the NRC's jurisdiction under the Atomic Energy Act of 1954, as amended, are not subject to the provisions of these ASMs.
1. Licensees who are subject to this Order shall ensure that the requirements listed in Section B below are in effect when they ship radioactive materials that meet the following criterion:
a. Radionuclides listed in Table A, greater than or equal to the quantities specified,
b. For mixtures of radionuclides listed in Table A, the sum of the fractions of those radionuclides if greater than or equal to 1, or
c. For shipments of spent nuclear fuel containing greater than or equal to 1000 Terabecquerels (TBq) (27,000 Curies) but less than or equal to 100 grams of spent nuclear fuel.
For shipments containing greater than 100 grams of spent nuclear fuel, licensees shall follow the ASMs for “Transportation of Spent Nuclear Fuel Greater than 100 Grams,” dated October 3, 2002.
These ASMs supersede Safeguards Advisories SA-01-01, Rev. 1, and SA-03-02. For radioactive materials shipments containing radionuclides not addressed by this ASM guidance will be provided by Safeguards Advisory.
2. The requirements of these ASMs apply to a conveyance (i.e., the requirements apply irrespective of whether the RAMQC is shipped in a single package or in multiple packages in a single conveyance).
3. Licensees are not responsible for complying with the requirements of these ASMs if a carrier aggregates, during transport or storage incident to transport, radioactive material from two or more conveyances from separate licensees which individually do not exceed the limits of Paragraph A.1. but which together meet or exceed any of the criteria in Paragraph A.1.
4. The requirements of these ASMs only apply to RAMQC shipments using highway or rail modes of transportation. For multi-mode shipments, the requirements of these ASMs apply only to the portion of shipments that are made using highway or rail modes of transportation, as appropriate.
5. For domestic highway and rail shipments of materials in quantities greater than or equal to the quantities in Paragraph A.1, per conveyance, the licensee shall ensure that:
a. Only carriers are used which:
a. Use established package tracking systems,
b. Implement methods to assure trustworthiness and reliability of personnel associated with the transportation of RAMQC,
c. Maintain constant control and/or surveillance during transit, and
d. Have the capability for immediate communication to summon appropriate response or assistance.
b. The licensee shall verify and document that the carrier employs the measures listed above.
6. The preplanning, coordination, and tracking requirements of these ASMs are intended to reduce unnecessary delays and shipment duration and to facilitate the
7. Unless specifically noted otherwise, the requirements of these ASMs do not apply to local law enforcement agencies (LLEA) personnel performing escort duties.
8. The requirements of these ASMs apply to RAMQC domestic shipments within the United States (U.S.), imports into the U.S., or exports from the U.S. The requirements of these ASMs do not apply to transshipments through the U.S. Licensees are responsible for complying with the requirements of Section B for the highway and rail shipment portion of an import or export which occurs inside of the U.S.
For import and export RAMQC shipments, while located at the port or shipments on U.S. navigable waterways, the U.S. Coast Guard Maritime Transportation security regulations will be in effect and these ASMs are not applicable. For RAMQC shipments while located at the air freight terminal, security requirements will be performed in accordance with the Transportation Security Administration security regulations.
For import and export RAMQC shipments, the licensee shall ensure that the requirements of these ASMs are implemented after the transportation package has been loaded onto the highway or rail vehicle (except for the advance notification requirements in section B.4) and the package begins the domestic portion of the shipment to or from the U.S. port of entry [i.e., the package(s) departs for or from the port of entry facility or the airfreight terminal].
Licensees who ship RAMQC in quantities that meet the criteria of Paragraph A.1. shall ensure that carriers used have developed and implemented transportation security plans that embody the additional security measures imposed by this Order.
Before transfer of radioactive materials in quantities which meet the criterion of Paragraph A.1, per conveyance, the licensee shall:
a. For new recipient(s), verify that the intended recipient's license authorizes receipt of the regulated material by direct contact with the regulatory authority that issued the license (NRC Region or Agreement State) prior to transferring the material,
b. Verify the validity of unusual orders or changes (if applicable) that depart from historical patterns of ordering by existing recipients,
c. Verify the material is shipped to an address authorized in the license and that the address is valid,
d. Verify the address for a delivery to a temporary job site is valid,
e. Document the verification and validation process, and
f. Coordinate departure and arrival times with the recipient.
a. Background investigations are intended to provide high assurance that individuals performing assigned duties associated with the transport of RAMQC, are trustworthy and reliable, and do not constitute an unreasonable risk to the common defense and security, including the potential to commit radiological sabotage.
b. For highway shipments only, the licensee shall ensure background investigations for all drivers, accompanying individuals, communications center managers, and other appropriate communications center personnel have been performed. The NRC only has the authority to impose a Federal Bureau of Investigation (FBI) criminal history check, which includes fingerprinting, on those individuals who seek access to Safeguards Information (SGI) or unescorted access to licensed material.
c. For rail shipments, the licensee shall ensure background investigations for employees filling the positions of communications center managers and other appropriate communications center personnel have been performed. The NRC only has the authority to impose a Federal Bureau of Investigation (FBI) criminal history check, which includes fingerprinting, on those individuals who seek access to SGI or unescorted access to licensed material.
d. Licensees shall document the basis for concluding that there is high assurance that individuals granted access to safeguards information or unescorted access to licensed material are trustworthy and reliable, and do not constitute an unreasonable risk for malevolent use of the regulated material. “Access” means that an individual could exercise some physical control over the material or device containing radioactive material.
(1) The trustworthiness, reliability, and verification of an individual's true identity shall be determined based on a background investigation. The background investigation shall address at least the past three (3) years, and as a minimum, include fingerprinting and an FBI criminal history check, verification of employment history, education, employment eligibility, and personal references. If an individual's employment has been less than the required three (3) years period, educational references may be used in lieu of employment history.
(2) Fingerprints shall be submitted and reviewed in accordance with the procedures described in Attachment C to this Order.
(3) A reviewing official that the licensee nominated and has been approved by the NRC, in accordance with NRC “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information,” may continue to make trustworthiness and reliability determinations. The licensee may also nominate another individual specifically for making unescorted access determinations using the process identified in the NRC “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information.”
e. Licensees background investigation requirements may also be satisfied for an individual that has:
(1) Current access authorization permitting unescorted access to a power reactor facility or access to Safeguards Information,
(2) Current U.S. government-issued security clearance (based upon a national agency check, at a minimum), or
(3) Satisfactorily completed a background investigation under an NRC-approved access authorization program.
f. Individuals shall not perform assigned duties associated with the transport of RAMQC until the licensee has confirmed that a determination of trustworthiness and reliability, based on the appropriate background investigation requirements in B.2.d. and B.2.e., has been performed and documented.
a. As part of the shipment planning process, the licensee shall ensure that appropriate security information is provided to and is coordinated with affected States through which the shipment will pass to ensure minimal delays. These discussions shall include whether a State intends to provide escorts for a shipment.
b. The licensee shall ensure States are provided with position information on a shipment (see Paragraph B.5.a), if requested and practical.
c. For shipments by highway, the licensees's coordination required in Paragraph B.3.a. shall include identification of Highway Route Controlled Quantity (HRCQ) shipments of material and safe havens.
—Close proximity to the route, i.e., readily available to the transport vehicle.
—Security from local, State, or Federal assets is present or is accessible for timely response.
—Site is well lit, has adequate parking, and can be used for emergency repair or wait for LLEA response on a 24-hours-a-day basis.
—Have additional telephone facilities should the communications system of the transport vehicle not function properly.
Possible safe haven sites include: Military installations and other Federal sites having significant security assets; secure company terminals; State weigh stations; truck stops with secure areas; and LLEA sites, including State police barracks.
a. The licensee shall ensure an advance notification of a shipment is provided, or of a series of shipments, of RAMQC to the NRC. The licensee shall ensure the notification is submitted sufficiently in advance to ensure it is received by NRC at least seven (7) days, where practicable, before the shipment commences physically within the U.S.
For written notifications, the notice should be addressed to: (10 CFR 2.390)
Notifications may also be submitted electronically via e-mail to
b. The advance notification shall contain the following information:
(1) [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
(2) [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
(3) [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
(4) [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
(5) [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
(6) [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
(7) [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
c. The licensee shall ensure the information required by Paragraph B.4.b. is provided to each State through which the shipment will pass. The licensee shall ensure that the notification is received at least seven (7) days, where practicable, before the U.S. highway or railroad portion of a shipment commences.
d. [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
a. (1) For highway shipments, monitor each RAMQC shipment with a telemetric position monitoring system that communicates with a communication center or is equipped with an alternative tracking system that communicates position information to a communications center.
(2) For rail shipments, monitor each RAMQC shipment with either: (i) A telemetric position monitoring system that communicates with a licensee or third-party communication center, (ii) a railroad track-side car location monitoring systems tracking system that relays a car's position to a railroad communications center (which can provide position information to any separate licensee communications center per Paragraph B.5.b), or (iii) alternate licensee monitoring system. Additionally, licensees may use a railroad communications center to monitor the rail portion of a shipment, in lieu of using a separate communications center.
b. (1) For highway shipments, provide for a communication center that has the capability to continuously and actively monitor in-progress shipments to ensure positive confirmation of the location, status, and control over the shipment and implement pre-planned procedures in response to deviations from the authorized route or notification of actual, attempted, or suspicious activities related to theft, loss, diversion, or radiological sabotage of a shipment. These procedures shall include identification of the designated LLEA contact(s) along the shipment route.
(2) For rail shipments, provide for a communication center that has the capability to periodically monitor in-progress shipments to ensure positive confirmation of the location of the shipment and implement pre-planned procedures in response to notification of actual, attempted, or suspicious activities related to theft, loss, diversion, or radiological sabotage of a shipment. These procedures shall include identification of the designated LLEA contact(s) along the shipment route. Licensees may use a railroad communications center in lieu of establishing a separate communications center.
c. (1) For highway shipments, ensure that a two-way telecommunication capability is available for the transport and any escort vehicles allowing them to communicate with each other with the communications center, and with designated LLEAs along the route. The communications center must be capable of contacting the designated authorities along the shipment route.
(2) For rail shipments, ensure that a two-way telecommunication capability is available between the train and the communications center and between any escort vehicles and the communications center. The communications center must be capable of contacting the designated authorities along the shipment route.
d. A licensee may utilize a carrier or third-party communications center in lieu of establishing such a facility itself. A commercial communications center must have the capabilities, necessary procedures, training, and personnel background investigations to meet the applicable requirements of these ASMs.
e. (1) For highway shipments, provide a backup means for the transport and any escort vehicle to communicate with the communications center, using a diverse method not subject to the same interference factors as the primary capability selected for compliance with Paragraph B.5.c. (e.g., two-way radio or portable telephone).
(2) For rail shipments, provide a backup means for the train to talk with the communications center, using a diverse method not subject to the same interference factors as the primary capability selected for compliance with Paragraph B.5.c. (e.g., two-way radio or portable telephone).
f. [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
(1) Not later than one hour after the time when, through the course of the investigation, it is determined the shipment is lost or stolen, the licensee shall ensure the appropriate local law enforcement agency, the NRC Operations Center at (301) 816-5100, and the appropriate Agreement State regulatory agency, if any, are notified.
(2) If after 24 hours of initiating the investigation, the radioactive material cannot be located, licensee shall ensure the NRC Operations Center and, for Agreement State licensees, the appropriate Agreement State regulatory agency are immediately notified.
g. [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
a. [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
b. [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
c. [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
d. [This paragraph contains SAFEGUARDS INFORMATION and will not be publicly disclosed.]
a. (1) For highway shipments the licensee shall ensure that normal and contingency procedures have been developed, including, for example: Notifications, communications protocols, loss of communications, and response to actual, attempted, or suspicious activities related to theft, loss, diversion, or radiological sabotage of a shipment. Communication protocols must include a strategy for use of authentication and duress codes, provision for refueling or other stops, detours, and locations where communication is expected to be temporarily lost.
(2) For rail shipments, the licensee shall ensure that normal and contingency procedures have been developed, including, for example: notifications, communications protocols, loss of communications, and response to actual, attempted, or suspicious activities related to theft, loss, diversion, or radiological sabotage of a shipment. Communication protocols must include a strategy for use of authentication and duress codes, provision for stops, and locations where communication is expected to be temporarily lost.
b. (1) For highway shipments, the licensee shall ensure that personnel, including drivers, accompanying individuals, responsible communication center managers, and other appropriate communication center personnel are trained in and understand the normal and contingency procedures.
(2) For rail shipments, the licensee shall ensure that personnel, including the appropriate train crew members and responsible railroad communication center managers, and other appropriate railroad communication center personnel are trained in and understand the normal and contingency procedures.
c. Information to be protected as Safeguards Information—Modified Handling, shall include, but is not limited to:
(1) Integrated transportation physical security plans.
(2) Schedules and itineraries for shipments. For shipments that are not inherently self disclosing, schedule and itineraries information may be decontrolled 2 days after a shipment is completed. For shipments that are inherently self disclosing, schedule may be released as necessary after departure.
(3) Details of alarm and communications systems, communication protocols and duress codes, and security contingency response procedures.
(4) Arrangements with designated LLEA (i.e., Federal, State Police, and/or local police
For preplanning; coordinating, for example with States' organizations and carriers; reporting information as described in B.1., B.4., and B.5. related to shipments of radioactive material, and the radionuclides identified in Paragraph A.1, the licensee shall ensure the information is protected at least as sensitive information (for example, proprietary or business financial information). Licensees shall ensure access is restricted to this information to those licensee and contractor personnel with a need to know. Licensees shall ensure all parties receiving this information protect it similarly. Information may be transmitted either in writing or electronically and shall be marked as “Sensitive Information—Not for Public Disclosure.”
1. Licensees shall implement the requirements of this ASM within 180 days of the date of issuance of the Order or before the first shipment of RAMQC, whichever is sooner.
1. The regulatory standard values to be used are given in Terabecquerels (TBq). Curie (Ci) values are provided for practical usefulness only and are rounded after conversion.
2. If several radionuclides are present, the sum of the fractions of the activity of each radionuclide must be determined. Using the equation below calculate the ratio by inserting the actual activity of each radionuclide as the numerator and the corresponding activity limit in Table A as the denominator. Ensure the numerator and the denominator are in Terabecquerels.
Licensees shall comply with the following requirements of this attachment.
1. Each Licensee subject to the provisions of this attachment shall fingerprint each individual who is seeking or permitted access to safeguards information (SGI) or unescorted access to RAMQC. The Licensee shall review and use the information received from the Federal Bureau of Investigation (FBI) and ensure that the provisions contained in this Order and this attachment are satisfied.
2. The Licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information” section of this attachment.
3. Fingerprints for access to SGI or unescorted access need not be taken if an employed individual (e.g., a Licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.59 for access to SGI or 10 CFR 73.61 for unescorted access, has a favorably-decided U.S. Government criminal history check within the last five (5) years, or has an active federal security clearance. Written confirmation from the Agency/employer which granted the federal security clearance or reviewed the criminal history check must be provided for either of the latter two cases. The Licensee must retain this documentation for a period of three (3) years from the date the individual no longer requires access to SGI or unescorted access to radioactive materials associated with the Licensee's activities.
4. All fingerprints obtained by the Licensee pursuant to this Order must be submitted to the Commission for transmission to the FBI.
5. The Licensee shall review the information received from the FBI and consider it, in conjunction with the trustworthy and reliability requirements of this Order, in making a determination whether to grant, or continue to allow, access to SGI or unescorted access to radioactive materials.
6. The Licensee shall use any information obtained as part of a criminal history records check solely for the purpose of determining an individual's suitability for access to SGI or unescorted access to RAMQC.
7. The Licensee shall document the basis for its determination whether to grant, or continue to allow, access to SGI or unescorted access to RAMQC.
A Licensee shall not base a final determination to deny an individual access to radioactive materials solely on the basis of
A Licensee shall not use information received from a criminal history check obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the Licensee use the information in any way which would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
For the purpose of complying with this Order, Licensees shall, using an appropriate method listed in 10 CFR 73.4, submit to the NRC's Division of Facilities and Security, Mail Stop T-6E46, one completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking access to SGI or unescorted access to RAMQC, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling (301) 415-7232, or by e-mail to
The NRC will review submitted fingerprint cards for completeness. Any Form FD-258 fingerprint record containing omissions or evident errors will be returned to the Licensee for corrections. The fee for processing fingerprint checks includes one re-submission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the re-submission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application (Note: Other fees may apply to obtain fingerprints from your local law enforcement agency). Licensees should submit payments electronically via
Alternatively, licensees may also submit payment with the application for processing fingerprints by corporate check, certified check, cashier's check, or money order, made payable to “U.S. NRC.” Combined payment for multiple applications is acceptable.
The application fee (currently $36) is the sum of the user fee charged by the FBI for each fingerprint card or other fingerprint record submitted by the NRC on behalf of a Licensee, and an NRC processing fee, which covers administrative costs associated with NRC handling of Licensee fingerprint submissions. The Commission will directly notify Licensees subject to this regulation of any fee changes.
The Commission will forward to the submitting Licensee all data received from the FBI as a result of the Licensee's application(s) for criminal history checks, including the FBI fingerprint record.
Prior to any final adverse determination, the Licensee shall make available to the individual the contents of any criminal records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the Licensee for a period of one (1) year from the date of the notification.
If, after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (i.e., law enforcement agency) that contributed the questioned information, or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation Identification Division, Washington, DC 20537-9700 (as set forth in 28 CFR 16.30 through 16.34). In the latter case, the FBI forwards the challenge to the agency that submitted the data and requests that agency to verify or correct the challenged entry. Upon receipt of an official communication directly from the agency that contributed the original information, the FBI Identification Division makes any changes necessary in accordance with the information supplied by that agency. The Licensee must provide at least ten (10) days for an individual to initiate an action challenging the results of an FBI criminal history records check after the record is made available for his/her review. The Licensee may make a final determination on access to SGI or unescorted access RAMQC based upon the criminal history record only upon receipt of the FBI's ultimate confirmation or correction of the record. Upon a final adverse determination on access to SGI or unescorted access to RAMQC, the Licensee shall provide the individual its documented basis for denial. Access to SGI or unescorted access to RAMQC shall not be granted to an individual during the review process.
1. Each Licensee who obtains a criminal history record on an individual pursuant to this Order shall establish and maintain a system of files and procedures for protecting the record and the personal information from unauthorized disclosure.
2. The Licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining access to SGI or unescorted access to RAMQC. No individual authorized to have access to the information may re-disseminate the information to any other individual who does not have a need-to-know.
3. The personal information obtained on an individual from a criminal history record check may be transferred to another Licensee if the Licensee holding the criminal history record receives the individual's written request to re-disseminate the information contained in his/her file, and the gaining Licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.
4. The Licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws.
5. The Licensee shall retain all fingerprint and criminal history records received from the FBI, or a copy if the individual's file has been transferred, for three (3) years after termination of employment or denial to access SGI or unescorted access to RAMQC. After the required three (3) year period, these documents shall be destroyed by a method that will prevent reconstruction of the information in whole or in part.
The U.S. Nuclear Regulatory Commission (NRC or Commission) has received an application, dated August 12, 2008, from Dominion Energy Kewaunee, Inc., filed pursuant to Section 104b of the Atomic Energy Act of 1954, as amended, and Title 10 of the
Copies of the application are available to the public at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852 or through the Internet from the NRC's Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room under Accession Number ML082341038. The ADAMS Public Electronic Reading Room is accessible from the NRC Web site at
A copy of the license renewal application for the Kewaunee Power Station is also available to local residents near the site at the Kewaunee Public Library, 822 Juneau St., Kewaunee, WI 54216.
For the Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice of new system of records PBGC—16, Online Employee Directory—PBGC.
The Pension Benefit Guaranty Corporation (PBGC) is proposing to establish a new system of records, PBGC—16, Online Employee Directory—PBGC, subject to the Privacy Act of 1974,
Comments on the new system of records and proposed routine uses must be received on or before September 29, 2008. The new system of records will become effective on October 8, 2008 without further notice, unless comments result in a contrary determination and a notice is published to that effect.
Comments may be submitted by any of the following methods:
1.
2.
3.
4.
Sarah Humphrey, Attorney, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4400 (extension 3600); or Bruce Campbell, Attorney, Office of the General Counsel; 202-326-4400 (extension 3672). (For TTY/TDD users, call the federal relay service toll-free at (800) 877-8339 and ask to be connected to 202-326-4400 (extension 3600) or 202-326-4400 (extension 3672).).
To improve communications and collaboration among its staff, PBGC is proposing to establish a new system of records subject to the Privacy Act (5 U.S.C. 552a) that will make it easier for PBGC employees and employees of PBGC's contractors to identify other PBGC employees by name, organizational component or title, supervisor, or area of expertise, and to access contact information. The Online Employee Directory (“OED”) will be accessible to PBGC employees and employees of PBGC's contractors via PBGC's intranet and allow users to search and retrieve information about PBGC employees by first, middle, or last name, organizational component and title, supervisor's name, or area of expertise. The OED will include contact information,
PBGC general routine uses G1 through G8 will apply to this system of records. These routine uses were published as the PBGC's Prefatory Statement of General Routine Uses at 60 FR 57462, 57563 (Nov. 15, 1995). PBGC has determined that these routine uses are “appropriate and necessary for the efficient conduct of government and in the best interest of both the individual and the public.”
PBGC-16, Online Employee Directory—PBGC.
Not applicable.
Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026.
PBGC employees.
Employee's name, photograph, organizational component and title, supervisor's name, area of expertise, PBGC mailing address, room or workstation number, telephone number and extension, and electronic mail address.
29 U.S.C. 1302.
This system of records is used by PBGC employees and employees of PBGC's contractors to identify other PBGC employees by name, organizational component or title, supervisor, or area of expertise, and to access contact information for PBGC employees.
PBGC General Routine Uses G1 through G8 apply to this system of records (
Not applicable.
Storage:
Records are maintained in electronic format in database that is available to authorized PBGC employees and employees of PBGC's contractors who have been granted access to PBGC's intranet.
Records are retrieved by name, organizational component or title, supervisor, or area of expertise.
The PBGC has adopted appropriate administrative, technical, and physical controls to protect the security, integrity, and availability of information maintained in electronic format, and to assure that records are not disclosed to or accessed by anyone who does not have a need-to-know to perform official duties.
Records are maintained until the subject leaves PBGC employment.
Director, Communications and Public Affairs Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026.
Procedures are detailed in PBGC regulations: 29 CFR part 4902.
Same as notification procedures.
Same as notification procedure.
Subject individual and PBGC personnel records.
None.
U.S. Office of Personnel Management (OPM).
Notice.
This gives notice of OPM decisions granting authority to make appointments under Schedules A, B, and C in the excepted service as required by 5 CFR 6.6 and 213.103.
M. Lamary, Group Manager, Executive Resources Services Group, Center for Human Resources, Division for Human Capital Leadership and Merit System Accountability, 202-606-2246.
Appearing in the listing below are the individual authorities established under Schedules A, B, and C between June 1, 2008, and June 30, 2008. Future notices will be published on the fourth Tuesday of each month, or as soon as possible thereafter. A consolidated listing of all authorities as of June 30 is published each year.
No Schedule A appointments were approved for June 2008.
No Schedule B appointments were approved for June 2008.
The following Schedule C appointments were approved during June 2008.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• Rule 17Ad-17 Transfer Agents' Obligation to Search for Lost Securityholders.
Rule 17Ad-17 (17 CFR 240.17Ad-17) requires approximately 608 registered transfer agents to conduct searches using third party database vendors to attempt to locate lost securityholders. The staff estimates that the average number of hours necessary for each transfer agent to comply with Rule 17Ad-17 is five hours annually. The total burden is approximately 3,040 hours annually for all transfer agents.
The retention period for the recordkeeping requirement under Rule 17Ad-17 is three years. The recordkeeping requirement under Rule 17Ad-17 is mandatory to assist the Commission and other regulatory agencies with monitoring transfer agents and ensuring compliance with the rule. This rule does not involve the collection of confidential information. Please note that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Comments should be directed to (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an e-mail to:
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements.
Applicants request an order that would permit them to enter into and materially amend subadvisory agreements without shareholder approval and would grant relief from certain disclosure requirements.
Aberdeen Asset Management Inc. (the “Adviser”) and Aberdeen Funds (the “Trust”).
The application was filed on May 8, 2008. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on September 19, 2008, and should be accompanied by proof of service on the 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 may request notification of a hearing by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
Emerson S. Davis, Senior Counsel, at (202) 551-6868, or Julia Kim Gilmer, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549-1520 (telephone (202) 551-5850).
1. The Trust, a Delaware statutory trust, is registered under the Act as an open-end management investment company and offers, or will offer, shares in 26 series each with separate investment objectives, policies and restrictions (each a “Fund” and collectively, the “Funds”).
2. Under the terms of the Advisory Agreement, the Adviser is authorized to manage the investment and reinvestment of the assets of each Fund and to continuously review, supervise and administer the investment program of each Fund. The Advisory Agreement also authorizes the Adviser, subject to Board approval, to enter into investment sub-advisory agreements (“Subadvisory Agreements”) with one or more subadvisers (“Subadvisers”). Each Subadviser is, and will be, registered as an investment adviser under the Advisers Act. The Adviser evaluates, allocates assets to and oversees the Subadvisers and makes recommendations about their hiring, termination and replacement to the Board. Subadvisers recommended to the Board by the Adviser have been or will be selected and approved by the Board, including a majority of the Independent Trustees. Each Subadviser has discretionary authority to invest the assets or a portion of the assets of a particular Fund. The Adviser compensates each Subadviser out of the fees paid to the Adviser under the Advisory Agreement.
3. Applicants request an order to permit the Adviser, subject to Board approval, to enter into and materially amend Subadvisory Agreements without obtaining shareholder approval. The requested relief will not extend to any Subadviser that is an affiliated person, as defined in section 2(a)(3) of the Act, of the Trust, a Fund or of the Adviser, other than by reason of serving as a Subadviser to one or more of the Funds (“Affiliated Subadviser”).
4. Applicants also request an exemption from the various disclosure provisions described below that may require a Fund to disclose fees paid by the Adviser to each Subadviser. An exemption is requested to permit the Trust to disclose for each Fund (as both a dollar amount and as a percentage of each Fund's net assets): (a) The aggregate fees paid to the Adviser and any Affiliated Subadvisers; and (b) the aggregate fees paid to Subadvisers other than Affiliated Subadvisers (collectively, “Aggregate Fee Disclosure”). For any Fund that employs an Affiliated Subadviser, the Fund will provide separate disclosure of any fees paid to the Affiliated Subadviser.
1. Section 15(a) of the Act provides, in relevant part, that it is unlawful for any person to act as an investment adviser to a registered investment company except under a written contract that has been approved by the vote of a majority of the company's outstanding voting securities. Rule 18f-2 under the Act provides that each series or class of stock in a series company affected by a matter must approve such matter if the Act requires shareholder approval.
2. Form N-1A is the registration statement used by open-end investment companies. Item 14(a)(3) of Form N-1A requires disclosure of the method and amount of the investment adviser's compensation.
3. Rule 20a-1 under the Act requires proxies solicited with respect to an investment company to comply with Schedule 14A under the Securities Exchange Act of 1934 (“1934 Act”). Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A, taken together, require a proxy statement for a shareholder meeting at which the advisory contract will be voted upon to include the “rate of compensation of the investment adviser,” the “aggregate amount of the investment adviser's fees,” a description of the “terms of the contract to be acted upon,” and, if a change in the advisory fee is proposed, the existing and proposed fees and the difference between the two fees. Form N-SAR is the semi-annual report filed with the Commission by registered investment companies. Item 48 of Form N-SAR requires investment companies to disclose the rate schedule for fees paid to their investment advisers, including the Subadvisers.
4. Regulation S-X sets forth the requirements for financial statements required to be included as part of investment company registration statements and shareholder reports filed with the Commission. Sections 6-07(2)(a), (b), and (c) of Regulation S-X require that investment companies include in their financial statements information about investment advisory fees.
5. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that their requested relief meets this standard for the reasons discussed below.
6. Applicants assert that the shareholders are relying on the Adviser's experience to select one or more Subadvisers best suited to achieve a Fund's investment objectives. Applicants assert that, from the perspective of the investor, the role of the Subadvisers is comparable to that of the individual portfolio managers employed by traditional investment company advisory firms. Applicants state that requiring shareholder approval of each Subadvisory Agreement would impose costs and unnecessary delays on the Funds, and may preclude the Adviser from acting promptly in a manner considered advisable by the Board. Applicants note that the Advisory Agreement and any Subadvisory Agreement with an Affiliated Subadviser will remain subject to section 15(a) of the Act and rule 18f-2 under the Act.
7. Applicants assert that some Subadvisers use a “posted” rate schedule to set their fees. Applicants state that while Subadvisers are willing to negotiate fees that are lower than those posted on the schedule, they are reluctant to do so where the fees are disclosed to other prospective and existing customers. Applicants submit that the requested relief will allow the Adviser to negotiate more effectively with each Subadviser.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Fund may rely on the order requested in the application, the operation of the Fund in the manner described in the application will be approved by a majority of the Fund's outstanding voting securities, as defined in the Act, or, in the case of a Fund whose public shareholders purchase
2. The prospectus for each Fund will disclose the existence, substance, and effect of any order granted pursuant to the application. Each Fund will hold itself out to the public as employing the management structure described in the application. The prospectus will prominently disclose that the Adviser has ultimate responsibility (subject to oversight by the Board) to oversee the Subadvisers and recommend their hiring, termination, and replacement.
3. Within 90 days of the hiring of a new Subadviser, the affected Fund shareholders will be furnished all information about the new Subadviser that would be included in a proxy statement, except as modified to permit Aggregate Fee Disclosure. This information will include Aggregate Fee Disclosure and any change in such disclosure caused by the addition of the new Subadviser. To meet this obligation, the Fund will provide shareholders within 90 days of the hiring of a new Subadviser with an information statement meeting the requirements of Regulation 14C, Schedule 14C, and Item 22 of Schedule 14A under the 1934 Act, except as modified by the order to permit Aggregate Fee Disclosure.
4. The Adviser will not enter into a Subadvisory Agreement with any Affiliated Subadviser without that agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Fund.
5. At all times, at least a majority of the Board will be Independent Trustees, and the nomination of new or additional Independent Trustees will be placed within the discretion of the then-existing Independent Trustees.
6. Independent legal counsel, as defined in rule 0-1(a)(6) under the Act, will be engaged to represent the Independent Trustees. The selection of such counsel will be within the discretion of the then-existing Independent Trustees.
7. Whenever a Subadviser change is proposed for a Fund with an Affiliated Subadviser, the Board, including a majority of the Independent Trustees, will make a separate finding, reflected in the applicable Board minutes, that such change is in the best interests of the Fund and its shareholders, and does not involve a conflict of interest from which the Adviser or the Affiliated Subadviser derives an inappropriate advantage.
8. Whenever a Subadviser is hired or terminated, the Adviser will provide the Board with information showing the expected impact on the profitability of the Adviser.
9. The Adviser will provide general management services to each Fund, including overall supervisory responsibility for the general management and investment of the Fund's assets, and, subject to review and approval of the Board, will: (a) Set each Fund's overall investment strategies; (b) evaluate, select and recommend Subadvisers to manage all or a part of a Fund's assets; (c) allocate and, when appropriate, reallocate a Fund's assets among one or more Subadvisers; (d) monitor and evaluate the performance of Subadvisers; and (e) implement procedures reasonably designed to ensure that the Subadvisers comply with the relevant Fund's investment objective, policies and restrictions.
10. The Adviser will provide the Board, no less frequently than quarterly, with information about the profitability of the Adviser on a per-Fund basis. The information will reflect the impact on profitability of the hiring or termination of any Subadviser during the applicable quarter.
11. No trustee or officer of the Trust or a Fund, or director or officer of the Adviser, will own, directly or indirectly (other than through a pooled investment vehicle that is not controlled by such person), any interest in a Subadviser, except for: (a) Ownership of interests in the Adviser or any entity that controls, is controlled by, or is under common control with the Adviser, or (b) ownership of less than 1% of the outstanding securities of any class of equity or debt of any publicly traded company that is either a Subadviser or an entity that controls, is controlled by, or is under common control with a Subadviser.
12. Each Fund will disclose in its registration statement the Aggregate Fee Disclosure.
13. The requested order will expire on the effective date of rule 15a-5 under the Act, if adopted.
For the Commission, by the Division of Investment Management, under delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Markland Technologies, Inc. (“Markland”) because it has not filed any periodic reports since the period ended September 30, 2005. Markland is quoted on the Pink Sheets OTC Markets, Inc. under the ticker symbol MRKL.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EDT on August 27, 2008, through 11:59 p.m. EDT on September 10, 2008.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its rules relating to the Hybrid 3.0 Platform (“Hybrid 3.0”) and Lead Market-Makers (“LMMs”). The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange is proposing various changes related to Hybrid 3.0 and LMMs. First, Hybrid 3.0 is an electronic trading platform on CBOE's Hybrid Trading System (“Hybrid”) that allows a single quoter to submit an electronic quote that represents the aggregate Market-Maker quoting interest in a series for the trading crowd. CBOE is proposing to amend its rules to permit one or more quoters to submit electronic quotes in Hybrid 3.0 classes. The quotes would continue to represent the aggregate Market-Maker quoting interest in a series for the trading crowd. In particular, for example, if there are two LMMs appointed to submit electronic quotes at the same time in a particular series of a Hybrid 3.0 class, the following would apply:
• The best bid and best offer quote would be determined by considering all quotes available. For example, if LMM1 submits a quote of $1-$1.20 for 100 contracts and LMM2 submits a quote of $0.95-$1.10 for 50 contracts, the best bid and offer quote would be $1-$1.10, 100 X 50, which represents a firm disseminated market quote that the trading crowd is responsible for on an aggregate basis.
• The size of multiple quotes at the same price would be aggregated. For example, if LMM1 submits a quote of $1-$1.10 for 100 contracts and LMM2 submits a quote of $0.95-$1.10 for 50 contracts, the best bid and best offer quote would be $1-$1.10, 100 × 150, which represents a firm disseminated market quote that the trading crowd is responsible for on an aggregate basis.
The Exchange believes having the flexibility to have more than one quoter submit electronic quotes would help the Exchange to maintain a fair and orderly market, including in those instances where a quoter may be experiencing system problems and back-up quotes are needed. The Exchange also believes the proposal is consistent with other provisions in our rules that permit the Exchange to appoint more than one market-maker in good standing to determine a formula for generating automatically updated market quotations for a given class using the Exchange's AutoQuote system or a proprietary automated quotation updating system.
Second, consistent with the existing Hybrid 3.0 Platform, automatic execution against Market-Maker quotes would not be allowed. Thus, for example, quotes would not automatically execute against other quotes. In this regard, the Exchange is proposing to amend Rule 6.45B(d) to resolve an inconsistency in its rules and make clear what would happen in the scenario where two quotes lock the market in a Hybrid 3.0 class. In particular, though the Exchange's rules elsewhere indicate that there will not be automatic execution against quotes,
Third, CBOE has an Off-Floor LMM program that provides LMMs with the flexibility to operate remotely away from CBOE's trading floor. CBOE is proposing to expand the program, which is currently limited to Hybrid classes,
• An LMM can request that the Exchange authorize it to operate as an Off-Floor LMM in one or more classes. The Exchange will consider the factors specified in Rule 8.15(a)(1),
• An LMM that is approved to operate as an Off-Floor LMM in one or more classes can request that the Exchange authorize it to operate as an On-Floor LMM in those option classes. In making such a determination, the Exchange should evaluate whether the change is in the best interests of the Exchange, and may consider any information that it believes will be of assistance to it. Factors to be considered may include, but are not limited to, performance, operational capacity of the Exchange or LMM, efficiency, number and experience of personnel of the LMM who will be performing functions related to the trading of the applicable securities, number of securities involved, number of Market-Makers affected, and trading volume of the securities.
• In addition, CBOE is proposing to include a requirement that, as part of a pilot program until March 14, 2009, an Off-Floor LMM not allow more than one Market-Maker affiliated with the Off-Floor LMM to trade on CBOE's trading floor in any specific option class allocated to the Off-Floor LMM and provided such Market-Maker is trading on a separate membership (absent the pilot program, an Off-Floor LMM may not allow any Market-Makers affiliated with the Off-Floor LMM to trade on CBOE's trading floor in any class allocated to the Off-Floor LMM) and provided the Off-Floor LMM does not have an LMM designee trading in open outcry in the option classes allocated to the Off-Floor LMM.
By permitting an LMM appointed to a Hybrid 3.0 class to function as an Off-Floor LMM, CBOE believes that the rule change provides more flexibility to a member organization that may wish to function remotely, and provides more flexibility to CBOE when allocating option classes to the best applicant. It also removes a potential operational dilemma for a Market-Maker that functions as a DPM or LMM in other Hybrid classes and would like to function remotely away from the trading floor as a DPM/LMM in all of its option classes. Accordingly, CBOE believes that the proposed rule change is designed to promote just and equitable principles of trade.
Fourth, CBOE is proposing to update the LMM obligations listed in Rule 8.15 to include a requirement that, subject to paragraph (d) of Rule 54.7,
Finally, CBOE is proposing to amend Rule 8.15B. Currently under the rule, if an LMM entitlement has been established for a class, the entitlement applies for both electronic
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
CBOE does not believe that the proposed rule change will impose any
The Exchange neither solicited nor received comments on the proposal.
Because the foregoing rule 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 if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 12, 2008, the Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
As part of the process of developing the new consolidated rulebook (the “Consolidated FINRA Rulebook”),
The Rule was originally adopted in 2003, replacing NASD IM-2110-1 (the Free-Riding and Withholding Interpretation) in its entirety.
For the reasons discussed above, FINRA proposed to transfer NASD Rule 2790 to the Consolidated FINRA Rulebook in substantially the same form. As part of this transfer, FINRA proposed minor changes to the Rule to reflect the registration of the NASDAQ Stock Market LLC (“NASDAQ”) as a national securities exchange. The Rule currently refers to the NASDAQ Global Market because at the time the Rule was adopted, references to the listing standards of a national securities exchange did not include NASDAQ's Global Market. Since NASDAQ completed its registration as a national securities exchange, the references to the NASDAQ Global Market in the Rule are no longer necessary. In addition, FINRA proposed certain minor, technical changes to the Rule.
FINRA represented that it would announce the effective date of the proposed rule change in a
The Commission received one comment letter on the proposal.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act, and the rules and regulations thereunder that are applicable to a national securities association.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
NYSE Arca, through its wholly-owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”), proposes to discontinue its practice of requiring the delivery of an opinion of counsel in connection with any application to list securities on the Exchange. In lieu thereof, the Exchange will require companies to (i) furnish the Exchange with copies of opinions of counsel filed in connection with recent public offerings or private placements or (ii) if no opinions of counsel exist, provide to the Exchange a certificate of good standing from the company's jurisdiction of incorporation. In addition, the Exchange is discontinuing its policy of requiring an opinion of counsel to the effect that the company is in compliance with all of the Exchange's corporate governance requirements at the time of listing and, in lieu thereof, will require that companies provide a revised form of initial written affirmation evidencing
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to discontinue its practice of requiring the delivery of an opinion of counsel in connection with any application to list securities on the Exchange. In lieu thereof, the Exchange will require companies to (i) furnish the Exchange with copies of opinions of counsel filed in connection with recent public offerings or private placements or (ii) if no opinions of counsel exist, provide to the Exchange a certificate of good standing from the company's jurisdiction of incorporation. In addition, the Exchange is discontinuing its policy of requiring an opinion of counsel to the effect that the company is in compliance with all of the Exchange's corporate governance requirements at the time of listing and, in lieu thereof, will require that companies provide a revised form of initial written affirmation evidencing their compliance with the applicable corporate governance requirements.
The Exchange has had a longstanding policy of requiring the delivery of an opinion of counsel addressed to the Exchange in connection with each application to list securities, including applications to list additional shares of a previously listed class.
The Exchange notes that the Commission approved a rule filing by the American Stock Exchange (the “Amex”) in 2000 to eliminate opinion requirements from the Amex Company Guide under the same conditions NYSE Arca is proposing in this filing.
No other major exchange requires as a condition to listing an opinion with respect to the issuer's compliance with the exchange's corporate governance requirements. The Exchange believes that it has two different sources of assurance that, at the time of initial listing, a company is in compliance with the Exchange's corporate governance requirements. First, the company provides a listing application executed by an authorized officer of the company in which it affirms that, at the time of filing the application, it has “read and understood the Exchange's Listings Rule, and fully believes itself to be in compliance with, and, if approved for listing, intends to continue to be in compliance with, the Exchange's listing and corporate governance rules and requirements, as amended.” Second, the Company provides a written affirmation at the time of listing that it is in compliance with the Exchange's board and audit committee independence requirements. The Exchange intends to amend the written affirmation so that it includes affirmations of compliance with the Exchange's nominating and compensation committee independence requirements and thereby comprehensively covers the Exchange's corporate governance requirements. The revised affirmation is included in Exhibit 3 to the filing.
The Exchange believes that the proposed rule change is consistent with the objectives of section 6
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
The proposed rule change has taken effect upon filing pursuant to section 19(b)(3)(A) of the Act.
The Exchange asserts that the proposed rule change (i) will not significantly affect the protection of investors or the public interest, (ii) will not impose any significant burden on competition, and (iii) will not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest.
The Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of the filing of the proposed rule change as required by Rule 19b-4(f)(6).
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Phlx, pursuant to section 19(b)(1) of the Act
This proposal is effective upon filing and will be implemented beginning with the rollout of the automated Complex Order system on the Exchange on August 22, 2008. The rollout date will be posted on the Exchange's Web site at
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Phlx 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 Phlx has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to revise the Exchange's fee schedule in order to launch the Exchange's automated Complex Order system, and to compete for and encourage the submission of electronic Complex Order flow to the Exchange. Pursuant to this proposal, the Exchange intends to amend the Exchange's: (i) Summary of Equity Option, and MNX, NDX, RUT and RMN Charges; (ii) Summary of Index Option Charges; (iii) Summary of U.S. Dollar-Settled Foreign Currency Option Charges; (iv) Market Access Provider Subsidy; and (v) Options Floor Broker Subsidy, as described in detail below.
Currently, the Exchange assesses various option transaction charges for equity options, depending on such factors as the category of person(s) submitting orders for execution (e.g., customers, specialists, broker-dealers, Registered Options Traders (“ROTs”)
The Exchange also assesses an option comparison charge of $0.03 per contract for ROTs and $0.04 per contract for Firms that submit proprietary orders. Customers and broker-dealers are not charged.
The Exchange currently provides a discount for ROTs (on-floor) and specialists that exceed 4.5 million contracts in a given month (the “Volume Threshold”) by assessing $0.01 per contract on contract volume above the Volume Threshold instead of the applicable options transaction charge and option comparison charge described in the Summary of Equity Option, and MNX, NDX, RUT and RMN Charges. Complex Order volume will not be used in calculating the Volume Threshold.
In order to compete for order flow respecting Complex Orders in equity options, the Exchange proposes to amend the fee schedule to clarify that the option comparison charge and the option transaction charge will not be assessed on contracts in equity options that are executed electronically as part of a Complex Order.
The Exchange currently assesses an option comparison charge and an option transaction charge for index option transactions, as described in the Exchange's Summary of Index Option Charges. The Exchange proposes to amend the fee schedule to clarify that the option comparison charge and the option transaction charge will not be assessed on contracts in Index Options that are executed electronically as part of a Complex Order.
The Exchange currently assesses an option comparison charge and an option transaction charge for transactions in options overlying U.S. dollar-settled foreign currencies, as described in the Exchange's Summary of U.S Dollar-Settled Foreign Currency Option Charges. The Exchange proposes to amend the fee schedule to clarify that the option comparison charge and the option transaction charge will not be assessed on contracts in U.S dollar-settled foreign currency options that are executed electronically as part of a Complex Order.
In August 2007, the Exchange amended its fee schedule to provide a per contract subsidy (the “Subsidy”) for certain Exchange members known as Market Access Providers (“MAPs”).
The Exchange proposes to amend the Market Access Provider Subsidy section of the fee schedule by clarifying that volume in Complex Orders that is submitted and executed electronically on Phlx XL will not be counted towards the MAP's Baseline Order Flow and that the Exchange will not use Complex Order volume to determine eligibility for the Monthly MAP Volume Bonus. The Exchange proposes to state in the MAP Subsidy section of the fee schedule that contracts executed electronically on Phlx XL as part of a Complex Order would not be considered to be “Eligible Contracts,” and thus will not be included in the Exchange's calculation of Baseline Order Flow and will not be included in its calculation of monthly volume in determining a MAP's eligibility for the Monthly Volume Bonus.
The Exchange currently pays an Options Floor Broker Subsidy to member organizations with registered Floor Brokers based on two volume thresholds. In order to be eligible for the Options Floor Broker Subsidy, the member organization must have an average daily volume in a particular calendar month in excess of 75,000 contracts, and must have 40,000 executed contracts or more per day for at least 8 trading days during that same month.
The Exchange proposes to amend the Options Floor Broker Subsidy section of the fee schedule by establishing that only the largest component of a complex order (
The Exchange currently charges a cancellation fee of $1.10 per order for each order (in equity, index and U.S. dollar-settled foreign currency options) that is delivered electronically that exceeds the number of orders executed on the Exchange by a member organization in a given month. The cancellation fee is not assessed in a month in which fewer than 500 electronically delivered orders are cancelled. For example, if a member organization delivers 1700 orders in a given month, and 700 of those orders are executed on the Exchange but the member organization cancels 1,000 of those orders in a given month, the Exchange will assess a cancellation fee of $330.00 ($1.10 × 300 orders cancelled in excess of the 700 executed orders). The cancellation fee will not apply to Complex Orders that are submitted electronically in equity, index and U.S. dollar-settled foreign currency options.
There are several current charges that will continue to be assessed for contracts executed electronically as part of a Complex Order, and thus are not proposed to be amended.
First, the Exchange charges a real-time risk management fee in equity and index options of $.0025 per contract for firms receiving information on a real-time basis. The real-time risk management fee will apply to Complex Orders that are executed electronically as part of a Complex Order in equity and index options.
Secondly, the Exchange assesses per-contract payment for order flow fees on transactions resulting from customer orders in equity options as described in the Equity Option, and MNX, NDX, RUT and RMN Charges. Such fees, if applicable, will apply to Complex Orders that are executed electronically as part of a Complex Order in equity options.
Third, the Exchange charges a specialist deficit (shortfall) fee of $0.35 per contract for specialists trading any Top 120 equity option if 12% of the total national monthly contract volume (volume threshold) is not affected on the Exchange. The Exchange will include contracts executed electronically as part of a Complex Order in its calculation of the volume threshold.
Finally, the Exchange currently “caps” the specialist deficit (shortfall) fee for any Top 120 equity option listed after February 2004 and for any Top 120 equity option acquired by a new specialist unit
The Exchange believes that its proposal to amend its schedule of fees is consistent with section 6(b) of the Act
The Exchange further believes that the inclusion of contract volume executed electronically as part of Complex Orders in its calculation of certain volume thresholds relating to the various volume discounts and volume bonuses enumerated above is equitable because it generally applies to all market participants that qualify for such volume bonuses and discounts. The Exchange also believes that the exclusion of Complex Orders and contract volume executed electronically as part of Complex Orders from certain fees should create incentives for member organizations to submit electronic Complex Orders to the Exchange, thus enhancing the depth and liquidity of the Exchange's markets.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New Hampshire ( FEMA-1782-DR ), dated 08/11/2008.
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 President's major disaster declaration for Private Non-Profit organizations in the State of New Hampshire, dated 08/11/2008, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Notice is hereby given that Emergence Capital Partners SBIC, L.P., 160 Bovet Road, Suite 300, San Mateo, CA 94402, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). Emergence Capital Partners SBIC, L.P. proposes to provide equity/debt security financing to Krugle, Inc., 200 Middlefield Road, Suite 104, Menlo Park, CA 94025.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because Emergence Capital Partners, L.P. and Emergence Capital Associates, L.P., all Associates of Emergence Capital Partners SBIC, L.P., own more than ten percent of Krugle, Inc., and therefore this transaction is considered a financing of an Associate requiring prior SBA approval.
Notice is hereby given that any interested person may submit written comments on the transaction, within fifteen days of the date of this publication, to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Joseph Kony has committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Revised notice of meeting.
The Federal Aviation Administration (FAA) and the National Park Service (NPS), in accordance with the National Parks Air Tour Management Act of 2000, announce the next meeting of the National Parks Overflights Advisory Group (NPOAG) Aviation Rulemaking Committee (ARC). This notification provides the dates, location, and agenda for the meeting. This notification revises
The NPOAG ARC will meet on September 3-4, 2008. The meeting will take place in a commercial office building at 826 East Front Street, Port Angeles, WA, leased by the NPS. The office phone number at this facility is (360)-565-1320. The meetings will be held from 8 a.m. to 5 p.m. on both days. Although this is not a public meeting, interested persons may attend the meeting.
Barry Brayer, AWP-1SP, Special Programs Staff, Federal Aviation Administration, Western-Pacific Region Headquarters, P.O. Box 92007, Los Angeles, CA 90009-2007, telephone: (310) 725-3800,
The National Parks Air Tour Management Act of 2000 (NPATMA), enacted on April 5, 2000, as Public Law 106-181, required the establishment of the NPOAG within one year after its enactment. The Act requires that the NPOAG be a balanced group of representatives of general aviation, commercial air tour operations, environmental concerns, and Native American tribes. The Administrator of the FAA and the Director of NPS (or their designees) serve as ex officio members of the group. Representatives of the Administrator and Director serve alternating 1-year terms as chairman of the advisory group.
The duties of the NPOAG include providing advice, information, and recommendations to the FAA Administrator and the NPS Director on: Implementation of Public Law 106-181; quiet aircraft technology; other measures that might accommodate interests of visitors to national parks; and at the request of the Administrator and the Director, on safety, environmental, and other issues related to commercial air tour operations over national parks or tribal lands.
The agenda for the meeting will include, but is not limited to, the following: Development of a Strategic Plan, review and approval of the meeting minutes from the September 25-26, 2007 NPOAG meeting in Fort Collins, CO; update on ongoing Air Tour Management Program projects; and NPOAG subgroup assignments.
Although this is not a public meeting, interested persons may attend. Because seating is limited, if you plan to attend please contact one of the persons listed under
If you cannot attend the NPOAG meeting, a summary record of the meeting will be made available under the program information section of the FAA ATMP Web site at
Federal Highway Administration (FHWA), DOT.
Notice.
Section 1114 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; 119 Stat. 1144) continued the highway bridge program to enable States to improve the condition of their highway bridges over waterways, other topographical barriers, other highways, and railroads. Section 1114(f) amends 23 U.S.C. 144 by adding subsection (r), requiring the Secretary of Transportation (Secretary) to publish in the
The report will be posted on the FHWA Web site no later than August 10, 2008.
The report will be posted on the FHWA Web site at:
Ms. Ann Shemaka, Office of Bridge Technology, HIBT-30, (202) 366-1575, or Mr. Thomas Everett, Office of Bridge Technology, HIBT-30, (202) 366-4675, Federal Highway Administration, 1200 New Jersey Ave., SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
In conformance with 23 U.S.C. 144(r), the FHWA has produced a report that summarizes the types of construction materials used in new bridge construction and bridge rehabilitation projects. Data on Federal-aid and non-Federal-aid highway bridges are included in the report for completeness. The December 2007 National Bridge Inventory (NBI) dataset was used to identify the material types for bridges that were new or replaced within the defined time period. The FHWA's Financial Management Information System (FMIS) and the 2007 NBI were used to identify the material types for bridges that were rehabilitated within the defined time period. Currently preventative maintenance projects are included in the rehabilitation totals.
The report, which is available at
• Construction Materials for New and Replaced Bridges, a summary report which includes Federal-aid highways and non-Federal-aid highways built in 2006 and 2005.
• Construction Materials for Rehabilitated Bridges, a summary report which includes Federal-aid and non-Federal-aid highways rehabilitated in 2006 and 2005.
• Construction Materials for Combined New, Replaced and Rehabilitated Bridges, a summary report which combines the first two tables cited above.
• Federal-aid Highways: Construction Materials for New and Replaced Bridges 2006, a detailed state-by-state report with counts and areas for Federal-aid bridges built or replaced in 2006.
• Federal-aid Highways: Construction Materials for New and Replaced Bridges 2005, a detailed state-by-state report with counts and areas for Federal-aid bridges built or replaced in 2005.
• Non-Federal-aid Highways: Construction Materials for New and Replaced Bridges 2006, a detailed state-by-state report with counts and areas for non-Federal-aid bridges built or replaced in 2006.
• Non-Federal-aid Highways: Construction Materials for New and Replaced Bridges 2005, a detailed state-by-state report with counts and areas for non-Federal-aid bridges built or replaced in 2005.
• Federal-aid Highways: Construction Materials for Rehabilitated Bridges 2006, a detailed state-by-state report with counts and areas for Federal-aid bridges rehabilitated in 2006.
• Federal-aid Highways: Construction Materials for Rehabilitated Bridges 2005, a detailed state-by-state report with counts and areas for Federal-aid bridges rehabilitated in 2005.
• Non-Federal-aid Highways: Construction Materials for Rehabilitated Bridges 2006, a detailed state-by-state report with counts and areas for non Federal-aid bridges rehabilitated in 2006.
• Non-Federal-aid Highways: Construction Materials for Rehabilitated Bridges 2005, a detailed state-by-state report with counts and areas for non Federal-aid bridges rehabilitated in 2005.
• Federal-aid Highways: Construction Materials for New, Replaced and Rehabilitated Bridges 2006, which combines the 2006 reports on new, replaced and rehabilitated Federal-aid bridges.
• Federal-aid Highways: Construction Materials for New, Replaced and Rehabilitated Bridges 2005, which combines the 2005 reports on new, replaced and rehabilitated non-Federal-aid bridges.
• Non-Federal-aid Highways: Construction Materials for New, Replaced and Rehabilitated Bridges 2006, which combines the 2006 reports on new, replaced and rehabilitated non Federal-aid bridges.
• Non-Federal-aid Highways: Construction Materials for New Replaced and Rehabilitated Bridges 2006, which combines the 2006 reports on new, replaced and rehabilitated non-Federal-aid bridges.
The tables provide data for two years: 2005 and 2006. The 2005 data is considered complete for new, replaced and rehabilitated bridges, with a minimal likelihood of upward changes in the totals. The 2006 data is considered partially complete for new bridges and complete for rehabilitated bridges, because many new bridges built in 2006 will not appear in the NBI until they are placed into service the following year. Therefore, next year's report will include 2006's data on new bridge construction, because the data will be complete.
Each table displays simple counts of bridges and total bridge deck area. Total bridge deck area is measured in square meters, by multiplying the bridge length by the deck width out-to-out. Culverts under fill are included in the counts but not in the areas because a roadway width is not collected. The data is categorized by the following material types, which are identified in the NBI: steel, concrete, pre-stressed concrete and other. The category “Other” includes wood, timber, masonry, aluminum, wrought iron, cast iron and other. Material type is the predominate type for the main span(s).
23 U.S.C. 144(r); Sec. 1114(f), Pub. L. 109-59, 119 Stat. 1144.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Announcement of Railroad Safety Advisory Committee (RSAC) Meeting.
FRA announces the 36th meeting of the RSAC, a Federal advisory committee that develops railroad safety regulations through a consensus process. The RSAC meeting topics will include opening remarks from the FRA Administrator, and status reports will be provided by the Passenger Safety, Locomotive Safety Standards, Railroad Bridge, Medical Standards, Railroad Operating Rules, and Track Safety Standards Working Groups. There will be a Committee vote on the acceptance of the report from the Railroad Bridge Working Group and a possible vote on an expanded task statement for the Track Standards Working Group. Accident/incident reporting is on the agenda for discussion by the Committee and there may be a vote on a contingent task statement. This agenda is subject to change.
The meeting of the RSAC is scheduled to commence on Wednesday, September 10, 2008, at 9:30 a.m. and will adjourn at 4:30 p.m.
The RSAC meeting will be held at the National Housing Center, 1201 15th Street, NW., Washington, DC 20005. The meeting is open to the public on a first-come, first-serve basis, and is accessible to individuals with disabilities. Sign and oral interpretation can be made available if requested 10 calendar days before the meeting.
Larry Woolverton, RSAC Administrative Officer/Coordinator, FRA, 1200 New Jersey Avenue, SE., Mailstop 25, Washington, DC 20590, (202) 493-6212; or Grady Cothen, Deputy Associate Administrator for Safety, FRA, 1200 New Jersey Avenue, SE., Mailstop 25, Washington, DC 20590, (202) 493-6302.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), FRA is giving notice of a meeting of the RSAC. The RSAC was established to provide advice and recommendations to FRA on railroad safety matters. The RSAC is composed of 54 voting representatives from 31 member organizations, representing various rail industry perspectives. In addition, there are nonvoting advisory representatives from the agencies with railroad safety regulatory responsibility in Canada and Mexico, the National Transportation Safety Board, and the Federal Transit Administration. The diversity of the Committee ensures the requisite range of views and expertise necessary to discharge its responsibilities. See the
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Announcement of Railroad Safety Advisory Committee (RSAC) working group activities.
FRA is updating its announcement of RSAC's working group activities to reflect its current status.
Larry Woolverton, RSAC Coordinator, FRA, 1200 New Jersey Avenue, SE., Mailstop 25, Washington, DC 20590, (202) 493-6212; or Grady Cothen, Deputy Associate Administrator for Safety, FRA, 1200 New Jersey Avenue, SE., Mailstop 25, Washington, DC 20590, (202) 493-6302.
This notice serves to update FRA's last announcement of working group activities and status reports of May 22, 2008 (73 FR 29838). The 35th full RSAC meeting was held June 11, 2008, and the 36th meeting is scheduled for September 10, 2008, at the National Housing Center in Washington, DC.
Since its first meeting in April of 1996, the RSAC has accepted 25 tasks. The status for each of the open tasks is provided below:
(Emergency Preparedness Task Force) At the working group meeting on March 9-10, 2005, the working group received and approved the consensus report of the Emergency Preparedness Task Force related to emergency communication, emergency egress, and rescue access. These recommendations were presented to, and approved by, the full RSAC on May 18, 2005. The working group met on September 7-8, 2005, and additional, supplementary recommendations were presented to, and accepted by, the full RSAC on October 11, 2005. The Notice of Proposed Rulemaking (NPRM) was published on August 24, 2006, and was open for comment until October 23, 2006. The working group agreed upon recommendations for the final rule, including resolution of final comments received, during its April 17-18, 2007, meeting. The recommendations were presented to, and approved by, the full RSAC on June 26, 2007. The final rule regarding passenger train emergency systems, focusing on emergency communication, emergency egress, and rescue access, was published on February 1, 2008 (73 FR 6370). The task force met on October 17-18, 2007, and reached consensus on draft rule text for a followup NPRM on passenger train emergency systems, focusing on low location emergency exit path marking, emergency lighting, and emergence signage. The task force presented the draft rule text to the Passenger Safety Working Group on December 11-12, 2007, and the consensus draft rule text was presented to, and approved by, full RSAC vote during the February 20, 2008 meeting. At its most recent meeting, which was held May 13-14, 2008, the task force recommended clarifying the applicability of backup emergency communication system requirements in the February 1, 2008, final rule, and FRA announced its intention to exercise limited enforcement discretion for a new provision amending instruction requirements for emergency window exit removal. The working group ratified these recommendations on June 19, 2008. No additional task force meetings are currently scheduled.
(Mechanical Task Force) (Completed) Initial recommendations on mechanical issues (revisions to Title 49 Code of Federal Regulations (CFR) part 238) were approved by the full Committee on January 26, 2005. At the working group meeting of September 7-8, 2005, the task force presented additional perfecting amendments and the full RSAC approved them on October 11, 2005. An NPRM was published in the
(Crashworthiness Task Force) Among its efforts, the Crashworthiness Task Force provided consensus recommendations on static-end strength that were adopted by the working group on September 7-8, 2005. The full Committee accepted the recommendations on October 11, 2005. The Front-End Strength of Cab Cars and Multiple-Unit Locomotives NPRM was published in the
(Vehicle/Track Interaction Task Force) The task force is developing proposed revisions to 49 CFR parts 213 and 238, principally regarding high-speed passenger service. The task force met on October 9-11, 2007, and again on November 19-20, 2007, in Washington, DC, and presented the final task force report, final recommendations, and proposed rule text for approval by the Passenger Safety Working Group at the December 11-12, 2007, meeting. The final report and the proposed rule text were approved by the working group and were presented to, and approved by, full RSAC vote during the February 20, 2008, meeting. The group last met on February 27-28, 2008, and FRA is currently crafting an NPRM. No additional task force meetings are currently scheduled.
(General Passenger Safety Task Force) At the working group meeting on April 17-18, 2007, the task force presented a progress report to the working group. The task force met on July 18-19, 2007, and afterwards, it reported proposed reporting cause codes for injuries involving the platform gap that was approved by the working group by mail ballot in September 2007. The full RSAC approved the recommendations for changes to 49 CFR part 225 accident/incident cause codes on October 25, 2007. The task force continues work on passenger train door securement, “second train in station,” trespasser incidents, and system safety based solutions by developing a regulatory approach to system safety. The General Passenger Safety Task Force presented draft guidance material for management of the gap that was considered and approved by the working group during the December 11-12, 2007, meeting and was presented and approved by full RSAC vote during the February 20, 2008, meeting. The group met April 23-24, 2008, and the next meeting is scheduled for November 4-6, 2008.
Please refer to the notice published in the
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice of decision by NHTSA that certain nonconforming motor vehicles are eligible for importation.
This document announces decisions by NHTSA that certain motor vehicles not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS) are eligible for importation into the United States because they are substantially similar to vehicles originally manufactured for sale in the United States and certified by their manufacturers as complying with the safety standards, and they are capable of being readily altered to conform to the standards or because they have safety features that comply with, or are capable of being altered to comply with, all applicable FMVSS.
These decisions became effective on the dates specified in Annex A.
Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-3151).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and/or sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Where there is no substantially similar U.S.-certified motor vehicle, 49 U.S.C. 30141(a)(1)(B) permits a nonconforming motor vehicle to be admitted into the United States if its safety features comply with, or are capable of being altered to comply with, all applicable FMVSS based on destructive test data or such other evidence as NHTSA decides to be adequate.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR Part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
NHTSA received petitions from registered importers to decide whether the vehicles listed in Annex A to this notice are eligible for importation into the United States. To afford an opportunity for public comment, NHTSA published notice of these petitions as specified in Annex A. The reader is referred to those notices for a thorough description of the petitions. No substantive comments were received in response to these notices. Based on its review of the information submitted by the petitioners, NHTSA has decided to grant the petitions.
The importer of a vehicle admissible under any final decision must indicate on the form HS-7 accompanying entry the appropriate vehicle eligibility number indicating that the vehicle is eligible for entry. Vehicle eligibility numbers assigned to vehicles admissible under this decision are specified in Annex A.
Accordingly, on the basis of the foregoing, NHTSA hereby decides that each motor vehicle listed in Annex A to this notice, which was not originally manufactured to comply with all applicable FMVSS, is either (1) substantially similar to a motor vehicle manufactured for importation into and/or sale in the United States, and certified under 49 U.S.C. 30115, as specified in Annex A, and is capable of being readily altered to conform to all applicable FMVSS or (2) has safety features that comply with, or are capable of being altered to comply with, all applicable Federal motor vehicle safety standards.
49 U.S.C. 30141(a)(1)(A), (a)(1)(B) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for comments.
This notice announces the publication by NHTSA of its Evaluation Program Plan for 2008-2012. The report describes the agency's ongoing and planned evaluations of its existing Federal Motor Vehicle Safety Standards [49 CFR part 571] and other vehicle-safety, behavioral-safety and consumer programs. It also summarizes the results of completed evaluations. The agency's evaluation program responds to Executive Order 12866, which provides for Government-wide review of existing significant Federal regulations. This notice solicits public review and comment on the evaluation plan. Comments received will be used to improve the plan.
Comments must be received no later than December 29, 2008.
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You may call Docket Management at 202-366-9826.
Charles J. Kahane, Chief, Evaluation Division, NVS-431, National Center for Statistics and Analysis, National Highway Traffic Safety Administration, Room W53-312, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-2560.
NHTSA has rigorously evaluated its major programs as a matter of policy since 1970. The evaluation of the effectiveness of the Federal Motor Vehicle Safety Standards (FMVSS) began in 1975. The Government Performance and Results Act of 1993 and Executive Order 12866, “Regulatory Planning and Review,” issued in October 1993 (58 FR 51735), now oblige all Federal agencies to evaluate their existing programs and regulations. Previously, Executive Order 12291, issued in February 1981 (46 FR 13193), also required reviews of existing regulations. Even before 1981, however, NHTSA was a leader among Federal agencies in evaluating the effectiveness of existing regulations and technologies. There are large databases of motor vehicle crashes that can be analyzed to find out what vehicle and behavioral safety programs work best.
This five-year plan for the Evaluation Division of the Office of Regulatory
Most of NHTSA's crashworthiness and several crash avoidance standards have been evaluated at least once since 1975. A number of consumer-oriented regulations, e.g., bumpers, theft protection, fuel economy and NCAP also have been evaluated. So have promising safety technologies that were at the time not mandatory under Federal regulations, such as electronic stability control for passenger vehicles. Based on these evaluations, NHTSA estimated that vehicle safety technologies had saved an estimated 328,551 lives from 1960 through 2002 and that the FMVSS added an average of $839 (in 2002 dollars) to the cost of a new passenger car and $711 to an LTV in model year 2001 (70 FR 3975).
ORAE's plan for calendar years 2008-2012 includes evaluations of new and existing vehicle and behavioral safety programs, regulations, technologies and consumer information programs. Vehicle safety evaluations address crash avoidance, crashworthiness, compatibility and recalls. They study passenger cars, LTVs, heavy trucks, and motorcycles. Behavioral safety evaluations address impaired driving, occupant protection, child passenger safety, motorcycle safety, pedestrians and emergency care (injury survivability).
The plan will be periodically updated in response to public and agency needs, with a complete revision scheduled every five years. The most recent plan before this one was published on January 27, 2004 (69 FR 3992).
NHTSA welcomes public review of the evaluation plan and invites the reviewers to comment about the selection, priority, and schedule of the regulations to be evaluated. The agency is interested in learning of any additional data that may be useful in the evaluations. NHTSA will submit to the Docket a response to the comments and, if appropriate, will supplement or revise the evaluation plan.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the Docket number of this document (NHTSA-2008-0143) in your comments.
Your primary comments must not be more than 15 pages long (49 CFR 553.21). However, you may attach additional documents to your primary comments. There is no limit on the length of the attachments.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Please send two paper copies of your comments to Docket Management, fax them, or use the Federal eRulemaking Portal. The mailing address is U.S. Department of Transportation, Docket Management Facility, M-30, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. The fax number is 1-202-493-2251. To use the Federal eRulemaking Portal, go to
We also request, but do not require, you to send a copy to Charles J. Kahane, Chief, Evaluation Division, NVS-431, National Highway Traffic Safety Administration, Room W53-312, 1200 New Jersey Avenue, SE., Washington, DC 20590 (or e-mail them to
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, send three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Include a cover letter supplying the information specified in our confidential business information regulation (49 CFR part 512).
In addition, send two copies from which you have deleted the claimed confidential business information to U.S. Department of Transportation, Docket Management Facility, M-30, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or submit them via the Federal eRulemaking Portal.
In our response, we will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.
You may read the materials placed in the docket for this document (e.g., the comments submitted in response to this document by other interested persons) at any time by going to
49 U.S.C. 30111, 30168; delegation of authority at 49 CFR 1.50 and 501.8.
On August 11, 2008, BNSF Railway Company (BNSF) filed with the Board a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon a 12.55-mile line of railroad extending from milepost 11.25 near Wilburton to milepost 23.80 in Woodinville, King County, WA. The line traverses United States Postal Service Zip Codes 98004, 98005, 98011, 98033, 98034, and 98072.
In addition, BNSF seeks exemption from the offer of financial assistance (OFA) and public use provisions at 49 U.S.C. 10904 and 49 U.S.C. 10905, respectively. In support, BNSF contends that an exemption from these provisions is necessary to permit conveyance of the line and its physical assets to the Port of Seattle (Port).
The segment proposed to be abandoned is part of a rail line that is currently the subject of three separate proceedings.
Based on the connection of the line at issue in this proceeding with the line segments discussed above, BNSF, the Port, and King County, as well as other interested persons, are requested to submit additional information to clarify their arrangements and intentions regarding future service on these line segments. BNSF states in its petition that an agreement has been entered into to convey the line at issue here to the Port. However, BNSF does not explain how this agreement would allow BNSF to enter into an agreement with King County for King County to serve as interim trail user. Further, it is unclear what rail service, if any, is anticipated or would be provided and whether the above-mentioned line segments would remain sufficiently connected to allow for any freight or passenger rail service.
The line does not contain federally granted rights-of-way. Any documentation in BNSF's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by November 28, 2008.
Any OFA under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption, unless the Board grants the requested exemption from the OFA process. Each OFA must be accompanied by a $1,500 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Unless the Board grants the requested exemption from the public use provisions, any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than September 18, 2008. Each trail use request must be accompanied by a $200 filing fee.
All filings in response to this notice must refer to STB Docket No. AB-6 (Sub-No. 465X) and must be sent to: (1) Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001; and (2) Kristy Clark, BNSF Railway Company, 2500 Lou Menk Drive, AOB-3, Fort Worth, TX 76131. Replies to the petition are due on or before September 18, 2008.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA will generally be within 30 days of its service.
Board decisions and notices are available on our Web site at “
By the Board, David M. Konschnik, Director, Office of Proceedings.
The New York, Susquehanna and Western Railway Corporation (NYS&W) has filed a verified notice of exemption under 49 CFR 1152 Subpart F—
NYS&W has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) all overhead traffic has been rerouted; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on October 1, 2008, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA for continued rail service under 49 CFR 1152.27(c)(2),
A copy of any petition filed with the Board should be sent to NYS&W's representative: Eric M. Hocky, Thorp Reed & Armstrong, LLP, One Commerce Square, 2005 Market Street, Suite 1910, Philadelphia, PA 19103.
If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to comment on an information collection that is due for renewed approval by the Office of Management and Budget. The Office of International Affairs within the Department of the Treasury is soliciting comments concerning recordkeeping requirements associated with Reporting of International Capital and Foreign Currency Transactions and Positions—31 CFR Part 128.
Written comments should be received on or before October 28, 2008 to be assured of consideration.
Direct all written comments on international capital transactions and positions to: Dwight Wolkow, International Portfolio Investment Data Systems, Department of the Treasury, Room 5422, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. In view of possible delays in mail delivery, please also notify Mr. Wolkow by e-mail (
Direct all written comments on foreign currency transactions and positions to: Timothy Dulaney, Department of the Treasury, Room 2313, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. In view of possible delays in mail delivery, please also notify Mr. Dulaney by e-mail (
Requests for additional information on international capital transactions and positions should be directed to Mr. Wolkow. Requests for additional information on foreign currency transactions and positions should be directed to Mr. Dulaney.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 28, 2008.
Submit written comments on the collection of information through
Mary Stout (202) 461-5867 or FAX (202) 273-9381.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary:
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7266, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Rita, Division of Property Management, Program Support Center, HHS, room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Other—no public access
Fish and Wildlife Service, Interior.
Final rule.
This rule prescribes the hunting seasons, hours, areas, and daily bag and possession limits of mourning, white-winged, and white-tipped doves; band-tailed pigeons; rails; moorhens and gallinules; woodcock; common snipe; sandhill cranes; sea ducks; early (September) waterfowl seasons; migratory game birds in Alaska, Hawaii, Puerto Rico, and the Virgin Islands; and some extended falconry seasons. Taking of migratory birds is prohibited unless specifically provided for by annual regulations. This rule permits taking of designated species during the 2008-09 season.
This rule is effective on September 1, 2008.
You may inspect comments received on the migratory bird hunting regulations during normal business hours at the Service's office in room 4107, Arlington Square Building, 4501 N. Fairfax Drive, Arlington, Virginia. You may obtain copies of referenced reports from the address above or from the Division of Migratory Bird Management's Web site at
Robert Blohm, Chief, or Ron W. Kokel, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358-1714.
On May 28, 2008, we published in the
Subsequent documents will refer only to numbered items requiring attention. Therefore, it is important to note that we will omit those items requiring no attention, and remaining numbered items will be discontinuous and appear incomplete.
On June 18, 2008, we published in the
On June 25 and 26, 2008, we held open meetings with the Flyway Council Consultants at which the participants reviewed information on the current status of migratory shore and upland game birds and developed recommendations for the 2008-09 regulations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands, special September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, we reviewed and discussed preliminary information on the status of waterfowl as it relates to the development and selection of the regulatory packages for the 2008-09 regular waterfowl seasons. On July 24, 2008, we published in the
On July 30-31, 2008, we held open meetings with the Flyway Council Consultants at which the participants reviewed the status of waterfowl and developed recommendations for the 2008-09 regulations for these species. Proposed hunting regulations were discussed for late seasons. We will publish proposed frameworks for the 2008-09 late-season migratory bird hunting regulations in a late August 2008
The final rule described here is the sixth in the series of proposed, supplemental, and final rulemaking documents for migratory game bird hunting regulations and deals specifically with amending subpart K of 50 CFR part 20. It sets hunting seasons, hours, areas, and limits for mourning, white-winged, and white-tipped doves; band-tailed pigeons; rails; moorhens and gallinules; woodcock; common snipe; sandhill cranes; sea ducks; early (September) waterfowl seasons; mourning doves in Hawaii; migratory game birds in Alaska, Puerto Rico, and the Virgin Islands; youth waterfowl hunting day; and some extended falconry seasons.
NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published Notice of Availability in the
In a notice published in the September 8, 2005,
Section 7 of the Endangered Species Act, as amended (16 U.S.C. 1531-1543; 87 Stat. 884), provides that, “The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act” (and) shall “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in
The Office of Management and Budget has determined that this rule is significant and has reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
The regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
In promulgating this rule, we have determined that it will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. Thus, in accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects on Indian trust resources. However, in the April 11 proposed rule we solicited proposals for special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2008-09 migratory bird hunting season. The resulting proposals will be contained in a separate proposed rule. By virtue of these actions, we have
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or tribe may be more restrictive than the Federal frameworks. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
The rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment. Thus, when the preliminary proposed rulemaking was published, we established what we believed were the longest periods possible for public comment. In doing this, we recognized that when the comment period closed, time would be of the essence. That is, if there were a delay in the effective date of these regulations after this final rulemaking, States would have insufficient time to select season dates and limits, to communicate those selections to us, and to establish and publicize the necessary regulations and procedures to implement their decisions. We therefore find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and these regulations will, therefore, take effect immediately upon publication. Accordingly, with each conservation agency having had an opportunity to participate in selecting the hunting seasons desired for its State or Territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
16 U.S.C. 703-712 and 16 U.S.C. 742 a-j, Public Law 106-108.
Fish and Wildlife Service, Interior.
Proposed rule; supplemental.
The Fish and Wildlife Service (hereinafter Service or we) is proposing to establish the 2008-09 late-season hunting regulations for certain migratory game birds. We annually prescribe frameworks, or outer limits, for dates and times when hunting may occur and the number of birds that may be taken and possessed in late seasons. These frameworks are necessary to allow State selections of seasons and limits and to allow recreational harvest at levels compatible with population and habitat conditions.
You must submit comments on the proposed migratory bird hunting late-season frameworks by September 8, 2008.
You may submit comments on the proposals by one of the following methods:
•
•
We will not accept e-mail or faxes. We will post all comments on
Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240; (703) 358-1714.
On May 28, 2008, we published in the
On June 18, 2008, we published in the
On June 25 and 26, we held open meetings with the Flyway Council Consultants, at which the participants reviewed information on the current status of migratory shore and upland game birds and developed recommendations for the 2008-09 regulations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands; special September waterfowl seasons in designated States; special sea duck seasons in the Atlantic Flyway; and extended falconry seasons. In addition, we reviewed and discussed preliminary information on the status of waterfowl as it relates to the development and selection of the regulatory packages for the 2008-09 regular waterfowl seasons. On July 24, 2008, we published in the
On July 30-31, 2008, we held open meetings with the Flyway Council Consultants, at which the participants reviewed the status of waterfowl and developed recommendations for the 2008-09 regulations for these species. This document deals specifically with proposed frameworks for the late-season migratory bird hunting regulations. It will lead to final frameworks from which States may select season dates, shooting hours, areas, and limits.
We have considered all pertinent comments received through August 1, 2008, in developing this document. In addition, new proposals for certain late-season regulations are provided for public comment. The comment period is specified above under
The following paragraphs provide a brief summary of information on the status and harvest of waterfowl excerpted from various reports. For more detailed information on methodologies and results, you may obtain complete copies of the various reports at the address indicated under
Federal, provincial, and State agencies conduct surveys each spring to estimate the size of breeding populations and to evaluate the conditions of the habitats. These surveys are conducted using fixed-wing aircraft and helicopters and encompass principal breeding areas of North America, and cover over 2.0 million square miles. The Traditional survey area comprises Alaska, Canada, and the northcentral United States, and includes approximately 1.3 million square miles. The Eastern survey area includes parts of Ontario, Quebec, Labrador, Newfoundland, Nova Scotia, Prince Edward Island, New Brunswick, New York, and Maine, an area of approximately 0.7 million square miles.
Habitat conditions during the 2008 Waterfowl Breeding Population and Habitat Survey were characterized in many areas by a delayed spring compared to several preceding years. Drought in many parts of the traditional survey area contrasted sharply with record snow and rainfall in the eastern survey area. The total pond estimate (Prairie Canada and United States combined) was 4.4 ± 0.2 million ponds, 37 percent below last year's estimate of 7.0 ± 0.3 million ponds and 10 percent lower than the long-term average of 4.9 ± 0.03 million ponds. The 2008 estimate of ponds in Prairie Canada was 3.1 ± 0.1 million. This was a 39 percent decrease from last year's estimate (5.0 ± 0.3 million), and 11 percent below the 1955-2007 average (3.4 ± 0.03 million). The 2008 pond estimate for the north-central United States (1.4 ± 0.1 million) was 30 percent lower than last year's estimate (2.0 ± 0.1 million) and 11 percent below the long-term average (1.5 ± 0.02 million).
In the Waterfowl Breeding Population and Habitat Survey traditional survey area (strata 1-18, 20-50, and 75-77), the total duck population estimate was 37.3 ± 0.6 [SE] million birds. This was 9 percent lower than last year's estimate of 41.2 ± 0.7 million birds, but 11 percent above the 1955-2007 long-term average. Mallard (
The eastern survey area was restratified in 2005 and is now composed of strata 51-72. Estimates of mallards, scaup, scoters (black [
The mid-continent mallard population is composed of mallards from the traditional survey area (revised in 2008 to exclude Alaska mallards), Michigan, Minnesota, and Wisconsin, and was estimated to be 7.7 ± 0.3 million. This was similar to the revised 2007 estimate of 8.5 ± 0.3 million. In 2007, we reported a projected mallard fall-flight index of 11.4 million ± 1.0 million. After the removal of Alaska mallards from the mid-continent stock, the revised 2007 fall-flight estimate was 10.9 ± 1.0 million, which was not significantly different from the 2008 estimate of 9.2 ± 0.8 million. These indices were based on mid-continent mallard population models revised in 2002, and the 2008 updated model weights, and therefore differ from those previously published.
See section 1.A. Harvest Strategy Considerations for further discussion of the implications of this information for this year's selection of the appropriate hunting regulations.
We provide information on the population status and productivity of North American Canada geese (
National surveys of migratory bird hunters were conducted during the 2006 and 2007 hunting seasons. About 1.2 million waterfowl hunters harvested 13,808,100 (± 4 percent) ducks and 3,579,100 (± 5 percent) geese in 2006, and harvested 14,578,900 (± 4 percent) ducks and 3,666,100 (± 6 percent) geese in 2007. Mallard, green-winged teal, gadwall, blue-winged/cinnamon teal (Anas cyanoptera), and wood duck (Aix sponsa) were the most-harvested duck species, and Canada goose was the predominant goose species in the harvest. Coot hunters (about 39,400 in 2006 and 33,700 in 2007) harvested 199,100 (± 29 percent) coots in 2006 and 198,300 (± 29 percent) in 2007.
The preliminary proposed rulemaking, which appeared in the May 28, 2008,
We received recommendations from all four Flyway Councils. Some recommendations supported continuation of last year's frameworks. Due to the comprehensive nature of the annual review of the frameworks performed by the Councils, support for continuation of last year's frameworks is assumed for items for which no recommendations were received. Council recommendations for changes in the frameworks are summarized below.
We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible,
The Mississippi Flyway Council opposed the implementation of the western mallard Adaptive Harvest Management (AHM) protocol and recommended the midcontinent mallard AHM protocol should be used for all three western Flyways.
The Central Flyway Council also recommended the “liberal” alternative. However, as part of their Hunter's Choice experiment, they recommended continuation of the following bag limits:
In Colorado, Montana, Nebraska, New Mexico, and Oklahoma, the daily bag limit would be six ducks, with species and sex restrictions as follows: five mallards (no more than two of which may be females), two redheads, two scaup, two wood ducks, one pintail, one mottled duck, and one canvasback. For pintails and canvasbacks, the season length would be 39 days, which may be split according to applicable zones/split duck hunting configurations approved for each State.
In Kansas, North Dakota, South Dakota, Texas, and Wyoming, the daily bag limit would be five ducks, with species and sex restrictions as follows: two scaup, two redheads, and two wood ducks, and only one from the following group—hen mallards, mottled ducks, pintails, canvasbacks.
For the 2008 hunting season, we are continuing to consider the same regulatory alternatives as those used last year. The nature of the restrictive, moderate, and liberal alternatives has remained essentially unchanged since 1997, except that extended framework dates have been offered in the moderate and liberal regulatory alternatives since 2002. Also, in 2003, we agreed to place a constraint on closed seasons in the western three Flyways whenever the midcontinent mallard breeding-population size (as defined prior to 2008; traditional survey area plus Minnesota, Michigan, and Wisconsin) was ≥5.5 million. As we described in the July 24
Therefore, we concur with the recommendations of the Atlantic, Mississippi, Central, and Pacific Flyway Councils regarding selection of the “liberal” regulatory alternative and propose to adopt the “liberal” regulatory alternative, as described in the June 18
Regarding Hunter's Choice, we support continuation of the Central Flyway Council's recommendation for a 3-year evaluation of the Central Flyway's Hunter's Choice duck bag limit. The Central Flyway's Hunter's Choice regulations are intended to limit harvest on pintails and canvasbacks in a manner similar to the season-within-a-season regulations. Hunter's Choice regulations should also reduce harvests of mottled ducks and hen mallards, while maintaining full hunting opportunity on abundant species such as drake mallards. For the species included in the aggregate bag limit, the harvest of one species is intended to “buffer” the harvest of the others, thus reducing the harvest of all species included in the one-bird category. The Central Flyway has accumulated 4 years of baseline information on harvests resulting from “season-within-a-season” regulations in the Central Flyway; the season length for pintails and canvasbacks in season-within-a-season States under the “liberal” alternative will be 39 days.
Five States (Kansas, North Dakota, South Dakota, Texas, and Wyoming)
While we continue to support the Central Flyway's Hunter's Choice experiment, we reiterate that we believe implementation of this experiment should not preclude any future changes in hunting regulations that may be deemed necessary on an annual basis for any other duck species in the Central Flyway, if such changes are deemed necessary.
Regarding the Mississippi Flyway Council's opposition to the western mallard AHM protocol, we have cooperated with the Pacific Flyway during the past several years to develop a protocol for managing the harvest of the western stock of mallards. As we discussed above, in July 2008, we formally adopted the western mallard protocol (73 FR 43290). This decision resulted in Alaska mallards being removed from the midcontinent mallard stock and placing them in the western mallard stock. This change resulted in an increase (+7 percent) in the frequency of closed seasons in the Central and Mississippi Flyways under the midcontinent mallard AHM protocol. As we also discussed above, to address this concern, we modified the closed season constraint for midcontinent mallards from 5.25 to 4.75 million mallards.
We recognize the concerns expressed by the Mississippi Flyway Council with regard to implementation of the western mallard protocol. However, we believe that establishment of a western mallard protocol is justified, and we have made an appropriate adjustment to the midcontinent mallard protocol to reduce the impact of removing Alaska from that stock of birds. With regard to potential impacts of higher frequency of liberal seasons in the Pacific Flyway on midcontinent mallards, a preliminary joint optimization of western and midcontinent mallards was assessed. The preliminary analysis suggested that joint optimization does not result in a significant difference in the performance of either protocol. Therefore, we believe an independent harvest strategy for western mallards poses little risk to the midcontinent stock. With regard to the potential impacts of near-permanent liberal regulations in the Pacific Flyway on other species of waterfowl, it is presently unclear how such impacts would be assessed. However, we are committed to monitoring of these potential impacts and will discuss any findings with all of the Flyway Councils prior to implementing any appropriate regulatory changes to address such impacts.
The 2008 composite estimate (based on hierarchical modeling and both Service and Canadian Wildlife Service survey data) for the Eastern Survey Area is 683.4 thousand. The 1998-2007 mean estimate is 713.8 thousand and the most recent 3-year running mean estimate is 721.6 thousand. Based on these estimates, we agree with the Atlantic Flyway Council that no restriction or liberalization of harvest is warranted.
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council reiterated their recommended alternative canvasback harvest management strategy that uses threshold levels based on breeding population size in order to determine bag limits (detailed in the June 18
The Central Flyway Council, as part of their Hunter's Choice experiment, recommended a full season (74 days) for canvasbacks with a 1-bird daily bag limit in Kansas, North Dakota, South Dakota, Texas, and Wyoming and a 39-day season with a 1-bird daily bag limit in Colorado, Montana, Nebraska, New Mexico, and Oklahoma.
The Pacific Flyway Council recommended a closed season for canvasbacks.
This year's spring survey resulted in an estimate of 489,000 canvasbacks. This was 44 percent below the 2007 estimate of 865,000 canvasbacks and 14 percent below the 1955-2007 average. The estimate of ponds in Prairie Canada was 3.06 million, which was 39 percent below last year and 11 percent below the long-term average. According to the Canvasback Harvest Strategy, the allowable harvest in the conterminous United States is 24,700 birds, which is less than the expected harvest in the United States for all four flyways under their respective restrictive season
Last year, the estimate of canvasback abundance was a record-high of 865,000 birds. In response to Flyway requests for additional harvest opportunities due to that estimate, we increased the daily bag limit to 2 birds per day. As expected, the harvest of canvasbacks increased last year, but not to the extent that could explain the large decrease in the estimate of canvasback abundance this spring. We have conducted a comprehensive review of canvasback survey information, with a particular focus on the change in estimates between 2007 and 2008. Investigations into the estimation procedures for canvasbacks revealed that numbers of canvasbacks observed during the May survey increased across many survey areas last year, but counts were consistently lower in those same areas this spring. We found no anomalies in the data, leading us to conclude with confidence that the estimate this year is as reliable as previous estimates. Annual canvasback estimates typically have higher variances than for most other species counted during May, and large changes from year-to-year have happened historically. It is possible that the discrepancy between this year's estimate and last year's record-high estimate is purely the result of sampling variation, but other factors may have contributed.
However, we support the completion of the Hunter's Choice experiment in the Central Flyway. For the last 2 years, the average harvest of canvasbacks in the U.S. portion of the Central Flyway has been about 14,800 birds. This, together with the average expected harvest in Alaska (350 birds), is below the allowable U.S. harvest resulting from the strategy this year. Thus, we propose that the States in the Central Flyway be allowed an open season on canvasbacks this year according to the Hunter's Choice experimental design, but the seasons on canvasbacks would be closed in the Atlantic, Mississippi, and Pacific Flyways.
The Central Flyway Council, as part of their Hunter's Choice experiment, recommended a full season (74 days) for pintails with a 1-bird daily bag limit in Kansas, North Dakota, South Dakota, Texas, and Wyoming and a 39-day season with a 1-bird daily bag limit in Colorado, Montana, Nebraska, New Mexico, and Oklahoma.
Furthermore, we agree with the Central Flyway Council's recommendation to adopt a 39-day “season-within-a-season” for pintails in Colorado, Montana, Nebraska, New Mexico, and Oklahoma. We understand that this departure from the pintail strategy is a necessary part of the experimental “Hunter's Choice” season.
(1) Under the restrictive harvest policy, a 40-day season with a 1-bird daily bag and a 20-day season with a 2-bird daily bag. The 20 days with the 2-bird daily bag shall be 20 consecutive hunting days;
(2) Under the moderate harvest policy, a 60-day season with a 2-bird daily bag; and
(3) Under the liberal harvest policy, a 60-day season with a 4-bird daily bag.
For 2008-09, the Council recommended implementation of the restrictive season package, based on results of the scaup harvest model.
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended a 60-day season with a 2-bird daily bag limit for the 2008-09 season. They further recommended a restrictive and moderate regulatory package of 60 days with a 2-bird daily bag limit and a liberal regulatory package of 60 days with a 4-bird daily bag limit.
The Central Flyway Council recommended the continuation of the Hunter's Choice bag limit for the 2008-09 season. After completion of the Hunter's Choice experiment, the Central Flyway Council recommends the following potential scaup regulatory alternatives (season lengths and daily bag limits) for Central Flyway States:
(1) Restrictive Policy—74 days with a 1-bird daily bag limit;
(2) Moderate Policy—74 days with a 2-bird daily bag limit; and
(3) Liberal Policy—74 days with a 6-bird daily bag limit.
The Pacific Flyway Council recommended the adoption of the following scaup regulation packages for the Pacific Flyway for the next three years:
(1) Restrictive season package: 86 days, 2 bag limit.
(2) Moderate season package: 86 days, 3 bag limit.
(3) Liberal season package: 107 days, 7 bag limit.
In addition, the Pacific Flyway Council requested that split and zone configurations be available to individual States for scaup seasons, similar to the split and zone options we previously provided for pintail seasons. For 2008-09, the Council recommended implementation of the restrictive season package, based on results of the scaup harvest model.
In the July 24
We appreciate the time and attention that the Flyways have given this issue. We further support the recommendations received from the Atlantic, Central and Pacific Flyways for their restrictive, moderate and liberal packages for scaup. We also support the packages recommended by the Mississippi Flyway for their moderate and liberal packages. However, the restrictive package recommended by the Mississippi Flyway is not projected to be sufficient to achieve the required harvest reductions. In further consultation with the Mississippi Flyway Consultants, we accepted the same season structure recommended by the Atlantic Flyway for restrictive seasons in the Mississippi Flyway. These season structures will be used for the next three years and evaluated at the end of that period.
In addition, we have adopted the alternative harvest prediction models suggested by the Atlantic and Central Flyways. We also support the proposal by the Pacific Flyway to afford States the opportunity to use their existing zone/split rules for their respective States when choosing scaup season frameworks.
(a) Season length of 45 days with a daily bag limit of 1 per day in years when AHM prescribes a liberal or moderate regulations package.
(b) Season length of 30 days with a daily bag limit of 2 per day in years when AHM prescribes a restrictive regulations package.
(c) Outside the mottled duck breeding range, mottled duck season length and bag limits would be the same as for hen mallards.
The Central Flyway Council recommended that no further harvest reductions were warranted at this time.
Second, the Council recommended that we adopt the following criteria for evaluation of AFRP hunting zones in the Atlantic Flyway during 2008-2010:
(1) All areas holding an AFRP regular season must collectively account for no more than a 1 percent direct recovery rate for adults for any migrant goose population during the open AFRP regular seasons. Areas contributing disproportionately to the cumulative recovery rate will be identified and these areas may be eliminated to stay below the 1 percent threshold;
(2) AFRP hunting zones must not account for more than 10 percent of all AP band recoveries, or more than 10 percent of all NAP recoveries, in any State during the 3-year period 2008-2010;
(3) If a season is closed for any migrant population, AFRP hunting zones would remain open as long as
(4) Band recovery data will be examined annually, and at 3-year intervals all available data will be examined to determine if zone modifications and/or changes to opening and closing framework dates are needed to ensure continued compliance with the above criteria.
As a result of the above delineation criteria modifications, the Council recommended modifications to existing AFRP hunting zones in New York, Pennsylvania, and Maryland beginning in 2008, and that we extend the opening and closing framework dates for Canada geese in AFRP harvest zones in Pennsylvania (from the fourth Saturday in October to March 10), Maryland and Virginia (from November 15 to March 10), and North Carolina (from October 1 to March 10). They also recommended allowing Connecticut and New York to establish new AFRP harvest zones with framework dates between 1 October and 15 February and bag limits of 5 geese per day.
With regard to frameworks in Southern James Bay Population (SJBP) harvest zones, the Council recommended allowing Pennsylvania a 70-day Canada goose hunting season, with a 3-bird daily bag limit, between the second Saturday in October and February 15; Virginia, a 40-day season between November 15 and January 14 with a 3-bird daily bag limit and an experimental season between January 15-February 15 with a 5-bird daily bag limit; and North Carolina a 70-day season with a 5-bird daily bag limit between October 1 and December 31. In addition, they recommended modifying the SJBP harvest zone in Pennsylvania to include the former Pymatuning Zone and that portion of Mercer, Crawford and Erie Counties north of Interstate 80 and west of Interstate 79 including Lake Erie, Presque Isle, and the area within 150 yards of the Lake Erie shoreline.
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended a number of changes in Canada goose zones, seasons lengths, and bag limits for several States in the Flyway. These changes are a result of approved revisions to the Southern James Bay Population (SJBP) Canada goose harvest strategy and management plan that were made in agreement with the Atlantic Flyway. These changes are consistent with the revised harvest strategies for Canada geese in the Mississippi Flyway.
The Pacific Flyway Council recommended revising Idaho zone designations for 2 counties (Adams and Valley Counties from Zone 2 to Zone 1), and reducing the bag limit on dark geese in Wyoming from 4 to 3 geese.
We also concur with the Atlantic Flyway Council's recommendations to modify AFRP hunting zones in Maryland, New York, and Pennsylvania, establish new AFRP zones in Connecticut and Long Island, New York, and modify the AFRP zone season opening and closing framework dates in Maryland, North Carolina, Pennsylvania, and Virginia. These recommended changes all conform to the existing criteria, as amended above, for delineating AFRP hunting zones and establishing AFRP season framework dates. We further note that resident Canada geese are overabundant in many areas of the Atlantic Flyway and currently number approximately 1.0 million birds, significantly above the goal in the Atlantic Flyway Resident Canada Goose Management Plan of 650,000 geese. All of the Flyway's objectives to increase the harvest of resident Canada geese are consistent with those identified in the Service's 2005 Final Environmental Impact Statement on Resident Canada Goose Management (70 FR 69985, November 18, 2005).
We also concur with the Atlantic Flyway Council's recommended frameworks for the SJBP harvest zones in the Atlantic Flyway. We note that the SJBP Management Plan was recently revised and approved by both the Atlantic and Mississippi Flyway Councils and guides management decisions in both flyways. The plan goal is to maintain the SJBP at a level that can sustain use throughout its current range, while allowing for the management of resident Canada geese. A key part of the plan is a harvest strategy designed to test the resident Canada goose buffering hypothesis. This hypothesis states that large populations of resident Canada geese are now buffering the harvest of SJBP geese, and therefore liberalization in hunting regulations will result in more harvest of resident Canada geese, and not SJBP Canada geese. Further, genetic studies and analysis of band recoveries indicate SJBP harvest zones in many States no longer function as concentration zones for SJBP geese and may therefore be ineffective at protecting SJBP geese. We agree that these reductions in hunting opportunity and hunting pressure on resident Canada geese may not be warranted when many SJBP harvest zones hold a smaller proportion of SJBP geese than they did historically. The newly revised SJBP plan also calls for holding regulations stable for a 5-year period (2008-2013). If the spring population estimate falls below 50,000 in combination with either an unabated negative trend in the estimate over 3 years or more, and evidence of unsustainable harvest rates, then appropriate regulation changes will be implemented as/when necessary in both the Atlantic and Mississippi Flyways. We believe that these proposed regulation changes will provide for increased hunting opportunity and harvest of AFRP geese, while maintaining the SJBP at levels identified in the 2008 plan.
We also concur with all of the recommendations forwarded by the Pacific Flyway Council. Some of these changes are designed to afford greater protection to Tule white-fronted geese and the Service strongly supports these efforts (see discussion under 5. White-fronted Geese). In addition, the other changes in Canada goose seasons are relatively minor and are being
(1) In the Lake County portion of the Harney, Lake, and Malheur County Zone reduce the daily bag limit for white-fronted geese from 2 to 1;
(2) In the Klamath County Zone of Oregon, for hunting days occurring after the last Sunday in January, change the daily bag limit of 2 white-fronted geese to a bag limit of 1 white-fronted goose and 3 white geese; and
(3) Reduce the bag limit on dark geese in Wyoming from 4 to 3 geese.
We note, however, that indices to the Pacific population of white-fronted geese exceed management plan goals and this population is responsible for numerous agricultural depredation complaints in the Klamath Basin as well. However, given the concerns over the status of population of Tule white-fronted geese, which, as documented through telemetry observations, are present in at least very low numbers in the Oregon portion of the Klamath Basin during this time period, further assessment is warranted.
(1) In the States of California, Oregon, and Washington increase the light goose season length to 107 days, and in the States of California and Oregon increase the bag limit to 6 light geese per day and extend the light goose framework ending date to March 10;
(2) Increase the bag limit to 10 light geese per day in all other states of the Pacific Flyway with a framework ending date of March 10; and
(3) In the Klamath County Zone of Oregon, for hunting days occurring after the last Sunday in January, change the daily bag limit of 2 white-fronted geese to a bag limit of 1 white-fronted goose and 3 white geese.
The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments received during the comment period and respond to them after the closing date in any final rules.
NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published a notice of availability in the
In a notice published in the September 8, 2005
Prior to issuance of the 2008-09 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter, the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened, or modify or destroy its critical habitat, and is consistent with conservation programs for those species. Consultations under section 7 of this Act may cause us to change proposals in this and future supplemental rulemaking documents.
The Office of Management and Budget has determined that this rule is significant and has reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
The regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this proposed rule, has determined that this proposed rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 2008-09 hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.
Pursuant to the Migratory Bird Treaty Act and delegated authorities, the Department has approved frameworks for season lengths, shooting hours, bag and possession limits, and outside dates within which States may select seasons for hunting waterfowl and coots between the dates of September 1, 2008, and March 10, 2009.
In the Atlantic Flyway States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Virginia, where Sunday hunting is prohibited statewide by State law, all Sundays are closed to all take of migratory waterfowl (including mergansers and coots).
In Alabama, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Ohio, Tennessee, and Wisconsin, the season may be split into 2 segments in each zone.
In Arkansas and Mississippi, the season may be split into 3 segments.
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In Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming, the regular season may be split into two segments.
In Colorado, the season may be split into three segments.
In Montana, New Mexico and Wyoming, States may select seasons not to exceed 107 days. The daily bag limit for dark geese is 5 in the aggregate.
In Colorado, the season may not exceed 107 days. The daily bag limit is 4 dark geese in the aggregate.
In the Western Goose Zone of Texas, the season may not exceed 95 days. The daily bag limit for Canada geese (or any other dark goose species except white-fronted geese) is 4. The daily bag limit for white-fronted geese is 1.
Hunting Seasons and Duck Limits: Concurrent 107 days. The daily bag limit is 7 ducks and mergansers, including no more than 2 female mallards, 1 pintail, 2 scaup, and 2 redheads. For scaup, the season length would be 86 days, which may be split according to applicable zones/split duck hunting configurations approved for each State. The season on canvasbacks is closed. A daily bag limit of 2 scaup may also be included in the 7-bird daily bag limit for designated youth-hunt days.
The season on coots and common moorhens may be between the outside dates for the season on ducks, but not to exceed 107 days.
Colorado, Montana, and New Mexico may split their seasons into three segments.
Oregon may select a 16-day season, Washington a 16-day season, and California a 30-day season. Days must be consecutive. Washington and California may select hunting seasons by up to two zones. The daily bag limit is 2 brant and is in addition to dark goose limits. In Oregon and California, the brant season must end no later than December 15.
Seasons on geese must end upon attainment of individual quotas of dusky geese allotted to the designated areas of Oregon (165) and Washington (85). The September Canada goose season, the regular goose season, any special late dark goose season, and any extended falconry season, combined, must not exceed 107 days, and the established quota of dusky geese must not be exceeded. Hunting of geese in those designated areas will only be by hunters possessing a State-issued permit authorizing them to do so. In a Service approved investigation, the State must obtain quantitative information on hunter compliance of those regulations aimed at reducing the take of dusky geese. If the monitoring program cannot be conducted, for any reason, the season must immediately close. In the designated areas of the Washington Southwest Quota Zone, a special late goose season may be held between the Saturday following the close of the general goose season and March 10. In the Northwest Special Permit Zone of Oregon, the framework closing date is extended to the Sunday closest to March 1 (March 1). Regular goose seasons may be split into 3 segments within the Oregon and Washington quota zones.
In portions of the Pacific Flyway (Montana, Nevada, and Utah), an open season for taking a limited number of swans may be selected. Permits will be issued by the State and will authorize each permittee to take no more than 1 swan per season with each permit. Nevada may issue up to 2 permits per hunter. Montana and Utah may only issue 1 permit per hunter. Each State's season may open no earlier than the Saturday nearest October 1 (October 4). These seasons are also subject to the following conditions:
In addition, the States of Utah and Nevada must implement a harvest-monitoring program to measure the species composition of the swan harvest. The harvest-monitoring program must require that all harvested swans or their species-determinant parts be examined by either State or Federal biologists for the purpose of species classification. The States should use appropriate measures to maximize hunter compliance in providing bagged swans for examination. Further, the States of Montana, Nevada, and Utah must achieve at least an 80-percent compliance rate, or subsequent permits will be reduced by 10 percent. All three States must provide to the Service by June 30, 2009, a report detailing harvest, hunter participation, reporting compliance, and monitoring of swan populations in the designated hunt areas.
In portions of the Atlantic Flyway (North Carolina and Virginia) and the Central Flyway (North Dakota, South Dakota [east of the Missouri River], and that portion of Montana in the Central Flyway), an open season for taking a limited number of tundra swans may be selected. Permits will be issued by the States that authorize the take of no more than 1 tundra swan per permit. A second permit may be issued to hunters from unused permits remaining after the first drawing. The States must obtain harvest and hunter participation data. These seasons are also subject to the following conditions:
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Final rule.
The Fish and Wildlife Service adds one refuge to the list of areas open for hunting and/or sport fishing programs and increases the activities available at six other refuges for the 2008-2009 season.
This rule is effective on August 29, 2008.
Leslie A. Marler, Management Analyst, Division of Conservation Planning and Policy, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 670, Arlington, VA 22203; (703) 358-2397; Fax (703) 358-2248.
The National Wildlife Refuge System Administration Act of 1966 closes national wildlife refuges in all States except Alaska to all uses until opened. The Secretary of the Interior (Secretary) may open refuge areas to any use, including hunting and/or sport fishing, upon a determination that such uses are compatible with the purposes of the refuge and National Wildlife Refuge System (Refuge System or our/we) mission. The action also must be in accordance with provisions of all laws applicable to the areas, developed in coordination with the appropriate State fish and wildlife agency(ies), consistent with the principles of sound fish and wildlife management and administration, and otherwise in the public interest. These requirements ensure that we maintain the biological integrity, diversity, and environmental health of the Refuge System for the benefit of present and future generations of Americans.
We review refuge hunting and sport fishing programs to determine whether to include additional refuges or whether individual refuge regulations governing existing programs need modifications. Changing environmental conditions, State and Federal regulations, and other factors affecting fish and wildlife populations and habitat may warrant modifications to refuge-specific regulations to ensure the continued compatibility of hunting and sport fishing programs and to ensure that these programs will not materially interfere with or detract from the fulfillment of refuge purposes or the Refuge System's mission.
Provisions governing hunting and sport fishing on refuges are in title 50 of the Code of Federal Regulations in part 32 (50 CFR part 32). We regulate hunting and sport fishing on refuges to:
• Ensure compatibility with refuge purpose(s);
• Properly manage the fish and wildlife resource(s);
• Protect other refuge values;
• Ensure refuge visitor safety; and
• Provide opportunities for quality fish and wildlife-dependent recreation.
On many refuges where we decide to allow hunting and sport fishing, our general policy of adopting regulations identical to State hunting and sport fishing regulations is adequate in meeting these objectives. On other refuges, we must supplement State regulations with more-restrictive Federal regulations to ensure that we meet our management responsibilities, as outlined in the “Statutory Authority” section. We issue refuge-specific hunting and sport fishing regulations when we open wildlife refuges to migratory game bird hunting, upland game hunting, big game hunting, or sport fishing. These regulations list the wildlife species that you may hunt or fish, along with seasons, bag or creel limits, methods of hunting or sport fishing, descriptions of areas open to hunting or sport fishing, and other provisions as appropriate. You may find previously issued refuge-specific regulations for hunting and sport fishing in 50 CFR part 32. In this rulemaking, we are also standardizing and clarifying the language of existing regulations.
In this rule, we made some of the revisions to the individual refuge units to comply with a Presidential mandate to use plain language in regulations; as such, these particular revisions do not modify the substance of the previous regulations. These types of changes include using “you” to refer to the reader and “we” to refer to the Refuge System, using the word “allow” instead of “permit” when we do not require the use of a permit for an activity, and using active voice (i.e., “We restrict entry into the refuge” vs. “Entry into the refuge is restricted”).
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee, as amended by the National Wildlife Refuge System Improvement Act of 1997 [Improvement Act]) (Administration Act) and the Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-4) (Recreation Act) govern the administration and public use of refuges.
Amendments enacted by the Improvement Act built upon the Administration Act in a manner that provides an “organic act” for the Refuge System similar to those that exist for other public Federal lands. The Improvement Act serves to ensure that we effectively manage the Refuge System as a national network of lands, waters, and interests for the protection and conservation of our Nation's wildlife resources. The Administration Act states first and foremost that we focus our Refuge System mission on conservation of fish, wildlife, and plant resources and their habitats. The Improvement Act requires the Secretary, before allowing a new use of a refuge, or before expanding, renewing, or extending an existing use of a refuge, to determine that the use is compatible with the mission for which the refuge was established. The Improvement Act established as the policy of the United States that wildlife-dependent recreation, when compatible, is a legitimate and appropriate public use of the Refuge System, through which the American public can develop an appreciation for fish and wildlife. The Improvement Act established six wildlife-dependent recreational uses, when compatible, as the priority general public uses of the Refuge System. These uses are: hunting, fishing, wildlife observation and photography, and environmental education and interpretation.
The Recreation Act authorizes the Secretary to administer areas within the Refuge System for public recreation as an appropriate incidental or secondary use only to the extent that doing so is practicable and not inconsistent with the primary purpose(s) for which Congress and the Service established the areas. The Recreation Act requires that any recreational use of refuge lands be compatible with the primary purpose(s) for which we established the refuge and not inconsistent with other previously authorized operations.
The Administration Act and Recreation Act also authorize the Secretary to issue regulations to carry out the purposes of the Acts and regulate uses.
We develop specific management plans for each refuge prior to opening it to hunting or sport fishing. In many cases, we develop refuge-specific
In the June 11, 2008,
We received 16 comments on the proposed rule, 7 opposed and 9 in support of the rulemaking. We have synthesized these comments into four general comments for our response.
After we received initial public comments from the November 2004, public meeting, on December 17, 2004, we placed a draft Hunting Plan, draft Hunting Environmental Assessment, and draft Compatibility Determination at the Detroit Lakes Public Library. Legal notification and news articles on December 19 and 22, 2004, informed the public that the hunting proposal documents were available for review, and that we would receive additional public comments through January 10, 2005. We received two comments: one from the White Earth Reservation Tribal Council and one from the Minnesota Department of Natural Resources. We received no comments from the general public.
On November 4, 2005, we posted a second comment period for review at the Detroit Lakes Public Library and refuge headquarters. Legal notification and news articles on November 3 and November 6, 2005, informed the public that the hunting proposal documents were available for review and that we would receive additional public comments through December 9, 2005. During this second comment period, the public had the opportunity to review and comment for 35 days. We received no public comments during this second comment period.
On February 15, 2007, we posted a third comment period for review at the Detroit Lakes Public Library and Detroit Lakes Wetland Management District headquarters. Legal notification on February 14 and 17, 2007, informed the public that a revised Environmental Assessment of the hunting proposal was available for review, and that we would receive additional public comments through March 17, 2007. During the third comment period, the public had the opportunity to review and comment (written or by phone) a period of 30 days. Again, we received no public comments during this third comment period.
This rule is effective upon publication in the
In preparation for new openings, we prepare and approve, at the appropriate Regional Office and in Washington, documentation of National Environmental Policy Act (NEPA) and the Endangered Species Act; and we consult with the State and, where appropriate, Tribal wildlife management agency. The Regional Director(s) certify that the opening of these refuges to hunting and/or sport fishing is found to be compatible with the purpose(s) for which the respective refuge(s) were established and the Refuge System mission. You may request copies of the compatibility determinations for these respective refuges from the regional office noted under the heading “Available Information for Specific Refuges.”
The annotated chart below summarizes our changes. The key below the chart explains the symbols used:
We are adding one refuge to the list of areas open for hunting and/or sport fishing and increasing opportunities at six refuges. We proposed these changes in the 2006-2007 refuge-specific regulations (71 FR 41864, July 24, 2006) but did not finalize them. This rulemaking does that. We have made significant changes to the analysis of impacts under the requirements of the National Environmental Policy Act (NEPA) to address inadequacies in our “opening” process found by Judge Ricardo Urbina in his ruling in
Bayou Cocodrie National Wildlife Refuge in the State of Louisiana added new lands available to all existing opportunities, but this did not result in any regulatory changes.
We are removing Stillwater Management Area in the State of Nevada from the list of refuges in 50 CFR part 32. The Bureau of Reclamation holds primary jurisdiction over these lands by virtue of a public lands withdrawal for drainage for the 1902 Newlands Reclamation Project. The 1948 Tripartie Agreement with the Service, Nevada Board of Fish and Game Commissioners (Nevada), and the Truckee-Carson Irrigation District (Truckee-Carson) expired and has not been renewed.
We have cross-referenced a number of existing regulations in 50 CFR parts 26, 27, and 32 to assist hunting and sport fishing visitors with understanding safety and other legal requirements on refuges. This redundancy is deliberate, with the intention of improving safety and compliance in our hunting and sport fishing programs.
For health reasons, anglers should review and follow State-issued consumption advisories before enjoying recreational sport fishing opportunities on Service-managed waters. You can find information about current fish consumption advisories on the Internet at:
The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866 (E.O. 12866). OMB bases its determination on the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, use fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601
This rule does not increase the number of recreation types allowed on the System but establishes a hunting program on one refuge and expands activities at six other refuges. As a result, opportunities for wildlife-dependent recreation on national wildlife refuges will increase. The changes in the number of allowed use(s) are likely to increase visitor activity on these national wildlife refuges. Recreational user days are expected to increase by 475 fishing days and 8,352 hunting days. However, this is likely to be a substitute site for the activity and not necessarily an overall increase in participation rates for the activity.
New recreational user days generate expenditures associated with recreational activities on refuges' wilderness areas. Due to the unavailability of site-specific expenditure data, we use the national estimates from the 2001 National Survey of Fishing, Hunting, and Wildlife Associated Recreation to identify expenditures for food and lodging, transportation, and other incidental expenses. Using the average expenditures for these categories with the maximum expected additional participation on the Refuge System yields approximately $68,700 in fishing-related expenditures and $831,300 in hunting-related expenditures.
By having ripple effects throughout the economy, these direct expenditures are only part of the economic impact of recreational user days. Using a national impact multiplier for hunting activities (2.73) derived from the report “Economic Importance of Hunting in America” and a national impact multiplier for sportfishing activities (2.79) from the report “Sportfishing in America” for the estimated increase in direct expenditures yields a total economic impact of approximately $2.4 million (2006 dollars) (Southwick Associates, Inc., 2003). (Using a local impact multiplier would yield more accurate and smaller results. However, we employed the national impact multiplier due to the difficulty in developing local multipliers for each specific region.)
Since most of the fishing and hunting occurs within 100 miles of a participant's residence, it is unlikely that most of this spending would be “new” money coming into a local economy; therefore, this spending would be offset with a decrease in some other sector of the local economy. The net gain to the local economies would be no more than $2.5 million, and most likely considerably less. Since 80 percent of the participants travel fewer than 100 miles to engage in hunting and fishing activities, their spending patterns would not add new money into the local economy and, therefore, the real impact would be on the order of $488,000 annually.
To the extent visitors spend time and money in the area of the refuge that they would not have spent there anyway, they contribute new income to the regional economy and benefit local businesses. Many small businesses within the retail trade industry (such as hotels, gas stations, taxidermy shops, bait and tackle shops) may benefit from some increased refuge visitation. A large percentage of these retail trade establishments in the majority of affected counties qualify as small businesses (Table 2).
We expect that the incremental recreational opportunities will be scattered, and so we do not expect that the rule will have a significant economic effect (benefit) on a substantial number of small entities in any region or nationally. Using the estimate derived in the
With the small increase in overall spending anticipated from this rule, it is unlikely that a substantial number of small entities will have more than a small benefit from the increased spending near the affected refuges. Therefore, we certify that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. We anticipate no significant employment or small business effects. This rule:
a. Would not have an annual effect on the economy of $100 million or more. The additional fishing and hunting opportunities at these refuges would generate angler and hunter expenditures with an economic impact estimated at $2.4 million per year (2006 dollars). Consequently, the maximum benefit of this rule for businesses both small and large would not be sufficient to make this a major rule. The impact would be scattered across the country and would most likely not be significant in any local area.
b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. This rule would have only a slight effect on the costs of hunting and fishing opportunities for Americans. Under the assumption that any additional hunting and fishing opportunities would be of high quality, participants would be attracted to the refuge. If the refuge were closer to the participants' residences, then a reduction in travel costs would occur and benefit the participants. The Service does not have information to quantify this reduction in travel cost but assumes that, since most people travel less than 100 miles to hunt and fish, the reduced travel cost would be small for the additional days of hunting and fishing generated by this rule. We do not expect this rule to affect the supply or demand for fishing and hunting opportunities in the United States and, therefore, it should not affect prices for fishing and hunting equipment and supplies, or the retailers that sell equipment. Additional refuge hunting and fishing opportunities would account for less than 0.001 percent of the available opportunities in the United States.
c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. This rule represents only a small proportion of recreational spending of a small number of affected anglers and hunters, approximately a maximum of $2.4 million annually in impact. Therefore, this rule would have no measurable economic effect on the wildlife-dependent industry, which has annual sales of equipment and travel expenditures of $72 billion nationwide. Refuges that establish hunting and fishing programs may hire additional staff from the local community to assist with the programs, but this would not be a significant increase because we are opening only one refuge to hunting and only six refuges are increasing activities by this rule.
Since this rule would apply to public use of federally owned and managed refuges, it would not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule would not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
In accordance with E.O. 12630, this rule would not have significant takings implications. This regulation would affect only visitors at national wildlife refuges and describe what they can do while they are on a refuge.
As discussed in the Regulatory Planning and Review and Unfunded Mandates Reform Act sections above, this rule would not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment under E.O. 13132. In preparing this rule, we worked with State governments.
In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. The regulation would clarify established regulations and result in better understanding of the regulations by refuge visitors.
On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule would add one refuge to the list of areas open for hunting and increase the activities at six refuges, it is not a significant regulatory action under E.O. 12866 and is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.
In accordance with E.O. 13175, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects. We coordinate recreational use on national wildlife refuges with Tribal governments having adjoining or overlapping jurisdiction before we propose the regulations.
This regulation does not contain any information collection requirements other than those already approved by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
In preparation for new openings, we comply with Section 7 of the Endangered Species Act (16 U.S.C. 1531
We also comply with Section 7 of the ESA when we develop comprehensive conservation plans (CCPs) and step-down management plans for public use of refuges, and before implementing any new or revised public recreation program on a refuge as identified in 50 CFR 26.32.
Based upon review of the refuge-specific Environmental Assessments for the opening of new or expansion of existing hunting programs on 7 national wildlife refuges (Agassiz NWR, Hamden Slough NWR, Blackwater NWR, Whittlesey Creek, Bayou Cocodrie NWR, Tensas River NWR, and Upper Ouachita NWR), and of associated documentation referenced below, it is our determination that the action of opening or expanding hunting programs on these 7 refuges as described and which will be codified by rulemaking in 2008, does not constitute a major Federal action significantly affecting the quality of the human environment under the meaning of section 102(2)(c) of the National Environment Policy Act of 1969 (as amended) (42 U.S.C. 4321
We have prepared a Cumulative Impact Report that analyzes the cumulative impacts of these openings. In this Report we evaluate cumulative impacts within the context of the new and expanded hunting and fishing programs on the seven refuges combined and within the context of hunting and fishing programs on the Refuge System as a whole.
Prior to the addition of a refuge to the list of areas open to hunting and fishing in 50 CFR part 32, we develop hunting and fishing plans for the affected refuges. We incorporate these refuge hunting and fishing activities in the refuge CCPs and/or other step-down management plans, pursuant to our refuge planning guidance in 602 Fish and Wildlife Service Manual (FW) 1, 3, and 4. We prepare these CCPs and step-down plans in compliance with section 102(2)(C) of NEPA and the Council on Environmental Quality's regulations for implementing NEPA in 40 CFR parts 1500-1508. We invite the affected public to participate in the review, development, and implementation of these plans. Copies of all plans and NEPA compliance are available from the refuges at the addresses provided below.
Individual refuge headquarters retain information regarding public use programs and conditions that apply to their specific programs and maps of their respective areas. If the specific refuge you are interested in is not mentioned below, then contact the appropriate regional offices listed below:
Region 1—Hawaii, Idaho, Oregon, and Washington. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, Eastside Federal Complex, Suite 1692, 911 N.E. 11th Avenue, Portland, OR 97232-4181; Telephone (503) 231-6214.
Region 2—Arizona, New Mexico, Oklahoma, and Texas. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, Box 1306, 500 Gold Avenue, Albuquerque, NM 87103; Telephone (505) 248-7419.
Region 3—Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 1 Federal Drive, Federal Building, Fort Snelling, Twin Cities, MN 55111; Telephone (612) 713-5401. Hamden Slough National Wildlife Refuge, 21212 210th Street, Audubon, Minnesota 56511; Telephone (218) 439-6319.
Region 4—Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Tennessee, South Carolina, Puerto Rico, and the Virgin Islands. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Atlanta, GA 30345; Telephone (404) 679-7166.
Region 5—Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia and West Virginia. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 300 Westgate Center
Region 6—Colorado, Kansas, Montana, Nebraska, North Dakota, South Dakota, Utah, and Wyoming. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 134 Union Blvd., Lakewood, CO 80228; Telephone (303) 236-8145.
Region 7—Alaska. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 1011 E. Tudor Rd., Anchorage, AK 99503; Telephone (907) 786-3545.
Region 8—California and Nevada. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W 2606, Sacramento, CA 95825-1846; Telephone (916) 414-6464.
Leslie A. Marler, Management Analyst, Division of Conservation Planning and Policy, National Wildlife Refuge System, is the primary author of this rulemaking document.
Fishing, Hunting, Reporting and recordkeeping requirements, Wildlife, Wildlife refuges.
5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd-668ee, and 715i.
A. Migratory Game Bird Hunting. * * *
3. We allow refuge hunters to enter the refuge no earlier than 4 a.m., and they must depart no later than 2 hours after legal sunset unless they are participating in the refuge raccoon hunt.
5. We allow shotguns equipped with a single-piece magazine plug that allows the gun to hold no more than two shells in the magazine and one in the chamber. We prohibit target practicing or shooting to unload modern firearms on the refuge at any time. Shotgun hunters must possess only an approved nontoxic shot when hunting migratory birds (see § 32.2(k)). We require hunters to unload and encase all guns transported in automobiles and boats or on all-terrain vehicles (see § 27.42(b) of this chapter). We allow firearms on the refuge only during the refuge hunting season.
6. We prohibit permanent or pit blinds on the refuge. You must remove all blind material sand decoys following each day's hunt (see § 27.93 of this chapter).
9. We prohibit baiting or the possession of bait at any time while on the refuge (see § 32.2(h)).
11. While visiting the refuge, we prohibit: spotlighting, littering, fires, trapping, mandrives for game, possession of alcoholic beverages in hunting areas, possession of open alcoholic beverage containers, flagging, engineers tape, paint, unleashed pets, and parking/blocking trail and gate entrances. We prohibit hunting within 150 feet (45 m) of: a designated public road, maintained road (a road or trail which has been mowed, disked, or plowed), trail, fire breaks, dwellings, and above-ground oil and gas production facilities.
12. We require a Tensas River National Wildlife Refuge Access Permit for all migratory bird hunts. You will find the permits on the front of the Public Use Regulation brochure.
B. Upland Game Hunting. * * *
2. We allow squirrel and rabbit hunting with and without dogs. We will allow hunting without dogs from the beginning of the State season to a date typically ending the day before the refuge deer muzzleloader hunt. We do not require hunters to wear hunter orange during the squirrel and rabbit hunt without dogs. Squirrel and rabbit hunting will begin again, with or without dogs, the day after the refuge deer muzzleloader hunt and will conclude the last day of the refuge squirrel season which typically ends on February 15.
6. We allow .22 caliber rimfire weapons and shotguns equipped with a single-piece magazine plug that allows the gun to hold no more than two shells in the magazine and one in the chamber. We prohibit target practicing or shooting to unload modern firearms on the refuge at any time. Shotgun hunters must possess only an approved nontoxic shot when hunting upland game (see § 32.2(k)). We require hunters to unload and encase all guns transported in automobiles and boats or on all-terrain vehicles (see § 27.42(b) of this chapter). We define loaded as shells in gun or caps on muzzleloader. We allow firearms on the refuge only during the refuge hunting season.
7. We require all upland game hunters to report their game immediately after each hunt at the check station nearest the point of take.
8. Conditions A7, A10, A11, and A13 apply.
9. We prohibit any hunter from using climbing spikes or to hunt from a tree that contains screw-in steps, nails, screw-in umbrellas, or any metal objects that could damage trees (see § 32.2(i)).
10. We require a Tensas River National Wildlife Refuge Access Permit for all upland game hunts. Hunters will find permits on the front of the Public Use Regulations brochure.
1. Deer archery season will begin the first Saturday in November and will conclude on the last day of the State archery season which is generally January 31. We require that archery hunters, including crossbow hunters, possess proof of completion of the International Bowhunters Safety course. We prohibit archery hunting during the following refuge-wide deer hunts: youth gun hunt and modern firearms hunts. We prohibit possession of pods, drug-tipped arrows, or other chemical substances.
2. Deer muzzleloader season will be 3 days and occur on a Monday, Tuesday, and Wednesday in January. We will allow in-line muzzleloaders and magnified scopes.
3. We will conduct two 2-day quota modern firearms hunts for deer typically in the month of December. Hunt dates and permit application procedures will be available at Refuge Headquarters in July. We restrict hunters using a muzzleloader during this hunt to areas where we allow modern firearms.
4. We will conduct guided quota youth deer hunts and guided quota physically challenged deer hunts in the Greenlea Bend area typically in December and January. Hunt dates and permit application procedures will be available at the Refuge Headquarters in July.
5. We will conduct a refuge-wide youth deer hunt during the State-wide youth hunt weekend typically in November. Hunt dates will be available at Refuge Headquarters in July. Each adult hunter may supervise only one youth. Each participating youth must: be age 8-15, possess proof of completion of an approved Hunter Safety Course, and be accompanied at all times by an adult age 21 or older.
6. Hunters may take only one deer (one buck or one doe) per day during refuge deer hunts except during guided youth and physically challenged hunts where the limit will be one antlerless and one antlered deer per day.
7. We allow turkey hunting the first 16 days of the State turkey season. We will conduct a youth turkey hunt the Saturday and Sunday before the regular State turkey season. You may harvest two bearded turkeys per season. We allow the use and possession of lead shot while turkey hunting on the refuge (see § 32.2(k)). We allow use of nonmotorized bicycles on designated all-terrain vehicle trails. Although you may hunt turkeys without displaying a solid hunter orange cap or vest during your turkey hunt, we do recommend its use.
8. Conditions A3, A7, A9, A11, A13, and B9 apply.
9. In areas posted “Closed Area,” we prohibit big game hunting at any time. “Closed Area”(s), which we designate on the Public Use Regulations brochure map, are closed to all hunts.
10. We allow shotguns that are equipped with a single-piece magazine plug that allows the gun to hold no more than two shells in the magazine and one in the chamber. We allow shotgun hunters to use rifled slugs only when hunting deer. We prohibit hunters using or possessing buckshot while on the refuge. We prohibit target practicing or shooting to unload modern firearms on the refuge at any time. We require hunters to unload and encase all guns transported in automobiles and boats or on all-terrain vehicles (see § 27.42(b) of this chapter). We define loaded as shells in gun or caps on muzzleloader. We allow firearms on the refuge only during the refuge hunting season.
11. We allow muzzleloader hunters to discharge their muzzleloaders at the end of each hunt safely into the ground at least 150 feet (45 m) from any designated public road, maintained road, trail, fire breaks, dwellings, or above-ground oil and gas production facilities. We define a maintained road or trail as one which has been mowed, disked, or plowed and one which is free of trees.
12. We prohibit deer hunters leaving deer stands unattended before the opening day of the refuge archery season, and hunters must remove stands by the end of the last day of the refuge archery season. Hunters must clearly mark stands left unattended on the refuge with the name and address of the owner of the stand. Hunters must remove portable stands from trees daily and place freestanding stands in a nonhunting position when unattended.
13. We require deer hunters using muzzleloaders or modern firearms to display a solid hunter-orange cap on their head and a solid hunter-orange vest over their outermost garment covering their chest and back. Hunters must display the solid hunter-orange items at all times while in the field.
14. We require muzzleloader and modern firearms hunters utilizing ground blinds to display 400 square inches (2,600 cm
15. We require all deer and turkey hunters to report their game immediately after each hunt at the check station nearest to the point of take.
16. We prohibit baiting or the possession of bait while on the refuge at any time. We prohibit possession of chemical baits or attractants used as bait.
17. We require a Tensas River National Wildlife Refuge Access Permit for all big game hunts. You will find the permits on the front of the Public Use Regulations brochure.
1. Hunters must possess and carry a signed refuge permit.
2. We allow waterfowl hunting on the west side of the Ouachita River north of RCW Road. We allow waterfowl hunting on the east side of the Ouachita River outside the Mollicy levee and south of the crude oil pipeline which runs through Township 22N range 4E sections 2, 3, 4 within the levee.
3. We allow woodcock hunting west of the Ouachita River. We allow woodcock hunting on the east side of the Ouachita River outside the Mollicy levee and south of the crude oil pipeline which runs through Township 22N range 4E sections 2, 3, 4 within the levee.
4. We allow dove hunting during the first 3 days of the State season east of the Ouachita River outside the Mollicy levee and south of the crude oil pipeline which runs through Township 22N range 4E sections 2, 3, 4 within the levee.
5. We allow waterfowl hunting until 12 p.m. (noon) during the State season.
6. We will hold a limited youth waterfowl lottery hunt during the State Youth Waterfowl Hunt. Application instructions are available at the refuge office.
7. Hunters may enter the refuge no earlier than 4 a.m.
8. We prohibit hunting within 100 feet (30 m) of the maintained rights of ways of roads, from or across ATV trails, and from above-ground oil, gas, or electrical transmission facilities.
9. We prohibit leaving boats, blinds, and decoys unattended.
10. We allow dogs to locate, point, and retrieve when hunting for migratory game birds. We prohibit the use of dogs for hog hunting.
11. Youth hunters under age 16 must successfully complete a State-approved hunter education course. While hunting, each youth must possess and carry a card or certificate of completion. Each youth hunter must remain within sight and normal voice contact of an adult age 21 or older. Each adult may supervise no more than two youth hunters.
12. We prohibit any person or group to act as a hunting guide, outfitter, or in any other capacity that pay other individual(s), pays or promises to pay directly or indirectly for service rendered to any other person or persons hunting on the refuge, regardless of whether such payment is for guiding, outfitting, lodging, or club membership.
1. Conditions A1, A8, A9, A11, and A12 (to hunt upland game) apply.
2. We allow hunting west of the Ouachita River. We allow hunting on the east side of the Ouachita River outside the Mollicy levee and south of the crude oil pipeline which runs
3. We prohibit possession of firearms larger than .22 caliber rimfire, shotgun slugs, and buckshot.
4. We allow hunting of raccoon and opossum during the daylight hours (legal sunrise to legal sunset) of rabbit and squirrel season. We allow night hunting (legal sunset to legal sunrise) during December and January, and we allow use of dogs for night hunting. We prohibit the selling of raccoon and opossum taken on the refuge for human consumption.
5. We allow the use of dogs to hunt squirrel and rabbit after the last refuge Gun Deer Hunt.
6. To use horses and mules to hunt raccoon and opossum at night, hunters must first obtain a special permit at the refuge office.
7. Hunters may enter the refuge no earlier than 4 a.m. and must exit no later than 2 hours after legal shooting hours.
8. We allow hunting of beaver and coyote during all open refuge hunts with weapons legal for the ongoing hunt.
1. Conditions A1, A8, A9, A12 (to hunt big game), and B7 apply.
2. We allow general gun deer hunting on the following days: the first consecutive Saturday and Sunday of November; the Friday, Saturday, and Sunday following Thanksgiving Day; and the second Saturday and Sunday after Thanksgiving Day. We allow archery deer hunting during the entire State season.
3. We allow deer and feral hog hunting west of the Ouachita River. We allow deer hunting on the east side of the Ouachita River outside the Mollicy levee and south of the crude oil pipeline which runs through Township 22N range 4E sections 2, 3, 4 within the levee.
4. The daily bag limit is one either-sex deer. The State season limit applies.
5. Archery hunters must possess and carry proof of completion of the International Bowhunters' Education Program.
6. We prohibit leaving deer stands, blinds, and other equipment unattended.
7. Deer hunters must wear hunter orange as per State deer hunting regulations on Wildlife Management Areas.
8. We prohibit hunters placing stands or hunting from stands on pine trees with white-painted bands/rings.
9. Youth hunters under age 16 must successfully complete a State-approved hunter education course. While hunting, each youth must possess and carry a card or certificate of completion. Each youth hunter must remain within sight and normal voice contact of an adult age 21 or older. Each adult may supervise no more than one youth hunter.
10. We will hold a limited lottery youth turkey hunt on the Saturday of the State youth turkey hunt weekend.
11. We prohibit possession or distribution of bait or hunting with the aid of bait, including any grain, salt, minerals, or other feed or nonnaturally occurring attractant on the refuge (see § 32.2(h)).
12. We allow hunting of hog during all open refuge hunts with weapons legal for the ongoing hunt.
1. We require refuge permits for all hunters regardless of age. We require that hunters possess a valid State hunting license, any required stamps, and a photo identification. Permits are nontransferable.
2. All refuge hunters must abide by the terms and conditions of the refuge permit.
B.
1. We allow a youth hunt only (age 16 and under). Youth hunters age 14 and under must be accompanied by an adult age 18 or older.
2. We prohibit vehicles and hunters from entering the refuge before 5:30 a.m. They must leave the refuge each day as soon as possible after legal hunting hours.
3. We prohibit the use of motorized boats.
4. We prohibit the construction or use of permanent blinds, stands, or scaffolds (see § 27.92 of this chapter).
5. You must remove all personal property, which includes boats, decoys, and blinds brought onto the refuge, each day of hunting (see §§ 27.93 and 27.94 of this chapter).
6. We allow the use of hunting dogs, provided the dog is under the immediate control of the hunter at all times.
7. We prohibit the use of snowmobiles and ATVs.
8. We prohibit camping.
1. We allow hunting from the opening of the State's deer firearms season to the close of the regular State's ruffed grouse and sharp-tailed grouse seasons.
2. You may possess only approved nontoxic shot while in the field (see § 32.2(k)).
3. We prohibit hunting in the closed areas around the administrative buildings.
4. Conditions A2 through A8 apply.
1. We are currently closed to moose hunting until the population recovers.
2. Conditions A1, A3, A4, A5, A7, and A8 apply.
3. We allow scouting the day before the youth deer hunt and the deer firearms hunt.
4. We open archery hunting at the start of the State's deer firearms season and close according to the State's archery deer season.
5. We allow muzzleloader deer hunting following the State's muzzleloader season.
6. Hunters may use portable stands. We prohibit construction or use of permanent blinds, permanent platforms, or permanent ladders.
7. You must remove all stands and personal property from the refuge by
8. We prohibit hunters from occupying illegally set up or constructed ground and tree stands (see condition C2).
9. We allow the use of wheeled, nonmotorized conveyance devices (
10. We prohibit vehicles and hunters from entering the refuge during the youth deer hunt until after 6 a.m.
1. We only allow waterfowl hunting during the State's Youth Waterfowl Day.
2. Youth waterfowl hunters must be age 15 and under.
3. We will only allow waterfowl hunting in refuge tracts within Audubon and Riceville Townships.
4. We prohibit the use of motorized boats.
5. We prohibit the construction or use of permanent blinds, stands, or scaffolds.
6. You must remove all personal property, which includes boats, decoys, blinds, and blind materials (except for blinds made entirely of marsh vegetation) brought onto the refuge, following that day's hunt (see §§ 27.93 and 27.94 of this chapter).
7. We allow the use of hunting dogs, provided the dog is under the immediate control of the hunter at all times during the State-approved hunting season.
8. We prohibit entry to hunting areas earlier than 2 hours before legal shooting hours.
1. We only allow hunting during the State's muzzleloader season with muzzleloaders.
2. Hunters may use portable stands. We prohibit construction or use of permanent blinds, permanent platforms, or permanent ladders.
3. Hunters must remove all stands and personal property from the refuge at the end of each day's hunt (see §§ 27.93 and 27.94 of this chapter).
4. Condition A8 applies.
1. We will allow archery deer hunting to take place on refuge lands owned by the Service that constitute tracts greater than 20 acres (8 ha).
2. We prohibit hunting within a designated, signed area around the Coaster Classroom and Northern Great Lakes Visitor Center boardwalk.
3. We prohibit the construction or use of permanent blinds or platforms.
4. Hunters may use ground blinds or any elevated stands only if they do not damage live vegetation, including trees (see § 27.61 of this chapter).
5. Hunters may construct ground blinds entirely of dead vegetation from the refuge lands.
6. Hunters must remove all stands and blinds from the refuge at the end of each day's hunt (see §§ 27.93 and 27.94 of this chapter).
7. We allow motorized vehicles only on public roads and parking areas (see § 27.31 of this chapter).
Federal Trade Commission
Final Rule Amendments
The Commission adopts two final amendments to the TSR. The first is an amendment making explicit a prohibition in the TSR on telemarketing calls that deliver prerecorded messages without a consumer's express written agreement to receive such calls. This amendment also requires that all prerecorded telemarketing calls provide specified opt-out mechanisms so that consumers can opt out of future calls. The amendment is necessary because the reasonable consumer would consider prerecorded telemarketing messages to be coercive or abusive of such consumer's right to privacy.
The second amendment modifies the method for measuring the maximum call abandonment rate prescribed by the TSR’s call abandonment safe harbor. The new method will permit sellers and telemarketers to calculate call abandonment rates for a live calling campaign over a thirty-day period, or any part thereof. This amendment is necessary because the current “per day” standard effectively precludes the use of predictive dialers with small calling lists.
The amendments are effective October 1, 2008. Compliance with 16 CFR 310.4(b)(4)(i) is required beginning October 1, 2008. Compliance with 16 CFR 310.4(b)(1)(v) is required beginning December 1, 2008, except that compliance with 16 CFR 310.4(b)(1)(v)(A) is not required until September 1, 2009.
Requests for copies of these amendments to the TSR and this Statement of Basis and Purpose (“SBP”) should be sent to: Public Reference Branch, Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580. The complete record of this proceeding is also available at that address. Relevant portions of the proceeding, including the final amendments to the TSR and SBP, are available at
Craig Tregillus, (202) 326-2970, Division of Marketing Practices, Room 286, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580.
This document states the basis and purpose for the Commission’s decision to adopt two proposed amendments to the TSR
In adopting the amendment explicitly prohibiting prerecorded calls delivered to consumers who have not agreed to receive them, the Commission has modified the proposed amendment in several respects as suggested by the public comments. The most significant revisions will: (1) Require sellers and telemarketers to provide a keypress or voice-activated opt-out mechanism promptly at the outset of any prerecorded message call that could be answered by a consumer as of December 1, 2008; (2) Make the amendment applicable to prerecorded messages left on answering machines and voicemail services, requiring that any prerecorded message call that could be answered by such a device promptly disclose at the outset a toll-free number that a consumer may use to assert a request not to receive such calls; and (3) Permit sellers to obtain the consumer’s signed, written agreement to receive calls delivering prerecorded messages in any manner permitted by the Electronic Signatures In Global and National Commerce Act (“E-SIGN Act” or “E-SIGN”).
Beginning on December 1, 2008, sellers and telemarketers will be required to comply with the new requirement to include an automated interactive opt-out mechanism pursuant to Section 310.4(b)(1)(v)(B). This requirement applies to calls delivering prerecorded messages, whether answered by the recipient in person, or answered by an answering machine or voicemail service.
In addition, as of December 1, 2008, the Commission will terminate its previously announced policy of forbearing from bringing enforcement actions against sellers and telemarketers who, in accordance with a safe harbor that was proposed in November 2004, make calls that deliver prerecorded messages to consumers with whom the seller has an established business relationship (“EBR”). Nevertheless, the Commission has determined that sellers and telemarketers may continue to place calls that deliver prerecorded messages to consumers with whom they have an EBR, provided they do so in compliance with the new requirement in § 310.4(b)(1)(v)(B), that prerecorded message calls include an automated interactive keypress or voice-activated opt-out mechanism. As of September 1, 2009, calls that deliver prerecorded messages will no longer be permitted to be placed based solely on the existence of an EBR, and calls that deliver prerecorded messages will be permitted to be placed only to consumers who have given their prior express written agreement to receive such calls.
The Commission also has decided to adopt two exemptions from the requirements of the prerecorded call amendment that commenters strongly advocated. First, all healthcare-related calls subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
In addition, the Commission is adopting, without modification, an amendment proposed in response to a petition from the Direct Marketing Association (“DMA”) to change the method for measuring the maximum call abandonment rate prescribed by the TSR’s call abandonment safe harbor. The new method will permit sellers and
The issues under consideration in this proceeding arise under the “call abandonment” provisions of the TSR. These issues were first presented by two industry petitions. The first was a request from Voice-Mail Broadcasting Corporation (“VMBC”)
On November 17, 2004, the Commission published a Notice of Proposed Rulemaking (“NPRM”) to amend the TSR to create the safe harbor requested by VMBC, and sought public comment on that proposal and the DMA petition.
Section 310.4(b)(1)(iv) of the TSR prohibits telemarketers from abandoning calls. An outbound telemarketing call is “abandoned” if the telemarketer does not connect the call to a sales representative within two seconds of the completed greeting of the person who answers. Call abandonment is an unavoidable consequence of the use of “predictive dialers”—telemarketing equipment that increases the productivity of telemarketers by placing multiple calls for each available sales representative. Predictive dialers maximize the amount of time representatives spend speaking with consumers and minimize the time they spend waiting to speak with a prospective customer. An inevitable side effect of this functionality, however, is that the dialer will sometimes reach more consumers than can be connected to available sales representatives. In these situations, the dialer either disconnects the call (resulting in a “hang-up” call) or keeps the consumer connected with no one on the other end of the line in case a sales representative becomes available (resulting in “dead air”). The call abandonment prohibition, added to the TSR pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”),
Notwithstanding the prohibition on call abandonment, § 310.4(b)(4) of the TSR contains a safe harbor designed to preserve telemarketers’ ability to use predictive dialers, subject to four conditions. The safe harbor is available if the telemarketer or seller: (1) Abandons no more than three percent of all calls answered by a person (as opposed to an answering machine); (2) Allows the telephone to ring for fifteen seconds or four rings; (3) Plays a prerecorded message stating the name and telephone number of the seller on whose behalf the call was placed whenever a sales representative is unavailable within two seconds of the completed greeting of the person answering the call; and (4) Maintains records documenting compliance.
In a
In view of the denial of the proposed amendment to create a safe harbor for EBR-based prerecorded telemarketing calls, the notice also announced that the Commission would terminate its policy of forbearing from bringing enforcement actions against sellers and telemarketers using prerecorded telemarketing calls (“forbearance policy”) effective January 2, 2007. In response to four petitions seeking an extension of the forbearance policy, however, the Commission announced in a
The Commission has decided to adopt the proposed amendment with modifications suggested by commenters. As proposed, the final amendment will permit prerecorded message calls by or on behalf of a seller only to a consumer who has signed an express written agreement authorizing the seller to place such calls to his or her designated telephone number. However, the amendments will permit a seller to obtain agreements from consumers by any electronic means authorized by the E-SIGN Act. Moreover, the amendment will apply not only to calls answered by a person as proposed, but also to prerecorded messages left on an answering machine or voicemail system.
The final amendment will require that any permitted call delivering a prerecorded message must: (1) Allow the consumer’s telephone to ring for at least 15 seconds or 4 rings before an unanswered call is disconnected; (2) Begin the prerecorded message within 2 seconds of the completed greeting of the person called; (3) Disclose promptly at the outset of the call the means by which the person called may assert a Do Not Call request at any time during the message; (4) If the call could be answered in person, promptly make an automated interactive voice and/or keypress-activated opt-out mechanism available at all times during the message that automatically adds the telephone number called to the seller’s entity-specific Do Not Call list and that thereafter immediately terminates the call; (5) If the call could be answered by an answering machine or voicemail service, promptly provide a toll-free telephone number that also allows the person called to connect directly to an automated voice and/or keypress-activated opt-out mechanism that is accessible at any time after receipt of the message; and (6) Comply with all other requirements of the TSR and applicable federal and state laws.
In order to reduce initial compliance costs and burdens, the Commission will defer the effective date of the requirement that prerecorded calls provide an automated interactive opt-out mechanism for three months, and the express written agreement requirement for twelve months, to ensure that the industry will have adequate time to prepare to comply. This will permit sellers and telemarketers to continue placing prerecorded calls to consumers with whom the seller has an EBR until the written agreement requirement takes effect.
In addition, healthcare-related calls subject to HIPAA will be exempt from the amendment, and calls placed by for-profit telemarketers on behalf of non-profit entities will be exempt from the written agreement requirement of the amendment but subject to the opt-out requirements.
The Commission’s decision to adopt the proposed amendment is based on a careful review, consideration, and analysis of the entire record,
More than 13,000 consumer comments previously submitted in this proceeding opposed the creation of a safe harbor for prerecorded telemarketing calls.
Citing their personal experience, a number of the consumers who support the proposed amendment place little faith in industry assurances “that they will self regulate and not abuse their customers.”
In light of this type of experience on the part of individual consumers, consumer advocates do “not accept the argument that companies will not abuse the EBRs that they have with consumers,” contending that there is “no guarantee of self-restraint and every
Consumers are adamant that prerecorded calls are abusive of their privacy. A typical expression of this view is that, “I consider myself to be a ‘reasonable’ consumer and I do consider prerecorded telemarketing sales calls abusive to my privacy rights.”
Other consumers find prerecorded calls not only abusive, but coercive,
Consumer groups assert that consumers find EBR-based prerecorded messages “coercive or abusive” of their privacy because “[f]or years and at every opportunity, consumers have weighed in against all manner of unwanted telemarketing calls, whether from ‘live’ callers, prerecorded messages or [abandoned call] hang-ups.”
Two of the consumer group comments also stress that the value to consumers of prerecorded sales calls is “minimal” or “negligible” compared to the harm such calls inflict on their privacy.
Comments that support the proposed amendment cite both direct and indirect costs consumers incur from the receipt of prerecorded messages—wholly apart from their loss of privacy and consumers’ subsidization of such calls through payments for their telephone service. NCL notes that with “the ubiquitous use of cell phones” the cost to consumers of listening to unwanted prerecorded sales messages on their cell phones “would put consumers at an economic disadvantage” when they access their voicemail or answering machines remotely or forward landline
A number of consumers object to prerecorded and other telemarketing calls taking a “free ride” on the telephone service they pay for, and interfering with its intended use. They contend that they pay for a telephone to provide a “communication device for my family, friends and work,”
Finally, several comments cite potential indirect safety costs. A police detective asserts that the fact that prerecorded calls do not disconnect “creates a serious problem should you need immediate access to your phone for a 9-1-1 call.”
In anticipation of industry arguments that prerecorded calls with automated keypress opt-out mechanisms should be allowed, AARP, NCL, and individual consumers highlight the problems of opting out from prerecorded sales calls. AARP emphasizes that under the proposed amendment, seniors and others will be harmed if they “initially determine [prerecorded sales] calls would be of interest” and agree to receive them, because “if a consumer subsequently decides to change their ‘opt-in’ with the seller it will be confusing, and possibly difficult . . . [to retract it] without a live person to speak with.”
NCL argues that interactive opt-out technologies provide no guarantee that consumers will be able to halt repeated prerecorded calls that are abusive. NCL emphasizes that “if the opt-out is automatic,” consumers will be unable to “ask questions about why they have received the call” or to obtain information “that would help them determine whether the call may have violated their rights” so that they can report the violation for law enforcement action.
Several comments from individual consumers assert that the opt-out options in the prerecorded messages they have experienced are burdensome and ineffective.
Comments from 73 telemarketers, businesses that use prerecorded calls, their trade associations and technology providers overwhelmingly opposed the proposed amendment, as did 187 of the consumer comments.
One industry comment argues that “a substantial number” of the 13,000 consumer comments opposing a prerecorded call safe harbor should be disregarded because they express dissatisfaction over “the fact that some telemarketing calls continue to be permitted at all” or over the breadth of the EBR definition.
Yet other industry comments contend that the Commission should disregard consumer comments that indiscriminately lump EBR-based telemarketing calls delivering a prerecorded message together in the same hated category as “cold call” message blasting.
A few industry comments assert that consumers who previously opposed prerecorded telemarketing were responding largely to their experience with “indiscriminate ‘blast’ telemarketing” calls that lacked the type of interactive opt-out mechanisms available now.
Several comments protest that requiring an agreement in writing to receive calls delivering prerecorded messages would be confusing to consumers who are used to receiving these messages.
Other industry comments cite the burden and cost of contacting each person in existing EBR customer databases to obtain their agreement to receive prerecorded calls.
The industry comments stress that prerecorded message telemarketing costs significantly less, and is more effective than the only alternatives that are available—direct mail,
Several comments point out that the higher cost of using such alternative marketing methods will be passed on to consumers if, as they fear, businesses are unable to obtain the consent of a significant number of their customers to receive prerecorded messages.
Finally, some comments that oppose the proposed amendment argue that by lumping sophisticated interactive message systems that may include advanced voice recognition together with non-interactive systems, the proposed amendment would “stifle the advancement of potentially beneficial media.”
Industry commenters submitted three online consumer preference surveys as indicative of consumer support for telemarketing calls that deliver a prerecorded message with a prompt opt-out.
Minutepoll submitted a survey of 388 consumers and advanced it as evidence that there is a “significant minority” of consumers who prefer prerecorded calls to live calls. Most of these survey respondents—82 percent—said they had placed their phone numbers on the National Do Not Call Registry. When asked in the abstract, 70.1 percent stated that they would prefer “live operator” calls, whereas 29.9 percent said they would prefer a prerecorded message.
A second online survey of 5,328 consumers conducted by Forrester Research for VMBC purports to show that consumers prefer prerecorded over live calls “on average at a rate of two to one, across different age, income, geographic, and technological groups.”
The findings of a third online survey of some 470 Internet users, 78 percent of whom had received an “automated” call within the past 12 months,
A number of industry comments cite indirect evidence of consumer acceptance of prerecorded message calls that incorporate an interactive opt-out mechanism. Summing up this line of argument, DMA asserts that “over the past two years, companies that use the prompt opt-out as mandated by the safe harbor have found that the opt-out rate is fairly low,” and that this shows “that consumers often welcome prerecorded messages from entities with which they have [an EBR].”
A few comments also assert that affirmative actions taken by consumers in response to interactive opt-out prerecorded messages manifest consumer satisfaction with such calls.
A number of comments contend that this evidence of the existence of a “subset” of consumers who may want and “expect to receive” at least some prerecorded telemarketing messages rebuts any possible contention that prerecorded telemarketing messages are “coercive or abusive,”
Some of the industry comments continue to urge the Commission to conform the TSR to FCC regulations that permit calls delivering prerecorded messages if a seller has an EBR with the called consumer. A few recommend reconsideration and adoption of the safe harbor for prerecorded message calls that the Commission had originally proposed in response to the VMBC request. Most, however, advocate one or more refinements of the original VMBC safe harbor proposal in an effort to reduce the likelihood that prerecorded calls would be “coercive or abusive.”
Some industry comments continue to insist that the TSR’s existing EBR exemption from the prohibition against calls to numbers listed on the National Do Not Call Registry should apply equally to live calls and prerecorded calls.
A few industry comments ask the Commission to revisit creation of the EBR-based safe harbor for prerecorded messages it previously proposed in response to the VMBC request.
Several comments question some of the concerns the Commission expressed in rejecting its original safe harbor proposal. One contends that the evidence in the record that prerecorded messages could pose a health and safety threat is “anecdotal,” and that “any concerns about isolated instances of prerecorded calls tying up a phone line so that emergency calls cannot get through would be completely avoided” by provision of an automated interactive opt-out mechanism.
Nevertheless, two industry comments oppose any reconsideration of the original safe harbor proposal. One contends that the FTC was right to reject the proposal as “too unreliable or too burdensome for the consumer,” criticizing its contemplated reliance on live operators to implement company-specific opt-outs in particular.
Considering this viewpoint and industry’s previous opposition to the original safe harbor proposal, the Commission concludes that the prior safe harbor proposal should not be resuscitated. This conclusion is bolstered by the many divergent industry suggestions for modifying the proposal, discussed immediately below, and, of course, the strong consumer opposition to the original proposal and support for the current proposal.
The great majority of the industry comments ask the Commission to revisit and refine its prior safe harbor proposal, rather than adopt the proposed amendment. They argue that a safe harbor for prerecorded telemarketing messages with an interactive opt-out is necessary for businesses to provide many important and convenient messages to consumers who wish to receive them.
In urging the Commission to allow telemarketing calls that deliver prerecorded messages and require that they include an interactive opt-out mechanism,
Most of the industry commenters now are willing to support a safe harbor for prerecorded calls to EBR customers that includes an interactive opt-out mechanism utilizing Interactive Voice Response (“IVR”) technology.
The industry proposals for modifying the original safe harbor begin by suggesting that prerecorded messages be required to provide an interactive keypress or voice-activated mechanism that would allow consumers to make a company-specific opt-out request after the message informed consumers of this option at the outset of the call.
Some comments assert that the simplicity of such a mechanism will make prerecorded messages convenient and efficient for consumers and businesses.
The comments differ, however, on the precise details of how a prompt keypress opt-out option should function.
A number of the industry comments recommend adding a provision to a safe harbor for prerecorded message calls that would require an indication that the call is based on an EBR.
Several comments indicate that limiting telemarketing to no more than one call a month is regarded, at least by some in the industry, as a “best practice.”
Two comments also suggest that limits on the length of prerecorded messages may be regarded as a “best practice.” One indicates that as a “best practice, not only does it limit contact with its client’s customers to once a month, but also limits the average
Other industry comments propose one or more additional requirements that would restrict the scope of an EBR for prerecorded calls in answer to consumer objections about “calls from sellers that use a one-time, insignificant purchase, or even a mere inquiry, as a license to bombard the consumer with solicitations relating to all aspects of the seller’s business.”
The question the Commission must consider in determining whether to adopt a revised safe harbor with any of the modifications proposed by the industry comments is whether such a safe harbor would serve the public policy interests articulated in the Telemarketing Act. In making that assessment, the Commission continues to employ the same analytical framework used in considering the prior prerecorded call safe harbor proposal:
We begin, therefore, with the first question for analysis: whether consumer aversion to prerecorded calls does not apply when the calls are made to EBR customers. As the Commission previously stated, if consumers have little or no aversion to prerecorded calls to EBR customers, the fact that such calls avoid the twin harms of “hangups” and “dead air” would weigh heavily in favor of the adoption of a new safe harbor.
Almost all of the few consumer comments in the record that favored the prior safe harbor proposal for prerecorded calls confined their support for such calls to informational messages,
However, as previously noted, the comments opposing the proposed amendment now emphasize for the first time that the exclusion of purely informational reminder messages from TSR coverage still leaves many convenient prerecorded messages covered by the definition of “telemarketing,” because they are both informational and involve a direct or indirect solicitation.
Industry commenters argue, moreover, that many of the consumer comments that oppose prerecorded calls should be discounted because they do not specifically state their opposition to prerecorded calls with the various interactive opt-out options that industry members now advocate. The industry would have the Commission parse out the more than 13,000 consumer comments, and ignore those which object to non-interactive prerecorded
The industry comments appear to recognize, however, that the majority of consumer comments that oppose prerecorded calls cannot be placed into any of these categories because they do not provide sufficient information to permit such a classification. The industry presumes, instead, that because prerecorded messages with interactive opt-outs were not widely used at the time of the prior comment period, the comments from consumers at that time could not have been addressing them. For that reason, the industry contends that the majority of consumer comments that cannot be categorized could not have been objecting to prerecorded messages with an interactive opt-out, and should be disregarded.
The industry’s critique of the consumer comments ignores the fact that a few prerecorded call telemarketers had been using interactive opt-out technology that consumers may have experienced before the Commission requested public comment on a prerecorded message safe harbor. Industry’s advocacy also overlooks the clear majority of the most recent consumer comments that specifically object to receiving prerecorded calls with an interactive opt-out mechanism. Further, industry neglects to account for a fact not previously placed on the record—that the purportedly quick and easy opt-out provided by an interactive mechanism at most may be accessible by no more than 15 to 20 percent of the consumers who receive prerecorded messages, because at least 80 to 85 percent of these messages end up on consumers’ answering machines, where consumers are powerless to avoid the greater burden of calling the seller in an effort to be placed on an entity-specific opt-out list.
The Commission noted, when it denied the request for a safe harbor for prerecorded messages delivered to EBR customers, that the consumer comments in the record provided “compelling evidence that consumer aversion to prerecorded message telemarketing—regardless of whether an established business relationship exists—has not diminished since enactment of the TCPA, which, in no small measure, was prompted by consumer outrage about the use of prerecorded messages.”
The Minutepoll survey shows that when asked in the abstract, 70 percent of the respondents said that they prefer live telemarketing calls, and only 30 percent said they prefer prerecorded calls.
The Silverlink Survey appears to confirm what the other two surveys suggest—that at best a comparatively small minority of consumers affirmatively appreciate receiving prerecorded telemarketing calls.
Thus, far from providing compelling evidence of consumer acceptance of prerecorded telemarketing messages with an interactive opt-out option, the industry surveys manifest widespread consumer disaffection with such calls. With these surveys as background, the other evidence proffered by the industry to show consumer approval of prerecorded messages—opt-out rates and consumer actions in response to prerecorded messages—is not only indirect, but singularly unpersuasive.
As previously noted, most of the industry claims about low opt-out rates fail to provide sufficient information for an assessment of the claims, either because they combined rates for calls that had an interactive opt-out with those that did not, based the rate on
The fundamental problem with opt-out rates and other indirect measures of consumer acceptance of prerecorded calls is that consumers who do not wish to be bothered by prerecorded telemarketing messages, if they do not simply answer and hang up, may let the message roll over to an answering machine where they can delete it later.
After a careful review of the record in its entirety, it is the Commission’s considered opinion that the evidence shows that a substantial majority of consumers dislike telemarketing calls that deliver prerecorded messages, with or without an EBR or even an interactive opt-out mechanism, but that a comparatively small minority of consumers may, in fact, appreciate the convenience of EBR-based prerecorded calls when they provide an interactive opt-out mechanism, at least in some circumstances.
The entire record in this proceeding is clear that an overwhelming number of consumers hate prerecorded calls, and consider them a gross invasion of their privacy at home. Although the record also now contains some limited evidence of consumer willingness to accept some telemarketing calls that deliver a prerecorded message and include an interactive opt-out mechanism, only a small minority of consumers say they want to receive such calls.
The relatively few consumers who want to receive interactive prerecorded telemarketing messages primarily say they value such messages because they find them a “useful” convenience in their busy lives, or because they regard them as less invasive than live conversations with a telemarketer. The greater majority who object to prerecorded telemarketing messages in general, or to interactive messages in particular, consider them an intrusive and disruptive invasion of their privacy at home that amounts to harassment.
Any argument that the harm of an invasion of privacy is outweighed by the value of prerecorded telemarketing messages as a “useful” convenience, or their value as a means of avoiding the possible discomfort of conversing with a telemarketer, would be untenable unless the privacy invasion were relatively minor. For the great majority of consumers, however, the ringing of the telephone is anything but a minor invasion of the privacy of their homes, particularly when the call they answer converts a two-way instrument of communication into a one-way broadcast of a prerecorded advertisement, even if that broadcast has some interactive features.
The Commission is satisfied that there is nothing new in the record that would warrant a different conclusion on this issue than it reached before in denying the VMBC request for a safe harbor for prerecorded messages with an interactive opt-out mechanism. The fact that the record now includes evidence that some consumers would find interactive prerecorded messages useful does not outweigh the significant harm to the privacy interests of consumers, as attested by the great majority of consumer comments in the record and by the survey data submitted. This argues for choice in this matter—to allow those consumers who want such calls to consent to receive them, while protecting the large majority who deplore them from having to receive and opt out, one by one, from each seller’s
The Commission emphasizes that this conclusion is by no means solely the result of the relative percentages of consumers who say they oppose or support prerecorded telemarketing messages, or who do or do not perceive that their privacy at home is harmed by receiving them. The conclusion is influenced in no small part by the considerable value Congress clearly attached to preserving the privacy of citizens in their homes when it enacted the Telemarketing Act, and specifically directed the Commission to “include in [the TSR] a requirement that telemarketers may not undertake a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer’s right to privacy.”
The third potential rationale for creation of a new safe harbor as indicated in the NPRM is that sellers might self-regulate the number of prerecorded messages they send in order to preserve the goodwill of established customers. The Commission determined that this consideration could not support such a safe harbor. Some industry comments submitted in response to the NPRM challenge this determination, but not persuasively. The Commission previously concluded that: (1) While well-established businesses with brand or name recognition may have incentives to exercise restraint, the same is not necessarily true for new entrants or small businesses in highly competitive markets; (2) A safe harbor for prerecorded calls would expose consumers to prerecorded calls from every seller from whom they had made a single purchase within the past 18 months; (3) Sellers would have less incentive to exercise self-restraint with respect to customers who make inquiries, because they would have no existing customers to lose, but only customers to gain; (4) The likelihood that industry-wide self-restraint would be effective requires consideration of the industry’s record of compliance; (5) Although overall compliance is quite good, not all covered entities are complying, and that fact presents a particular problem with respect to consumer concerns about the breadth of the industry’s interpretation of what constitutes an EBR; and (6) The significantly lower cost of prerecorded telemarketing calls, compared to live calls, will create economic incentives to increase the number of prerecorded telemarketing calls consumers receive in their homes.
Some in the industry assert that the Commission gave “inadequate consideration” to the argument that sellers have strong incentives to avoid alienating existing customers, 80 percent of whose telephone numbers may be listed on the Registry. These comments argue that because the availability of an interactive opt-out mechanism could easily lead to the loss of the right to contact many EBR customers by telephone, sellers would exercise caution in using prerecorded messages.
Some industry comments further criticize the Commission’s concern about whether new entrants and small businesses in highly competitive markets would have sufficient incentives to exercise the same self-restraint, contending that they share the same incentives and are less likely than established businesses to use prerecorded telemarketing calls.
Based on the entire record and its enforcement experience, three considerations lead the Commission to conclude that, if anything, it may have overestimated the incentives for industry self-restraint in the use of prerecorded telemarketing messages. First, any such self-restraint is called into question by the more than 100 consumer complaints a month that the Commission has been receiving about prerecorded telemarketing calls—the fifth highest number of all TSR violation complaints.
A number of comments also object to the Commission’s consideration of the industry’s record of compliance with the TSR in assessing the likelihood that industry-wide self-restraint would be effective. They argue, in essence, that it is unfair to judge industry members who try to comply with the law by the actions of bad actors who are unlikely to comply with any TSR requirement unless brought to account by law enforcement action.
Finally, the industry challenges consumer and Commission concerns that industry-wide self-restraint would be unlikely to prevent an increase in prerecorded telemarketing calls as “speculative” and “not supported by the record,” notwithstanding an industry comment acknowledging that such an increase is “theoretically possible.”
Because the record does not provide persuasive support for any of the three potential justifications for according special treatment to interactive prerecorded telemarketing calls to EBR customers, there is no justification for creation of a safe harbor for such calls. Accordingly, the Commission has decided not to reconsider its previous denial of the VMBC request for a safe harbor.
As discussed earlier in this notice, the October 2006 NPRM proposed and sought public comment on an amendment to the TSR that would permit prerecorded telemarketing calls only to consumers who provided their express written agreement to receive them.
Consumers find non-interactive prerecorded calls abusive because they are powerless to interact with a recording.
The industry comments strongly contest, however, the Commission’s authority to prohibit the delivery of prerecorded telemarketing messages that provide an
The Commission does not find this argument persuasive. As the Commission noted when it amended the TSR to establish the Registry, “the company-specific approach is seriously inadequate to protect consumers’ privacy,” not only from calls from a single telemarketer, but especially when the volume of telemarketing calls from multiple sources is so great that “consumers find even an initial call from a telemarketer or seller to be abusive and invasive of privacy.”
Second, the industry argues that the record cannot support a finding that interactive prerecorded messages are “coercive or abusive” because the consumer comments submitted during the initial comment period in 2004 do not explicitly object to
Having reviewed the entire record, the Commission concludes that the reasonable consumer would consider interactive prerecorded telemarketing messages to be coercive or abusive of such consumer’s right to privacy. The mere ringing of the telephone to initiate such a call may be disruptive; the intrusion of such a call on a consumer’s right to privacy may be exacerbated immeasurably when there is no human being on the other end of the line. The Commission is inclined to agree that prerecorded telemarketing messages, whether interactive or non-interactive, convert the telephone from an instrument for two-way conversations into a one-way device for transmitting advertisements, as one industry comment notes. The Commission believes that the other narrowly focused industry arguments to the contrary disregard the intrusiveness and disruptiveness of calls delivering prerecorded messages, and seriously underestimate the very high value consumers place on their privacy at home.
In reaching this conclusion, the Commission remains mindful of industry concerns about the impact of this determination, and appreciates the potential consequences for law-abiding industry participants. For this reason—and out of consideration for the minority of consumers who may wish to receive prerecorded messages—the Commission declines to adopt the suggestion of two consumer groups that prerecorded telemarketing calls be banned completely.
The Commission is also mindful of the legitimate interests of both sellers and consumers in communicating immediately following a sale. The Commission therefore wishes to emphasize that prerecorded messages communicating delivery or service dates or times, and similar information, are informational calls that fall outside the ambit of the TSR’s regulation of “telemarketing.” Thus, sellers may continue to use prerecorded messages for those purposes without restriction.
Finally, the Commission notes that it is aware that the technology used in making prerecorded messages interactive is rapidly evolving, and that affordable technological advances may eventually permit the widespread use of interactive messages that are essentially indistinguishable from conversing with a human being. Accordingly, nothing in this notice should be interpreted to foreclose the possibility of petitions seeking further amendment of the TSR or exemption from the provisions adopted here.
The public comments on the proposed amendment urge several revisions that the Commission has taken into consideration in refining it. The comments variously advocate: (1) modification of the requirement for a signed, written agreement to give sellers greater flexibility in obtaining consumer consent to receive prerecorded message calls; (2) clarification of what disclosures sellers must make when obtaining a written agreement from a consumer; (3) reconsideration of whether the amendment should apply to messages left on answering machines; and (4) other technical revisions.
Several industry comments request modification of the “written agreement” requirement of the proposed amendment to mitigate compliance burdens. Because “much commerce occurs over the Internet, by phone, and in other simple formats without writing and without a clear signature,”
Similarly, a number of comments request clarification that the E-SIGN Act applies not only to the signature requirement of the proposed amendment,
It is clear from the comments that much of the industry’s opposition to the proposed amendment centers on the requirement of a signed, written agreement to receive prerecorded calls, and the presumed cost and paperwork burden such a requirement would entail. The industry comments appear to overlook the fact that the TSR already expressly permits obtaining consumer signatures electronically as permitted by the E-SIGN Act in other provisions requiring signed written agreements from consumers:
Because it always has been the Commission’s intention to minimize any paperwork cost or burden on businesses by permitting electronic signatures as evidence of compliance with the amendment, the Commission has added an identical footnote to the proposed amendment so that sellers can be assured that written agreements obtained in compliance with E-SIGN will satisfy the requirements of the amendment, such as, for example, agreements obtained via an email or website form, telephone keypress, or voice recording.
The amendment’s written agreement and signature elements are essential, however, to ensure that consumers are adequately apprised of the nature of the request and the fact that they will receive prerecorded calls as a consequence of their agreement.
Point-of-sale agreements can be obtained electronically on POS devices or on paper, at the seller’s option, so long as consumers have a clear choice to receive, or not to receive, prerecorded message calls. Both “Yes” and “No” check boxes would serve that purpose when placed below a straightforward statement such as: “I would like to receive telephone calls with prerecorded messages from ABC Co. that provide special sales offers such as _______ at this telephone number: _______.” Other formulations may serve as well, and although there might be some efficiencies from mandating this language,
A variety of suggestions were advanced as to the potential need for additional disclosures with regard to obtaining a consumer’s written agreement. Two industry commenters, correctly noting that sellers will have the burden of proving that they have obtained a consumer’s written agreement, urged that the Commission adopt limited disclosure requirements for obtaining the written agreements required by the amendment.
Consumers who address the issue agree that the proposed amendment should specify what must be disclosed to consumers before they give their express written agreement to receive prerecorded calls, but take a more expansive view of the disclosures that are needed. One consumer advocate asks that the Commission “propose specific rules to ensure the clarity and simplicity of a seller’s invitation to consumers” to provide their express written agreement, and publish the proposed rules for additional public comment.
Some consumers express concern that sellers’ requests for their agreement to receive prerecorded calls might be hidden in contest entry or other forms,
One consumer comment recommends a disclosure that a consumer’s agreement to receive prerecorded calls is not required as a condition of the purchase of any good or service.
Two consumers also advocate a requirement to disclose whether the seller will sell consumers’ contact information to third parties or share it with affiliates or other companies.
Suggestions that the Commission require disclosures about the risk that prerecorded calls could tie up a consumer’s telephone line and pose a health or safety risk,
The Commission is not persuaded of the need to require any of the other disclosures the consumer comments suggest. Disclosure of the times when prerecorded telemarketing calls may be made is unnecessary
The proposed amendment did not apply to prerecorded messages left on answering machines or voicemail systems, based on the assumption that consumer privacy interests would not be affected to the same degree when the consumer is not at home to answer the telephone and an answering machine or voicemail service picks up the message.
Industry comments uniformly oppose expanding the scope of the proposed amendment to apply to answering machine messages.
No fewer than 60 individual consumers and 4 consumer advocacy organizations, in contrast, unanimously urge extension of the coverage of the amendment to prerecorded messages left on answering machines and voicemail systems.
One consumer comment emphasizes that if the amendment were not modified to apply to prerecorded messages left on answering machines, “nothing would prevent telemarketers from shifting to using
Several consumer commenters consider prerecorded messages left on answering machines as no less intrusive on their privacy than prerecorded calls they answer.
One consumer advocate points out that because consumers can forward landline calls to their cell phones, the cost of listening to prerecorded messages could put them at “an economic disadvantage.”
Three consumer advocates argue that prerecorded messages may fill up the message capacity of consumers’ answering machines and voicemail systems, thereby preventing consumers from receiving other more urgent messages.
In view of the comments, the Commission is now persuaded that privacy interests are implicated to a significant degree when prerecorded messages are delivered to answering machines, rather than to consumers who answer and listen to the messages. Taken as a whole, the comments make it clear that consumers now very often use answering machines not only to pick up messages when they are away, but also to screen out unwanted telemarketing calls when they are at home. The comments suggest that consumers may have adopted this strategy when they faced a deluge of telemarketing calls before the National Do Not Call Registry was established. At any rate, the comments indicate that consumers persist in using this strategy to deal not only with EBR-based calls, but also continuing charitable and political calls that are not subject to the Registry’s restrictions. For consumers who are at home but choose not to answer a prerecorded call, the intrusion of the message as the answering machine records it is hardly less than when a message is delivered when they answer such a call. It is for this reason that the Commission now concludes that a reasonable consumer would consider prerecorded telemarketing messages left on an answering machine or voicemail service to be abusive of such consumer’s right to privacy.
The consumer comments also highlight a perceived increase in the number of calls that are abandoned when a consumer answers the telephone. The fact that the TSR’s call abandonment prohibition does not apply to calls picked up by an answering machine may have created an inadvertent incentive for an increase in prerecorded calls targeting such devices. While calls targeting answering machines do not violate the TSR when sales agents are available to speak with consumers who answer in person, this detail of the call abandonment prohibition may have escaped the notice of some prerecorded call telemarketers. The Commission’s decision to expand the scope of the amendment to include prerecorded messages left on answering machines consequently will have the added benefits of ending any such misunderstanding, and avoiding any similar incentive for targeting answering machines as a result of a difference in regulatory treatment. The Commission accordingly expects that the number of abandoned calls will diminish when the amendment takes effect.
Two industry comments request technical modifications to the amendment as first proposed. One asks that the reference to “outbound telemarketing call” in the amendment be replaced with “outbound telephone call,” the phrase used in the TSR’s call abandonment provision,
The second request for a technical change seeks a revision of the call abandonment prohibition to clarify that it does not apply to calls to consumers who have provided the seller with a signed written agreement to receive prerecorded telemarketing calls, because no live operator will pick up such calls, as the call abandonment prohibition requires.
Pursuant to its authority under the Telemarketing Act to include in the TSR a requirement that telemarketers may not undertake a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer’s right to privacy, the Commission has determined, after careful consideration of the record and for the reasons stated above, that it should adopt a new paragraph (v) to the “Pattern of Calls” prohibitions in Section 310.4(b)(1) of the TSR as follows:
(v) Initiating any outbound telephone call that delivers a prerecorded message, other than a prerecorded message permitted for compliance with the call abandonment safe harbor in § 310.4(b)(4)(iii), unless:
(A) in any such call to induce the purchase of any good or service, the seller has obtained from the recipient of the call an express agreement, in writing, that:
(B) in any such call to induce the purchase of any good or service, or to induce a charitable contribution from a member of, or previous donor to, a non-profit charitable organization on whose behalf the call is made, the seller or telemarketer:
(A) in the case of a call that could be answered in person by a consumer, that the person called can use an automated interactive voice and/or keypress-activated opt-out mechanism to assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A) at any time during the message. The mechanism must:
(1) automatically add the number called to the seller’s entity-specific Do Not Call list;
(2) once invoked, immediately disconnect the call; and
(3) be available for use at any time during the message; and
(B) in the case of a call that could be answered by an answering machine or voicemail service, that the person called can use a toll-free telephone number to assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A). The number provided must connect directly to an automated interactive voice or keypress-activated opt-out mechanism that:
(1) automatically adds the number called to the seller’s entity-specific Do Not Call list;
(2) immediately thereafter disconnects the call; and
(3) is accessible at any time throughout the duration of the telemarketing campaign; and
(C) Any call that complies with all applicable requirements of this paragraph (v) shall not be deemed to violate § 310.4(b)(1)(iv) of this Part.
(D) This paragraph (v) shall not apply to any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.
Subparagraph (A) of the final amendment incorporates the substance of the amendment as originally proposed, with the revisions discussed above. Subparagraph (B) makes two principal modifications to the original proposal. First, it requires sellers and telemarketers to provide an automated voice and/or keypress-activated interactive opt-out mechanism in their prerecorded messages so that consumers who have agreed to receive such messages will have the option of revoking their agreement and opting out of future messages as quickly, effectively, and efficiently as consumers who receive a live telemarketing call. Second, subparagraph (B) is partly based on, and incorporates elements of, the Commission’s enforcement forbearance policy with which the industry has been required to comply since that policy took effect in 2004.
The requirement that sellers and telemarketers provide an automated voice and/or keypress-activated interactive opt-out mechanism is consistent with industry comments representing that interactive technology is now affordable and in widespread use. Based on these representations, the Commission has determined that non-interactive prerecorded messages no longer need be permitted, and the proposed amendment will have the effect of prohibiting them. The record is clear that consumers regard such messages as extremely invasive of their privacy because they are completely powerless to interact with them.
By requiring an automated interactive opt-out mechanism, the amendment will enable consumers who have agreed to receive prerecorded telemarketing calls from a seller to revoke that agreement if they no longer wish to receive such calls, or find the frequency of calls from the seller abusive of their privacy. The Commission intends the requirement for an automated interactive mechanism to make revoking an agreement to receive such messages as easy as opting out from a live telemarketing call.
The Commission has also added to subparagraph (B) the requirements it originally proposed for creation of a safe harbor for prerecorded calls, and incorporated in the enforcement forbearance policy announced in anticipation of the creation of such a safe harbor in 2004. When these requirements for the proposed safe harbor were published for public comment, the responses from the industry overwhelmingly opposed the safe harbor proposal, without focusing on the proposed compliance requirements. When the Commission proposed to terminate the forbearance policy after abandoning the safe harbor proposal, however, the industry petitioned for an extension of the policy to preserve the
By incorporating these requirements into the amendment, the Commission is adopting provisions on which the industry has had an opportunity to comment, and with which the industry asserts many industry members have been complying for some time.
The most significant difference between the requirements of the Commission’s forbearance policy and the requirements of subparagraph (B) is the elimination of the option under the forbearance policy for sellers and telemarketers to provide a telephone number consumers could call to opt out as the sole and exclusive opt-out mechanism. That option was necessary to permit the continued use of prerecorded messages when the forbearance policy was announced in 2004 because, as many in the industry argued at that time, interactive technology was “costly, burdensome, and not widely available.”
The introductory language in Section 310.4(b)(1)(v) revises the proposed amendment in five respects. The most significant is the deletion of the phrase,
Section 310.4(b)(1)(v)(A)(
Section 310.4(b)(1)(v)(A)(
Unlike Section 310.4(b)(1)(v)(A), which applies only to outbound telephone calls “to induce the purchase of any good or service,” Section 310.4(b)(1)(v)(B) additionally covers outbound telephone calls by for-profit telefunders “to induce a charitable contribution from a member of, or previous donor to, a non-profit charitable organization on whose behalf the call is made,” pursuant to a partial exemption the Commission is granting for the reasons discussed in Section II.G.3 below. Neither Section 310.4(b)(1)(v)(A) nor Section 310.4(b)(1)(v)(B) applies to a non-profit charity that places its own prerecorded calls, because the Commission lacks jurisdiction over not-for-profit entities.
Section 310.4(b)(1)(v)(B) adopts the four interactive opt-out requirements the Commission proposed for a prerecorded call safe harbor, and accordingly incorporated in its enforcement forbearance policy. Section 310.4(b)(1)(v)(B)(
Sections 310.4(b)(1)(v)(B)(
Section 310.4(b)(1)(v)(B)(
Section 310.4(b)(1)(v)(B)(
Section 310.4(b)(1)(v)(C) provides a clarification requested by the industry. It specifies that “any call that complies with all applicable requirements” of the amendment will not violate the call abandonment prohibition in Section 310.4(b)(1)(iv) of the TSR. This provision is intended to provide assurance that a fully compliant prerecorded call will not violate the call abandonment prohibition solely because the person who answers is connected within two seconds to a recording, rather than to a telemarketer, as the call abandonment prohibition requires.
Finally, Section 310.4(b)(1)(v)(D) provides an exemption from all the requirements of the amendment for certain prerecorded healthcare calls. For the reasons discussed in Section II.G.2 below, the Commission is exempting outbound telephone calls made by or on behalf of a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule.
A number of industry comments urged two related implementation measures. First, many industry comments ask that their databases of current EBR customers be “grandfathered,” either temporarily or permanently, to ease the transition to the written agreement requirement. Second, these and other industry comments also request that the Commission provide an adequate “phase-in” period to allow time for industry education efforts and preparation of systems to comply.
Several comments urged that the Commission allow sellers to continue placing prerecorded message calls to established customers without requiring those customers’ agreement to continue receiving them. Two industry comments seek permanent “grandfathering,” whereby they would have no obligation to obtain consent from their established customers, and would need to seek consent only from new customers acquired after the written agreement requirement takes effect.
The industry comments that advocate some form of “grandfathering” of sellers’ EBR customers argue that it will be costly and time-consuming for sellers to seek agreements to receive prerecorded messages from every EBR customer. The Commission is keenly aware of this concern, and accordingly has decided to defer the effective date of the written agreement requirement for a full year during which sellers and telemarketers may continue to place prerecorded calls to the seller’s existing and new EBR customers, as part of the phase-in of the amendment’s requirements discussed below.
Many of the industry comments request that the Commission defer the effective date of the proposed amendment for some period of time after it is issued in order to give businesses time to prepare to comply.
These requests from the industry comments for a “phase in” period before the amendment takes effect range from 3 to 18 months. In order to ensure that there is sufficient time for industry to conduct needed training on the new requirements and to transition to
There is no evident reason, however, to provide an equally prolonged phase-in period for the automated interactive opt-out provisions of the amendment. Because sellers and telemarketers assert they are already complying with the Commission’s forbearance policy, and many already are using systems with automated interactive keypress or voice-activated opt-out capabilities,
Thus, beginning on December 1, 2008, prerecorded messages, whether delivered by sellers and telemarketers to consumers who answer the telephone or to answering machines or voicemail services, will be required to comply with the new automated interactive opt-out requirements added to the TSR as Section 310.4(b)(1)(v)(B) by the amendment. Although the Commission’s previously announced enforcement forbearance policy will be revoked on that date because it is inconsistent with the amendment’s automated interactive opt-out requirements, the Commission will continue to permit sellers to place prerecorded calls to both existing and new EBR customers for an additional nine months, until September 1, 2009, except to an EBR customer who uses the required automated interactive mechanism to opt out or whose EBR has expired. Thereafter, sellers and telemarketers may place prerecorded calls only to consumers from whom they have obtained signed, written agreements to receive such calls. Thus, after the amendment takes complete effect on September 1, 2009, the written agreement requirement will replace the EBR requirement as the sole authorization for continuing to place prerecorded message calls to numbers on the Registry, although an EBR will continue to serve as authorization for placing live telemarketing calls to consumers.
Several industry comments seek exemptions from the requirements of the proposed amendment. These comments urge exemptions for healthcare-related calls governed by HHS regulations issued pursuant to HIPAA,
In adopting the original TSR in 1995, the Commission incorporated a number of exemptions. At that time, the Commission stated:
The Commission has determined that, for different reasons, it is appropriate to incorporate into the amendments adopted herein two suggested exemptions: one for healthcare-related prerecorded message calls subject to HIPAA and one for prerecorded message charitable fundraising calls by third-party telemarketers.
Healthcare-related prerecorded message calls subject to HIPAA include not only calls by medical providers and their third-party telemarketers, but also calls by DME suppliers and by Medicare Part D providers and their third-party telemarketers. The purpose of the HIPAA regulations is to maintain the privacy of personally identifiable medical information, whereas the purpose of the amendment is to protect consumers’ privacy in their homes. Nonetheless, the Commission is persuaded by certain of the commenters’ arguments that these purposes are related and intertwined and, moreover, that the placing of such calls “already is regulated extensively by Federal . . . law.”
Unlike the other exemption requests, the comments seeking exemption of healthcare-related prerecorded calls governed by HIPAA and by Medicare requirements for enrolled DME suppliers provide extensive and specific information about the industry and practices for which an exemption is sought, detailed rationales, and draft language for an exemption. An exemption is necessary, the commenters contend, because many important healthcare-related calls might be considered “telemarketing” calls, rather than “informational” calls not covered by the TSR, because they are arguably part of “a plan, program, or campaign conducted to induce the purchase of goods or services.”
At any rate, the crux of the arguments seeking exemption is the contention that Congress, in the case of DME suppliers, and HHS, in the case of HIPAA, has already considered and prescribed rules based on important public policy considerations that govern healthcare-related calls that might be subject to the proposed amendment under the TSR’s definition of “telemarketing.” If these requirements have not occupied the field, the comments urge the Commission to consider the weight that the Congressional and administrative determinations have given to the improvement of healthcare on a cost-efficient basis, and exempt these healthcare-related calls from any restriction in the TSR on prerecorded telemarketing calls.
Two commenters emphasize that calls from DME suppliers—permitted by statute and by HHS regulations—provide measurable public benefits in the treatment of patients by reducing the taxpayer-supported costs of the Medicare and Medicaid programs and by measurably improving patient compliance rates with home treatment regimens. This results in improved clinical outcomes and a reduction in costly complications.
These calls are subject to significant federal regulation similar in purpose to the prerecorded call amendment. As two of the comments point out,
Other subsections of this provision, enforced by the HHS Inspector General, prohibit Medicare payment for any items furnished to an individual by a supplier that knowingly violates the telemarketing prohibition,
The commenters add that to be enrolled as a DME supplier eligible to receive payments for an item covered by Medicare under the Social Security Act, a company must submit an application for billing privileges, and receive approval from the Centers for Medicare and Medicaid Services (“CMS”). The application requires DME suppliers to meet (and continue to meet as a condition of receiving payments) certain quality standards that serve to provide further protection for consumers. They include requirements that the DME supplier operate its business in compliance with all federal and state licensing requirements from a physical facility that can be inspected by CMS (and not a mere postal box), and maintain liability insurance and a customer complaint process.
Silverlink/Eliza note that when Congress enacted HIPAA in 1996, one of its stated goals was to “improve . . . the efficiency and effectiveness of the health care system by encouraging . . . the electronic transmission of certain health information.”
Another comment points out that the HIPAA Privacy Rule
Two of the commenters point out that although HHS “originally proposed privacy rules that would not have excluded healthcare communications from their patient authorization requirement,” HHS ultimately concluded, after two full notice and comment rulemaking proceedings, that such a restriction on healthcare communications “would materially affect the quality and efficiency of healthcare.”
(i) To describe a health-related product or service . . . that is provided by, or included in a plan of benefits of, the covered entity making the communication . . .; (ii) For treatment of the individual; or (iii) For case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual.
45 CFR 164.501. One comment quotes HIPAA guidance that “‘many services, such as [prescription] refill reminders or the provision of nursing assistance through a telephone service, are considered treatment activities if performed by or on behalf of a health care provider, such as a pharmacist.’” PolyMedica at 3.
The comments advocating an exemption for healthcare-related prerecorded message calls subject to HIPAA emphasize that the “opt-in” requirement of the proposed amendment would jeopardize the progress that interactive prerecorded messages have made in improving patient outcomes and helping control healthcare costs.
Two commenters who advocate an exemption for healthcare-related prerecorded message calls subject to HIPAA contend that the record shows no history of conduct by those who place such calls that is “coercive or abusive.”
The comments also cite other evidence of consumer acceptance of prerecorded healthcare calls. One asserts that low opt-out rates show consumer approval,
The exemption advocates also argue that there is no justification for application of the proposed amendment to healthcare-related calls, because the benefits of healthcare calls “far outweigh any intrusion on privacy interests.”
As the comments make clear, in addition to generating demonstrable improvements in patient outcomes, the use of inexpensive prerecorded calls plays an important cost-containment role in the provision of medical services, many of them publicly funded, and in facilitating the record-keeping that governmental healthcare reimbursement regulations require. Requiring the prior written agreement of patients to receive prerecorded calls subject to HIPAA quite obviously could burden or jeopardize the improved medical outcomes that such calls have made possible by enabling healthcare providers to achieve higher rates of patient compliance with treatment regimens at low cost. Government Accountability Office reports and other studies have shown that the prior low rates of patient compliance contributed to significantly higher than necessary national healthcare costs because they resulted in increased hospitalizations, morbidity and mortality rates.
The Commission has given careful consideration to the possibility of exempting healthcare calls from the express written agreement requirement of the amendment, while requiring that they comply with its opt-out provisions. The difficulty with such a partial exemption in the healthcare context, as some of the commenters argue, is that a partial exemption may create a health or safety risk. The patients who most need healthcare calls may be confused as a result of age or other health-related conditions, and might opt out of the calls, thereby preventing their healthcare provider from contacting them even with a live call to check on their condition without violating the TSR. For this reason, the Commission is persuaded that a complete exemption from the amendment for healthcare-related calls is necessary.
Significantly, unlike other telemarketing calls, the number of healthcare-related calls subject to HIPAA is limited by the nature of the calls, depends on the patient’s health and medical condition, and would not expose consumers to an unlimited number of sellers seeking to generate sales.
In summary, the Commission has determined to exempt healthcare-related prerecorded message calls subject to HIPAA from the prerecorded call amendment. This determination is based on six primary considerations, first among them the fact that delivery of healthcare-related prerecorded calls subject to HIPAA already is regulated extensively at the federal level. Second, coverage of such calls by the amendment could frustrate the Congressional intent embodied in HIPAA, as well as other federal statutes governing healthcare-related programs. The third basis for the exemption is that the number of healthcare providers who might call a patient is inherently quite limited—as is the scope of the resulting potential privacy infringement—in sharp contrast to the virtually limitless number of businesses conducting commercial telemarketing campaigns. Fourth, there is no incentive, and no likely medical basis, for providers who place healthcare-related prerecorded calls to attempt to boost sales through an ever-increasing frequency or volume of calls. Fifth, the existing record does not persuade the Commission that it should find that “the reasonable consumer” would consider prerecorded healthcare calls coercive or abusive.
Accordingly, the Commission has exempted from the requirements of 16 CFR 310.4(b)(1)(v) any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.
Concerned that for-profit telemarketers using prerecorded messages to solicit contributions on behalf of non-profit charities otherwise would be subject to the requirements of the amendment, when prerecorded message calls placed by the charities themselves are not covered because the Commission lacks jurisdiction over non-profit entities, DMA and Heritage urge that such calls be exempted.
Both commenters who address this issue seek, at a minimum, an exemption for such calls made to those with whom the charity has an existing relationship, “which in most cases would include donors or members of [the] charity.”
DMA emphasizes that analogous FCC regulations implementing the TCPA permit the use of prerecorded message calls without the called party’s consent when a call is made “by or on behalf of a tax-exempt nonprofit organization.”
Similarly, Heritage asserts that under relevant Supreme Court decisions “charities enjoy protected free speech rights beyond that provided to commercial speech.” Heritage also asserts that restrictions on for-profit telefunders will not enhance consumer privacy because these restrictions, due to limits on the FTC’s jurisdiction, cannot reach non-profit charities that own and operate their own equipment for making calls that deliver prerecorded fundraising messages.
The Commission has given careful consideration to the impact of the prerecorded call amendment on charities that use for-profit telefunders to solicit contributions. It has also given careful consideration to the impact on the privacy of potential donors in their homes.
It is important to note at the outset that there is a significant factual difference between this exemption request and the exemption for prerecorded healthcare-related calls governed by the HIPAA Privacy Rule that bears directly on the governmental interest in protecting the privacy of consumers in their homes. As previously noted, the number of healthcare calls is inherently limited by the fact that HIPAA regulations specify that “marketing” calls unrelated to medical treatment can only be made with the prior consent of the patient, and permit periodic treatment-related calls only by the patient’s healthcare provider and its business associates. The limited number and frequency of potential healthcare calls governed by HIPAA stands in sharp contrast to the large number of charities that inevitably compete with each other for donations, and the tide of low-cost prerecorded charitable solicitation calls consumers would likely receive from telefunders.
The challenge for the Commission is to achieve the appropriate balance between the strongly-protected right of non-profit organizations to reach donors through telefunding, and the privacy rights of those potential donors to be free, in their own homes, of prerecorded message calls that they do not want. To achieve what it believes is the best balance in this regard, the Commission has decided to permit telefunders to place prerecorded messages calls to those with whom the charity has an existing relationship—
Balancing the competing bedrock rights at issue must be achieved within the framework of relevant First Amendment principles. As the Commission noted in the SBP for the Amended Rule, the framework for First Amendment analysis is more stringent with respect to telemarketing that solicits charitable contributions than it is for commercial telemarketing for the purpose of inducing purchases of goods or services.
The analytical framework for determining the constitutionality of a regulation of commercial speech that is not misleading and does not otherwise involve illegal activity is set forth in
With regard to the first of these criteria, protecting the privacy of consumers from unwanted commercial telemarketing calls delivering prerecorded messages is a substantial governmental interest. “Individuals are not required to welcome unwanted speech into their own homes and the government may protect this freedom.”
In considering the more stringent analysis that pertains to charitable fundraising, the Commission notes, preliminarily, that application of the prerecorded message amendment to charitable solicitation telemarketing would be content-neutral. “Laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral.”
As in the case of commercial speech, the analysis applicable to charitable solicitations also inquires into the nature of the governmental interest that the regulation seeks to advance. The case law indicates that with respect to the higher level of scrutiny applicable to charitable solicitations, privacy protection is a sufficiently strong governmental interest to support a regulation that touches on protected speech.
In contrast, a close nexus exists between the government’s legitimate interest in protecting consumers’ privacy from unwanted prerecorded telemarketing calls from telefunders and the requirement that such calls give call recipients an opportunity to opt out. This nexus does not rely on an attenuated theoretical connection between fraud and the percentage of funds raised that a telefunder may take as its fee. Rather, there is a direct correlation between the governmental interest and the regulatory means employed to advance that interest: The consumer indicates his or her preference not to receive such a call again, and the regulation requires the telefunder to record and honor that request in the future.
As noted in the SBP for the Amended TSR, the Commission approaches with extreme care the issue of tailoring the TSR privacy provisions narrowly to advance the Commission’s legitimate governmental interest, yet minimize the impact on the First Amendment rights of charitable organizations and the for-profit telemarketers who solicit on their behalf.
After careful consideration, the Commission has determined that the best approach to achieve a narrow tailoring of the prerecorded message amendment is to exempt solicitations by telefunders to induce charitable contributions via outbound telephone calls from the prior written agreement requirement of the amendment, and instead require only that such calls, like charitable solicitation calls that are placed by live representatives, enable the recipients of the calls to opt out of receiving such calls in the future, if they so desire.
Limiting telefunders’ use of prerecorded messages to those calls placed to members of, or previous donors to, the non-profit organization on whose behalf the calls are placed serves two important purposes. First, it will prevent a likely tide of low-cost charitable solicitation calls to potential donors made by telefunders on behalf of a virtually infinite array of non-profit organizations seeking to boost donations. There are consumer complaints about charitable solicitations in the record,
The Commission notes that the provision requiring for-profit telefunders to honor entity-specific Do Not Call requests, which this amendment implements for prerecorded calls, has been challenged and upheld.
The purpose and effect of this exemption is to allow for-profit telefunders to make use of prerecorded messages while maintaining the Rule’s privacy protections for consumers. The amendment ensures the same privacy protection for recipients of prerecorded message calls soliciting a charitable contribution that the Rule currently affords recipients of calls from live representatives soliciting a charitable contribution.
When an agency regulates to the extent of its jurisdiction it will unavoidably leave out some speakers and some speech that is beyond its authority to regulate. But, in such circumstances, the danger of governmental overreaching—which cases such as
The agency’s jurisdictional boundary, therefore, serves as the ‘neutral justification’ for the distinction that was missing in Discovery Network. While plaintiffs complain that the regulation also fails to cover some commercial, political, and intrastate speech, this fact too is explained by the FTC’s assiduous attention to its own jurisdiction.
420 F.3d at 348 (citations omitted).
Accordingly, the Commission has modified the prerecorded call amendment to make it clear that only the opt-out requirements in 16 CFR 310.4(b)(1)(v)(B) apply to prerecorded calls “to induce a charitable contribution from a member of, or previous donor to, a non-profit charitable organization on whose behalf the call is made.”
The second proposed amendment would revise the TSR’s standard for measuring the permissible call abandonment rate. Section 310.4(b)(4)(i) of the TSR now requires that a seller or telemarketer employ “technology that ensures abandonment of no more than three (3) percent of all calls answered by a person, measured
The Commission proposed the revision because the “record shows that particular problems arise in connection with the use of smaller, segmented lists that are the most economical for small businesses and the most useful in targeting only those consumers most likely to be interested in a particular sales offer.”
Some 144 consumers, 9 consumer advocates, and 12 industry members and trade associations commented on the proposed amendment. All of the consumer advocacy comments and nearly all of the individual consumer comments oppose any change that might increase the number of abandoned calls consumers receive, with many consumers insisting that all abandoned calls are “abusive” and should be prohibited. The industry comments generally applaud the proposed amendment, but most argue that its “per campaign” limitation still makes it unduly restrictive compared to the FCC standard, which permits telemarketers to compute a single abandonment rate for all the campaigns they conduct during a 30-day period.
All of the comments from consumer advocates oppose the proposed amendment, as do nearly all of the individual consumers who refer to it, most of whom specifically object to “abandoned” or “dead air” calls.
The consumer advocates and individual consumers make five basic arguments against the proposed amendment: (1) Abandoned calls are harassing and an invasion of privacy; (2) Abandoned calls should be banned to protect consumers; (3) Any change in the current standard will further harm consumers; (4) The record does not support any change in the current standard; and (5) The “per campaign” standard should be retained.
More than 35 consumers say abandoned calls are “annoying.”
One consumer advocacy group and at least 14 individual consumers assert that “the only acceptable rate for abandoned or dead-air calls is a zero tolerance.”
NCL adds two additional justifications for a total ban. The first is that, “[u]nlike airlines, which are permitted to overbook but must then compensate consumers for being bumped, consumers receive no compensation for being subjected to abandoned calls.”
Both AARP and PRC stress the fear abandoned calls create for consumers as a ground for their opposition to the proposed amendment. AARP and several consumer comments point out that “[f]or mid-life and older Americans these calls are more than just a nuisance,” because “[i]n addition to the inconvenience and risk associated with rushing to answer the telephone, there is the uncertainty and concern for the consumer, especially for women living alone.”
PRC also asserts that the proposed amendment “does nothing to promote consumer interests.”
The few consumers willing to contemplate anything but a complete ban on abandoned calls also argue that the ‘per day’ standard should be retained because it “limits the numbers of abandoned calls that consumers receive” compared to the proposed amendment.
PRC further contends that the industry “has shown no good reason why this [proposed amendment] should be granted or that consumers have anything to gain by changing the calculation.”
A second industry rationale, that there is “no evidence that telemarketers will abuse a 30-day standard,” is challenged by another consumer comment as “a nice sound bite” but one that “may be lacking in candor.”
Finally, AARP finds fault with the industry “argument that consumers can address their concerns [about abandoned calls] by using Caller ID to identify the names of telemarketers abandoning calls to their telephone numbers.”
In anticipation of industry arguments to the contrary,
Ten telemarketers, trade associations and businesses that use live telemarketing calls submitted comments on the proposed amendment to the current “per day per calling campaign” standard for measuring call abandonment. The industry comments are generally supportive of the proposed amendment, but most argue that it does not go far enough, and should eliminate the “per campaign” limitation. The comments provide information intended to show that: (1) The current “per day” standard inhibits small, targeted campaigns; (2) The continued “per campaign” limitation creates compliance issues; and (3) Discriminatory call abandonments need not be a concern.
All but two of the industry comments support the proposed amendment because it will reduce the costs and enhance the efficiency of live telemarketing.
Several of the comments take pains to point out how the current “per day” standard for measuring call abandonment rates adversely affects the efficiency of the predictive dialers used in live telemarketing.
As two comments note, “[t]his effect is exacerbated in the case of targeted telemarketing campaigns directed to small groups of consumers” because “[b]asic principles of statistics indicate that when the group of consumers to be called is smaller, the deviation from expected answer rates—and expected abandonment rates—is greater.”
To ensure compliance with the per day standard, companies conducting such small or targeted campaigns “may abandon predictive dialers altogether, relying instead on more expensive manual dialing,” or “program the dialer with a substantially lower abandonment rate [than 3 percent],” thereby “slowing the rate of outgoing calls” and increasing costs by “increasing operators’ down-time between calls.”
One comment also highlights a second effect of the per day standard: that call centers require more telemarketers at the beginning of a calling campaign than toward the end because they “see a dramatic decrease in contact rates as campaigns continue over time.”
The comment points out that small business telemarketers are particularly disadvantaged by the high staffing costs they incur under the “per day” standard, and that “many” of them “do not utilize predictive dialers” for that reason.
Many of the industry comments urge the Commission to revise the proposed amendment to eliminate the “per campaign” limitation retained from the current standard, and permit call abandonment rates to be averaged across multiple campaigns.
Second, DMA notes that the Commission’s effort to reduce the obstacles to the use of small, segmented calling lists is impeded by the fact that “the rule as proposed still requires those small and targeted campaigns that last less than 30 days be calculated over the life of the campaign.”
Finally, several comments criticize the use of the term, “campaign,” on the ground that it leaves sellers and telemarketers “uncertain as to whether they are in compliance with the safe harbor” in the absence of official guidance on its meaning.
Aware of the Commission’s concern that eliminating the “per campaign” limitation might allow telemarketers to
A second comment endeavors to explain why discriminatory call abandonments are unlikely. It contends that sellers and telemarketers “have no motive” to abandon calls to any of the three categories of consumers they call: (1) consumers who have asked for information; (2) consumers with whom the seller has an EBR; and (3) consumers who have no previous relationship with the seller.
Finally, a third comment emphasizes that averaging abandonment “rates from a number of small, highly targeted campaigns” can be done “without resulting harm to consumers” because “small and targeted campaigns are the ones likely to yield results for callers, which makes it unlikely that the caller would use a high abandonment rate.”
The abandoned and unidentified “hang-up” calls about which many consumers rightly complain are a cause for concern, but not necessarily a reason to forego adoption of the proposed amendment. These “hang-up” calls—which consumers understandably consider a form of harassment and an invasion of privacy because they have no way to identify the caller to stop future calls—violate two distinct requirements of the TSR. Section 310.4(a)(7) of the TSR requires all telemarketers to transmit the telephone number of the seller or telemarketer responsible for the call and, if the carrier’s technology permits, the name of the seller or telemarketer.
The fact that the consumer comments suggest there may be too many ill-informed or rogue telemarketers who routinely violate these two TSR requirements provides no basis in policy for abandoning a carefully considered amendment that would benefit businesses that are attempting to comply with the law. The well-founded consumer complaints in the record about abandoned calls instead indicate that the Commission may need to redouble its industry education and law enforcement efforts. The Commission does not agree with the consumer groups and consumers who believe effective enforcement will be impossible without a complete ban on abandoned calls. Moreover, violators who are now intentionally ignoring the TSR’s requirements are just as likely to violate a total ban on abandoned calls.
Likewise, the continued opposition of consumer advocates and consumers to any safe harbor that allows a small percentage of abandoned calls in order that industry and consumers may benefit from the cost savings permitted by the efficiencies of predictive dialers simply seeks a reconsideration of the Commission’s careful balancing of the competing interests during the TSR amendment proceeding.
Moreover, opponents of the proposed amendment object, in effect, to allowing sellers and telemarketers the full three percent abandonment rate previously set by the Commission. They focus not on the fact that sellers and telemarketers still would be required to maintain no more than a three percent abandonment rate, but on the fact that there may be some modest increase in the number of abandoned calls because the industry would no longer be forced by the current “per day” standard to hold their abandonment rates below three percent, so that unexpected spikes in abandonment rates that occur late in the day do not violate the TSR.
Opponents contend that the proposed amendment must fail because the record lacks “clear and convincing evidence.” Nevertheless, the Commission concludes that the preponderance of the evidence on the record as a whole supports adoption of the proposed amendment. The factual basis for the proposed amendment does not necessarily require “empirical evidence,” and in this case demands only a rudimentary understanding of statistical theory and standard deviation. The Commission is more than
The industry, for its part, primarily criticizes the proposed amendment for retaining the “per campaign” standard in the current call abandonment requirement. The industry expresses particular concern that the “per campaign” limitation may create inefficiencies if sellers cannot switch their resources from underperforming campaigns of less than 30 days duration solely because the abandonment rate for the campaign at that point is more than three percent. This concern, as well as industry uncertainty about the meaning of the term, “campaign,” may be alleviated by an explanation of the term. The Commission intends the term “campaign” to refer to the offer of the same good or service for the same seller. As long as the same good or service is being offered for the same seller, the Commission will regard the offer as part of a single campaign, without regard to whether there are changes in the terms of the offer or the wording of any telemarketing script or scripts used to convey the offer.
The Commission recognizes that the amendment will not eliminate every possible inefficiency in the use of predictive dialers that may arise from the TSR’s call abandonment prohibition. However, industry arguments that telemarketers are unlikely to target less-valued customers with a disproportionate share of abandoned calls in the absence of a “per campaign” limitation remain unpersuasive, because removal of that requirement would leave consumers to rely on the industry’s good faith that it would not engage in such practices, despite obvious economic incentives to do otherwise.
For the foregoing reasons, after careful consideration of the entire record, the Commission has determined that it should adopt the amendment as proposed, and amend paragraph (i) of the “Pattern of Calls” prohibitions in Section 310.4(b)(4) of the TSR, as follows:
In accordance with the Paperwork Reduction Act (“PRA”), as amended,
Under section 22 of the FTC Act, the Commission must issue a regulatory analysis for a proceeding to amend a rule only when it: (1) estimates that the amendment will have an annual effect on the national economy of $100,000,000 or more; (2) estimates that the amendment will cause a substantial change in the cost or price of certain categories of goods or services; or (3) otherwise determines that the amendment will have a significant effect upon covered entities or upon consumers.
In general, the comments opposing the prerecorded call amendment asserted that sellers might be unable as a result of the amendment to use low-cost prerecorded messages, and thus would not be able to pass on the resulting savings to consumers. Many also argued that the cost of obtaining the consumers’ agreements to receive prerecorded messages as required by the amendment would not be insignificant, but this argument was based on the mistaken assumption that the amendment would not permit the use of electronic signatures and records allowed by the E-SIGN Act, and would necessitate the use of paper records, with their attendant printing and storage costs. Finally, many comments predicted, based on the same mistaken assumption, that the costs and burdens imposed by such an amendment would reduce the number of consumers who could be called to such an extent that it would no longer be economically feasible for telemarketers to provide prerecorded message services, and telemarketers specializing in such services would not be able to remain in business.
To the extent, if any, that either of the two final rule amendments adopted by the Commission will have such effects,
The Regulatory Flexibility Act (“RFA”)
The Commission believes that the two amendments to the TSR that it is adopting are not likely to have a significant impact on small business for several reasons. By their nature, most small businesses serve local customers, develop personal relationships with their clientele, and are therefore likely to be able to obtain their customers’ agreements to receive useful prerecorded telemarketing messages. Moreover, purely informational prerecorded messages are not covered by the TSR, and the use of such messages to schedule service calls, delivery times, and the like therefore will not be subject to the written agreement requirement. In addition, to the extent that, in this Internet age, small businesses may no longer be strictly local businesses, the option provided by the amendment to obtain written agreements to receive prerecorded message calls pursuant to E-SIGN will place them on an equal footing with other businesses. Finally, as a result of the Commission’s decision to defer the effective date of the written agreement requirement for twelve months, small businesses with annual service or other contracts with their customers will have ample time to revise their contracts and seek their customers’ permission to receive prerecorded telemarketing messages.
For these same reasons, the Commission believes that small business telemarketers providing prerecorded call services to such small business sellers are unlikely to be significantly affected by the prerecorded call amendment. In addition, for more than two years, small and large telemarketers alike, as well as sellers that conduct their own telemarketing, have been governed by the Commission’s enforcement forbearance policy for prerecorded messages answered by a consumer, which has mandated an up-front disclosure to consumers of how to opt out, and encouraged the use of an interactive opt-out mechanism. During that time, according to the comments, many of which came from small business telemarketers, the industry has transitioned to automated interactive message systems that are now affordable and widely available. Consequently, the Commission has no reason to believe that the 90 days it is allowing for sellers and telemarketers to provide automated interactive opt-out mechanisms will disadvantage either small or large business telemarketers or sellers. Although prerecorded message calls placed on answering machines or voicemail services were not subject to the Commission’s enforcement forbearance policy, there is nothing in the record to suggest that application of the requirement of an automated interactive opt-out mechanism to such calls could not be accomplished within the phase-in period, or would disadvantage either small or large business telemarketers or sellers.
The Commission also believes that the amendment adjusting the method for measuring the permissible call abandonment rate by predictive dialers in live telemarketing campaigns is not likely to have a significant impact on small business. If anything, the change in the standard from a “per day” to a per-30-day calculation should lead to a reduction in the cost of live telemarketing campaigns for both small and large businesses, for the reasons previously stated, and will likely encourage the use of such calls to EBR customers by small and large businesses alike. In fact, small business sellers and telemarketers are likely to derive the greatest benefit from the amendment because the smaller size of their calling lists has prevented full realization of the efficiencies of predictive dialers under the existing measurement standard, an unintended consequence that the amendment will correct.
Accordingly, the Commission concludes that the two amendments to the TSR will not have a significant or disproportionate impact on the costs of small business. Based on the information in the record, therefore, the Commission certifies that the two amendments published in this document will not have a significant economic impact on a substantial number of small businesses.
Nonetheless, to ensure that no such impact has been overlooked, the Commission has conducted the following final regulatory flexibility analysis, as summarized below:
As previously discussed, the Commission is issuing the prerecorded call amendment to make explicit the prohibition on such calls implicit in the TSR’s call abandonment provision, while expressly permitting prerecorded calls made by or on behalf of sellers to consumers who have given the seller a written agreement to receive such calls. The proposed explicit prohibition of all prerecorded telemarketing calls without the consumer’s express prior written agreement implements the Telemarketing Act requirement that the Commission prohibit a pattern of unsolicited telephone calls that “the reasonable consumer would consider coercive or abusive of such consumer’s right to privacy,” and effectuates the apparent intent of Congress in the TCPA to prohibit prerecorded telemarketing calls, regardless of whether they are answered in person or by an answering machine or voicemail service.
The Commission is also issuing an amendment that will modify the existing safe harbor to allow sellers and telemarketers to measure the three percent maximum call abandonment rate prescribed in § 310.4(b)(4)(i) for a single calling campaign over a 30-day period, rather than on a daily basis, as is currently required. This amendment, also made pursuant to the Telemarketing Act, will enhance the efficiency of the predictive dialers used in live telemarketing campaigns, allowing businesses to focus their telemarketing on smaller groups of consumers, which will lower marketing costs and make live campaigns more affordable for small businesses. The amendment will also permit more narrowly targeted telemarketing to smaller groups of consumers who are the most likely to be interested in a particular offer.
As discussed in Section III above, the principal issues raised by the industry comments relate to the potential costs and burdens of the requirement for obtaining consumers’ express written agreement to receive prerecorded telemarketing calls, and concerns about economic hardship for telemarketers that specialize in prerecorded telemarketing and their customers if too few consumers agree to receive such calls.
As previously noted, most of the industry comments that objected to the cost and burden of obtaining written agreements from consumers to receive prerecorded calls mistakenly assumed that the amendment would not permit the use of agreements obtained
Many comments also requested that the Commission provide adequate time for preparations to comply with the written agreement requirement by deferring its effective date for six months or longer, and permitting all affected entities to continue calling EBR customers until the requirement takes effect. Although the Commission previously had stated that it did not believe that a delayed effective date would necessarily reduce compliance burdens for small entities,
The Commission has also been persuaded by the comments to defer the effective date of the requirement in the amendment that sellers and telemarketers provide an automated interactive opt-out mechanism until December 1, 2008, even though the comments, many of which came from small business telemarketers that currently use such mechanisms, assert that this technology is now affordable and widely available.
A number of comments from industry and consumers who oppose the amendment expressed concern that the written agreement requirement would create economic hardships for entities specializing in prerecorded telemarketing and their customers if too few customers agree to receive such calls. However, many in the industry contended, on the contrary, that there are a significant number of consumers who wish to receive prerecorded telemarketing messages. The Commission believes that the prerecorded call amendment will enhance consumer choice, and permit those consumers who wish to receive prerecorded messages to sign up to receive them while protecting the privacy of those who do not wish to be disturbed. Having received industry comments asserting that a National Do Not Call Registry would result in the demise of the telemarketing industry, when it has subsequently flourished, the Commission doubts that the amendment will have the predicted negative effect.
Each of the proposed rule amendments will affect sellers and telemarketers that make interstate telephone calls to consumers (outbound calls) as part of a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution.
Prior to the October 2006 request for comment, the Commission had not previously sought comment on an explicit prohibition of prerecorded telemarketing calls without the consumer’s express prior written agreement. Although the Commission specifically requested information or comment on the number of small entities that would be subject to the proposed prerecorded call amendment, none of the comments provided this information. Based on the absence of available data in this and related proceedings, the Commission believes that a precise estimate of the number of small entities that would be subject to the prerecorded call amendment is not currently feasible.
For example, in the proceedings to amend the TSR in 2002, the Commission sought public comment and information on the number of small business sellers and telemarketers that would be impacted by amendment of the standard for measuring the three percent call abandonment rate. In its request, the Commission noted the lack of publicly available data regarding the number of small entities that might be impacted by the proposed Rule.
Likewise, neither the original petition to amend the call abandonment safe harbor to expand the period over which the three percent call abandonment ceiling for live telemarketing calls is calculated,
The rule amendment explicitly prohibiting prerecorded telemarketing calls unless the consumer has agreed in writing to accept such calls will affect the TSR’s recordkeeping requirements insofar as it would compel regulated entities to keep records of such agreements under the general recordkeeping requirements of the existing rule.
In addition, the Commission does not believe that the amendment to expand the period over which the three percent call abandonment ceiling for live telemarketing calls is calculated will create any new burden on sellers or telemarketers, because the existing “per day per campaign” standard of the TSR already requires them to establish recordkeeping systems to demonstrate their compliance. The Commission also does not believe that this modification of the Rule will materially increase any existing compliance costs, and may in fact reduce them for small entities that are able to take advantage of the revised safe harbor requirement.
The FTC is mindful that the amendment explicitly prohibiting all prerecorded telemarketing calls without the consumer’s express prior written agreement differs from the FCC’s regulations and some State laws, which permit sellers to place such calls to consumers who have given their prior express consent or to consumers with whom the seller has an “established business relationship.”
With respect to the amendment revising the method for measuring the maximum permissible call abandonment rate, the FTC has not identified any other Federal or State statutes, rules, or policies that would overlap or conflict with this amendment, except as indicated below. The amendment would help to reduce the differences on this issue between the TSR and the FCC’s TCPA rules, as well as similar state requirements.
The amendment adding an explicit prohibition of prerecorded telemarketing calls without a consumer’s express prior written agreement implements the requirement in the Telemarketing Act that the Commission prescribe rules that include a prohibition against “a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer’s right to privacy.” Since the Commission has previously rejected a safe harbor to permit EBR-based prerecorded calls, the only workable alternatives to this explicit prohibition would be to retain the present implicit prohibition of such calls in § 310.4(b)(4)(i) (the call abandonment provision), or to limit the prohibition on prerecorded calls except with a consumer’s prior written agreement only to calls that are answered in person, rather than by an answering machine or voicemail service. After careful consideration, the Commission has rejected each of these alternatives as inconsistent with the mandate of the Telemarketing Act, based on the record in this proceeding and its enforcement experience.
The amendment of the existing call abandonment safe harbor replaces the present requirement that the three percent maximum call abandonment rate be measured “per day per campaign,” with a revised requirement that the maximum be measured “over the duration of the campaign, if less than 30 days, or separately over each successive 30-day period or portion thereof that the campaign continues.” Other regulatory options considered by the Commission included retaining the present “per day per campaign” standard or requiring that the maximum call abandonment rate be measured over a 30-day period for all of a telemarketer’s campaigns. The Commission does not believe, however, that the present standard should be retained, or that a standard that lacks a “per campaign” limitation would be adequate to protect disfavored consumers from receiving a disproportionate share of abandoned calls.
The amendments explicitly prohibiting prerecorded calls without consumers’ express agreement to receive them and revising the method for measuring the maximum permissible call abandonment rate are intended to apply to all entities subject to the amendments. The Commission has carefully considered industry comments requesting a sufficient phase-in period to minimize the costs and burdens of complying with the prerecorded call amendment, and for these reasons has decided to defer the effective date of the amendment’s written agreement requirement for twelve months for all entities, including small businesses. Although the industry comments, including comments from small business telemarketers, indicated that automated interactive opt-out mechanisms are now affordable and widely available, the Commission is also deferring the effective date of the interactive opt-out requirements of the amendment until December 1, 2008, to ensure that all affected entities will have sufficient time to prepare to comply. Although the Commission will revoke its enforcement forbearance policy for prerecorded telemarketing calls when the interactive opt-out requirements take effect because of inconsistencies in their requirements, the Commission has decided to permit sellers to continue making prerecorded calls to existing and new EBR customers who do not opt out until the written agreement requirement takes effect.
None of the comments on the amendment of the method for measuring the maximum permissible call abandonment rate similarly requested any delay to give affected entities sufficient time to prepare to comply. Since this amendment will benefit all small and large entities making live telemarketing calls, there is no apparent reason to delay its implementation. Accordingly, the Commission has determined that the
Telemarketing, Trade practices.
15 USC 6101—6108.
(b) * * *
(1) * * *
(v) Initiating any outbound telephone call that delivers a prerecorded message, other than a prerecorded message permitted for compliance with the call abandonment safe harbor in § 310.4(b)(4)(iii), unless:
(A) in any such call to induce the purchase of any good or service, the seller has obtained from the recipient of the call an express agreement, in writing, that:
(B) in any such call to induce the purchase of any good or service, or to induce a charitable contribution from a member of, or previous donor to, a non-profit charitable organization on whose behalf the call is made, the seller or telemarketer:
(A) in the case of a call that could be answered in person by a consumer, that the person called can use an automated interactive voice and/or keypress-activated opt-out mechanism to assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A) at any time during the message. The mechanism must:
(1) automatically add the number called to the seller’s entity-specific Do Not Call list;
(2) once invoked, immediately disconnect the call; and
(3) be available for use at any time during the message; and
(B) in the case of a call that could be answered by an answering machine or voicemail service, that the person called can use a toll-free telephone number to assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A). The number provided must connect directly to an automated interactive voice or keypress-activated opt-out mechanism that:
(1) automatically adds the number called to the seller’s entity-specific Do Not Call list;
(2) immediately thereafter disconnects the call; and (3) is accessible at any time throughout the duration of the telemarketing campaign; and
(C) Any call that complies with all applicable requirements of this paragraph (v) shall not be deemed to violate § 310.4(b)(1)(iv) of this Part.
(D) This paragraph (v) shall not apply to any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.
(4)
(i) The seller or telemarketer employs technology that ensures abandonment of no more than three (3) percent of all calls answered by a person, measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period or portion thereof that the campaign continues.
By direction of the Commission.