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Rural Housing Service, USDA.
Final rule.
The Rural Housing Service (RHS) (an agency within the Rural Development mission area) is amending its regulations to add an additional form of guarantee that is now available under its Guaranteed Rural Rental Housing Program. A single, continuous guarantee during the construction phase for construction advances and the permanent financing phase of the project (for loans that meet certain criteria) will now be provided in addition to the two existing forms of guarantees under the program. This action is taken to enhance efficiency, flexibility, and effectiveness in managing the program.
Tammy S. Daniels, Financial and Loan Analyst, USDA Rural Development Guaranteed Rural Rental Housing Program, Multi-Family Housing Guaranteed Loan Division, U.S. Department of Agriculture, South Agriculture Building, Room 1271, STOP 0781, 1400 Independence Avenue, SW., Washington, DC 20250-0781. E-mail:
This rule has been determined not to be significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this rule is adopted: (1) Unless otherwise specifically provided, all State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) the appeal procedures of the National Appeals Division (7 CFR part 11) must be exhausted before bringing suit.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, the Agency generally must prepare a written statement, including a cost-benefit analysis, for final rules with “Federal mandates” that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the National government and States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This document has been reviewed in accordance with 7 CFR part 1940, § 1940.310(e)(3). Rural Development has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and in accordance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321
This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature of this document that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect both small and large entities in the same manner. This rule has no significant changes in information collection or regulatory requirements that would have a negative impact on either small or large entities in an economic way.
This program is listed in the Catalog of Federal Domestic Assistance under Number 10.438.
For the reasons set forth in the Final Rule related Notice to 7 CFR part 3015, Subpart V, this program is subject to Executive Order 12372 which requires intergovernmental consultation with State and local officials. The Agency has conducted intergovernmental consultation in the manner delineated in RD Instruction 1940-J (available in any Rural Development office).
The information collection requirements contained in this regulation have been approved by OMB under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB control number 0575-0174 in accordance with the Paperwork
Rural Development is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services and for other purposes.
The Guaranteed Rural Rental Housing Program (GRRHP) currently offers two forms of guarantees: (1) A guarantee for permanent loans and (2) a guarantee which provides a limited duration guarantee for advances during the construction period with the limited duration provision being automatically removed if certain conditions are met. Under this final rule, the Agency creates, for loans meeting certain criteria and subject to the availability of funds, an option for a single, continuous guarantee during the construction phase for construction advances and the permanent financing phase of the project. This third option was created in response to input from GRRHP stakeholders who believe that this option will allow the program to serve more borrowers thus making affordable housing available for more low to moderate income families. This final rule also includes technical corrections and clarifications and removes the anachronistic requirement that lenders certify that their computer systems comply with year 2000 technology. The proposed rule can be found at 75 FR 4707-4710. Additionally, this final rule removes the definition for “combination construction and permanent loan” and added definitions for “construction and permanent loan,” “construction contingency reserve,” “lease-up period,” “lease-up reserve,” “loan-to-cost ratio,” and “operating and maintenance reserve.”
On January 29, 2010, RHS (an agency within the Rural Development mission area) proposed an additional form of guarantee under the Guaranteed Rural Rental Housing Program regulation. The Agency received comments from five entities in response to the proposed rule. Comments were supportive of the new guarantee option offered in the proposed rule. One commenter stated that they supported the additional form of guarantee and applauded RHS' work in this area. The commenter believed the continuous guarantee will reduce the complexity of the program, making housing affordable for more low to moderate income families. Another commenter also stated that the continuous guarantee is a good idea and that it would provide a financing vehicle for additional multifamily housing construction. The Agency appreciates the support received from commenters in regard to the new continuous guarantee option. Specific comments were also received in three particular areas: Construction contingency reserve, the guarantee requirements, and the processing requirements. These comments are summarized below.
Two comments were received regarding the construction contingency reserve. The first comment was related to the definition provided in the proposed rule which read: “This reserve will be held by the lender and will only be disbursed for Agency and lender approved change order requests.” The commenter's concern was that, as written, the language could be interpreted to mean that change order requests need only be approved by the Agency or the lender. The commenter recommended the language be rewritten to provide that the funds will only be disbursed for change order[s] requests that are approved by both the Agency and the lender. In response to this comment, the Agency has revised the definition to read: “A cash reserve of at least two percent of the construction contract, inclusive of the contractor's fee and all hard and soft costs, which must be set up and fully funded by the closing of the construction loan. This reserve will be held by the lender, and funds will only be disbursed for change order requests approved by the Agency and the lender.”
The second comment on construction contingency reserve stated that it would be useful to clarify the timing of the release of unused reserve funds as there are inconsistent interpretations among various State agencies. The commenter recommended releasing these funds at the same time that the 90/90 reserve funds are released. In response to this comment the Agency has revised the definition to clarify when the unused reserve funds will be released.
The Agency received three comments regarding the guarantee requirements. One commenter recommended removal of the following language in § 3565.52(c)(3) which the commenter viewed as unnecessary: “Only projects that have low loan-to-cost ratio, as specified by the Agency in a Notice published periodically in the
The second commenter asked what is intended by the term “low loan-to-cost ratio” in § 3565.52(c)(3). The commenter further stated that this [achieving a low loan-to-cost ratio] should not be a problem for Low Income Housing Tax Credit properties but could be for other properties, and that RHS should not arbitrarily limit the availability of the new guarantee. In response to this comment, the Agency reserves the right in the regulation to periodically publish a threshold in the
The third commenter stated that it is not clear in the proposed rule how the required lease-up reserve (in § 3565.52(c)(3)) will be calculated and expressed a concern that adding on a “substantial” lease-up reserve that must be funded up front (in § 3565.52(e)(3)) is burdensome on the project and would make the program much less useful. Specific administrative guidance on calculating the lease-up reserve will be announced through a Notice in the
In terms of processing requirements, the Agency received three comments. The first commenter asked that the word “independent” be removed from § 3565.303(c)(3). Section 3565.303(c)(3) which states that inspections must be done by an “independent” inspector. The commenter stated the requirement is that the inspector must be “qualified.” The Agency agrees that the inspector must be qualified to perform inspections but in order to avoid potential conflicts
The second comment on this subject was to remove in § 3565.303(d)(4) the requirement regarding an as-built appraisal. The commenter recommended making this required under certain circumstances in order to reduce the number of exemptions that would need to be processed. In response, the Agency revised the final rule to clarify that the as-built appraisal is required only for Options 1 and 2, but not for Option 3 (the continuous guarantee).
The final comment the Agency received on this subject was to change the requirement in § 3565.303(d)(4)(iii) that the Agency's guaranteed loan balance not exceed 50% (in order to qualify for an exception to the as-built appraisal). The commenter recommended that this figure be revised to be 90%. The commenter's point was that if a construction loan can be done at 90% and then rolled into a permanent loan, there is no difference in risk, and loans with less leveraging can be more easily moved into the secondary market. As noted above, the as-built appraisal is required only for Options 1 and 2, but not for Option 3 (the continuous guarantee) so this provision does not apply.
In addition, a conforming change has been added as section 3565.303(f). Though the continuous guarantee will be seamless from the construction phase to the permanent financing phase, the loan must still be in compliance with 7 CFR part 3565. Section 3565.303(f) simply clarifies the specific requirements.
Bankruptcy, Banks, Banking, Civil rights, Conflict of interests, Credit, Environmental impact statements, Fair housing, Government procurement, Guaranteed loans, Hearing and appeal procedures, Housing standards, Lobbying, Low and moderate income housing, Manufactured homes, Mortgages, Real property acquisition, Surety bonding.
Accordingly, chapter XXXV, title 7, Code of Federal Regulations is amended as follows:
5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
Upon approval of an application from an eligible or approved lender, the Agency will commit to providing a guarantee for a permanent loan or a construction and permanent loan, subject to the availability of funds.
(c)
(1)
(2)
(i) Twenty-four months from the closing of the construction loan, if the certificates of occupancy for all units in the project have not been issued by then, or
(ii) The date of the issuance of the last certificate of occupancy, if the certificates of occupancy for all units in the project are issued on or before 24 months from the closing of the construction loan.
(3)
(d)
(1) To any holder, 100 percent of any loss sustained by the holder on the guaranteed portion of the loan and on interest due on such portion.
(2) To the lender, the lesser of:
(i) Any loss sustained by the lender on the guaranteed portion, including principal and up to 90 days of accrued interest as evidenced by the notes or assumption agreements and secured advances for protection and preservation of collateral made with the Agency's authorization; or
(ii) The guaranteed principal advanced to or assumed by the borrower and any interest and accrued interest up to 90 days due thereon.
(e)
(1) For Option 1 under paragraph (c) of this section, the funding schedule for the lease-up reserve and the operating and maintenance reserve must be included in the Agency-approved construction budget and be fully funded before the issuance of the permanent guarantee.
(2) For Option 2 under paragraph (c) of this section, the funding schedule for the lease-up reserve and the operating and maintenance reserve must be included in the Agency-approved construction budget and be fully funded before the issuance of the permanent guarantee.
(3) For Option 3 under paragraph (c) of this section, the operating and maintenance reserve must be fully funded before the issuance of the guarantee. The lease-up reserve must be funded 30 days before the first Certificate of Occupancy is anticipated.
(c)
(1) This guarantee will be subject to the limits contained in subpart B of this part and in the loan closing documentation.
(2) In all cases, the lender must obtain one of the following protections:
(i) Surety bonding or performance and payment bonding acceptable to the Agency;
(ii) An irrevocable letter of credit acceptable to the Agency; or
(iii) A pledge to the lender of collateral that is acceptable to the Agency.
(3) The lender must verify amounts expended prior to each payment for completed work and certify that an independent inspector has inspected the property and found it to be in conformance with Agency standards. The lender must provide verification that all subcontractors have been paid and no liens have been filed against the property.
(d)
(1) Certification from the lender stating that the lender or its qualified representative inspected the property and found that the construction meets the Government's requirements for the standards and conditions for housing and facilities in 7 CFR part 1924, subpart A and the standards for site development in 7 CFR part 1924, subpart C, or its successor regulations;
(2) Cash flow certification—the lender certifies, in writing, the project's cash flow assumptions are still valid and depict compliance with the section 538 program's debt service coverage ratio requirement of at least 1.15, based on the lender's analysis of current market conditions and comparable properties in the project's market area;
(3) Documentation that either:
(i) The project has attained a minimum level of acceptable occupancy of 90% for 90 continuous days within the 120-day period immediately preceding the issuance of the permanent guarantee, or
(ii) Additional funds, supplementing the funds required under § 3565.303(d), have been added to the lease-up reserve in an amount the Agency determines is necessary to cover projected shortfalls.
(4) A new appraisal based upon completion of construction. Upon a
(i)
(ii)
(iii)
(5) A certificate of substantial completion;
(6) A certificate of occupancy or similar evidence of local approval;
(7) A final inspection conducted by a qualified Agency representative;
(8) A final cost certification in a form acceptable to the Agency;
(9) A submission to the Agency of the complete closing docket;
(10) A certification by the lender that the project has reached an acceptable minimum level occupancy;
(11) An executed regulatory agreement;
(12) The Lender certifies that it has approved the borrower's management plan and assures that the borrower is in compliance with Agency standards regarding property management contained in subparts E and F of this part;
(13) Necessary information to complete an updated necessary assistance review by the Agency under § 3565.204(c); and
(14) Compliance with all conditions contained in the conditional commitment for guarantee.
(f)
(1) Certification from the lender stating that the lender or its qualified representative inspected the property and found that the construction meets the Government's requirements for the standards and conditions for housing and facilities in 7 CFR part 1924, subpart A and the standards for site development in 7 CFR part 1924, subpart C, or its successor regulations;
(2) Cash flow certification—the lender certifies in writing the project's cash flow assumptions are still valid and depict compliance with the section 538 program's debt service coverage ratio requirement of at least 1.15, based on the lender's analysis of current market conditions and comparable properties in the project's market area;
(3) Documentation that either:
(i) The project has attained a minimum level of acceptable occupancy of 90% for 90 continuous days within the 120-day period immediately preceding the issuance of the permanent guarantee, or
(ii) Additional funds, supplementing the funds required under § 3565.303(d), have been added to the lease-up reserve in an amount the Agency determines is necessary to cover projected shortfalls.
(4) An appraisal of the property;
(5) A certificate of substantial completion;
(6) A certificate of occupancy or similar evidence of local approval;
(7) A final inspection conducted by a qualified Agency representative;
(8) A final cost certification in a form acceptable to the Agency;
(9) A submission to the Agency of the complete closing docket;
(10) A certification by the lender that the project has reached an acceptable minimum level occupancy;
(11) An executed regulatory agreement;
(12) The Lender certifies that it has approved the borrower's management plan and assures that the borrower is in compliance with Agency standards regarding property management contained in subparts E and F of this part;
(13) Necessary information to complete an updated necessary assistance review by the Agency under § 3565.204(c); and
(14) Compliance with all conditions contained in the conditional commitment for guarantee.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
This final rule with request for comments amends the definition of light-sport aircraft by removing “auto” from the term “autofeathering” as it applies to powered gliders. This amendment will allow both manual and autofeathering propeller operation for powered gliders that qualify as light-sport aircraft.
This rule becomes effective on March 4, 2011. Submit comments on or before February 2, 2011.
You may send comments identified by Docket Number FAA-2010-0812 using any of the following methods:
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•
•
•
Terry Chasteen, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE-114, 901 Locust, Room 301, Kansas City, MO 64106; telephone: (816) 329-4147; fax: (816) 329-4090; e-mail:
The FAA is adopting this final rule without prior notice and prior public comment because this amendment is relieving in nature, imposes no burden on the public, and is responsive to a petition for exemption and related public comments which sought the relief granted by this rule. The Regulatory Policies and Procedures of the Department of Transportation (DOT) (44 FR 1134, February 26, 1979) provide that, to the maximum extent possible, operating administrations for the DOT should provide an opportunity for public comment on regulations issued without prior notice. Accordingly, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting this final rule. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or if you are filing comments electronically, please submit your comments only one time.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this final rule. Before acting on this final rule, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this final rule in light of the comments received.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the persons listed under
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701. Under that section, the FAA is charged with 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 establishes minimum standards required in the interest of safety for the design of aircraft.
Currently, the definition of light-sport aircraft in § 1.1 General Definitions, Title 14, Code of Federal Regulations (14 CFR), specifies that powered gliders that are light-sport aircraft have a fixed or autofeathering propeller system. The restriction to “autofeathering” has resulted in varying applications of light-sport aircraft (LSA) design.
In 2004, the FAA issued the final rule “Certification of Aircraft and Airmen for the Operation of Light-Sport Aircraft” (Sport Pilot Rule) (69 FR 44772, July 27, 2004). That rule established a definition for the term “light-sport aircraft.” Since we adopted that rule, the FAA has been working with the LSA industry in evaluating the overall LSA program. The past five years have seen remarkable growth in the overall LSA industry. Over 1,200 new factory-built airplanes, powered parachutes, and weight-shift control aircraft have received special airworthiness certificates in the special LSA category. One exception to this rapid growth is LSA powered gliders.
The FAA has determined that a propeller on a LSA powered glider can be safely feathered using either a manual or automatic feathering propeller system, which justifies replacing the term “autofeathering” with “feathering.” We discuss this determination in the following section.
When we published the notice of proposed rulemaking (NPRM) entitled Certification of Aircraft and Airmen for the Operation of Light-Sport Aircraft on February 5, 2002 that proposed a definition for LSA, we intended that LSA be simple in design and operation and appropriate for operation by sport pilots. For aircraft design, low performance within the constraints of light weight and structural integrity were important. For aircraft operation, simple mechanical systems within the constraints of sport pilot training requirements were important. In that NPRM (67 FR 5376), we stated that “a light sport aircraft, if powered, would be limited to a fixed or ground adjustable propeller.” We determined that “a propeller that could not be adjusted in pitch during flight was necessary to limit the operational complexity of the aircraft and would be consistent with the skills necessary to hold a sport pilot certificate.”
Some commenters requested that controllable pitch propellers be permitted on LSA. We disagreed that the LSA definition should be revised accordingly because it would require a level of training for sport pilots and repairmen that would not be commensurate with the privileges of their certificates. However, for powered gliders, we revised the final rule to permit autofeathering propeller systems on LSA powered gliders to decrease drag while soaring.
In June 2008, the Light Aircraft Manufacturers Association (LAMA) petitioned the FAA for an exemption to allow manual feathering of a propeller in LSA powered gliders. As part of its request, LAMA provided information concerning the design and operation of manual feathering propeller systems. This petition can be found in Docket No. FAA-2008-0737.
The FAA received approximately 16 comments from 13 commenters in response to the petition. All the commenters supported the petition for exemption. Comments on the petition highlighted the overall benefits for a
After reviewing LAMA's petition and the comments received in support of it, the FAA has determined that a change to the definition of LSA for powered gliders is appropriate. The FAA agrees that autofeathering propeller systems are not necessary for the safe operation of LSA powered gliders. These systems, which are typically found in multi-engine aircraft, automatically feather a propeller in the event of a power loss during takeoff. These systems can be complex, heavy, and expensive.
On the other hand, powered gliders typically incorporate a simple, manual feathering propeller system. These simple, two-position manual feathering systems are more consistent with the intended use of a LSA powered glider and the expected level of complexity for LSA operations. For example, these systems allow the pilot to feather the propeller by toggling a switch or moving a lever in the cockpit. This system rotates the propeller blades to be aligned with the wind—from power configuration to soaring configuration—so that the glider may maximize gained altitude through thermal lift only. The ability to feather the propeller is desirable when the glider is aloft and the engine has been intentionally shut off.
A manual feathering propeller system is the lightest, simplest, and most direct way to rotate the propeller blades from power configuration to soaring configuration. This translates to a lower glider weight that may result in better performance and fewer parts or systems that could fail (
Under the provisions of the Sport Pilot rule and the revised Office of Management and Budget (OMB) Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” dated February 10, 1998, the LSA industry and the FAA have been working with the American Society for Testing and Materials (ASTM) International to develop consensus standards for aircraft issued special airworthiness certificates in the LSA category under § 21.190 for Special Light-Sport Aircraft (S-LSA). These consensus standards, once accepted by the FAA, satisfy the agency's goal for airworthiness certification and establish a verifiable minimum safety level for S-LSA. In addition, use of the consensus standard process assures government and industry that discussion and agreement on appropriate standards have occurred for the required level of safety.
We believe a simple manually operated propeller system for in-flight feathering would be an acceptable means of compliance with the propeller feathering provisions for LSA.
From the aircraft design perspective, we were concerned that malfunction or misuse of a manual feathering propeller on an LSA powered glider could impose a hazard to the aircraft occupants. Since publication of the Sport Pilot Rule, the FAA has reviewed powered glider accident statistics in the electronic database of the National Transportation Safety Board. The data show 32 accidents in the years 1962 through 2009 (October) with no accidents attributed to the operation of feathering or un-feathering a propeller during flight. The data also indicate that in-flight feathering of a propeller system in powered gliders—many of which are permitted to use either manual or autofeathering propeller system—does not decrease safety.
We find that a manually operated propeller system for in-flight feathering is appropriate. Currently, pilots flying LSA powered gliders are allowed to use a direct-action manual lever to operate the landing gear, which typically occurs at low altitudes during times of high pilot workload. By contrast, feathering the propeller takes place at higher altitudes when pilot workload is minimal. We have determined that this revision to the definition of a LSA recognizes the operational nature of LSA powered gliders and is consistent with the stated design and safety objectives.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires the FAA to consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there are no current or new requirements for information collection associated with this amendment.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined there are no International Civil Aviation Organization (ICAO) Standards and Recommended Practices that correspond to this regulation. International standards for Light Sport Aircraft are being coordinated by ASTM International.
Section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)) authorizes agencies to dispense with certain notice procedures for rules when they find “good cause” to do so. Under section 553(b)(B), the requirements of prior notice and opportunity for comment do not apply when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”
This final rule will change the definition of LSA powered glider by removing “auto” from “autofeathering,” which will eliminate the current restriction on manual feathering propeller designs. Prior public comment is unnecessary because the FAA has already obtained public comments regarding a petition for exemption seeking to eliminate the restriction on manual feathering propeller designs from the definition of light-sport aircraft. This final rule is responsive to those comments, all of which were in support of the petition for exemption.
We do not anticipate significant public comment on this amendment, since it does not impose a requirement.
Executive Order 12866, Regulatory Planning and Review, directs the FAA to assess both the costs and benefits of a regulatory change. We are not allowed to propose or adopt a regulation unless we make a reasoned determination that the benefits of the intended regulation justify its costs. Our assessment of this final rule indicates that its economic impact is minimal.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Public Law 96-39) prohibits
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination is that the rule is cost relieving, as it eliminates the current restriction on manual feathering propeller designs while maintaining the current safety level.
FAA has therefore determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to the regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. This rule will not have a significant economic impact because it is cost relieving.
Therefore, as the FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule with request for comments and has determined that it will have a cost relieving impact on domestic and international entities and thus has a neutral trade impact.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The level equivalent of $100 million in CY 1995, adjusted for inflation to CY 2010 levels by the Consumer Price Index for all Urban Consumers (CPI-U) as published by the Bureau of Labor Statistics, is $143.1 million.
This final rule with request for comments does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this regulation.
The FAA has analyzed this final rule with request for comments under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we have determined that this final rule with request for comments does not have federalism implications.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312 and involves no extraordinary circumstances.
The FAA has analyzed this final rule with request for comments under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 18, 2001). We have determined that it is not a “significant energy action” under the executive order, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
You can get an electronic copy using the Internet by:
(1) Searching the Federal eRulemaking portal at
(2) Visiting the FAA's Regulations and Policies Web page at
(3) Accessing the Government Printing Office's Web page at
You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking,
Air transportation.
In consideration of the foregoing, the Federal Aviation Administration amends part 1 of Title 14, Code of Federal Regulations, as follows:
49 U.S.C. 106(g), 40113, 44701.
(8) A fixed or feathering propeller system if a powered glider.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA amends its regulation concerning the process for requesting a waiver of the mandatory separation age of 56 for Air Traffic Control Specialists in flight service stations, enroute or terminal facilities, and the David J. Hurley Air Traffic Control System Command Center. Under this final rule, Air Traffic Control Specialists will no longer be required to certify they have not been involved in an operational error (OE), operational deviation (OD), or runway incursion in the past 5 years. The rule will streamline the waiver process and bring it into conformance with current FAA OE and OD reporting policy.
This amendment becomes effective March 4, 2011.
For technical questions concerning this final rule contact Kelly J. Neubecker, Airspace, Regulations, and ATC Procedures Group, Office of Airspace Services, AJV-11, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-9235; facsimile (202) 267-9328, e-mail
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106, describes the authority of the FAA Administrator to issue, rescind, and revise regulations. Under this authority, we are amending Special Federal Aviation Regulation No. 103 in 14 CFR part 65 (SFAR 103) by removing paragraph 5.b.vii. The change is within the scope of our authority and is a reasonable and necessary exercise of our statutory obligations.
On January 23, 2004, H.R. 2673, Consolidated Appropriations 2004, became Public Law 108-199. Within the appropriations bill, there was a mandate that “not later than March 1, 2004, the Secretary of Transportation, in consultation with the Administrator of the Federal Aviation Administration, shall issue final regulations, pursuant to 5 U.S.C. 8335, establishing an exemption process allowing individual Air Traffic Controllers to delay mandatory retirement until the employee reaches no later than 61 years of age.” On January 7, 2005, the FAA published the final rule in the
The process for an Air Traffic Control Specialist (ATCS) to request a waiver from the mandatory separation age of 56 is currently codified in SFAR 103 and reflected in the Human Resources Policy Bulletin 35, Waiver Process to Mandatory Separation at Age 56. This policy applies to all ATCSs and their first-level supervisors in flight service, enroute and terminal facilities, and at the David J. Hurley Air Traffic Control System Command Center covered under the mandatory separation provisions of 5 U.S.C. 8335(a) and 8425(a).
The regulation contains information contrary to air traffic policy under amended FAA Order JO 7210.56C, Change 2, effective July 20, 2009. Specifically, paragraph 5.b.vii. of SFAR 103 requires a controller to provide a statement that they have not been involved in an operational error (OE), operational deviation (OD), or runway incursion in the last 5 years while in a control position. This requirement is inconsistent with current air traffic orders developed specifically to foster a safety culture that encourages full and open reporting of safety information and focuses on determining why events occur, rather than placing blame. In support of this culture, FAA Order JO 7210.56C, Change 2 removed all references to employee identification, training record entries, performance management, and return-to-duty actions that were historically tied to reported OE or OD events. Due to this change in policy, the reporting requirements of SFAR 103 5.b.vii. became unverifiable.
The FAA published the NPRM on June 2, 2010. (75 FR 30742, Docket No. FAA 2010-0567) The proposed rule invited comments on the proposal to remove paragraph 5.b vii of SFAR 103, since current practice made those provisions unverifiable. The proposed rule would amend only the requirement for controllers to provide a statement that they have not been involved in an operational error (OE), operational deviation (OD), or runway incursion in the last 5 years while in a control position. The proposal did not affect any other requirements for Air Traffic Controllers who request a waiver.
The comment period for the NPRM closed on July 2, 2010. The FAA received comments from two individuals on the proposal to amend the exemption process allowing ATC to delay mandatory retirement age. Both commenters supported waivers to extend the retirement age in general, and one commenter was also in favor of the specific proposal to remove documentation of any occurrences within the preceding 5 years. The other commenter suggested removing the
The FAA is adopting as final the proposed rule published on June 2, 2010. The final rule will become effective March 4, 2011.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no new information collection requirement associated with this rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. The FAA has made such a determination for this rule.
This rule will moderately streamline the process for ATCSs who are requesting a waiver of mandatory separation at age 56 by eliminating a paperwork obstacle. Currently, ATCSs need to provide a statement to certify that they have not been involved with an operational error (OE), operational deviation (OD), or runway incursion within the previous 5 years when submitting a request for a waiver of the mandatory separation at age 56. This rule will eliminate this certification requirement by reducing the written information ATCSs must provide, resulting in a cost saving.
We estimate ATCSs submit an average of 54 statements per year. ATCSs need approximately 5 minutes to prepare each statement, whereas air traffic managers need approximately 15 minutes to review them. The ATCS's salary including benefits expressed as an hourly wage rate with benefits is estimated to be $125 per hour;
Using the preceding information, the FAA estimates that the total cost savings of this final rule will be about $26,000 or $18,000 present value, as shown in Table 1.
FAA has, therefore, determined that this is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This final rule will help extend the careers of experienced air traffic controllers and thus have no impact on private sector entities. Consequently, the FAA certifies that the rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will not affect imports as it will have only a domestic impact and therefore is not subject to these Acts.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. In the NPRM, we requested comments on whether the proposed rule should apply differently to intrastate operations in Alaska. We did not receive any comments, and we have determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312(d) and involves no extraordinary circumstances.
The FAA has analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant regulatory action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and DOT's Regulatory Policies and Procedures, and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
You can get an electronic copy of rulemaking documents using the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
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,
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact your local FAA official, or the person listed under the
Air traffic controllers, Aircraft, Aviation safety.
In consideration of the foregoing, the Federal Aviation Administration amends Chapter I of Title 14, Code of Federal Regulations, as follows:
49 U.S.C. 106(g). 40113, 44701-44703, 44707, 44709-44711, 45102-45103, 45301-45302.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Ferry Street Bridge across the Quinnipiac River, mile 0.7, at New Haven, Connecticut. The deviation allows the bridge to keep one lift span closed to facilitate scheduled bridge maintenance.
This deviation is effective from 8 a.m. on January 3, 2011 through 5 p.m. on January 13, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2010-1096 and are available online at
If you have questions on this rule, call or e-mail Ms. Judy Leung-Yee, Project Officer, First Coast Guard District,
The Ferry Street Bridge, across the Quinnipiac River at mile 0.7, at New Haven, Connecticut, has a vertical clearance in the closed position of 25 feet at mean high water and 31 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.213.
The owner of the bridge, the City of New Haven, requested a temporary deviation from the regulations to facilitate scheduled bridge maintenance, replacing pinion couplings and brakes at the bridge.
Under this temporary deviation the Ferry Street Bridge may keep one lift span in the closed position from 8 a.m. on January 3, 2011 through 5 p.m. on January 6, 2011, and from 8 a.m. on January 10, 2011 through 5 p.m. on January 13, 2011. One lift span shall remain operational at all times.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary security zone on the waters south of Kapoho Point and a nearby channel in Kailua Bay within the Honolulu Captain of the Port (COTP) Zone. This security zone is necessary to ensure the safety of the President of the United States, members of his official party, and other senior government officials.
This rule is effective from 10 a.m. (HST) on December 21, 2010 through 8 p.m. (HST) on January 5, 2011.
Documents indicated in this preamble as being available in the docket USCG-2010-1111 are available online by going to
If you have questions on this temporary rule, call or e-mail Lieutenant Commander Marcella Granquist, Waterways Management Division, U.S. Coast Guard Sector Honolulu; telephone 808-842-2600, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to
From December 21, 2010 through January 5, 2011, the President of the United States, members of his official party, and senior government officials will be residing near the Kailua Bay shoreline on Oahu, Hawaii. This position is located adjacent to U.S. navigable waters in the Honolulu Captain of the Port Zone. The Coast Guard is establishing this security zone to ensure the safety of the President of the United States, members of his official party, and senior government officials.
This temporary security zone is effective from 10 a.m. HST on December 21, 2010 through 8 p.m. HST on January 5, 2011. It is located within the Honolulu Captain of the Port Zone (
In accordance with the general regulations in 33 CFR part 165, subpart D, no person or vessel will be permitted to transit into or remain in the zone except for authorized support vessels, aircraft and support personnel, or other vessels authorized by the Captain of the Port or the District Commander. Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce the zone. Vessels, aircraft, or persons in violation of this rule would be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the limited duration of the zone, the limited geographic area affected by it, and that the general public will be permitted to transit the security zone as necessary but will not be permitted to loiter.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. We expect that there will be little to no impact to small entities due to the narrow scope, nature of this security zone, and that the general public will be permitted to transit the security zone as necessary but will not be permitted to loiter. Additionally, before and during the effective period, the Coast Guard will issue verbal maritime advisories, and distribute a written notice to waterway users and online at
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 5100.1 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded under the Instruction that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because implementation of this security zone will not result in any: (1) Significant cumulative impacts on the human environment, (2) substantial controversy or substantial change to existing environmental conditions, (3) impacts which are more than minimal on properties under Section 106 of the National Historic Preservation Act, or (4) inconsistencies with any Federal, State, local laws or administrative determinations relating to the environment.
Harbors, Marine security, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Entry, transit, or anchoring within the security zone described in paragraph (a) of this section is prohibited unless authorized by the Captain of the Port Honolulu or the District Commander.
(d)
(e)
(f)
(g)
Environmental Protection Agency (EPA).
Final rule.
EPA is approving portions of four revisions to the Texas State Implementation Plan (SIP) that create and amend the Emissions Banking and Trading of Allowances (EBTA) Program. The EBTA Program establishes a cap and trade program to reduce emissions of oxides of nitrogen (NO
This final rule will be effective February 2, 2011.
EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2005-TX-0012. All documents in the docket are listed in the
The State submittal related to this SIP revision, and which is part of the EPA docket, is also available for public inspection at the State Air Agency listed below during official business hours by appointment:
Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.
If you have questions concerning today's final rule, please contact Ms. Adina Wiley (6PD-R), Air Permits Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is (214) 665-2115. Ms. Wiley can also be reached via electronic mail at
Throughout this document, whenever “we”, “us”, or “our” is used, we mean the EPA.
We are fully approving severable portions of four revisions to the Texas State Implementation Plan (SIP) that create and amend the Emissions Banking and Trading of Allowances (EBTA) Program. The EBTA Program establishes a cap and trade program to reduce emissions of oxides of nitrogen (NO
EPA acted on the above SIP revisions through a direct final rulemaking and accompanying proposed rule action on November 16, 2010, at 75 FR 69884 and 75 FR 69909, respectively. In our direct final action we stated that we would withdraw our direct final approval if we received relevant adverse comments before December 16, 2010. Because EPA received one adverse comment, we withdrew our direct final action on December 15, 2010. As we discussed in our direct final and proposed rulemaking actions, we are proceeding with a final action and responding to the comments received in this notice. Today, we are approving the EBTA program and subsequent revisions as we proposed and find that they comply with the CAA and EPA regulations, are consistent with EPA policies, and will improve air quality. This final approval is being taken under parts C and D of the CAA.
The TCEQ created the EBTA Program to implement the requirements of Texas Senate Bill 7 (SB 7), from the 76th Legislature, 1999, which deregulated the electric utility industry. Under Texas SB 7, TCEQ was required to develop a permitting system and a mass cap and trade system to distribute allowances for use by electric generating facilities. The EBTA program is designed to achieve a 50 percent reduction in NO
In our November 16, 2010, direct final action, we presented our evaluation of the EBTA program. Generally, SIP rules must be enforceable and must not relax existing requirements.
EPA received one adverse comment on our proposed action, available in the docket. As discussed previously, because we received an adverse comment within the comment period, EPA withdrew our direct final rulemaking on December 15, 2010. We are proceeding with a separate final action on the EBTA program in this notice.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 4, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The additions read as follows:
(c) * * *
Federal Emergency Management Agency, DHS.
Final rule.
Modified Base (1% annual-chance) Flood Elevations (BFEs) are finalized for the communities listed below. These modified BFEs will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective dates for these modified BFEs are indicated on the following table and revise the Flood Insurance Rate Maps (FIRMs) in effect for the listed communities prior to this date.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.
The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFEs determinations are available for inspection.
The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain
These modified BFEs are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Deputy Federal Insurance and Mitigation Administrator reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
42 U.S.C. 4001
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to correct the clause list and associated clause dates in the clause “Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items.”
Ms. Amy G. Williams, Defense Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 703-602-0328; facsimile 703-602-0350.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to add Alternate II in paragraph (b)(11)(iii) and to correct clause dates in paragraphs (b)(11) and (b)(14) of the clause at 252.212-7001, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items. These errors occurred as a result of the final rule DFARS Case 2009-D012, published in the
Government procurement.
Therefore, 48 CFR part 252 is amended as follows:
41 U.S.C. 421 and 48 CFR chapter 1.
The revision reads as follows:
(b) * * *
(11) * * *
(iii) __ Alternate II (DEC 2010) of 252.225-7001.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating projected unused amounts of Pacific cod among multiple sectors in the Bering Sea and Aleutian Islands management area. These actions are necessary to allow the 2010 total allowable catch of Pacific cod to be harvested.
Effective December 28, 2010, until 2400 hours, A.l.t., December 31, 2010.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (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 parts 600 and 679.
The 2010 Pacific cod total allowable catch (TAC) in the BSAI is 168,780 metric tons (mt) as established by the final 2010 and 2011 harvest specifications for groundfish in the BSAI (75 FR 11778, March 12, 2010). Pursuant to § 679.20(a)(7)(ii)(A), the allocations of the Pacific cod TAC are 73,000 mt to hook-and-line catcher/processors, 2,248 mt to pot catcher/processors, 300 mt to catcher vessels greater than or equal to 60 feet (18.3 meters (m)) length overall (LOA) using hook-and-line gear, 12,591 mt to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear, and 3,319 mt to the Amendment 80 limited access sector. The allocation to American Fisheries Act (AFA) trawl catcher/processors is 4,067 mt after one reallocation on September 9, 2010 (75 FR 55690, September 14, 2010). The allocation to catcher vessels using trawl gear is 28,809 mt after two reallocations on August 27, 2010 (75 FR 52478, August 26, 2010) and September 9, 2010 (75 FR 55690, September 14, 2010). The allocation to jig gear is 510 mt after two reallocations on March 17, 2010 (75 FR 13444, March 22, 2010) and April 12, 2010 (75 FR 19562, April 15, 2010). The allocation to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear is 5,098 after three reallocations on March 17, 2010 (75 FR 13444, March 22, 2010), April 12, 2010 (75 FR 19562, April 15, 2010), and August 27, 2010 (75 FR 52478, August 26, 2010).
First, as of December 23, 2010, the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that vessels using jig gear will not be able to harvest 160 mt of Pacific cod allocated to those vessels under § 679.20(a)(7)(ii) and subsequent reallocations. Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 160 mt of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.
Second, as of December 23, 2010, the Regional Administrator has determined that catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear will not be able to harvest 299 mt of Pacific cod allocated to those vessels under § 679.20(a)(7)(ii)(A). Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 251 mt of Pacific cod from catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear and 48 mt of Pacific cod from catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear.
Third, as of December 23, 2010, the Regional Administrator has determined that AFA trawl catcher/processors will not be able to harvest 26 mt of Pacific cod allocated to those vessels under § 679.20(a)(7)(ii)(A) and subsequent reallocations. Therefore, in accordance with § 679.20(a)(7)(iii)(B), NMFS apportions 26 mt of Pacific cod from AFA trawl catcher/processors to the Amendment 80 limited access sector.
Fourth, as of December 23, 2010, the Regional Administrator has determined that trawl catcher vessels will not be able to harvest 634 mt of Pacific cod allocated to those vessels under § 679.20(a)(7)(ii)(A) and subsequent reallocations. The Regional Administrator has also determined that the projected unharvested amount is unlikely to be harvested by any of the other catcher vessel sectors described in § 679.20(a)(7)(iii)(A). Therefore, in accordance with § 679.20(a)(7)(iii)(B), NMFS apportions 405 mt of Pacific cod from trawl catcher vessels to the Amendment 80 limited access sector, 190 mt of Pacific cod from trawl catcher vessels to hook-and-line catcher/processors, 33 mt to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear, and 6 mt to pot catcher/processors.
Finally, as of December 23, 2010, the Regional Administrator has determined that catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear will not be able to harvest 1,096 mt of Pacific cod allocated to those vessels under § 679.20(a)(7)(ii)(A) and subsequent reallocations. Therefore, in accordance with § 679.20(a)(7)(iii)(C), NMFS apportions 1,096 mt of Pacific cod from catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear to pot catcher/processors.
The allocations for Pacific cod specified in the final 2010 and 2011 final harvest specifications for groundfish in the BSAI (75 FR 11778, March 12, 2010) and reallocations on March 17, 2010 (75 FR 13444, March 22, 2010), April 12, 2010 (75 FR 19562, April 15, 2010), August 27, 2010 (75 FR 52478, August 26, 2010), and September 9, 2010 (75 FR 55690, September 14, 2010) are revised as follows: 4,041 mt to AFA catcher/processors using trawl gear, 3,750 mt to the Amendment 80 limited access sector, 28,175 mt to catcher vessels using trawl gear, 1 mt to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear, 11,576 mt to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using pot gear, 5,509 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, 350 mt to vessels using jig gear, 3,350 mt to pot catcher/processors, and 73,190 mt to hook-and-line catcher/processors.
This will enhance the socioeconomic well-being of harvesters dependent upon Pacific cod in this area. The Regional Administrator considered the following factors in reaching this decision: (1) The current catch of Pacific cod by the applicable BSAI sectors and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in the sectors participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Assistant
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
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 the products listed above. That NPRM proposed replacing the power control relays for the fuel boost pumps and override pumps with new relays having a ground fault interrupt (GFI) feature. That NPRM was prompted by results from fuel system reviews conducted by the manufacturer. This action revises that NPRM for all airplanes by proposing to require an electrical bonding resistance measurement for certain GFI relays to verify that certain bonding requirements are met. This action also revises that NPRM by proposing to require, for certain airplanes, an inspection to ensure that certain screws are properly installed, and re-installing longer screws if necessary. We are proposing this supplemental NPRM to prevent damage to the fuel pumps caused by electrical arcing that could introduce an ignition source in the fuel tank, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this supplemental NPRM by January 28, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
You may examine the AD docket on the Internet at
Georgios Roussos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, Seattle Aircraft Certification Office, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6482; fax (425) 917-6590; e-mail:
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 an NPRM to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Model 757-200, -200PF, -200CB, and -300 series airplanes. That NPRM was published in the
Since we issued the previous NPRM, Boeing has issued Service Bulletins 757-28A0078 and 757-28A0079, both Revision 1, both dated August 24, 2010. In the previous NPRM, we referred to Boeing Alert Service Bulletins 757-28A0078 and 757-28A0079, both dated July 16, 2008, as the appropriate sources of service information. The procedures in Revision 1 of these service bulletins are essentially the same as those in the original issues; however, Revision 1 of these service bulletins also includes the following new actions:
•
•
•
We gave the public the opportunity to comment on the previous NPRM. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing requested that we change the wording in the paragraph of the NPRM titled, “FAA's Determination and Requirements of This Proposed AD.” The paragraph states in part: “Airworthiness Limitation (AWL) 28-AWL-21 of Section 9 of the Boeing 757 Maintenance Planning Document (MPD) Document, D622N001-9, Revision March 2008, which was required by AD 2008-10-11, is also related to this proposed AD by including a repetitive operational test of the GFI relays, and repair of any failed GFI relay to ensure continued functionality of the GFI circuit.” Boeing pointed out that AWL 28-AWL-21 does not mention repair of any failed GFI relay and requested that the phrase “and repair of any failed GFI relay” be deleted from that paragraph of the NPRM.
We agree with Boeing's statement that AWL 28-AWL-21 of Section 9 of the Boeing 757 Maintenance Planning Document (MPD) Document, D622N001-9, Revision March 2008, does not describe repair of the GFI relays. The intent of the repair statement in the original NPRM was to show that if a maintenance check fails, it should be followed by a system repair and retest before pump operation. The correction can be a replacement of the GFI relay, its repair, or some other means identified in the airplane maintenance manual. However, the paragraph referenced by the commenter is not restated in this supplemental NPRM. Therefore, no change to this supplemental NPRM is necessary in this regard.
TDG Aerospace requested that we change the previous NPRM to reflect incorporation of a UFI it produces as an approved means of compliance for providing electrical fault protection for the center fuel tank override boost pumps. Thomson Airways, Jet2.com, FedEx, Continental Airlines, American Airlines, and DHL support TDG Aerospace's request. TDG Aerospace stated that FAA Supplemental Type Certificate (STC) ST01950LA, issued January 17, 2007, installs the TDG Aerospace UFI on Model 757 airplanes. TDG Aerospace pointed out that the UFIs have been approved as an alternative method of compliance (AMOC) with the requirements of paragraph (g) of AD 2008-11-07, Amendment 39-15529 (73 FR 30755, May 29, 2008), and paragraph (e) of AD 2002-24-51, Amendment 39-12900 (67 FR 61253, September 30, 2002), for certain Model 757-200 and 757-300 airplanes.
We acknowledge the commenter's request to allow the incorporation of the TDG Aerospace UFI for compliance with this supplemental NPRM. We will be working closely with TDG Aerospace on this issue; however, we have not yet completed evaluating the STC (STC ST01950LA) against the GFI-specific requirements of this supplemental NPRM. We issued AMOC approvals for certain requirements of ADs 2008-11-07 and 2002-24-51 in reference to potential ignition due to the generation of sparks caused by metal-to-metal contact during dry fuel pump operation, rather than generation by electrical arcing that this supplemental NPRM addresses. If substantiating data demonstrate that the TDG Aerospace UFI will provide an acceptable level of safety, we might consider reflecting incorporation of the STC as an option when we issue the final rule AD. We have not changed the supplemental NPRM in this regard.
American Airlines requested that operators be allowed to use substitutes for common hardware such as washers, nuts, bolts, shims, sealants, and adhesives that have been determined to be equivalent to the operator's parts management system. American Airlines stated that the Parts Disposition Authority for American Airlines is contained in the engineering procedures manual (EPM), which is incorporated by reference into the general manual that is required by the FAA-approved operations specification. The commenter stated that the EPM defines the process by which parts equivalency can be established. American Airlines stated that using approved substitutes for common hardware will eliminate unnecessary AMOC requests for equivalent hardware.
We disagree with the request to allow the use of substitutes for common hardware. Common hardware, as detailed above, in certain cases may play an integral role in the safety and integrity of the installation. The specific importance of common hardware may not always be obvious, and parts equivalency can only be assessed and addressed by an engineering review of the system and its installation. Operators may use the approved fastener and process material substitutions listed in the Accomplishment Instructions of Boeing Service Bulletins 757-28A0078 and 757-28A0079, both Revision 1, both dated August 24, 2010, as applicable. According to the provisions of paragraph (k) of this AD, operators may request approval of an AMOC to use substitutes for common hardware, if the request is submitted with substantiating data that demonstrate the substitutes for common hardware will provide an acceptable level of safety. We have not changed the supplemental NPRM in this regard.
We have revised this supplemental NPRM to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.
Since issuance of the original NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly rate.
We have also revised the Costs of Compliance in this supplemental NPRM to include the cost of the inspection to ensure that the installation screws used to secure the GFI relays have enough grip length to hold the screws to each nutplate and the cost of the bonding resistance measurement.
We have been advised that there is an error in Boeing Service Bulletins 757-28A0078 and 757-28A0079, both Revision 1, both dated August 24, 2010. The note in paragraph 3.B.12.i(5), refers to the left override fuel boost pump instead of the right override fuel boost pump. Boeing has issued Service Bulletin Information Notices (IN) 757-28A0078 IN 02 and 757-28A0079 IN 02, both dated October 6, 2010, to inform operators of the error. We have added a new paragraph (i) to this supplemental NPRM to reflect this change.
We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in 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.
This supplemental NPRM would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD will affect 696 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do the inspection to ensure that certain installation screws have sufficient grip length for airplanes on which the original issue of the service bulletins has been incorporated. We have no way of determining the number of airplanes that might need this inspection:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) 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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, 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 airworthiness directive (AD):
(a) We must receive comments by January 28, 2011.
(b) None.
(c) This AD applies to The Boeing Company Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category; as identified in the applicable service bulletin specified in paragraph (c)(1) or (c)(2) of this AD.
(1) For Model 757-200, -200PF, and -200CB series airplanes: Boeing Service Bulletin 757-28A0078, Revision 1, dated August 24, 2010.
(2) For Model 757-300 series airplanes: Boeing Service Bulletin 757-28A0079, Revision 1, dated August 24, 2010.
(d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 28, Fuel.
(e) This AD was prompted by fuel system reviews conducted by the manufacturer. We
(f) Comply with this AD within the compliance times specified, unless already done.
(g) For airplanes on which the actions specified in Boeing Alert Service Bulletin 757-28A0078 or 757-28A0079, both dated July 16, 2008, have not been accomplished as of the effective date of this AD: Within 60 months after the effective date of this AD, replace the power control relays for the fuel boost pumps and override pumps with new relays having a ground fault interrupt (GFI) feature; do applicable electrical bonding resistance measurements between the GFI relays and their installation panel to verify that applicable bonding requirements are met; and do an operational test to ensure correct operation, as specified in Boeing Service Bulletin 757-28A0078, Revision 1, dated August 24, 2010 (for Model 757-200, -200CB, and -200PF airplanes); or Boeing Service Bulletin 757-28A0079, Revision 1, dated August 24, 2010 (for Model 757-300 airplanes). Do all actions in accordance with Part 1 of the Accomplishment Instructions of Boeing Service Bulletin 757-28A0078, Revision 1, dated August 24, 2010 (for Model 757-200, -200CB, and -200PF airplanes); or Boeing Service Bulletin 757-28A0079, Revision 1, dated August 24, 2010 (for Model 757-300 airplanes); except as required by paragraph (i) of this AD.
(h) For airplanes on which the actions specified in Boeing Alert Service Bulletin 757-28A0078 or 757-28A0079, both dated July 16, 2008, have been accomplished before the effective date of this AD: Within 60 months after the effective date of this AD, do a general visual inspection to verify that each GFI installation screw has enough grip length to hold the screws in each nut plate; and do applicable electrical bonding resistance measurements between the GFI relays and their installation panel to verify that applicable bonding requirements are met. If the screw does not have enough grip length, before further flight, install a longer screw. Do all actions in accordance with Part 2 of the Accomplishment Instructions of Boeing Service Bulletin 757-28A0078, Revision 1, dated August 24, 2010 (for Model 757-200, -200CB, and -200PF airplanes); or Boeing Service Bulletin 757-28A0079, Revision 1, dated August 24, 2010 (for Model 757-300 airplanes).
(i) The note in paragraph 3.B.12.i(5) of Part 1 of the Accomplishment Instructions of Boeing Service Bulletins 757-28A0078 and 757-28A0079, both Revision 1, both dated August 24, 2010, should read, “NOTE: The right override fuel boost pump PRESS light stays off when the pump switch is turned to OFF.”
(j) A Federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave., SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.
(k)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be e-mailed to:
(2) Before using any approved AMOC, notify your Principal Maintenance Inspector or Principal Avionics Inspector, as appropriate, or lacking a principal inspector, your local Flight Standards District Office.
(l) For more information about this AD, contact Georgios Roussos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, Seattle ACO, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6482; fax (425) 917-6590. Or, e-mail information to
(m) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD would require replacing the existing unshielded fuel quantity indication system (FQIS) wire bundles with double shielded FQIS wire bundles, installing a new wire feed-through fitting, and grounding the wire shields, as applicable; and doing repetitive low frequency eddy current (LFEC) inspections for cracking of the fuselage skin, and corrective actions if necessary. This proposed AD also would require revising the maintenance program to incorporate certain airworthiness limitations. This proposed AD was prompted by fuel system reviews conducted by the manufacturer. We are proposing this AD to increase the level of protection from lightning strikes and prevent 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.
We must receive comments on this proposed AD by February 17, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
You may examine the AD docket on the Internet at
Louis Natsiopoulos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6478; fax (425) 917-6590; e-mail:
We invite you to send any written relevant data, views, or arguments about this proposal. 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 Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (
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.
A safety assessment has determined that shielding was not provided for the FQIS wire bundles. Unshielded wire bundles could result in a reduced level of protection against a lightning strike which could be a potential ignition source for the fumes in the fuel tanks. This condition, if not corrected, could result in fuel tank explosions and consequent loss of the airplane.
We reviewed Boeing Service Bulletin 727-28-0131, dated August 18, 2010. The service information describes procedures for the following:
• For airplanes in Groups 1, 12, 13, and 14: Replacing the FQIS wire bundles between the fitting and ground brackets at the pressure seal and the tank connectors on the wing tanks with double shielded wire bundles; installing a new wire feed-through fitting and ground brackets for the wires at the pressure seal, and ground brackets at the wing tank connectors; and grounding the wire shields at the pressure seal feed-through fitting and ground brackets and at the tank connector brackets.
• For airplanes in Groups 2 through 11 and 15 through 49: Replacing the FQIS wire bundles between the pressure seal and the volumetric top-off (VTO) connectors with double shielded wire bundles and working the ground wires at the VTO connectors.
• For all airplanes: Doing repetitive LFEC inspections for cracking in the fuselage skin on the left and right sides of the airplane, and contacting Boeing for repair instructions and doing the repair if necessary.
We have also reviewed Section 9 of the Boeing 727-100/200 Airworthiness Limitations (AWLs), D6-8766-AWL, Revision August 2010. Sub-Section D of Section 9 of the Boeing 727-100/200 Airworthiness Limitations (AWLs), D6-8766-AWL describes AWLs for fuel tank systems, including the following fuel system AWLs:
• AWL No. 28-AWL-18 which is a check of the fuel quantity indicating system (FQIS)—out-tank wiring lightning shield to ground termination, applicable to all Model 727-100 and -200 airplanes that have incorporated Boeing Service Bulletin 727-28-0131.
• AWL No. 28-AWL-19 which is a critical design configuration control limitation (CDCCL) that specifies to do a check of the FQIS—out-tank wiring lightning shield to ground termination, following any FQIS out-tank wire bundle replacement, wire bundle shield repair or shield path to ground reconnection, applicable to all Model 727-100 and -200 airplanes that have incorporated Boeing Service Bulletin 727-28-0131.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between Proposed Rule and Service Bulletin.”
Although Boeing Service Bulletin 727-28-0131, dated August 18, 2010, specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those cracks using a method approved by the FAA.
We estimate that this proposed AD will affect 566 airplanes of U.S. registry.
We estimate the following costs 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.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) 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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, 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 airworthiness directive (AD):
(a) We must receive comments by February 17, 2011.
(b) None.
(c) This AD applies to The Boeing Company Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, all variable numbers, certificated in any category.
This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (l) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.
(d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 28, Fuel.
(e) This AD was prompted by fuel system reviews conducted by the manufacturer. We are issuing this AD to increase the level of protection from lightning strikes and prevent 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.
(f) Comply with this AD within the compliance times specified, unless already done.
(g) Within 60 months after the effective date of this AD, install double shielded fuel quantity indicating system (FQIS) wire bundles, install a new wire feed-through fitting, and ground the wire shields, as applicable, in accordance with Part 1 of the Accomplishment Instructions of Boeing Service Bulletin 727-28-0131, dated August 18, 2010.
(h) At the applicable times specified in paragraphs (h)(1) or (h)(2) of this AD, do low frequency eddy current (LFEC) inspections for cracking of the fuselage skin, in accordance with Part 2 of the Accomplishment Instructions of Boeing Service Bulletin 727-28-0131, dated August 18, 2010.
(1) For Model 727, 727-100, 727-100C, and 727C series airplanes: Before the accumulation of 45,000 total flight cycles, or within 8,000 flight cycles after the effective date of this AD, whichever occurs later. Repeat the inspections thereafter at intervals not to exceed 8,000 flight cycles.
(2) For Model 727-200 and 727-200F series airplanes: Before the accumulation of 45,000 total flight cycles, or within 16,000 flight cycles after the effective date of this AD, whichever occurs later. Repeat the inspections thereafter at intervals not to exceed 16,000 flight cycles.
(i) If any cracking is found during any inspection required by paragraph (h) of this AD: Before further flight, repair the crack in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. 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.
(j) Before or concurrently with doing the actions required by paragraph (g) of this AD, or within 30 days after the effective date of this AD, whichever occurs later: Revise the maintenance program by incorporating airworthiness limitations (AWL) No. 28-AWL-18 and 28-AWL-19 in Section D of Section 9 (“AIRWORTHINESS LIMITATIONS—FUEL SYSTEMS”) of the Boeing 727-100/200 Airworthiness Limitations (AWLs) Document, D6-8766-AWL, Revision August 2010. The initial compliance time for AWL No. 28-AWL-18 is within 10 years after the accomplishment of paragraph (g) of this AD, or within 10 years after the effective date of this AD, whichever occurs later.
(k) After accomplishing the action specified in paragraph (j) of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used unless the inspections, intervals, or CDCCLs are approved as an Alternative Method of Compliance (AMOC) in accordance with the procedures specified in paragraph (l) of this AD.
(l)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be e-mailed to:
(2) Before using any approved AMOC, notify your Principal Maintenance Inspector or Principal Avionics Inspector, as appropriate, or lacking a principal inspector, your local Flight Standards District Office.
(m) For more information about this AD, contact Louis Natsiopoulos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6478; fax (425) 917-6590; e-mail:
(n) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
DGAC [Direction Générale de l'Aviation Civile] France Airworthiness Directive (AD) 1992-106-132(B) * * * was issued to require a set of inspection- and modification tasks which addressed JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure. * * *.
We must receive comments on this proposed AD by February 17, 2011.
You may send comments by any of the following methods:
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•
•
•
For service information identified in this proposed AD, contact Airbus SAS—EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; 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
On December 8, 1998, we issued AD 98-26-01, Amendment 39-10942 (63 FR 69179, December 16, 1998). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 98-26-01, we have determined that certain compliance times need to be reduced in order to adequately address the identified unsafe condition. Therefore, certain requirements of paragraphs (h), (i), (j), (m), (n), and (s) of that AD are included in this NPRM. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0242, dated September 4, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
DGAC [Direction Générale de l'Aviation Civile] France Airworthiness Directive (AD) 1992-106-132(B) original issue up to revision 7 was issued to require a set of inspection- and modification tasks which addressed JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure [FAA AD 98-26-01 corresponds to DGAC AD 1992-106-132(B)R4, dated June 5, 1996].
Following the Extended Design Service Goal activities as part of the Structure Task Group for the Airbus A310 program, EASA issued AD 2007-0053 which replaced DGAC France AD F-1992-106-132R7. Since the issuance of that AD, the thresholds and the intervals of some Airbus Service Bulletins (SBs which address structure fatigue related areas on the wing parts), until now part of the requirements of AD 2007-0053, have been updated.
For the reasons stated above, this new [EASA] AD requires the accomplishment of the structural fatigue-related corrective actions in accordance with the latest revision of these SBs which have been reviewed in the context of the A310 Extended Service Goal activities. Consequently, this new AD supersedes the requirements of paragraphs 1.8, 1.9, 1.10, 1.13, 1.18 of EASA AD 2007-0053, which has been revised accordingly.
• For certain Model A310-203 and A310-222 airplanes: Repetitive detailed inspections for cracking of the leading edge access panels around the bolt holes, and repair if necessary.
• For certain Model A310-203, A310-204, A310-222, A310-304, A310-322, A310-324, and A310-325 airplanes: Repetitive eddy current inspections to detect cracks in the holes around the overwing refueling aperture at ribs 13-14, and repair if necessary.
• For certain Model A310-203, A310-204, A310-222, A310-304, A310-322, A310-324, and A310-325 airplanes: Repetitive external detailed inspections for cracking of the top skin at ribs 13-14, repetitive internal detailed inspections for cracking of stringer 7 and stringer 8 of the overwing refuel aperture, and repair if necessary.
• For certain Model A310-203 and A310-222 airplanes: Repetitive detailed inspections for cracking around the bolts in the wing top skin upper surface of the front spar between rib 7 and rib 28, and repair if necessary.
• For certain Model A310-203 and A310-222 airplanes: Repetitive high frequency eddy current (HFEC) or X-ray inspections to detect cracking of the stringer runouts inboard and outboard of rib 14 at stringers 6, 7, 8, and 9, and repair if necessary.
• For certain Model A310-203, A310-204, A310-222, A310-304, A310A-322, and A310-324 airplanes: Repetitive ultrasonic inspections for cracking in certain bolt holes where the main landing gear forward pick-up fitting is attached to the rear spar, and repair if necessary.
You may obtain further information by examining the MCAI in the AD docket.
On September 5, 1990, we issued AD 90-19-07, Amendment 39-6731 (55 FR 37455), for certain Airbus Model A310-200 series airplanes, to require repetitive X-ray inspections of stringers 6, 7, 8, and 9 run-outs inboard and outboard of rib 14, and repair if necessary. Accomplishing an inspection in accordance with paragraph (l) of this AD would terminate the requirements of paragraph (a) of AD 90-19-07.
On March 6, 1991, we issued AD 91-06-18, amendment 39-6940 (56 FR 10796), for all Airbus Model A310-200 series airplanes, to require repetitive high frequency eddy current (HFEC) rototest inspections to detect cracks in the wing rear spar at certain bolt holes where the main landing gear (MLG) forward pick-up fittings are attached to the rear spar, and repair, if necessary. Accomplishing an inspection in accordance with paragraph (q) of this AD would terminate the requirements of AD 91-06-18, amendment 39-6940.
We are also considering issuing three other NPRMs related to this NPRM:
•
•
Airbus has issued the service bulletins listed in the table below.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with 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.
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 44 products of U.S. registry. We also estimate that it would take about 97 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $362,780, or $8,245 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, 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 February 17, 2011.
(b) This AD affects AD 90-19-07, Amendment 39-6731; and AD 91-06-18, Amendment 39-6940.
(c) This AD applies to Airbus Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes, certificated in any category, all certified models, all serial numbers.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
DGAC [Direction Générale de l'Aviation Civile] France Airworthiness Directive (AD) 1992-106-132(B) * * * was issued to require a set of inspection- and modification tasks which addressed JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure. * * *.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) For Model A310-203 and A310-222 airplanes listed in Airbus Service Bulletin A310-57-2002, Revision 2, dated January 4, 1996, except airplanes on which Airbus modification No. 05101 has been embodied in production, or on which Airbus Service Bulletin A310-57-2003 has been embodied in service before the accumulation of 9,400 total flight cycles and 18,800 total flight hours: At the times specified in paragraph (h) of this AD, perform a detailed visual inspection to detect cracks in the external surface of the wing lower skin around the landing access panel holes of the leading edge, in accordance with the Airbus Service Bulletin A310-57-2002, Revision 1, dated July 2, 1992; Airbus Service Bulletin A310-57-2002, Revision 2, dated January 4, 1996; or Airbus Mandatory Service Bulletin A310-57-2002, Revision 03, dated November 28, 2006. If any discrepancy is found, prior to further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or the Direction Générale de l'Aviation Civile (DGAC) (or its delegated agent) or EASA (or its delegated agent). Except as required by paragraph (n) of this AD, repeat the detailed inspection specified in this paragraph at the earlier of the times specified in paragraphs (g)(1) and (g)(2) of this AD; and thereafter at intervals not to exceed 2,300 flight cycles or 4,700 flight hours, whichever occurs first. As of the effective date of this AD, use only Airbus Mandatory Service Bulletin A310-57-2002, Revision 03, dated November 28, 2006. Accomplishment of Airbus Modification 05101 (Airbus Service Bulletin A310-57-2003) before the effective date of this AD terminates the repetitive inspection requirements of this paragraph; however, airplanes identified in paragraph (n) of this AD are applicable to the new inspections required by paragraph (n) of this AD. As of the effective date of this AD: Accomplishment of Airbus Modification 05101 (Airbus Service Bulletin A310-57-2003) before the accumulation of 9,400 total flight cycles and 18,800 total flight hours terminates the repetitive inspection requirements of this paragraph.
As of the effective date of this AD, if Airbus Service Bulletin A310-57-2003 is done on or after the accumulation of 9,400 total flight cycles or on or after the accumulation of 18,800 total flight hours, the actions specified in paragraph (g) of this AD are still required.
(1) Within 3,000 flight cycles after doing the detailed inspection specified in paragraph (g) of this AD.
(2) At the later of the times specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD.
(i) Within 2,300 flight cycles or 4,700 flight hours, whichever occurs first, after doing the detailed inspection required by paragraph (g) of this AD.
(ii) Within 1,500 flight cycles or 3,000 flight hours, whichever occurs first, after the effective date of this AD.
(h) For Model A310-203 and A310-222 airplanes listed in Airbus Service Bulletin A310-57-2002, Revision 2, dated January 4, 1996, except airplanes on which Airbus modification No. 05101 has been embodied in production, or on which Airbus Service Bulletin A310-57-2003 has been embodied in service before the accumulation of 9,400 total flight cycles and 18,800 total flight hours: At the earlier of the times specified in paragraphs (h)(1) and (h)(2) of this AD, do the detailed inspection required by paragraph (g) of this AD.
(1) Prior to the accumulation of 12,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999 (the effective date of AD 98-26-01, amendment 39-10942), whichever occurs later.
(2) At the later of the times specified in paragraph (h)(2)(i) and (h)(2)(ii) of this AD.
(i) Prior to the accumulation of 9,400 total flight cycles or 18,800 total flight hours, whichever occurs first.
(ii) Within 1,500 flight cycles or 3,000 flight hours, whichever occurs first, after the effective date of this AD.
(i) For Model A310-203, A310-204, A310-222, A310-304, A310-322, A310-324, and A310-325 airplanes that are listed in Airbus Service Bulletin A310-57-2006, Revision 3, dated May 2, 1996, and are identified as Configuration 1 in Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007: Prior to the accumulation of 6,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999, whichever occurs later, perform an eddy current inspection to detect cracks in the holes around the overwing refueling aperture at ribs 13-14, in accordance with Airbus Service Bulletin A310-57-2006, Revision 3, dated May 2, 1996; or Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007. If any discrepancy is found, prior to further flight, perform follow-on corrective actions, as applicable, in accordance with Airbus Service Bulletin A310-57-2006, Revision 3, dated May 2, 1996; or Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007; except where the service bulletin specifies to contact Airbus for repair, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or the DGAC (or its delegated agent) or EASA (or its delegated agent). Repeat the inspection specified in this paragraph at the earlier of the times specified in paragraphs (i)(1) and (i)(2) of this AD, and thereafter at intervals not to exceed 2,300 flight cycles or 4,600 flight hours, whichever occurs first. As of the effective date of this AD, use only Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007. Accomplishment of Airbus Modification 5891H5128 (Airbus Service Bulletin A310-57-2020) terminates the repetitive inspections required by this paragraph.
(1) Within 3,000 flight cycles after doing the last inspection required by paragraph (i) of this AD.
(2) At the later of the times specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD.
(i) Within 2,300 flight cycles or 4,600 flight hours, whichever occurs first, after doing the most recent inspection required by paragraph (i) of this AD.
(ii) Within 380 flight cycles or 770 flight hours, whichever occurs first, after the effective date of this AD.
(j) For Model A310-203 and A310-222 airplanes listed in Airbus Service Bulletin A310-57-2032, Revision 3, dated January 4, 1996, except airplanes on which Airbus modification 05026 has been embodied in production, or on which Airbus Service Bulletin A310-57-2005 has been done in service before the accumulation of 10,500 total flight cycles and 21,000 total flight hours: At the times specified in paragraph (k) of this AD, perform a detailed visual inspection to detect cracks around the bolts in the wing top skin upper surface of the front spar between rib 7 and rib 28, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-57-2032, Revision 3, dated January 4, 1996; or Airbus Mandatory Service Bulletin A310-57-2032, Revision 04, dated December 1, 2006. If any discrepancy is found, prior to further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or DGAC (or its delegated agent) or EASA (or its delegated agent). Except as required by paragraph (p) of this AD, repeat the detailed inspection specified in this paragraph at the earlier of the times specified in paragraphs (j)(1) and (j)(2) of this AD, and thereafter at intervals not to exceed 3,900 flight cycles or 7,900 flight hours, whichever occurs first. As of the effective date of this AD, use only Airbus Mandatory Service Bulletin A310-57-2032, Revision 04, dated December 1, 2006. Accomplishment of Airbus Modification 5026H0878 (Airbus Service Bulletin A310-57-2005) before the effective date of this AD terminates the repetitive inspection requirements of this paragraph; however, airplanes identified in paragraph (p) of this AD are applicable to the new inspections required by paragraph (p) of this AD. As of the effective date of this AD: Accomplishment of Airbus Modification 5026H0878 (Airbus Service Bulletin A310-57-2005) before the accumulation of 10,500 total flight cycles and 21,000 total flight hours terminates the repetitive inspection requirements of this paragraph.
(1) Within 4,500 flight cycles after doing the last inspection required by paragraph (j) of this AD.
(2) At the later of the times specified in paragraphs (j)(2)(i) and (j)(2)(ii) of this AD.
(i) Within 3,900 flight cycles or 7,900 flight hours, whichever occurs first, after doing the most recent inspection required by paragraph (j) of this AD.
(ii) Within 850 flight cycles or 1,700 flight hours, whichever occurs first, after the effective date of this AD.
As of the effective date of this AD, if Airbus Service Bulletin A310-57-2005 is
(k) For Model A310-203 and A310-222 airplanes listed in Airbus Service Bulletin A310-57-2032, Revision 3, dated January 4, 1996, except airplanes on which Airbus modification 05026 has been embodied in production, or on which Airbus Service Bulletin A310-57-2005 has been done in service before the accumulation of 10,500 total flight cycles and 21,000 total flight hours: At the earlier of the times specified in paragraphs (k)(1) and (k)(2) of this AD, do the detailed inspection required by paragraph (j) of this AD.
(1) Prior to the accumulation of 12,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999, whichever occurs later.
(2) At the later of the times specified in paragraphs (k)(2)(i) and (k)(2)(ii) of this AD.
(i) Prior to the accumulation of 10,500 total flight cycles or 21,000 total flight hours, whichever occurs first.
(ii) Within 850 flight cycles or 1,700 flight hours, whichever occurs first, after the effective date of this AD.
(l) For Model A310-203 and A310-222 airplanes listed in Airbus Service Bulletin A310-57-2038, Revision 2, dated January 4, 1996, except airplanes on which Airbus modification 04987 has been done in production: At the compliance time specified in paragraph (m) of this AD, perform a high frequency eddy current (HFEC) or X-ray inspection to detect cracking of the stringer runouts inboard and outboard of rib 14 at stringers 6, 7, 8, and 9, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-57-2038, Revision 2, dated January 4, 1996; or Airbus Mandatory Service Bulletin A310-57-2038, Revision 04, dated October 19, 2006. Do the next inspection at the earlier of the times specified in paragraph (l)(1) and (l)(2) of this AD, and repeat the inspection thereafter at intervals not to exceed the applicable times specified in Table 1 of this AD. If any crack is detected, prior to further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or DGAC (or its delegated agent) or EASA (or its delegated agent). As of the effective date of this AD, use only Airbus Mandatory Service Bulletin A310-57-2038, Revision 04, dated October 19, 2006.
(1) Within the applicable interval specified in paragraph 1.B.(5) of Airbus Service Bulletin A310-57-2038, Revision 2, dated January 4, 1996.
(2) At the later of the times specified in paragraph (l)(2)(i) and (l)(2)(ii) of this AD.
(i) Within the applicable interval specified in Table 1 of this AD after doing the most recent inspection specified in paragraph (l) of this AD.
(ii) Within 1,100 flight cycles or 2,300 flight hours, whichever occurs first, after the effective date of this AD.
(m) For Model A310-203 and A310-222 airplanes listed in Airbus Service Bulletin A310-57-2038, Revision 2, dated January 4, 1996, except airplanes on which Airbus modification 04987 has been done in production: At the earlier of the times specified in paragraphs (m)(1) and (m)(2) of this AD, perform an inspection required by paragraph (l) of this AD.
(1) Prior to the accumulation of 12,000 total flight cycles, or within 1,500 flight cycles after January 20, 1999, whichever occurs later.
(2) At the later of the times specified in paragraphs (m)(2)(i) and (m)(2)(ii) of this AD.
(i) Prior to the accumulation of 12,000 total flight cycles or 24,000 total flight hours, whichever occurs first.
(ii) Within 1,100 flight cycles or 2,300 flight hours after the effective date of this AD, whichever occurs first.
(n) For Model A310-203 and A310-222 airplanes, on which Airbus Service Bulletin A310-57-2003 has been done in service on or after the accumulation of 9,400 total flight cycles or on or after the accumulation of 18,800 total flight hours: Do the inspection required by paragraph (g) of this AD at the later of the times specified in paragraphs (n)(1) and (n)(2) of this AD. Repeat the inspection required by paragraph (g) of this AD thereafter at intervals not to exceed 2,300 flight cycles or 4,700 flight hours, whichever occurs first.
(1) Within 2,300 flight cycles or 4,700 flight hours, whichever occurs first, after doing the most recent detailed inspection required by paragraph (g) of this AD.
(2) Within 1,500 flight cycles or 3,000 flight hours, whichever occurs first, after the effective date of this AD.
(o) For Model A310-203, A310-204, A310-222, A310-304, A310-322, A310-324, and A310-325 airplanes, except for airplanes identified in paragraph (i) of this AD on which Airbus Modification 05891H5128 (Airbus Service Bulletin A310-57-2020) has not been done: At the applicable compliance time specified in Table 2 of this AD, do the applicable actions specified in paragraph (o)(1) or (o)(2) of this AD, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007. If any cracking is found, before further flight, repair in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007; except where this service bulletin specifies to contact Airbus for repair, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or EASA (or its delegated agent). Repeat the inspections thereafter at the applicable interval specified in Table 2 of this AD. Certain compliance times specified in Table 2 of this AD are applicable to short range use, average flight time (AFT) equal to or less than 4.0 hours, or long range use, AFT exceeding 4.0 hours. For airplanes identified as Configuration 01 in Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007, accomplishment of Airbus Modification 05891H5128 (Airbus Service Bulletin A310-57-2020) terminates the repetitive inspections required by this paragraph for Configuration 01 airplanes; thereafter do the applicable actions specified in paragraph (o)(2) of this AD at the times specified in Table 2 of this AD.
(1) For Configuration 01 airplanes, as identified in Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007: Do a rotating probe eddy current inspection for cracking in the holes around the overwing refueling aperture at ribs 13-14.
(2) For Configuration 02 through 06 airplanes, as identified in Airbus Mandatory Service Bulletin A310-57-2006, Revision 04, dated May 21, 2007: Do an external detailed inspection for cracking of the top skin at ribs 13-14, and an internal detailed inspection for cracking of string 7 and string 8 of the overwing refuel aperture.
(p) For Model A310-203 and A310-222 airplanes on which Airbus Service Bulletin A310-57-2005 has been done in service on or after the accumulation of 10,500 total flight cycles or on or after 21,000 total flight hours: Do the inspection required by paragraph (j) of this AD at the later of the times specified in paragraphs (p)(1) and (p)(2) of this AD. Repeat the inspection specified in paragraph (j) of this AD thereafter at intervals not to exceed 3,900 flight cycles or 7,900 flight hours, whichever occurs first.
(1) Within 3,900 flight cycles or 7,900 flight hours, whichever occurs first, after doing the most recent inspection required by paragraph (j) of this AD.
(2) Within 850 flight cycles or 1,700 flight hours, whichever occurs first, after the effective date of this AD.
(q) For Model A310-203, A310-204, A310-222, A310-304, A310A-322, and A310-324 airplanes, except airplanes on which Airbus modification 07601 has been done in production: Do the applicable actions specified in paragraphs (q)(1), (q)(2), and (q)(3) of this AD. If any cracking is found during any inspection, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or EASA (or its delegated agent).
For Model A310-304, A310A-322, and A310-324 airplanes on which Airbus modification 07601 has been done, guidance for post-modification inspections can be found in Structure Significant Item (SSI) 57.21.16 of the Maintenance Review Board Document (MRBD).
(1) For airplanes on which Airbus Modification 07925H1113 (Airbus Service Bulletin A310-57-2049) and Modification 11578H5436 (Airbus Service Bulletin A310-57-2074) have not been done: At the applicable time specified in Table 3 of this AD, perform an ultrasonic inspection for cracking in certain bolt holes where the main landing gear forward pick-up fitting is attached to the rear spar, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2046, Revision 08, dated December 1, 2006. Repeat the inspection thereafter at the applicable interval specified in Table 3 of this AD until Airbus Modification 07925H1113 (Airbus Service Bulletin A310-57-2049) or 11578H5436 (Airbus Service Bulletin A310-57-2074) has been done. After doing Airbus Modification 07925H1113 (Airbus Service Bulletin A310-57-2049) or 11578H5436 (Airbus Service Bulletin A310-57-2074) do the applicable actions specified in paragraph (q)(2) or (q)(3) of this AD at the times specified in paragraph (q)(2) or (q)(3) of this AD, as applicable. Certain compliance times specified in Table 3 of this AD are applicable to short range use, average flight time (AFT) equal to or less than 4.0 hours, or long range use, AFT exceeding 4.0 hours.
(2) For airplanes on which Airbus Modification 07925H1113 (Airbus Service Bulletin A310-57-2049) has been done: At the applicable time specified in Table 4 of this AD, perform an ultrasonic inspection for cracking in certain bolt holes where the main landing gear forward pick-up fitting is attached to the rear spar, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2046, Revision 08, dated December 1, 2006. Repeat the inspection thereafter at the applicable interval specified in Table 4 of this AD. Certain compliance times specified in Table 4 of this AD are applicable to short range use, AFT equal to or less than 4.0 hours, or long range use, AFT exceeding 4.0 hours.
(3) For airplanes on which Airbus Modification 11578H5436 (Airbus Service Bulletin A310-57-2074) has been done: At the applicable time specified in Table 5 of this AD, perform an ultrasonic inspection for cracking in certain bolt holes where the main landing gear forward pick-up fitting is attached to the rear spar, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2046, Revision 08, dated December 1, 2006. Repeat the inspection thereafter at the applicable interval specified in Table 5 of this AD. Certain compliance times specified in Table 5 of this AD are applicable to short range use, average flight time (AFT) equal to or less than 4.0 hours, or long range use, AFT exceeding 4.0 hours.
(r) Actions done before the effective date of this AD in accordance with Airbus Service Bulletin A310-57-2038, Revision 03, dated September 4, 1998, are acceptable for compliance with the corresponding actions specified in paragraph (l) of this AD.
(s) Actions done before the effective date of this AD in accordance with Airbus Service Bulletin A310-57-2046, Revision 07, dated April 2, 1999, are acceptable for compliance with the corresponding actions specified in paragraph (q) of this AD.
(t) Accomplishing an inspection in accordance with Airbus Service Bulletin A310-57-2038, Revision 2, dated January 4, 1996, or Revision 03, dated September 4, 1998; or Airbus Mandatory Service Bulletin A310-57-2038, Revision 04, dated October 19, 2006; terminates the requirements of paragraph (a) of AD 90-19-07, Amendment 39-6731.
Airbus Service Bulletin A310-57-2038, Revision 2, dated January 4, 1996; and Airbus Mandatory Service Bulletin A310-57-2038, Revision 04, dated October 19, 2006; are referred to in paragraph (l) of this AD. Airbus Service Bulletin A310-57-2038, Revision 03, dated September 4, 1998, is referred to in paragraph (r) of this AD.
(u) Accomplishing an inspection in accordance with Airbus Service Bulletin A310-57-2046, Revision 4, dated October 16, 1996, as revised by Airbus Service Bulletin Change Notice 4A, dated October 16, 1996; Airbus Service Bulletin A310-57-2046, Revision 07, dated April 2, 1999; or Airbus Mandatory Service Bulletin A310-57-2046, Revision 08, dated December 1, 2006; terminates the requirements of AD 91-06-18, amendment 39-6940.
Airbus Mandatory Service Bulletin A310-57-2046, Revision 08, dated December 1, 2006, is referred to in paragraph (q) of this AD. Airbus Service Bulletin A310-57-2046, Revision 07, dated April 2, 1999, is referred to in paragraph (s) of this AD. Airbus Service Bulletin A310-57-2046, Revision 4, dated October 16, 1996, as revised by Airbus Service Bulletin Change Notice 4A, dated October 16, 1996, is referred to in paragraph (n) of AD 98-26-01.
This AD differs from the MCAI and/or service information as follows:
Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, paragraph (j) of this AD requires that you repair the crack(s) before further flight.
(v) The following provisions also apply to this AD:
(1)
(2)
(3)
(w) Refer to MCAI EASA Airworthiness Directive 2007-0242, dated September 4, 2007; and Airbus service bulletins listed in Table 6 of this AD; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above that would supersede two existing ADs. 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:
DGAC [Direction Générale de l'Aviation Civile] France AD 1992-106-132(B) * * * has been issued in order to mandate a set of inspections/modifications which address JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure.
We must receive comments on this proposed AD by February 17, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS-EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; 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
On December 8, 1998, we issued AD 98-26-01, Amendment 39-10942 (63 FR 69179, December 16, 1998); and on May 30, 1991, we issued AD 91-13-01, Amendment 39-7032 (56 FR 26602, June 10, 1991). Those ADs required actions intended to address an unsafe condition on the products listed above.
Since we issued ADs 98-26-01 and 91-13-01, we have determined that certain compliance times need to be reduced in order to adequately address the identified unsafe condition. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0053R3, dated December 17, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
DGAC [Direction Générale de l'Aviation Civile] France AD 1992-106-132(B) original issue up to revision 7 has been issued in order to mandate a set of inspections/modifications which address JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure [FAA AD 98-26-01 corresponds to DGAC AD 1992-106-132(B)R4, dated June 5, 1996].
Following the Extended Design Service Goal activities part of the Structure Task Group for the A310 program, EASA AD 2007-0053 superseded DGAC France AD F-1992-106-132R7 in order to take into account the publication of Airbus Service Bulletins (SB) A310-55-2004 at Revision 5 and Airbus SB A310-53-2074 at Revision 3, whose inspection thresholds and/or intervals had been reduced.
Revision 1 of this AD was issued to remove the mandatory requirements related to the wings (
Revision 2 of this AD has been issued to remove the mandatory requirements of paragraph 1.15, 1.16 and 1.17 which have now been transferred to EASA AD 2009-0057 (§ 1.15 and 1.17) and 2009-0058 (§ 1.16) respectively.
Revision 3 of this AD is issued to add a Note to the Applicability and amend the Required Action(s) and Compliance Time(s) section of this AD to clarify the allowed use of the referenced SBs by operators. In addition, a note has been added to paragraph 1.7 and the notes associated to paragraphs 1.1, 1.2, 1.3, 1.4, 1.5 and 1.12 have been clarified.
• A defectoscope or rototest inspection to detect cracks in the area of frame 47 and frame 54, install new doublers, and repair if necessary.
• Repetitive visual inspections to detect cracks on frame 46 between the left- and right-hand sides of stringers 21 and 22 on the forward and aft faces, and repair if necessary.
• Repetitive visual inspections to detect cracks at the T-section connecting frame 50A to the beam between the left- and right-hand sides of frames 50 and 51, and modification if necessary.
• Repetitive visual inspections to detect cracks in the lower milled side panel at the lap joint with the upper side panel at frame 47 and stringer 22, left- and right-hand sides, and repair if necessary.
• An eddy current inspection to detect cracks on the upper integral part adjacent to the rear attach fittings on the horizontal stabilizer, modification of the horizontal stabilizer, and repair if necessary.
• Repetitive high frequency eddy current rototest inspections for cracking of the doubler plate edge, rear spar area, and at specified fastener holes in the top skin chordwise splice along the contour of the steel doubler between ribs 3 and 4 on the left- and right-hand center and side boxes on the horizontal stabilizer, installing new fasteners if no cracking is found, and repair if necessary.
• Repetitive inspections, either an eddy current or visual inspection, to detect cracks on the left and right vertical posts, numbers 1 through 5 inclusive, in the wing center box at frame 40/41, and modification if necessary.
You may obtain further information by examining the MCAI in the AD docket.
Certain paragraphs specified in AD 98-26-01 are not restated and are addressed by the following ADs and NPRMs.
• AD 2009-01-09, Amendment 39-15788 (74 FR 8728, February 26, 2009), addresses the actions specified in paragraph (a) of AD 98-26-01.
• AD 2004-15-07, Amendment 39-13741 (69 FR 44592, July 27, 2004), addresses the actions specified in paragraph (k) of AD 98-26-01.
• AD 2006-09-05, Amendment 39-14575 (71 FR 25921, May 3, 2006), addresses the actions specified in paragraph (o) of AD 98-26-01.
• NPRM, Directorate Identifier 2010-NM-091-AD, addresses the actions specified in paragraphs (h), (i), (j), (m), (n), and (s) of AD 98-26-01.
• NPRM, Directorate Identifier 2010-NM-090-AD, addresses the action specified in paragraphs (p) and (r) of AD 98-26-01.
• NPRM, Directorate Identifier 2010-NM-089-AD, addresses the action specified in paragraph (q) of AD 98-26-01.
Airbus has issued Mandatory Service Bulletin A310-55-2004, Revision 05, including Appendix 01, dated October 13, 2006; and Airbus Service Bulletin A310-53-2019, Revision 3, dated February 28, 1991. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with 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.
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 44 products of U.S. registry.
The actions that are required by AD 98-26-01 and retained in this proposed AD take about 1,087 work-hours per product, at an average labor rate of $85 per work hour. Required parts cost about $81,973 per product. Based on these figures, the estimated cost of the currently required actions is $174,368 per product.
We estimate that it would take about 3 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $11,220, or $255 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-10942 (63 FR 69179, December 16, 1998) and Amendment 39-7032 (56 FR 26602, June 10, 1991) and adding the following new AD:
(a) We must receive comments by February 17, 2011.
(b) This AD supersedes AD 98-26-01, Amendment 39-10942, and AD 91-13-01, Amendment 39-7032.
(c) This AD applies to Airbus Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes, certificated in any category, all certified models, all serial numbers.
(d) Air Transport Association (ATA) of America Codes 53: Fuselage, 55: Stabilizers, and 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
DGAC [Direction Générale de l'Aviation Civile] France AD 1992-106-132(B) original issue up to revision 7 has been issued in order to mandate a set of inspections/modifications which address JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) For airplanes listed in Airbus Service Bulletin A310-53-2016, Revision 5, dated December 7, 1992: Prior to the accumulation of 12,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999 (the effective date of AD 98-26-01), whichever occurs later, perform a defectoscope or rototest inspection to detect cracks in the area of frame 47 and frame 54, and install new doublers, in accordance with Airbus Service Bulletin A310-53-2016, Revision 5, dated December 7, 1992. Except as provided by paragraph (m) of this AD, if any discrepancy is found, prior to further flight, perform follow-on corrective actions, as applicable, in accordance with Airbus Service Bulletin A310-53-2016, Revision 5, dated December 7, 1992.
Airplanes on which Airbus Modification 04980 is done in production are not affected by paragraph (g) of this AD.
(h) For airplanes listed in Airbus Service Bulletin A310-53-2054, Revision 2, dated May 22, 1990: Prior to the accumulation of 12,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999, whichever occurs later, and thereafter at intervals not to exceed 3,000 flight cycles, perform a visual inspection to detect cracks on frame 46 between the left- and right-hand sides of stringers 21 and 22 on the forward and aft faces, in accordance with Airbus Service Bulletin A310-53-2054, Revision 2, dated May 22, 1990. If any crack is found, prior to further flight, repair in accordance with Airbus Service Bulletin A310-53-2054, Revision 2, dated May 22, 1990.
Airplanes on which Airbus modification 05254 is done in production; or on which Airbus Service Bulletin A310-53-2019, Revision 2, dated May 22, 1990, or Revision 3, dated February 28, 1991, is done in service; are not affected by paragraph (h) of this AD.
(1) Prior to the effective date of this AD: Accomplishment of the repair required by paragraph (h) of this AD; or modification of the reinforcement angle runout in accordance with Airbus Service Bulletin A310-53-2019, Revision 2, dated May 22, 1990, or Revision 3, dated February 28, 1991; terminates the repetitive inspection requirements of paragraph (h) of this AD.
(2) On or after the effective date of this AD: Accomplishment of the repair required by paragraph (h) of this AD; or modification of the reinforcement angle runout in accordance with Airbus Service Bulletin A310-53-2019, Revision 3, dated February 28, 1991; terminates the repetitive inspection requirements of paragraph (h) of this AD.
(i) For airplanes listed in Airbus Service Bulletin A310-53-2057, Revision 1, dated April 30, 1992: Perform a visual inspection to detect cracks at the T-section connecting frame 50A to the beam between the left- and right-hand sides of frames 50 and 51, in accordance with Airbus Service Bulletin A310-53-2057, Revision 1, dated April 30, 1992. Perform the inspection at the time specified in paragraph (i)(1) or (i)(2) of this AD, as applicable. If any crack is found, prior to further flight, accomplish Airbus Modifications No. 4853 and No. 5273, in accordance with Airbus Service Bulletin A310-53-2057, Revision 1, dated April 30, 1992. Accomplishment of these modifications terminates the requirements of this paragraph.
Airplanes on which Airbus modification 4853 is done are affected by paragraph (i) of this AD, except those airplanes on which Airbus Modification 5273 has been done or on which Airbus Service Bulletin A310-53-2011 has been done in service.
(1) For the airplane having manufacturer's serial number (MSN) 191: Prior to the accumulation of 24,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999, whichever occurs later; and thereafter at intervals not to exceed 6,000 flight cycles.
(2) For airplanes other than the airplane identified in paragraph (i)(1) of this AD: Prior to the accumulation of 12,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999, whichever occurs later; and thereafter at intervals not to exceed 6,000 flight cycles.
(j) For airplanes listed in Airbus Service Bulletin A310-53-2059, Revision 1, dated January 4, 1996: Perform a visual inspection to detect cracks in the lower milled side panel at the lap joint with the upper side panel at frame 47 and stringer 22, left- and right-hand sides, in accordance with Airbus Service Bulletin A310-53-2059, Revision 1, dated January 4, 1996. Perform the inspection at the time specified in paragraph (j)(1) or (j)(2) of this AD, as applicable. Except as provided by paragraph (m) of this AD, if any crack is found, prior to further flight, repair in accordance with Airbus Service Bulletin A310-53-2059, Revision 1, dated January 4, 1996. Thereafter, repeat the inspections at intervals not to exceed 9,000 flight cycles, or accomplish Airbus Modification 5997 (Airbus Service Bulletin A310-53-2058). Accomplishment of either the repair or Airbus Modification 5997 constitutes terminating action for the repetitive inspections required by this paragraph.
Airplanes on which Airbus Modification 5997 has been done completely in production, or on which Airbus Service Bulletin A310-53-2058 has been done in service, are not affected by the actions in paragraph (j) of this AD.
(1) For Model A310-200 series airplanes, accomplish the inspection at the time specified in paragraph (j)(1)(i) or (j)(1)(ii) of this AD, as applicable.
(i) For airplanes that have accumulated less than 20,000 total flight cycles as of January 20, 1999: Prior to the accumulation of 18,000 total flight cycles, or within 2,000 flight cycles after January 20, 1999, whichever occurs later.
(ii) For airplanes that have accumulated 20,000 or more total flight cycles as of January 20, 1999: Within 1,000 flight cycles after January 20, 1999.
(2) For Model A310-300 series airplanes, accomplish the inspection at the time
(i) For airplanes that have accumulated less than 19,700 total flight cycles as of January 20, 1999: Prior to the accumulation of 18,000 total flight cycles, or within 1,700 flight cycles after January 20, 1999, whichever occurs later.
(ii) For airplanes that have accumulated 19,700 or more total flight cycles as of January 20, 1999: Within 850 flight cycles after January 20, 1999.
(k) For airplanes listed in Airbus Service Bulletin A310-55-2002, Revision 4, dated April 28, 1989: Prior to the accumulation of 12,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999, whichever occurs later, perform an eddy current inspection to detect cracks on the upper integral part adjacent to the rear attach fittings on the horizontal stabilizer, and modify the horizontal stabilizer, in accordance with Airbus Service Bulletin A310-55-2002, Revision 4, dated April 28, 1989. Except as provided by paragraph (m) of this AD, if any discrepancy is found, prior to further flight, perform follow-on corrective actions, as applicable, in accordance with Airbus Service Bulletin A310-55-2002, Revision 4, dated April 28, 1989.
(l) For airplanes listed in Airbus Service Bulletin A310-57-2039, dated September 24, 1990: Perform either an eddy current or visual inspection to detect cracks on the left and right vertical posts, numbers 1 through 5 inclusive, in the wing center box at frame 40/41, in accordance with Airbus Service Bulletin A310-57-2039, dated September 24, 1990. Perform the inspection at the time specified in paragraph (l)(1) or (l)(2) of this AD, as applicable. Except as provided by paragraph (m) of this AD, if any crack is found, prior to further flight, accomplish the modification specified in Airbus Service Bulletin A310-57-2041, dated September 24, 1990, in accordance with Airbus Service Bulletin A310-57-2039, dated September 24, 1990.
Airplanes on which Airbus Modification 04977 has been done in production are not affected by the actions specified in paragraph (l) of this AD.
(1) For airplanes on which Airbus Modification 7541/S7973 (reference Airbus Service Bulletin A310-57-2041) has not been accomplished: Inspect prior to the accumulation of 21,000 total flight cycles, or within 1,000 flight cycles after January 20, 1999, whichever occurs later; and thereafter at intervals not to exceed 4,200 flight cycles (for a visual inspection), or 7,500 flight cycles (for an eddy current inspection).
(2) For airplanes on which Airbus Modification 7541/S7973 (reference Airbus Service Bulletin A310-57-2041) has been accomplished: Inspect at the time specified in the graph contained in NOTE 1 of paragraph 1.A.(2) of Airbus Service Bulletin A310-57-2039, dated September 24, 1990, or within 1,000 flight cycles after January 20, 1999, whichever occurs later; and thereafter at intervals not to exceed 5,000 flight cycles (for a visual inspection), or 8,600 flight cycles (for an eddy current inspection).
(m) If any crack is found during any inspection required by paragraph (g), (j), (k), or (l) of this AD, and the applicable service bulletin specifies to contact Airbus for an appropriate action: Prior to further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, or the DGAC (or its delegated agent), or EASA (or its delegated agent).
(n) For airplanes listed in Airbus Mandatory Service Bulletin A310-55-2004, Revision 05, dated October 13, 2006: At the applicable time specified in paragraph (n)(1) or (n)(2) of this AD, do a high frequency eddy current inspection for cracking of the doubler plate edge, the rear spar area, and specified fastener holes in the top skin chordwise splice along the contour of the steel doubler between ribs 3 and 4 on the left- and right-hand center and side boxes on the horizontal stabilizer, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-55-2004, Revision 05, dated October 13, 2006. If any cracking is found, before further flight, repair in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-55-2004, Revision 05, dated October 13, 2006; except where this service bulletin specifies to contact Airbus, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, or EASA (or its delegated agent). Thereafter, repeat the inspections at intervals not to exceed 9,700 flight cycles or 19,500 flight hours, whichever occurs first; except as required by paragraph (o) of this AD for the rear spar area.
Airplanes on which Airbus Modification 06070 has been done in production are not affected by the actions specified in paragraph (l) of this AD.
(1) For airplanes on which Airbus Service Bulletin A310-55-2002 was accomplished prior to the accumulation of 6,000 total flight cycles on the airplane; and for airplanes having MSN 311 through 400 inclusive on which Airbus Modification 4933 was accomplished during production: Do the inspection at the later of the compliance times specified in paragraphs (l)(1)(i) and (l)(1)(ii) of this AD.
(i) Prior to the accumulation of 14,400 total flight cycles or 28,500 total flight hours, whichever occurs first.
(ii) Within 1,500 flight cycles or 18 months after the effective date of this AD, whichever occurs first.
(2) For airplanes on which Airbus Service Bulletin A310-55-2002 was accomplished on or after the accumulation of 6,000 total flight cycles: Do the inspection at the later of the times specified in paragraphs (l)(2)(i) and (l)(2)(ii) of this AD.
(i) Within 9,700 flight cycles or 19,500 flight hours after accomplishing the modification, whichever occurs first.
(ii) Within 1,500 flight cycles or 18 months after the effective date of this AD, whichever occurs first.
(o) For airplanes on which the initial inspection required by paragraph (n) of this AD has been done and on which a repair was installed at fastener position A in accordance with Airbus Service Bulletin A310-55-2002: At the later of the times specified in paragraphs (o)(1) and (o)(2) of this AD, do a high frequency eddy current inspection for cracking of the rear spar area as specified in paragraph (n) of this AD, and repeat the high frequency eddy current inspection of the rear spar area thereafter at intervals not to exceed 4,800 flight cycles or 9,700 flight hours, whichever occurs first.
(1) Within 4,800 flight cycles or 9,700 flight hours, whichever occurs first, after doing the repair in accordance with Airbus Service Bulletin A310-55-2002.
(2) Within 400 flight cycles or 800 flight hours, whichever occurs first, after the effective date of this AD.
(p) Actions accomplished before the effective date of this AD in accordance with Airbus Service Bulletin A310-55-2004, Revision 2, dated February 7, 1991; Revision 3, dated April 16, 1997; and Revision 04, dated April 17, 2001; are acceptable for compliance with the corresponding actions specified in paragraph (n) of this AD.
This AD differs from the MCAI and/or service information as follows: No Differences.
(q) The following provisions also apply to this AD:
(1)
(2)
(3)
(r) Refer to MCAI EASA Airworthiness Directive 2007-0053R3, dated December 17, 2009, and the service bulletins listed in Table 1 of this AD, for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
A specific area, the
We must receive comments on this proposed AD by February 17, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS—EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; 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
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0058, dated March 13, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A specific area, the
Airbus has established that this SB needed to be revised in order to state correct threshold and intervals due to errors introduced at revision 03. Consequently, revision 04 of this SB has been issued, and opportunity was taken:
For the reasons stated above, this EASA AD takes over the requirements of paragraph 1.16 of EASA AD 2007-0053R1 [currently at R3], which has been revised accordingly, and requires accomplishment of the instructions contained in Airbus SB A310-53-2074 at Revision 04.
• Detailed inspections in areas 1, 2, and 3 for cracking and corrosion of the lower horizontal stabilizer cutout longeron, the corner fitting, the skin strap, and the skin.
• Detailed inspections in areas 1, 2, and 3 for damaged sealant.
• Eddy current inspections in area 1 for cracking.
• Eddy current inspections in area 2 for cracking.
• Rotating probe inspection for cracking of specified fastener holes in Area 3.
The corrective actions, depending on the conditions found, include the following:
• Repairing corrosion.
• Contacting Airbus for repair instructions.
• Replacing damaged sealant.
• Removing cracking.
• Doing an eddy current inspection for cracking of the reworked area.
• Installing a new corner fitting.
• Doing a rotating probe inspection for cracking of fastener holes.
• Doing an eddy current inspection of the longeron and outer skin.
• Drilling or reaming fastener holes.
You may obtain further information by examining the MCAI in the AD docket.
We are considering issuing three other NPRMs related to this NPRM:
• Directorate Identifier 2010-NM-092-AD. That NPRM proposes to supersede AD 98-26-01, amendment 39-10942 (63 FR 69179, December 16, 1998), to continue to require certain actions specified in that AD. However, that NPRM does not restate paragraph (q) of AD 98-26-01. Instead, certain requirements of paragraph (q) of that AD are included in this NPRM, Directorate Identifier 2010-NM-089-AD.
• Directorate Identifiers 2010-NM-090-AD and 2010-NM-091-AD. Both of these NPRMs include the requirements of certain other paragraphs of AD 98-26-01.
Airbus has issued Mandatory Service Bulletin A310-53-2074, Revision 04, dated October 24, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with 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.
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 44 products of U.S. registry. We also estimate that it would take about 36 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $134,640, or $3,060 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, 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 February 17, 2011.
(b) None.
(c) This AD applies to Model A310-203, -204, -222, -304, -322, and -324 airplanes, certificated in any category, all serial numbers, except airplanes on which Airbus modification 06146 has been done in production.
(d) Air Transport Association (ATA) of America Code 53: Fuselage.
(e) The mandatory continuing airworthiness information (MCAI) states:
A specific area,
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within the applicable time specified in Table 1 of this AD, do the inspections of the lower tail plane cut-out area in the tail cone specified in paragraphs (g)(1), (g)(2), (g)(3), (g)(4), (g)(5), and (g)(6) of this AD, as applicable, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-53-2074, Revision 04, dated October 24, 2008 (“the service bulletin”). Certain compliance times are applicable to short-range use (
To establish the average flight time, take the accumulated flight time (counted from the take-off up to the landing) and divide by the number of accumulated flight cycles. This gives the average flight time per flight cycle.
(1) For areas 1, 2, and 3: Do a detailed inspection for cracking and corrosion of the lower horizontal stabilizer cutout longeron, the corner fitting, the skin strap, and the skin, in accordance with the Accomplishment Instructions of the service bulletin.
(i) If any corrosion is found, before further flight, repair in accordance with the Accomplishment Instructions of the service bulletin.
(ii) If any cracking is found, before further flight, contact Airbus for repair instructions and do the repair.
(2) For areas 1, 2, and 3 on which cracking is not found during the inspection required by paragraph (g)(1) of this AD: Do a detailed inspection for damaged sealant; and, if any damaged sealant is found, before further flight, replace the sealant; in accordance with the Accomplishment Instructions of the service bulletin.
(3) For area 1: Do an eddy current inspection for cracking in area 1; and, if no cracking is found, before further flight, apply sealant and corrosion compound, as applicable; in accordance with the Accomplishment Instructions of the service bulletin.
(i) If cracking is equal to or less than 2.0 mm (0.079 inch) long and not more than 2 cracks with a minimum distance of 50.0 mm (1.969 inch) between the cracks: Before further flight, remove any cracking and do an eddy current inspection for cracking of the reworked area, in accordance with the Accomplishment Instructions of the service bulletin. If no cracking is found, before further flight, shot peen the reworked area, in accordance with the Accomplishment Instructions of the service bulletin.
(A) If cracking is found and the radius of the rework is less than 20.0 mm (0.787 inch), before further flight, increase the radius and do an eddy current inspection for cracking of the reworked area, in accordance with the Accomplishment Instructions of the service bulletin. If no cracking is found, before further flight, shot peen the reworked area, in accordance with the Accomplishment Instructions of the service bulletin.
(B) If cracking is found and the radius of the rework is 20.0 mm (0.787 inch) or more, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or the European Aviation Safety Agency (EASA) (or its delegated agent).
(ii) If cracking is greater than 2.0 mm (0.079 inch) long or there are more than 2 cracks; or if there are more than 2 cracks with less than a minimum distance of 50.0 mm (1.969 inch) between the cracks: Before further flight, remove the corner fitting, and do the applicable actions specified in paragraph (g)(3)(ii)(A) or (g)(3)(ii)(B) of this AD.
(A) If any cracking is found and area 3 has not been cold expanded, before further flight, install a new corner fitting, in accordance with the Accomplishment Instructions of the service bulletin; and do the rotating probe inspection in area 3 specified in paragraph (g)(5) of this AD.
(B) If any cracking is found and area 3 has been cold expanded, before further flight, do the eddy current inspection of the longeron and outer skin specified in paragraph (g)(6) of this AD.
(4) For area 2: Do an eddy current inspection for cracking of area 2, in accordance with the Accomplishment Instructions of the service bulletin. If any cracking is found, before further flight, contact Airbus for repair instructions and do the repair.
(5) For area 3: Do a rotating probe inspection for cracking of specified fastener holes in area 3, in accordance with the Accomplishment Instructions of the service bulletin.
(i) If no cracking is found, before further flight, drill or ream fastener holes, cold expand the fastener holes and countersinks, and wet install with sealant, in accordance with the Accomplishment Instructions of the service bulletin; except where the service bulletin specifies to contact Airbus if the fastener diameter does not meet specifications or if the distance between the hole center and material edge is less than specifications, before further flight, contact Airbus for repair instructions and do the repair.
(ii) If cracking is found, before further flight, drill or ream fastener holes, and do a rotating probe inspection for cracking of the fastener holes in accordance with the Accomplishment Instructions of the service bulletin.
(A) If no cracking is found, cold expand the fastener holes and countersinks, drill or ream fastener holes, and wet install with sealant, in accordance with the Accomplishment Instructions of the service bulletin; except where the service bulletin specifies to contact Airbus if the fastener diameter does not meet specifications or if the distance between the hole center and material edge is less than the specifications, before further flight, contact Airbus for repair instructions and do the repair.
(B) If cracking is found, before further flight, contact Airbus for repair instructions and do the repair.
(6) For airplanes on which cracking is found in the corner fitting during any inspection required by paragraph (g)(3) of this AD and area 3 is cold-expanded: Do an eddy current inspection for cracking of the longeron and outer skin, in accordance with the Accomplishment Instructions of the service bulletin.
(i) If no cracking is found, before further flight, install a new corner fitting and do a rotating probe inspection for cracking of the fastener holes, in accordance with the Accomplishment Instructions of the service bulletin.
(A) If no cracking is found, before further flight, drill or ream fastener holes, cold expand the fastener holes and countersinks, and wet install with sealant, in accordance with the Accomplishment Instructions of the service bulletin.
(B) If cracking is found and the hole diameter is less than the maximum oversize specification, before further flight, drill or ream holes and do a rotating probe inspection for cracking of the fastener holes, in accordance with the service bulletin.
(C) If cracking is found and the hole diameter is equal to or greater than the maximum oversize specification, before further flight, contact Airbus for repair instructions and do the repair.
(ii) If cracking is found, before further flight, contact Airbus for repair instructions and do the repair.
(h) Repeat the inspections for area 1 required by paragraphs (g)(1) and (g)(3) of this AD thereafter at the applicable intervals specified in Table 2 of this AD. Certain compliance times are applicable to short-range use (AFT equal to or less than 4 flight hours), or long-range use (AFT exceeding 4 flight hours). Inspection areas are specified in the service bulletin.
(i) Repeat the inspections for area 2 required by paragraphs (g)(1) and (g)(4) of this AD thereafter at the applicable intervals specified in Table 2 of this AD. Certain compliance times are applicable to short-range use (AFT equal to or less than 4 flight hours), or long-range use (AFT exceeding 4 flight hours). Inspection areas are specified in the service bulletin.
(j) Inspections accomplished before the effective date of this AD in accordance with Airbus Mandatory Service Bulletin A310-53-
This AD differs from the MCAI and/or service information as follows: The MCAI and service information do not specify a corrective action if cracking is found and the radius of the rework is 20.0 mm (0.787 inch) or more. Paragraph (g)(3)(i)(B) of this AD requires repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or EASA (or its delegated agent).
(k) The following provisions also apply to this AD:
(1)
(2)
(3)
(l) Refer to MCAI EASA Airworthiness Directive 2009-0058, dated March 13, 2009; and Airbus Mandatory Service Bulletin A310-53-2074, Revision 04, dated October 24, 2008; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
DGAC [Direction Générale de l'Aviation Civile] France AD 1992-106-132(B) * * * was issued to require a set of inspection and modification tasks which addressed JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure. * * *
We must receive comments on this proposed AD by February 17, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS—EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; 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
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0057, dated March 13, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
DGAC [Direction Générale de l'Aviation Civile] France AD 1992-106-132(B) original
Following the Extended Design Service Goal activities as part of the Structure Task Group for the Airbus A310 program, EASA published AD 2007-0053, which replaced DGAC France AD F-1992-106-132R7.
Since the issuance of AD 2007-0053R1, the thresholds and the intervals of Airbus Service Bulletins (SB) A310-57-2050 and A310-57-2064 have been updated.
Consequently, this new [EASA] AD takes over the requirements of paragraphs 1.15 and 1.17 of EASA AD 2007-0053R1, which has been revised accordingly * * * and requires the accomplishment of Airbus SB A310-57-2048 at revision 01.
• Cold working of trellis boom drainage holes.
• Repetitive detailed or rotating probe inspections for cracking in the drain holes on the lower skin panel in the center wing box between frames 42 and 46 and corrective actions if necessary. Corrective actions include repairing cracking and contacting the FAA or EASA for repair and doing the repair.
• Repetitive eddy current inspections for cracking of the upper corner angle fitting and the vertical tee fitting at left and right frame 40, and corrective actions if necessary. Corrective actions include repairing, replacing the internal angle fitting and contacting the FAA or EASA for repair and doing the repair.
We are considering issuing three other NPRMs related to this NPRM:
• Directorate Identifier 2010-NM-092-AD. That NPRM proposes to supersede AD 98-26-01, amendment 39-10942 (63 FR 69179, December 16, 1998), to continue to require certain actions specified in that AD. However, that NPRM does not restate paragraphs (p) and (r) of AD 98-26-01. Instead, certain requirements of paragraphs (p) and (r) of that AD are included in this NPRM, Directorate Identifier 2010-NM-090-AD.
• Directorate Identifiers 2010-NM-089-AD and 2010-NM-091-AD. Both of these NPRMs include the requirements of certain other paragraphs of AD 98-26-01.
Airbus has issued the service bulletins listed in the table that follows:
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with 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.
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 44 products of U.S. registry. We also estimate that it would take about 137 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $512,380, or $11,645 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with
Air transportation, Aircraft, Aviation safety, Incorporation by reference, 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 February 17, 2011.
(b) None.
(c) This AD applies to Airbus Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes, certificated in any category, all serial numbers.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
DGAC [Direction Générale de l'Aviation Civile] France AD 1992-106-132(B) original issue up to revision 7 was issued to require a set of inspection and modification tasks which addressed JAR/FAR [Joint Aviation Regulation/Federal Aviation Regulation] 25-571 requirements related to damage-tolerance and fatigue evaluation of structure. * * *.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) For Model A310-203, -204, -222, -304, -322 and -324 airplanes, except airplanes identified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD: Within the applicable time specified in Table 1 of this AD, cold work the trellis boom drainage holes, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2048, Revision 01, dated May 22, 2007. Certain compliance times specified in Table 1 of this AD are applicable to short range use, average flight time (AFT) equal to or less than 3.6 hours; or long range use, AFT exceeding 3.6 hours.
(1) Airplanes on which Airbus modification 06130 was done in production.
(2) Airplanes on which Airbus Mandatory Service Bulletin A310-57-2048 was done in service.
(3) Airplanes on which rework of cracked drain holes was done in accordance with Airbus Mandatory Service Bulletin A310-57-2050.
(h) For all airplanes: Within the applicable intervals specified in Table 2 of this AD, perform a detailed or rotating probe inspection for cracking in the drain holes on the lower skin panel in the center wing box between frames 42 and 46, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2050, Revision 02, dated August 27, 2009. Repeat the inspections thereafter at intervals not to exceed the applicable times specified in Table 3 of this AD. Certain compliance times specified in Tables 2 and 3 of this AD are applicable to short range use, average flight time (AFT) equal to or less than 3.6 hours; or long range use, AFT exceeding 3.6 hours.
(i) If any cracking is found during any inspection required by paragraph (h) of this AD, before further flight, do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2050, Revision 02, dated August 27, 2009; except where the service bulletin specifies to contact Airbus, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or EASA (or its delegated agent).
(j) For all airplanes: Within the applicable time specified in Table 4 of this AD, perform an eddy current inspection for cracking of the upper corner fitting at left and right frame 40, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2064, Revision 02, dated December 21, 2007. Repeat the inspections thereafter at intervals not to exceed the applicable times specified in Table 5 of this AD. Certain compliance times specified in Tables 4 and 5 of this AD are applicable to short range use, average flight time (AFT) equal to or less than 3.23 hours; or long range use, AFT exceeding 3.23 hours.
(k) If, during any inspection required by paragraph (j) of this AD, any crack is found, prior to further flight, do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310-57-2064, Revision 02, dated December 21, 2007; except where the service bulletin specifies to contact Airbus, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, or EASA (or its delegated agent).
(l) Actions accomplished before the effective date of this AD in accordance with Airbus Service Bulletin A310-57-2048, dated April 23, 1990, are considered acceptable for compliance with the corresponding action specified in paragraph (g) of this AD.
(m) Actions accomplished before the effective date of this AD in accordance with Airbus Service Bulletin A310-57-2050, dated April 23, 1990; or Airbus Mandatory Service Bulletin A310-57-2050, Revision 01, dated May 22, 2007; are considered acceptable for compliance with the corresponding actions specified in paragraphs (h) and (i) of this AD.
(n) Actions done before the effective date of this AD in accordance with Airbus Service Bulletin A310-57-2064, dated August 24, 1995; or Revision 01, dated January 5, 2001; are acceptable for compliance with the corresponding actions specified in paragraphs (j) and (k) of this AD.
This AD differs from the MCAI and/or service information as follows: No Differences.
(o) The following provisions also apply to this AD:
(1)
(2)
(3)
(p) Refer to MCAI EASA Airworthiness Directive 2009-0057, dated March 13, 2009, and the service bulletins listed in Table 6 of this AD, for related information.
Office of the Secretary, DoD.
Proposed rule.
The Office of the Secretary of Defense is exempting those records contained in DMDC 15 DoD, entitled “Armed Services Military Accession Testing” when the record includes the specific answers submitted and the answer key. Releasing this information to the individual will compromise the objectivity or fairness of the test if the correct or incorrect answers are released.
Comments must be received on or before March 4, 2011 to be considered by this agency.
You may submit comments, identified by docket number and/or RIN number and title, by any of the following methods:
•
•
Mrs. Cindy Allard at (703) 588-6830.
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.
It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.
It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.
It has been determined that this Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
Privacy.
Accordingly, 32 CFR part 311 is proposed to be amended to read as follows:
1. The authority citation for 32 CFR part 311 continues to read as follows:
Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 522a).
2. Section 311.8 is amended by adding paragraph (c)(16) to read as follows:
(c) * * *
(16) System identifier and name: DMDC 15 DoD, Armed Services Military Accession Testing.
(i)
(ii)
5 U.S.C. 552a(k)(6).
(iii)
(B) From subsection (d)(1) when access to those portions of the Skill Qualification Test records would reveal the individual item responses and
National Park Service, Interior.
Proposed rule.
The National Park Service (NPS) proposes to amend the regulations on demonstrations and special events for the National Capital Region. This proposed rule would revise the definition of “demonstration” as well as specify the conditions under which solicitation of gifts, money, goods, or services could occur.
Comments must be received by March 4, 2011.
You may submit your comments, identified by Regulatory Information Number 1024-AD89, by any of the following methods:
Robbin Owen, Chief, Division of Park Programs, National Park Service, National Capital Region, 1100 Ohio Drive, SW., Room 128, Washington, DC 20242. Telephone: (202) 619-7225. Fax: (202) 401-2430.
This proposed rule would revise the definition of demonstration at 36 CFR 7.96 (g)(1)(i) by eliminating the term “intent or propensity” where it appears in the definition and replace it with the term “reasonably likely.” In
This proposed rule also would amend the provision regarding soliciting, in order to be consistent with the United States Court of Appeals for the District of Columbia decision in
In
* * *[t]he conduct of a special event within a small, well-defined permit area will have some effect on the ambiance of the Mall. But we cannot see how allowing in-person solicitations within the permit area will add to whatever adverse impact will result from the special event itself. The effects of solicitation will be confined to the permit area, and those who wish to escape them may simply steer clear of the authorized demonstration or special event. 61 F.3d at 956.
The Court also said:
Our holding allows only those individuals or groups participating in an authorized demonstration or special event to solicit donations within the confines of a restricted permit area such as that assigned to ISKCON. It does not require the NPS to let rampant panhandling go unchecked. 61 F.3d at 956.
Following the
Consistent with
This proposed rule also formalizes the long-standing view that soliciting is limited to the in-person soliciting of immediate donations.
This proposed rule deals with soliciting and not sales. Any attempt to offer or sell items, whether directly or by the use of deceit, is governed by the NPS sales regulation, at 36 CFR 7.96 (k), which limits items to be sold on park lands to books, newspapers, leaflets, pamphlets, buttons, and bumper stickers. As the NPS explained it its prefatory statement to its sales regulation, at 60 FR 17648 (1995),
* * * restricted merchandise cannot be “given away” and a “donation accepted” or one item “given away” in return for the purchase of another item; such transactions amount to sales.
Finally, it has been the NPS's long-standing application of its regulations that demonstrations and special events, whether under permit or not, are not allowed in the restricted areas at 36 CFR 7.96 (g)(3)(ii). To better ensure that everyone fully understands that demonstrations and special events, with or without a permit, are not allowed in these restricted areas, NPS proposes to amend its introductory sentence to clearly indicate that no demonstrations or special events are allowed in the designated restricted areas.
This document is not a significant rule and the Office of Management and Budget, (OMB), has not reviewed this rule under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The rule only effects management and operations of National Park Service areas within the National Capital Region.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) This rule does not raise novel legal or policy issues. The rule modifies existing NPS regulations to be consistent with recent Federal Court decisions.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The rule expands opportunities for individuals and organizations to solicit funds, goods or services associated with a special event for which a permit has been issued. Other organizations with interest in the rule will not be effected economically.
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 or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
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 rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does 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
Under the criteria in Executive Order 12630, this rule does not have significant takings implications. It pertains specifically to operation and management of locations within the NPS-National Capital Region. A takings implication assessment is not required.
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of summary impact statement. A Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian Tribes. The rule only applies to management and operation of NPS areas within the National Capital Region.
The Office of Management and Budget has approved the information collections in this rule and has assigned control number 1024-0021, expiring on November 30, 2013. We estimate the burden associated with this information collection to be
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required because the rule is covered by a categorical exclusion. We have determined that the proposed rule is categorically excluded under 516 DM 12.5 A (10) insofar as it is a modification of existing NPS regulations that does not increase public use to the extent of compromising the nature and character of the area or causing physical damage to it. Further, the rule will not result in the introduction of incompatible uses which might compromise the nature and characteristics of the area or cause physical damage to it. Finally, the rule will not cause conflict with adjacent ownerships or land uses, or cause a nuisance to adjacent owners or occupants.
We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under the National Environmental Policy Act.
In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
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
All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to
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.
District of Columbia, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as set forth below:
1. The authority citation for part 7 is revised to read as follows:
16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under 36 U.S.C. 501-511, DC Code 10-137 (2001) and DC Code 50-2201.07 (2001).
2. In § 7.96:
A. Revise paragraph (g)(1)(i);
B. Revise paragraph (g)(3)(ii) introductory text;
C. Revise paragraph (g)(3)(ii)(D);
D. Add paragraph (g)(3)(ii)(E);
E. Remove maps following paragraph (g)(7); and
F. Revise paragraph (h).
The revisions and addition read as follows:
(g)
(3) * * *
(ii)
(D) The Vietnam Veterans Memorial, except for official annual Memorial Day and Veterans Day commemorative ceremonies.
(E) Maps of the park areas designated in this paragraph are as follows. The darkened portions of the diagrams show the areas where demonstrations or special events are prohibited.
(h)
(2) Persons permitted to solicit must not:
(i) Give false or misleading information regarding their purposes or affiliations;
(ii) Give false or misleading information whether any item is available without donation.
Office of Federal Contract Compliance Programs, Labor.
Notice of proposed rescission.
The Office of Federal Contract Compliance Programs (OFCCP) is proposing to rescind two guidance documents addressing compensation discrimination: Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination (Standards) and Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 with respect to Systemic Compensation Discrimination (Voluntary Guidelines). OFCCP is proposing to rescind the Standards which have limited OFCCP's ability to effectively investigate, analyze and identify compensation discrimination. In so doing, OFCCP will continue to adhere to the principles of Title VII of the Civil Rights Act of 1964, as amended (Title VII) in investigating compensation discrimination and will reinstitute flexibility in its use of investigative approaches and tools. OFCCP also proposes to establish procedures for investigating compensation discrimination through the traditional means of using its compliance manual, directives and other staff guidance. OFCCP is proposing to rescind the Voluntary Guidelines because they are largely unused by the Federal Government contracting community and have not been an effective enforcement strategy.
Comments must be received on or before March 4, 2011.
You may submit comments, identified by number 1250-ZNE, by any of the following methods:
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Receipt of submissions will not be acknowledged; however, the sender may request confirmation that a submission has been received by telephoning OFCCP at (202) 693-0102 (voice) or (202) 693-1337 (TTY) (these are not toll-free numbers).
All comments received, including any personal information provided, will be available online at
Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue, NW., Room N3422, Washington, DC 20210. Telephone: (202) 693-0102 (voice) or (202) 693-1337 (TTY).
The Department of Labor's OFCCP enforces Executive Order 11246 which requires Federal Government contractors and subcontractors to provide equal employment opportunity through affirmative action and nondiscrimination based on race, color, national origin, religion, or sex. Compensation discrimination is one form of discrimination prohibited by the Executive Order.
OFCCP enforces contractors' compliance with this obligation primarily by conducting compliance evaluations. (
Identifying and remedying compensation discrimination has been an important part of OFCCP compliance efforts for many years. Concerns about compensation discrimination led OFCCP in Calendar Year (CY) 2000 to begin requiring contractors to submit compensation data requested in the scheduling letter at the outset of a compliance evaluation as a matter of course and as part of the data reported in a new Equal Opportunity Survey, which covered contractors were required to submit to OFCCP. (The Scheduling Letter was approved under the Paperwork Reduction Act OMB NO. 1215-0072; see 65 FR 68022, 68036 (November 13, 2000) for the notice regarding the Equal Opportunity Survey.) In CY 2000, OFCCP also began requiring contractors to proactively conduct in-depth analyses of their compensation systems to ensure that those systems were not discriminatory. (
OFCCP changed its approach to investigating compensation discrimination in 2006. On June 16, 2006, OFCCP published in the
The Standards set forth a new, rigid procedure for investigating and analyzing systemic compensation discrimination cases. Systemic compensation discrimination is defined as discrimination under a pattern or practice of disparate treatment. (
The Standards also significantly limit OFCCP's ability to identify compensation discrimination by imposing overly narrow investigation procedures that go beyond what would be required under Title VII principles in litigation. For example, the Standards state that, except in unusual cases, OFCCP will not issue a notice of violation (NOV) without providing anecdotal evidence to support OFCCP's statistical analysis. But under Title VII, a pattern or practice class-wide disparate treatment case may be proven by statistics.
The Standard's mandate to use a multiple regression analysis to identify compensation discrimination is also overly narrow and is not required under Title VII principles. While a multiple regression analysis may be a useful tool in identifying compensation discrimination, other statistical or nonstatistical analyses may be better suited, depending on the facts of the case.
In short, we now believe the Standards significantly undermine OFCCP's ability to vigorously investigate and identify compensation discrimination.
The Voluntary Guidelines establish procedures that contractors can elect to use in conducting the self-analysis of their pay practices required by 41 CFR 60-2.17(b)(3). As an incentive to encourage contractors to use the analytical procedures contained in the Voluntary Guidelines, OFCCP would deem a contractor, whose self-evaluation “reasonably meets” the procedures outlined in the Voluntary Guidelines, to be in compliance with section 60-2.17(b)(3) and would coordinate OFCCP's review of the contractor's compensation practices during a compliance evaluation in the manner specified in the Voluntary Guidelines. (
Additionally, the analytical model set forth in the Voluntary Guidelines suffers from many of the same flaws as the investigative procedures prescribed by the Standards. For example, the Voluntary Guidelines established certain rigid numerical thresholds by which the similarly situated employee groupings are to be analyzed. OFCCP believes that for some contractors, these thresholds may be exceedingly difficult to meet.
OFCCP proposes to rescind the Standards and the Voluntary Guidelines in their entirety. OFCCP believes it is unnecessary to issue new
If the Standards are rescinded, OFCCP will reinstitute the practice of exercising its discretion to develop compensation discrimination investigation procedures in the same manner it develops other investigation procedures. OFCCP will continually refine those procedures to ensure that they are as effective and efficient as possible. OFCCP will develop and issue compensation investigation procedures in the same manner as procedures for investigating other forms of discrimination, for example through the FCCM, directives and staff guidance materials.
As mentioned above, OFCCP has found that contractors rarely use the analytical procedure suggested in the Voluntary Guidelines for conducting the compensation analyses required by section 60-2.17(b)(3). In the few instances when contractors have conducted their compensation analysis in the manner suggested in the Voluntary Guidelines, the coordination procedures of the Voluntary Guidelines have not proved to be an efficient method for verifying that the contractor's compensation system is not discriminatory. The agency has concluded that the Voluntary Guidelines have not proved to be either an effective vehicle for providing guidance about how to conduct the analyses required by section 60-2.17(b)(3) or an effective incentive for contractors to conduct the analysis in the manner described in the Voluntary Guidelines.
In the absence of the Voluntary Guidelines, contractors will still be obligated to conduct self-evaluations of compensation practices as required by 41 CFR 60-2.17(b)(3). OFCCP will continue to provide any needed compliance assistance on section 60-
OFCCP invites any interested party to comment on the proposal to rescind the Standards and the Voluntary Guidelines.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
To carry out a 2008 Congressional rulemaking mandate, FRA is proposing to create regulations prescribing minimum safety and health requirements for camp cars that a railroad provides as sleeping quarters to any of its train employees, signal employees, and dispatching service employees and individuals employed to maintain its right of way. The proposed regulations would supplant existing guidelines that interpret existing statutory requirements, enacted decades earlier, that railroad-provided camp cars be clean, safe, and sanitary, and afford those employees and individuals an opportunity for rest free from the interruptions caused by noise under the control of the railroad. In further response to the rulemaking mandate, the proposed regulations would include the additional statutory requirements, enacted in 2008, that camp cars be provided with indoor toilets, potable water, and other features to protect the health of such workers.
Under separate but related statutory authority, FRA is proposing to amend regulations on construction of employee sleeping quarters. In particular, FRA proposes to implement a 2008 statutory amendment that, on and after December 31, 2009, camp cars provided by a railroad as sleeping quarters exclusively for individuals employed to maintain the right of way of a railroad are within the scope of the prohibition against beginning construction or reconstruction of employee sleeping quarters near railroad switching or humping of hazardous material. FRA's existing guidelines with respect to the location, in relation to switching or humping of hazardous material, of a camp car that is occupied exclusively by individuals employed to maintain a railroad's right of way would be replaced with regulatory amendments prohibiting a railroad from positioning such a camp car in the immediate vicinity of the switching or humping of hazardous material.
Finally, FRA would make conforming changes, clarify a provision on applicability, remove an existing provision on preemptive effect as unnecessary, and move, without change, an existing provision on penalties for violation of FRA regulations.
(1) Written comments must be received by March 4, 2011. Comments received after that date will be considered to the extent possible without incurring additional delay or expense.
(2) FRA anticipates being able to resolve this rulemaking without a public hearing. However, if FRA receives a specific request for a public hearing prior to March 4, 2011, one will be scheduled, and FRA will publish a supplemental notice in the
Comments, which should be identified by Docket No. FRA-2009-0042, may be submitted by any one of the following methods:
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• Electronically through the Federal eRulemaking Portal,
Alan Misiaszek, Certified Industrial Hygienist, Staff Director, Industrial Hygiene Division, Office of Safety Assurance and Compliance, Office of Railroad Safety, FRA, 1200 New Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590 (telephone: (202) 493-6002),
This proposal is being issued primarily to help satisfy the requirements of section 420 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, Div. A, 122 Stat. 4848, October 16, 2008 (amending a provision of the hours of service laws at 49 U.S.C. 21106). RSIA requires the Secretary of Transportation (Secretary) to adopt regulations no later than April 1, 2010 establishing minimum standards for “employee sleeping quarters” in the form of “camp cars” that are provided by railroads. 49 U.S.C. 21106(a)(1), (c). Specifically, RSIA instructs the Secretary to prescribe regulations “to implement [49 U.S.C. 21106(a)(1)] to protect the safety and health of any employees and individuals employed to maintain the right of way of a railroad carrier that use camp cars. * * * ” 49 U.S.C. 21106(c). The statutory term “employee” is defined in 49 U.S.C. 21101(3) to include a train employee, a signal employee, and a dispatching service employee, who as a group are sometimes referred to as “covered service employees.” As amended through 2008, 49 U.S.C. 21106(a)(1) provides that such camp cars must be—
FRA has longstanding regulations implementing the statutory provision that prohibits railroads, effective July 8, 1976, from beginning the construction or reconstruction of railroad-provided sleeping quarters for train employees, signal employees, and dispatching service employees in an area or in the immediate vicinity of an area where railroad switching or humping of hazardous material occurs. Currently, these regulations affecting the location of sleeping quarters for covered service employees do not apply to sleeping quarters exclusively for individuals employed to maintain the right of way of a railroad.
RSIA directly requires that railroads using camp cars must “fully retrofit or replace such cars in compliance with [49 U.S.C. 20106(a)]” by December 31, 2009. 49 U.S.C. 21106(b). As will be further explained below, FRA interprets 49 U.S.C. 21106(b) as applying the prohibition in 49 U.S.C. 21106(a)(2) against beginning construction or reconstruction of employee sleeping quarters near switching or humping operations to camp cars provided by railroads as sleeping quarters for individuals employed to maintain the railroad right of way (MOW workers) and setting a compliance date of December 31, 2009, with respect to such camp cars exclusively for MOW workers.
The Secretary has delegated the responsibility to carry out his responsibilities under RSIA to the Administrator of FRA. 74 FR 26981, 26982, June 5, 2009, codified at 49 CFR 1.49(oo).
Proposed subpart E is based extensively on FRA guidelines already in place, which, in turn, were based on the U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) standards for sanitation and temporary labor camps at 29 CFR 1910.141 and 1910.142, modified as appropriate for the railroad environment.
In addition, FRA has consulted with officials of the only railroad currently known to be utilizing camp cars as sleeping quarters, Norfolk Southern Railway Company (NS), to determine what actions it has taken to conform to the statutory requirements that the cars be not only clean, safe, and sanitary and provide an opportunity for rest uninterrupted by noise under the control of the railroad, but also have “indoor toilet facilities, potable water, and other features to protect the health” of employees and MOW workers and not be placed in the immediate vicinity of certain “switching or humping operations” as defined in FRA regulations at 49 CFR 228.101(c)(3). NS has assured FRA that all of its camp cars comply with statutory requirements, but its interpretation asserts that camp cars exclusively occupied by MOW workers are not subject to 49 U.S.C. 21106(a)(2).
MOW workers have been given protection by limits of how close their sleeping quarters are to switching and hump operations. That protection formerly only applied to train employees, signal employees, and dispatching employees. In 1976, Congress required that all sleeping quarters, “including crew quarters, camp or bunk cars, and trailers,” provided by a railroad to its “employees” be “clean, safe, and sanitary” and provide an opportunity for rest without interruptions caused by noise under the control of the railroad. Public Law 94-348, sec. 4, adding subsection (a)(3) to section 2 of the Hours of Service Act, then codified at 45 U.S.C. 62(a)(3) (1976) and now codified as amended at 49 U.S.C. 21106(a)(1).
To carry out the 1976 statutory amendment at section 2(a)(3) of the Hours of Service Act, on July 18, 1978, FRA published interpretative guidance and a statement of policy regarding the provision requiring “clean, safe, and sanitary” sleeping quarters for employees free from railroad-controlled noise that would interrupt rest. Amendment to appendix A to 49 CFR part 228, 43 FR 30803, July 18, 1978.
To carry out the 1976 amendment at section 2(a)(4) of the Hours of Service Act, on July 19, 1978, FRA published regulations codified at 49 CFR part 228, subpart C (subpart C). 43 FR 31012. As stated in the preamble to those regulations,
[t]he primary impetus of this amendment to the Hours of Service Act was the accident that occurred at Decatur, Illinois, on July 19, 1974. (H.R. Report No. 94-1166 (1976) at page 11.) Seven employees were killed and another 33 were injured when an explosion demolished crew quarters that were located between and adjacent to two classification yards and did other extensive damage in the middle of the Norfolk and Western yard. Three hundred sixteen persons who lived or worked in the surrounding area were also injured. The explosion resulted from accidental release of product which occurred during the switching of hazardous materials.
* * *
In enacting the 1976 amendment to the law, Congress determined that additional protection from accidents such as the one that occurred at Decatur, Illinois, is required for crew quarters.
Subpart C defines key terms in section 2(a)(4) of the Hours of Service Act, permits railroads to request a determination by FRA that a particular proposed site is not within the “immediate vicinity,” and states the criteria by which FRA will make the determination.
In 1988, Congress redefined “employee” for purpose of section 2(a)(3) of the Hours of Service Act (now codified at 49 U.S.C. 21106(a)(1)) so as to include MOW workers, thereby making all sleeping quarters provided by a railroad to MOW workers subject to the same statutory standard. Public Law 100-342, sec. 19(b). It should be noted, however, that the 1988 amendment did not make MOW workers “employees” for purposes of the “location” requirement at section 2(a)(4) of the Hours of Service Act. Consequently, a camp car occupied only by employees or by both employees and MOW workers is subject to subpart C, but a camp car occupied only by MOW workers is not subject to subpart C.
To carry out the 1988 statutory amendment, FRA issued an interpretation in 1990 of the terms “clean,” “safe,” and “sanitary” as applied to railroad-provided camp cars occupied by employees, MOW workers, or both based on standards established by OSHA. 49 CFR part 228, app. C. In FRA's 1990 Guidelines, the agency noted that—
FRA believes that camp cars, either because of express limitations of local codes, or by virtue of their physical mobility, are generally not subject to state or local housing, sanitation, health, electrical or fire codes. Therefore, FRA is unable to rely upon state or local authorities to ensure that persons covered by the [Hours of Service] Act who reside in camp cars are afforded an opportunity for rest in `clean,' `safe,' and `sanitary' conditions. Accordingly, FRA must determine what adverse conditions might reasonably be expected to interfere with the ordinary person's ability to rest, so as to enunciate policy guidelines to be applied by FRA in enforcing the words `clean,' `safe,' and `sanitary' for purposes of the Act.
Twenty years after the 1988 statutory amendment, Congress enacted section 420 of RSIA. Congress added requirements that all sleeping quarters provided by railroads to employees or MOW workers have “indoor toilets, potable water, and other features to protect the health of [employees and MOW workers] (amending 49 U.S.C. 21106(a)(1));” that any railroad that uses camp cars must “fully retrofit or replace” such cars to be in compliance with 49 U.S.C. 21106(a) by December 31, 2009 (
FRA has considered whether Congress intended for railroad-provided camp cars occupied by MOW workers to be subject to the restrictions of 49 U.S.C. 21106(a)(2) on their location. Clearly, by the express text of 49 U.S.C. 21106(c), the regulations mandated by that subsection are intended “to implement subsection (a)(1)” (
In the end, however, FRA concludes that Congress did intend such location restrictions in subsection (a)(2) to apply to camp cars exclusively occupied by MOW workers, based primarily on the language of subsection (b), which reads as follows:
(b) Camp cars.—Not later than December 31, 2009, any railroad carrier that uses camp cars shall fully retrofit or replace such cars in compliance with
To give subsection (b) meaning, with respect to requiring camp cars to be in compliance with the old mandate of subsection (a)(2), some act must be required that is possible to perform in the future, specifically not later than the December 31, 2009, date stated in subsection (b). FRA reads that extra requirement imposed by subsection (b) to be that camp cars exclusively occupied by MOW workers be subject to subsection (a)(2). With respect to subsection (a)(2), which contains a compliance date about 32 years before the enactment of subsection (a)(2), a new compliance date would be necessary in order to avoid creating an unconstitutional, ex post facto law, and that is what Congress provided with the new statutory deadline for compliance of December 31, 2009. FRA does not read subsection (b) as supplanting the July 8, 1976, effective date of the prohibition in subsection (a)(2) with respect to construction or reconstruction of sleeping quarters occupied by train employees, signal employees, or dispatching service employees. Rather, FRA reads the text of section 21106(b) as a direct, statutory requirement that railroads using camp cars as sleeping quarters see to it that the cars exclusively occupied by MOW workers comply with the statutory requirements of not only subsection (a)(1), but also subsection (a)(2), and to do so by December 31, 2009.
Of course, it could be argued that Congress simply made a technical error in requiring that camp cars comply with all of subsection (a) and that it meant to say “subsection (a)(1),” particularly given that the requirement is to “retrofit or replace” the cars, not to “retrofit or replace and position” the cars. FRA thinks that the legislative history of section 420 of RSIA argues against such a strict interpretation. That legislative history indicates that that Congress invited FRA to take a new, more protective look at camp cars. The House precursor to section 420 of RSIA would have directly prohibited the use of camp cars entirely by statute, effective one year after the date of enactment.
To carry out this statutory interpretation, FRA is proposing an
A railroad carrier * * * (2) may not begin, after July 7, 1976, construction or reconstruction of sleeping quarters * * * in an area or in the immediate vicinity of an area,
FRA proposes to revise the name of 49 CFR part 228 to reflect all of its contents more explicitly. The current name of the part is “HOURS OF SERVICE OF RAILROAD EMPLOYEES”. FRA proposes to rename the part “HOURS OF SERVICE OF RAILROAD EMPLOYEES; RECORDKEEPING AND REPORTING; SLEEPING QUARTERS”.
FRA proposes to tailor § 228.1, Scope, to reflect the addition of new subpart E, Safety and Health Requirements for Camp Cars Provided by Railroads as Sleeping Quarters such as by adding new paragraph (c).
FRA also proposes to amend § 228.3, Application. Currently, that section, says that, in general, part 228 applies to railroads and contractors and subcontractors of railroads. FRA proposes to revise the section to indicate that although subparts B and D apply to railroads and contractors and subcontractors of railroads, subparts C and E apply only to railroads. Subpart A contains no duties that apply to any entity; its definitions apply to terms in the part as a whole or individual subparts. This section is being amended to clarify that both plant railroads and tourist railroads that are not part of the general railroad system of transportation are exempt from the requirements of part 228.
Finally, FRA proposes to amend § 228.5, Definitions, by adding definitions of four terms. The terms “plant railroad” and “tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation” are used in the proposed “application” provisions of subpart A and proposed subpart E, and both terms refer to types of operations that have been traditionally been excluded from FRA regulations because they are not part of the general railroad system of transportation. There is a more extensive explanation of this system in appendix A to 49 CFR part 209, and it is explicitly defined there as “the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas.” The terms “camp car” and “MOW worker” are used in proposed subparts C and E. “Camp car” would be defined as “a trailer and/or on-track vehicle, including an outfit, camp, bunk car, or modular home mounted on a flatcar, or any other mobile vehicle or mobile structure used to house or accommodate an employee or MOW worker. A wreck train is not included.”
The longstanding definition of “camp car” in the guidelines of 49 CFR part 228, app. C is clarified by adding “or any other mobile vehicle or mobile structure” as catch-all language. For example, a recreational vehicle would be a camp car. In addition, the phrase “railroad employees” is replaced with “an employee or MOW worker.” The term “employee” is defined in existing § 228.5 and means a train employee, signal employee, or dispatching service employee. The term “MOW worker” would be defined as “an individual employed to maintain the right of way of a railroad”; the language of the definition is based on the statutory provision at 49 U.S.C. 21106(a)(1).
FRA proposes to remove § 228.13, Preemptive effect, for two reasons. First, the section is unnecessary because it is duplicative of statutory law at 49 U.S.C. 20106 and case law. Second, the section is incomplete because it omits reference to the preemptive effect of the hours of service laws (49 U.S.C. chapter 211), the authority for 49 CFR part 228, subparts C and E, as provided under case law. The hours of service laws have been interpreted by the Supreme Court as preempting State regulation of the hours of railroad employees.
In addition, FRA proposes to redesignate two provisions in subpart B that are intended to apply to the entire part in order to move them to subpart A, General. In particular, FRA proposes to redesignate § 228.21, Civil penalty, and § 228.23, Criminal penalty, as § 228.6, Penalty.
FRA proposes to change the heading of subpart C from “Construction of Employee Sleeping Quarters” to “Construction of Railroad-Provided Sleeping Quarters.” “Railroad-Provided” is added to emphasize that the regulations apply only to sleeping quarters that are provided by a railroad, and the word “Employee” is deleted since the proposed subpart would apply not only to sleeping quarters occupied by an employee but also to sleeping quarters in the form of a camp car that are provided by a railroad to an MOW worker.
In § 228.101, the heading would be changed from “Distance requirement; definitions” to “Distance requirement for railroad-provided employee sleeping quarters; definitions used in this subpart.” This revision is intended to reflect that the section applies only to sleeping quarters for employees (not for MOW workers). That section reflects the 1976 statutory amendment discussed earlier in the preamble that carries a July 8, 1976, compliance date.
In new § 228.102, FRA proposes to restate the statutory language at 49 U.S.C. 21106(b) and 21106(a)(2) by saying that a railroad that uses camp cars must comply by December 31, 2009, with the prohibition in 49 U.S.C. 21106(a)(2) with respect to those camp cars that are provided as sleeping quarters exclusively to MOW workers. (Camp cars for train employees, signal employees, or dispatching service employees or those occupied by both covered service employees and MOW workers are already subject to the July 8, 1976, compliance date in 49 U.S.C. 21106(a)(2) and 49 CFR 228.101.) In other words, under the statute, starting December 31, 2009, a railroad must not begin construction or reconstruction of a camp car provided by the railroad as sleeping quarters exclusively for MOW workers within or in the immediate vicinity of any area where railroad switching or humping is performed. (Of course, compliance with the regulation itself would not be due until the date established in the final rule.) The key terms in the new proposed section are already defined in the subpart or at § 228.5. In effect, absent FRA's special approval in accordance with subpart C, a railroad may not begin construction or reconstruction of a camp car (including the placement of a camp car) for MOW workers in or within the distance
FRA proposes to add new subpart E entitled, “Safety and Health Requirements for Camp Cars Provided by Railroads as Sleeping Quarters.”
This proposed section is a basic restatement of the legal mandate in section 420 of RSIA that is codified at 49 U.S.C. 21106(c), which requires the issuance of regulations to implement 49 U.S.C. 21106(a)(1) with respect to certain camp cars. Section 21106(a)(1) of title 49 of the U.S. Code provides that sleeping quarters provided by a railroad to its covered service employees and MOW workers must be—
clean, safe, and sanitary, give those employees and individuals an opportunity for rest free from the interruptions caused by noise under the control of the carrier, and provide indoor toilet facilities, potable water, and other features to protect the health of employees * * *.
This proposed section defines the railroads that would be covered by the proposed new subpart. All railroads would be covered, with the exception of three types of railroad operations. The three listed exceptions are for operations that are not part of the general railroad system of transportation: (1) Railroads that operate exclusively on track that is not part of that system (plant railroads, as that term is defined in § 228.5); (2) tourist, scenic, historic, or excursion railroads that are not part of the general railroad system of transportation, a term also defined in § 228.5 (tourist railroads); and (3) rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
In addition, proposed paragraph (b) explains that even though the subpart applies only to railroads, a railroad may not avoid fulfilling the requirements of this subpart by using contractors or subcontractors. If, for example, a railroad uses a contractor to provide dining services for the occupants of a camp car, FRA will still enforce the provisions of § 228.325 to ensure that the food service is safe and sanitary. FRA will hold the railroad liable for its contractor's or subcontractor's failing to fulfill the requirements of this proposed subpart.
This proposed section establishes the deadline for compliance. A December 31, 2010 deadline for compliance with the regulations was set by Congress in section 420 of RSIA, but the final rule may not become effective until 60 days after it is published.
This proposed section defines key terms used in proposed subpart E. The definitions are set forth alphabetically. FRA intends these definitions to clarify the meaning of terms as they are used in the text of the proposed subpart. Many of these definitions were originally set forth in FRA's 1990 Guidelines. In addition, many of these definitions have been taken from standards issued by OSHA.
This proposed section sets forth a series of requirements for camp cars provided by a railroad as sleeping quarters to employees and MOW workers. First, the section requires that the camp cars are constructed so as to provide protection from the elements. Second, the section requires that the camp cars provide an opportunity for rest free from interruptions caused by noise under the control of the railroad that provides the camp cars. The limit of 55 dB(A) that FRA intends to establish is based on the longstanding interpretation of the hours of service statutory provision related to sleeping quarters. 49 U.S.C. 21106(a)(1); 49 CFR part 228, app. A and C. It is notable that the 55 dB(A) level is typical of semi-urban and suburban neighborhood outside ambient noise during the evening hours with minimal street traffic. Levels such as these have also been measured in the same neighborhoods on side streets during daylight hours; thus, the 55 dB(A) limit should not be difficult to achieve. Third, this section requires that the camp cars be able to maintain a minimum temperature during cold weather and a maximum temperature during hot weather. FRA invites comment on whether the temperatures currently specified should be changed. Fourth, the section requires that camp cars provide an adequate means of egress in the event of an emergency situation. There must be an exit at both ends of the camp car so that occupants may pass through each end frame. Finally, FRA is also establishing minimum lighting standards, including provisions requiring the interior pathway to an emergency exit not immediately accessible to the occupants to be illuminated at all times for emergency egress purposes.
This proposed section requires that, to prevent overcrowding, the camp car's occupants have at least 50 square feet each; in a facility where occupants cook, live, and sleep, a minimum of 90 square feet per occupant must be provided. The proposed section also requires certain types of furniture.
This proposed section sets forth requirements regarding the safety of heating, cooking, ventilation, air conditioning, and water heating equipment. These systems must be installed in accordance with all applicable provisions of the 2008 version of the National Electrical Code. In addition, all electrical systems installed must be compliant with that code.
This section of the proposed rule does not specify any certain code that must be used for heating, ventilation, and air conditioning (HVAC) systems, but does require that all such systems be safe and working. FRA anticipates that, to ensure that these systems are safe and operable, railroads will require HVAC systems in their camp cars to meet widely-adopted standards, such as those of the standards of the Sheet Metal and Air
This proposed section sets forth requirements related to the prevention and resolution of vermin infestations.
This proposed section represents a substantial revision of the parallel provision in FRA's 1990 Guidelines to reflect a more appropriate number of toilets required. Further, the proposed section requires that there be at least two toilet rooms located within a camp car that has sleeping facilities. Additionally, if a camp car is lodging more than 10 occupants, then an additional toilet room must be provided within the camp car for each group of one to five occupants in excess of the 10. For example, if there are 12 occupants lodged in a camp car, there must be a total of three toilet rooms in the camp car (two for the first ten occupants and one for the additional two occupants). FRA believes that this requirement provides an adequate standard for the minimum number of toilets. A toilet room must have a door that latches, one that is capable of being and staying securely closed and be sufficient to assure privacy. Certain construction and cleanliness standards are also included in this section.
This proposed section requires every camp car that provides a sleeping facility to have a basin with running water, soap, and hand-drying equipment or towels. It also requires at least two basins per car with sleeping facilities. If the running water available through a basin is not potable, a sign to that effect must be posted nearby.
The proposed section mandates a minimum number of showers, construction requirements for the showers, and the provision of showering supplies. If the running water available through a shower is not potable, a sign to that effect must be posted nearby.
This proposed section sets forth requirements to ensure that the water provided to the occupants of camp cars is safe. Potable water may be provided either as bottled water or as supplied through a plumbing system. Water uses such as personal oral hygiene, drinking, food washing, preparation, cooking, cleaning of the cooking utensils, cooking surfaces, and eating surfaces,
Individuals who fill potable water systems servicing a camp car must be trained. The source for water provided to the occupants of a camp car must meet minimum standards put forth by the Environmental Protection Agency under 49 CFR part 141, National Primary Drinking Water Regulations. The railroad must obtain a certificate indicating this fact, which must be kept with the camp car for the duration of the connection, after which is must be sent to a centralized location, such as the railroad's system headquarters. This location should be the depository for all water certification records for the railroad. Equipment and construction employed to provide potable water to a camp car must be approved by the Food and Drug Administration. The water itself must be stored in sanitary containers and be dispensed so that sanitary conditions are maintained. Distribution lines must have adequate pressure for simultaneous use. Potable water systems must be flushed and disinfected regularly, and the steps that are taken must be recorded. Those records must be kept within the camp for the duration of the connection and then sent to a centralized location. The section sets forth procedures to follow in the instance of a report of a problem with the taste of the water or a report of a health problem because of the water.
The proposed section prohibits the presence of food and beverages in toilet rooms and toxic materials areas, imposes requirements applicable when a central dining operation is provided, and ensures that food service facilities and operations will operate hygienically. The limitations of paragraphs (c) and (d) do not apply to food service from nearby restaurants that are subject to State law.
This proposed section addresses the necessity of wastes being disposed to ensure a sanitary environment. Timely removal of all kinds of waste is mandated by proposed § 228.329(a). Camp cars must be equipped with a method to dispose of sewage according to proposed § 228.329(b). Appropriate waste containers for both general waste and food waste are required by proposed § 228.329(c) and (d), respectively.
This proposed section requires that each camp car be kept as clean as is practicable given the type of work performed by the occupants of the car. The section also requires elimination of splinters, unnecessary holes, and other conditions or features that impede cleaning.
This proposed section requires a first-aid kit in each camp car with specified contents. This list is based on the requirements for first-aid kits in passenger trains set forth in FRA's regulations on passenger train emergency preparedness at 49 CFR 239.101(a)(6), but adds a requirement of two elastic wraps. Railroads should add items to the first-aid kit as conditions warrant, for example, increasing the minimum number of bandages for a larger crew than normal or providing additional items if the occupants of the camp car regularly deal with hazardous material. Additional items railroads may consider providing include ammonia inhalants and a splint.
The proposed section gives a limited amount of time for a railroad, after receiving notice from FRA to repair a camp car that does not comply with these regulations. The section also requires that a railroad provide alternate accommodations when a camp car does not provide the essential services such as proper cooling or heating. In addition, if a camp car is noncompliant with the requirements of this subpart, and the railroad otherwise would have provided meals for occupants, it must provide for alternate arrangement for meals. 49 CFR part 228, app. A and C. FRA is considering specifying exactly how quickly a railroad must provide alternative accommodations for occupants when a camp car lacks
This section provides for electronic recordkeeping of records required by this subpart.
Finally, the proposal would make conforming changes to appendix A to part 228 and remove appendix C to part 228. The proposal would revise appendix A (FRA's statement of agency policy and interpretation of the hours of service laws) by removing the paragraph discussing the 1990 Guidelines, codified in appendix C to part 228, and the rationale for establishing those guidelines because appendix C would be eliminated and superseded by new 49 CFR part 228, subpart E. The proposal would also remove appendix C to reflect that the guidelines with respect to camp cars would be revised and converted into regulations at 49 CFR part 228, subpart E, which would become effective upon the date that compliance with the regulations is first required.
This rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures. 44 FR 11034, February 26, 1979. FRA has prepared and placed in the docket a regulatory evaluation addressing the economic impact of this proposed rulemaking. Document inspection and copying facilities are available at U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material is also available for inspection on the Internet at
To carry out a 2008 Congressional rulemaking mandate, FRA is proposing to create a new subpart of part 228, subpart E, which would prescribe minimum safety and health requirements for camp cars that a railroad provides as sleeping quarters to any of its train employees, signal employees, and dispatching service employees and individuals employed to maintain its right of way. The proposed regulations would supplant existing FRA guidelines that interpret existing statutory requirements, enacted decades earlier, that railroad-provided camp cars be clean, safe, and sanitary, and afford those employees and individuals an opportunity for rest free from the interruptions caused by noise under the control of the railroad. In further response to the rulemaking mandate, the proposed regulations would include the additional statutory requirements, enacted in 2008, that camp cars be provided with indoor toilets, potable water, and other features to protect the health of such workers.
Under separate but related statutory authority, FRA is proposing to amend subpart C of 49 CFR part 228, “Construction of Employee Sleeping Quarters.” In accordance with the RSIA, FRA applies the location restrictions applicable to employee occupied camp cars to railroad camp cars occupied solely by MOW workers.
Finally, the proposal would make conforming changes to appendix A to part 228 and remove part appendix C to part 228. The proposal would also clarify its provision on applicability, remove an existing provision on the preemptive effect of part 228 as unnecessary, and move, without change, an existing provision on penalties for violation of part 228 from subpart B to subpart A.
FRA estimates costs and benefits for the proposed rule. In this case, only one railroad would be affected, NS. NS has asserted and FRA assumes that they are in compliance due to statutory mandate or voluntary compliance with the 1990 guidelines. FRA expects NS's costs of complying with this proposed rule to be nominal and limited to such requirements as the installation of non-potable water signage and first-aid kit items. Consequently, NS is already experiencing the benefits that would flow from this NPRM. Any increase in realized benefits would be small. The main benefit of this proposed rule is the assurance it will provide that the health and safety benefits reaped by NS's upgrades will remain in place. FRA is confident that the benefits will more than justify incurring the nominal costs associated with implementation of the proposed rule. FRA is requesting comments on all aspects of this economic analysis, including its underlying assumptions.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
“Small entity” is defined in 5 U.S.C. 601 as including a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a for profit “line-haul railroad” that has fewer than 1,500 employees, a “short line railroad” with fewer than 500 employees, or a “commuter rail system” with annual receipts of less than seven million dollars.
The
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. This proposed rule would not have a substantial effect on the States or their political subdivisions; it would not impose any direct compliance costs on State and local governments; and it would not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. FRA has also determined that this proposed rule would not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
However, this proposed rule could have preemptive effect by operation of law under a provision of the former Federal Railroad Safety Act of 1970, 49 U.S.C. 20106 (Section 20106), and case law interpreting the statutory predecessor of the hours of service laws at 49 U.S.C. chapter 211 (the Hours of Service Act).
In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. This rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.
The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, Office of Railroad Safety, at 202-493-6292, or Ms. Kimberly Toone, Office of Information Technology, at 202-493-6132.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via e-mail to Mr. Brogan or Ms. Toone at the following address:
OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the
FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) [$140.8 million in 2010] in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and Tribal governments and the private sector. This final rule would not result in the expenditure, in the aggregate, of $140.8 million or more in any one year, and thus preparation of such a statement is not required.
FRA has evaluated this proposed rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
(c) Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment.
* * *
The following classes of FRA actions are categorically excluded:
* * *
(20) Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation.
In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed rule is not a major Federal action significantly affecting the quality of the human environment.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the
FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
Administrative practice and procedures, Buildings and facilities, Hazardous materials transportation, Noise control, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FRA proposes to amend part 228 of chapter II, subtitle B of title 49, Code of Federal Regulations as follows:
1. The authority citation for part 228 is revised to read as follows:
49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. A, Public Law 110-432, 122 Stat. 4860-4866, 4893-4894; 49 U.S.C. 21301, 21303, 21304, 21311; 28 U.S.C. 2461, note; 49 CFR 1.49; and 49 U.S.C. 103.
2. The heading of part 228 is revised to read as set forth above.
3. Section 228.1 is amended by—
a. Removing the semicolon and the word “and” at the end of paragraph (a), and adding a period in their place;
b. Removing the word “employee” from paragraph (b); and
c. Adding a new paragraph (c) to read as follows:
(c) Establishes minimum safety and health standards for camp cars provided by a railroad as sleeping quarters for its employees and individuals employed to maintain its rights of way.
4. Section 228.3 is revised to read as follows:
(a) Except as provided in paragraph (b) of this section, subparts A, B, and D of this part apply to all railroads, all contractors for railroads, and all subcontractors for railroads. Except as provided in paragraph (b) of this section, subparts C and E of this part apply only to all railroads.
(b) This part does not apply to—
(1) A railroad, a contractor for a railroad, or a subcontractor for a railroad that operates only on track inside an installation that is not part of the general railroad system of transportation (
(2) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation as defined in § 228.5; or
(3) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
5. Section 228.5 is amended by adding definitions for “Camp car,” “MOW worker,” “Plant railroad,” and “Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation” in alphabetical order to read as follows:
6. Section 228.6 is added to subpart A to read as follows:
(a) Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: A railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $650 and not more than $25,000 per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $100,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense.
(b) Any person who knowingly and willfully falsifies a report or record required to be kept under this part or otherwise knowingly and willfully
7. Section 228.13 is removed and reserved.
8. Section 228.21 is removed and reserved.
9. Section 228.23 is removed and reserved.
10. The heading of subpart C of part 228 is revised to read as follows:
11. The heading of § 228.101 is revised to read as follows:
12. Section 228.102 is added to subpart C to read as follows:
(a) The hours of service laws at 49 U.S.C. 21106(b) provide that a railroad that uses camp cars must comply with 49 U.S.C. 21106(a) no later than December 31, 2009. Accordingly, on or after December 31, 2009, a railroad shall not begin construction or reconstruction of a camp car provided by the railroad as sleeping quarters exclusively for MOW workers within or in the immediate vicinity of any area where railroad switching or humping of placarded cars is performed.
(b) This subpart includes definitions of most of the relevant terms (§ 228.101(b)-(c)), procedures under which a railroad may request a determination by the Federal Railroad Administration that a particular proposed site for the camp car is not within the “immediate vicinity” of railroad switching or humping operations (§§ 228.103 and 228.105), and the basic criteria utilized in evaluating proposed sites.
13. Subpart E is added to read as follows:
The purpose of this subpart is to prescribe standards for the design, operation, and maintenance of camp cars that a railroad uses as sleeping quarters for its employees and MOW workers so as to protect the safety and health of those employees and MOW workers and give them an opportunity for rest free from the interruptions caused by noise under the control of the railroad, and provide indoor toilet facilities, potable water, and other features to protect the health and safety of the employees and MOW workers.
(a) This subpart applies to all railroads except the following:
(1) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (
(2) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation as defined in § 228.5; or
(3) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
(b) Although the duties imposed by this subpart are generally stated in terms of the duty of a railroad, each person, including a contractor or subcontractor for a railroad, who performs any task covered by this subpart, shall perform that task in accordance with this subpart.
On and after [INSERT DATE 60 DAYS AFTER PUBLICATION OF THE FINAL RULE], a railroad shall not provide a camp car for use as sleeping quarters by an employee or MOW worker unless the camp car complies with all requirements of this subpart.
As used in this subpart—
(a)
(b)
(c)
(2) All exterior openings must be effectively screened with 16-mesh material. All screen doors must be equipped with self-closing devices.
(d)
(e)
(f)
(1) When occupants are present, the pathway to any exit not immediately accessible to occupants, such as through an interior corridor, shall be illuminated at all times to values of at least 1 foot-candle measured at the floor;
(2) Toilet and shower rooms shall have controlled lighting that will illuminate the room to values of at least 10 foot-candles measured at the floor;
(3) Other areas shall have controlled lighting that will illuminate the room area to values of at least 30 foot-candles measured at the floor.
(g)
(h)
(a) Each camp car used for sleeping purposes must contain at least 50 square feet of floor space for each occupant. At least a 7-foot ceiling, measured at the entrance to the car, must be provided.
(b) A bed, cot, or bunk and suitable storage facility such as a wall locker or space for a foot locker for clothing and personal articles must be provided in every room used for sleeping purposes. Except where partitions are provided, such beds or similar facilities must be spaced not closer than 36 inches laterally (except in modular units, which shall be spaced not closer than 30 inches) and 30 inches end to end, and must be elevated at least 12 inches from the floor. If double-deck bunks are used, they must be spaced not less than 48 inches both laterally and end to end. The minimum clear space between the lower and upper bunk must be not less than 27 inches. Triple-deck bunks may not be used.
(c) In a facility where occupants cook, live, and sleep, a minimum of 90 square feet of floor space per occupants must be provided. Sanitary facilities must be provided for storing and preparing food.
(a) The National Electrical Code to which paragraphs (b) and (c) of this section refer is the 2008 version, approved by the National Fire Protection Association (NFPA) Standards Council on July 26, 2007 with an effective date of August 15, 2007.
(b) All heating, cooking, ventilation, air conditioning, and water heating equipment must be installed in accordance with the National Electrical Code governing such installations.
(c) All electrical systems installed must be compliant with the National Electrical Code, including external electrical supply connections.
(d) Each occupied camp car shall be equipped with or serviced by a safe and working HVAC system.
Camp cars shall be constructed, equipped, and maintained to prevent the entrance or harborage of rodents, insects, or other vermin. A continuing and effective extermination program shall be instituted where the presence of vermin is detected.
(a)
(2) A toilet rooms must be equipped with at least one functional toilet to count toward the minimum requirements of this section.
(b)
(c)
(2) Each toilet must be kept in a clean and sanitary condition and cleaned regularly when the camp car is being used. In the case of a non-water carriage toilet facility, it must be cleaned and changed regularly when the camp car is being used.
(d)
(2) The sewage disposal method must not endanger the health of occupants.
(3) For toilet facilities connected to a holding tank, the tank must be constructed in a manner that prevents vermin from entry and odors from escaping into the camp car.
(a)
(b)
(c)
(d)
(a)
(b)
(2) Floor drains must be provided in all shower baths and shower rooms to remove waste water and facilitate cleaning;
(3) All junctions of the curbing and the floor must be sealed; and
(4) There shall be no fixed grate or other instrument on the shower floor significantly hindering the cleaning of the shower floor or drain.
(c)
(d)
(e)
(e)
(2) Showers must be provided with hot and cold water feeding a common discharge line.
(3) Unless otherwise provided by a collective bargaining agreement, each occupant who uses a shower must be provided with an individual clean towel.
(a)
(2) Open containers such as barrels, pails, or tanks for drinking water from which the water must be dipped or poured, whether or not they are fitted with a cover, are prohibited.
(3) A common drinking cup and other common utensils are prohibited.
(b)
(2) If potable water is drawn from a local source, the source must meet the drinking water standards established by the U.S. Environmental Protection Agency under 40 CFR part 141, National Primary Drinking Water Regulations.
(3) All equipment and construction used for supplying potable water to a camp car water system (
(4)
(5)
(i) The approved method of inspecting, cleaning, and sanitizing hydrants, hoses, and nozzles used for filling potable water systems; and
(ii) The approved procedures to prevent contamination during watering.
(6)
(c)
(2)
(3)
(4)
(i) The solution used for flushing and disinfection shall be a 100 parts per million by volume (ppm) chlorine solution.
(ii) The chlorine solution shall be held for one hour in all parts of the system to ensure disinfection.
(iii) The chlorine solution shall be purged from the system by a complete refilling and draining with fresh potable water.
(iv) The draining and flushing shall be done more frequently if an occupant reports a taste or health problem associated with the water, or following any plumbing repair.
(5)
(i) Heterotrophic plate count. Drain and flush the system within two days, and then return it to service.
(ii) Total coliform. Remove the system from service, drain and flush system, resample the system, and then return the system to service.
(iii) Fecal coliform. Remove the system from service, drain and flush the system, resample the system, and do not return the system to service until a satisfactory result on the test of the samples is obtained from the laboratory.
(6)
(a)
(b)
(c)
(i) All surfaces used for food preparation shall be disinfected after each use.
(ii) The disinfection process shall include removal of chemical disinfectants that would adulterate foods prepared subsequent to disinfection.
(2) All perishable food shall be stored either under refrigeration or in a freezer. Refrigeration and freezer facilities shall be provided with a means to monitor temperature to ensure proper temperatures are maintained. The temperature of refrigerators shall be maintained at 40° Fahrenheit or below; the temperature of freezers shall be maintained at 0° Fahrenheit or below at all times.
(3) All non-perishable food shall be stored to prevent vermin and insect infestation.
(4) All food waste disposal containers shall be constructed to prevent vermin and insect infestation.
(i) All food waste disposal containers used within a camp car shall be emptied after each meal, or at least every four hours, whichever period is less.
(ii) All food waste disposal containers used outside a camp car shall be located to prevent offensive odors from entering the sleeping quarters.
(5) When separate kitchen or dining hall car is provided, there must be a closeable door between the living or sleeping quarters into a kitchen or dining hall car.
(d)
(2) No person with any disease communicable through contact with food or a food preparation item may be employed or permitted to work in the preparation, cooking, serving, or other handling of food, foodstuffs, or a material used therein, in a kitchen or dining facility operated in or in connection with a camp car.
(a)
(b)
(c)
(a) A camp car must be kept clean to the extent allowed by the nature of the work performed by the occupants of the camp car.
(b) To facilitate cleaning, every floor, working place, and passageway must be kept free from protruding nails, splinters, loose boards, and unnecessary holes and openings.
(a) An adequate first aid kit must be maintained and made available for occupants of a camp car for the emergency treatment of an injured person.
(b) The contents of the first aid kit shall be placed in a weatherproof container with individual sealed packages for each type of item, and shall be checked at least weekly when the camp car is occupied to ensure that the expended items are replaced. The first aid kit shall contain, at a minimum, the following:
(1) Two small gauze pads (at least 4×4 inches);
(2) Two large gauze pads (at least 8×10 inches);
(3) Two adhesive bandages;
(4) Two triangular bandages;
(5) One package of gauge roller bandage that is at least two inches wide;
(6) Wound cleaning agent, such as sealed moistened towelettes;
(7) Two elastic wraps;
(8) Five antibiotic ointment packages;
(9) Two packets of aspirin;
(10) Two hydrocortisone ointment packets;
(11) One pair of scissors;
(12) One set of tweezers;
(13) One roll of adhesive tape;
(14) Two pairs of latex gloves;
(15) One resuscitation mask; and
(16) One first aid instruction booklet.
A railroad shall, within 72 hours after notice from the Federal Railroad Administration of noncompliance with this subpart, correct each non-complying condition on the camp car or cease use of the camp car as sleeping quarters for each occupant. In the event that such a condition affects the safety or health of an occupant, such as water, cooling, heating, or eating facilities, the railroad must immediately upon notice provide alternative arrangements for
(a) Each railroad shall keep records in accordance with § 228.323 pertaining to its compliance with this subpart. Records may be kept either on paper forms provided by the railroad or by electronic means in a manner that conforms with § 228.323.
(b) Records required to be kept shall be made available to the Federal Railroad Administration as provided by 49 U.S.C. 20107.
14. The last paragraph of the discussion headed “Sleeping Quarters” in Appendix A to part 228 is removed.
15. Appendix C to part 228 is removed.
National Highway Traffic Safety Administration, DOT.
Grant of petition for rulemaking.
This notice grants two separate but similar petitions for rulemaking, one submitted by the American Trucking Associations and the other submitted by Road Safe America and a group of nine motor carriers (Schneider National, Inc., C.R. England, Inc., H.O. Wolding, Inc., ATS Intermodal, LLC, DART Transit Company, J.B. Hunt Transport, Inc., U.S. Xpress, Inc., Covenant Transport, Inc., and Jet Express, Inc.) to establish a safety standard to require devices that would limit the speed of certain heavy trucks. Based on information received in response to a request for comments,
The National Highway Traffic Safety Administration plans to initiate the rulemaking process on this issue with a Notice of Proposed Rulemaking in 2012. The determination of whether to issue a rule will be made in the course of the rulemaking proceeding, in accordance with statutory criteria.
For non-legal issues, you may call Mr. Markus Price, Office of Crash Avoidance Standards (Phone: 202-366-0098; FAX: 202-366-7002). For legal issues, you may call Mr. Steve Wood, Assistant Chief Counsel for Vehicle Rulemaking and Harmonization, (Phone: 202-366-2992; FAX: 202-366-3820). You may send mail to this official at: National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.
On October 20, 2006, the American Trucking Associations (ATA) submitted a petition to the National Highway Traffic Safety Administration (NHTSA) requesting that the agency initiate rulemaking to amend the Federal motor vehicle safety standards to require vehicle manufacturers to install a device to limit the speed of trucks with a gross vehicle weight rating (GVWR) greater than 26,000 pounds to no more than 68 miles per hour (mph). The ATA claimed that reducing speed-related crashes involving trucks is critical to the safety mission of NHTSA, and that these new requirements are needed to reduce the number and severity of crashes involving large trucks.
On September 8, 2006, Road Safe America and a group of nine motor carriers also petitioned the agency to require that manufacturers install a speed limiting device in vehicles with a GVWR over 26,000 pounds and that the devices be set at not more than 68 mph. They also requested that the requirements apply to all trucks manufactured after 1990.
A detailed discussion of the two petitions can be found in the request for comments notice. Items specific to NHTSA include the following requests from ATA:
1. All newly manufactured trucks with a GVWR greater than 26,000 pounds shall be equipped with an electronic control module (ECM) that is capable of limiting the maximum speed of the vehicle.
2. The ECM shall be set at no more than 68 mph by the manufacturer.
3. The ECM should be tamper-resistant, and should be designed in a way that does not allow the speed limiter setting on the ECM to be adjusted to let the vehicle exceed 68 mph.
4. Immediately upon the rule taking effect, manufacturers should be prohibited from setting the ECM speed limiter to a maximum speed of greater than 68 mph. However, this requirement should not take effect earlier than the effective date of a Federal Motor Carrier Safety Administration (FMCSA) rule prohibiting vehicle owners or operators from setting the ECM speed limiter at a level greater than 68 mph for newly manufactured trucks.
5. The effective date for installation of a tamper-resistant ECM should be established with a period of time that will allow manufacturers to undergo a systems integration process. The change to the engine ECM may affect other devices on the vehicle; therefore, manufacturers need some time to ensure that the vehicle functions properly. ATA encourages NHTSA to seek information from manufacturers to determine the length of time necessary to come into compliance with the rule.
6. An appropriate tolerance to accommodate variations in manufacturing, wear, and maintenance throughout the lifecycle of the vehicle. For example, the same diameter heavy truck tire but with a different width and sidewall aspect ratio may have a 15-20 revolutions per mile difference which will affect the actual top speed of the truck with a governed speed of 68 mph. ATA recommends that any rulemaking pertaining to this petition reference SAE J678, J862, and J1226 Recommended Practices.
1. Every class 7 and class 8 commercial motor vehicle manufactured after the year 1990 shall be equipped with an electronic engine speed governor.
On January 26, 2007, NHTSA and FMCSA published a joint Request for Comments Notice in the
Comments from private citizens supporting the petitions include responses from individuals who were involved in crashes with heavy trucks or had friends/relatives who were involved in crashes with large trucks. The private citizen supporters of the petitions are typically non-truck drivers who stated that they are intimidated by the hazardous driving practices of some truck drivers, such as speeding, tailgating, and abrupt lane changes. These commenters expressed the belief that limiting the speed of heavy trucks to 68 mph will result in safer highways.
Some of the organizations supporting the petition provided similar reasons for their support and the selected comments summarized below cover the range of issues they discussed.
Schneider National, Inc., a major trucking fleet, indicated that its trucks have been speed limited to 65 mph since 1996. According to Schneider's crash data from its own fleet, vehicles without speed limiters accounted for 40 percent of the company's serious collisions while driving 17 percent of the company's total miles. Schneider stated that its vehicles have a significantly lower crash rate than large trucks that are not speed limited or have a maximum speed setting greater than 65 mph.
J.B. Hunt Transport, Inc., another trucking fleet, commented that a differential speed between cars and large trucks will result from trucks being equipped with speed limiters set below the posted speed limit. This speed differential may cause a safety hazard. However, J. B. Hunt believes that the current safety hazard caused by large trucks traveling at speeds in excess of posted limits is a greater safety hazard.
Advocates for Highway and Auto Safety (Advocates) commented that large trucks require 20-40 percent more braking distance than passenger cars and light trucks for a given travel speed. Advocates does not believe that the data in the 1991 report to Congress
The Insurance Institute for Highway Safety (IIHS) stated that 97 percent of the occupants that are killed in crashes between heavy trucks and passenger vehicles are passenger vehicle occupants. IIHS stated that on-board electronic engine control modules (ECM) will maintain the desired speed control for vehicles when enforcement efforts are not sufficient due to lack of resources. IIHS stated that there is already widespread use of speed governors by carriers and a mandate will result in net safety and economic benefits.
The Governors Highway Safety Association (GHSA) stated that large trucks are 3 percent of registered vehicles and represent about 8 percent of the total miles traveled nationwide. Also, GHSA believes that it is prudent to consider speed limiting devices since they are currently installed in large trucks and can be adapted to be tamper-resistant. It stated that conventional approaches to vehicle speed control do not provide optimal benefits because of a lack of enforcement resources and too many miles of highway to cover.
Several comments, including those from ATA's Truck Maintenance Council, provided information concerning economic, non-safety benefits that would result from large truck speed limiters. The Truck Maintenance Council stated that an increase of 1 mph results in a 0.1 mpg increase in fuel consumption, and for every 1 mph increase in speed over 55 mph, there is a reduction of 1 percent in tire tread life.
Comments opposing rulemaking that would require speed limiters on large trucks to be set to a maximum speed of 68 mph were received from many independent truck drivers, the Owner-Operator Independent Drivers Association (OOIDA), the Truckload Carriers Association (TCA), and private citizens (non-truck drivers).
OOIDA commented that the 1991 report to Congress
TCA commented that a speed differential will be created in many States by the 68-mph speed limit for heavy trucks and a higher speed limit for other vehicles. This speed differential will result in more interaction between cars and trucks and may be an additional safety risk for cars and trucks.
According to comments from CDW Transport, a trucking fleet, speed limiters should be required on passenger vehicles as well as commercial motor vehicles.
Several comments from private citizens and small businesses opposed to the petitions stated that speed is not the only cause of crashes, that weather and highway conditions are also significant factors. There were comments stating that passenger vehicles cause the majority of the crashes between trucks and passenger vehicles. Some comments stated that truck drivers will experience more fatigue with a 68-mph maximum speed, which could result in more crashes; some comments expressed the opinion that State and local law enforcement agencies should enforce the speed of all vehicles on the nation's roads and highways; several comments favored a 75-mph limit for truck speed limiters, instead of 68 mph, to match the highest posted speed limit in the country.
The Truck Manufacturers Association (TMA) provided information concerning the cost of tamper-proof speed limiters for large trucks. TMA estimates a one-time cost of $35 to $50 million would be required to develop ECMs with tamper-resistant speed limiters and a one-time cost of $150 million to $200 million to develop ECMs with tamper-proof speed limiters. With both of these ECM designs, there would be additional costs to make adjustments to the ECM for maximum speed, tire size, and drive axle and transmission gear ratio information.
The agency conducted a preliminary review of research in its evaluation of the merits of these petitions. Along with research conducted by Transport Canada,
Although the currently available studies have been useful in the agency's grant consideration, additional information on this topic is forthcoming. The agency anticipates the publication of a report on the findings of a study being conducted by the Federal Motor Carrier Safety Administration.
The European Union has limited the speed of large trucks and buses under its jurisdiction to 62 mph since 1994. In Australia, large trucks have been limited to 62 mph since 1990 with a 56-mph limit for road trains (a road train consists of a tractor pulling multiple trailers).
More recently, Japan and the Canadian provinces of Ontario and Quebec have also mandated speed limiters. Japan limited large trucks to 56 mph in 2003. Quebec and Ontario limited the speed of large trucks to 65 effective January 1, 2009, although they did not begin assessing fines until July 1, 2009.
The granting of the petitions from ATA and Road Safe America, however, does not mean that a final rule will be issued. The determination of whether to issue a rule is made after study of the requested action and the various alternatives in the course of the rulemaking proceeding, in accordance with statutory criteria.
49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50.
Administrative Conference of the United States.
Notice.
The Administrative Conference of the United States adopted the attached recommendation at its Fifty-third Plenary Session. The recommendation addresses issues relating to Federal agency procedures regarding consultation with State and local governments and for considering State interests in rulemakings that may result in the preemption of State law.
Emily F. Schleicher, Designated Federal Officer, Administrative Conference of the United States, Suite 706 South, 1120 20th Street, NW., Washington, DC 20036; Telephone 202-480-2080.
The Administrative Conference of the United States was established by the Administrative Conference Act, 5 U.S.C. 591-596. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies in carrying out administrative programs, and makes recommendations for improvements to the agencies, collectively or individually, and to the President, Congress, and the Judicial Conference of the United States (5 U.S.C. 594(1)). At its Fifty-third Plenary Session, held December 9 and 10, 2010, the Assembly of the Administrative Conference of the United States adopted the attached recommendation. For further information about the Conference and its activities,
Recommendation 2010-1, “Agency Procedures for Considering Preemption of State Law,” addresses issues relating to agency procedures for complying with Federal requirements regarding consultation with State and local governments and for considering State interests in rulemakings that may result in the preemption of State law. The goal of the recommendation is not to favor or disfavor preemption, but to improve agency procedures in potentially preemptive rulemakings. The recommendation reiterates a previous Conference recommendation that Congress clearly state its preemptive intent in the text of the statutes it charges Federal agencies with implementing. It recommends that agencies formulate appropriate internal procedures to ensure consultation with representatives of State interests and to ensure that agencies evaluate the authority and basis asserted in support of a preemptive rulemaking. It seeks to increase transparency regarding internal agency policies and recommends ways to improve external mechanisms for enforcing the applicable Federal requirements.
The full text of the recommendation is set out in the Appendix below. The recommendation will be transmitted to affected agencies and to appropriate committees of the United States Congress. The Administrative Conference has advisory powers only, and the decision on whether to implement the recommendation must be made by the affected agencies or by Congress.
The Administrative Conference ceased operations in 1995 due to termination of funding, but was re-established in 2010, and the Council of the revived Administrative Conference held its first meeting in August 2010. The December 2010 Plenary Session was the first held after the resumption of operations. Recommendations and statements of the Administrative Conference are published in full text in the
The transcript of the Plenary Session is available for public inspection at the Conference's offices at 1120 20th Street, NW., Suite 706 South, Washington, DC.
5 U.S.C. 591-96.
Presidents Reagan and Clinton both issued executive orders mandating executive branch agencies,
Individual agencies are responsible for implementing Executive Order 13132, and the Office of Information and Regulatory Affairs (“OIRA”), located within the Office of Management and Budget (“OMB”), has issued procedural guidelines on “what agencies should do to comply with the Order and how they should document that compliance to OMB.”
President Obama's official policy on preemption, articulated in a May 20, 2009 presidential “Memorandum for Heads of Executive Departments and Agencies” (“Preemption Memorandum”), provides that “[p]reemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.”
An empirical evaluation of agency practices reveals that compliance with the preemption provisions of Executive Order 13132 has been inconsistent, although President Obama's Preemption Memorandum has effectuated a meaningful shift in preemption policies within a number of agencies. This evaluation was based on statistical analysis of agency rulemaking practices, on particular examples of agency rulemakings, on recent interviews with officials at the National Highway Traffic Safety Administration (“NHTSA”), Food and Drug Administration (“FDA”), Office of the Comptroller of the Currency (“OCC”), Consumer Product Safety Commission (“CPSC”), Federal Trade Commission (“FTC”), and Environmental Protection Agency (“EPA”), and on consideration of legislative changes to statutes relevant to agency preemption and an independent review of the agencies' respective rulemaking dockets and intervention in litigation.
There appears to be consensus that the requirements of the preemption provisions of Executive Order 13132—including consultation with the States and the requirement for “federalism impact statements”—are sound. But compliance with these provisions has been inconsistent, and difficulties have persisted across administrations of both political parties. A 1999 GAO Report identified only five rules—out of a total of 11,000 issued from April 1996 to December 1998
This Administrative Conference Recommendation is intended to improve agency procedures for implementing the preemption provisions of Executive Order 13132 and to increase transparency regarding internal agency policies and external enforcement mechanisms designed to ensure compliance with those provisions. The goal is not to favor or disfavor preemption, but to improve agency procedures in potentially preemptive rulemakings. The Recommendation is also intended to facilitate Federal agency consultation with State representatives, such as the “Big Seven,” a group of nonpartisan, non-profit organizations composed of State and local government officials,
The Conference recognizes the danger of encumbering the rulemaking process with too many formal requirements. Therefore, in crafting this Recommendation, the Conference has remained mindful of the continuing validity of its previous
1. The Conference reiterates its previous, related recommendation that “Congress should address foreseeable preemption issues clearly and explicitly when it enacts a statute affecting regulation or deregulation of an area of conduct.”
2. Agencies that engage in rulemaking proceedings that may have preemptive effect on State law should have internal written guidance to ensure compliance with the preemption provisions of Executive Order 13132, which should describe:
a. How the agency determines the need for any preemption;
b. How the agency consults with State and local officials concerning preemption; and
c. How the agency otherwise ensures compliance with the preemption provisions of Executive Order 13132.
3. Agencies should post their internal guidance for compliance with the preemption provisions of Executive Order 13132 on the Internet or otherwise make publicly available the information contained therein.
4. Agencies should have an oversight procedure to improve agency procedures for implementing the preemption provisions of Executive Order 13132. This procedure should include an internal process for evaluating the authority and basis asserted in support of a preemptive rulemaking. The agency should provide a reasoned basis, with such evidence as may be appropriate, that supports its preemption conclusion.
5. Agencies should have a consultation process that contains elements such as the following:
a. Agencies should use an updated contact list for representatives of State interests, including but not limited to the “Big Seven.” The Administrative Conference will maintain such a list for use by agencies.
b. Agencies should maintain some form of regularized personal contact in order to build relationships with representatives of State interests.
c. Agencies should disclose to the public when they meet with the representatives of State interests in the course of rulemaking proceedings that may preempt State law. The disclosure should include the identity of the organization(s) or institution(s) that participate and the subject matter of the discussion.
d. Agencies should reach out to appropriate State and local officials early in the process when they are considering preemptive rules. Such outreach should, to the extent practicable, precede issuance of the notice of proposed rulemaking.
6. Agencies should establish contact with organizations and State and local regulatory bodies and officials that have relevant substantive expertise or jurisdiction.
7. Agencies should adopt, as one component of their notice practice, a procedure for notifying State attorneys general when they are considering rules that may have preemptive effect. This may be achieved via direct communication with State attorneys general and by contacting an appropriate representative organization such as, for example, the National Association of Attorneys General.
8. OIRA/OMB should request agencies to post on their open government Web sites a summary of the agencies' responses to the directive contained in the Preemption Memorandum to conduct a 10-year retrospective review of preemptive rulemaking.
9. OIRA/OMB should update its Federalism Guidelines with respect to preemption.
10. OIRA should include reference to Executive Order 13132 in Circular A-4.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service has received a petition from Pioneer Hi-Bred International, Inc., seeking a determination of nonregulated status for corn designated as DP-32138-1, which has been genetically engineered to produce male sterile/female inbred plants for the generation of hybrid corn seed that is non-transgenic. The petition has been submitted in accordance with our regulations concerning the introduction of certain genetically engineered organisms and products. In accordance with those regulations, we are soliciting comments on whether this genetically engineered corn is likely to pose a plant pest risk. We are also making available for public comment an environmental assessment for the proposed determination of nonregulated status.
We will consider all comments that we receive on or before March 4, 2011.
You may submit comments by either of the following methods:
•
•
Mr. Rick Coker, Regulatory Analyst, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737-1236; (301) 734-5720, e-mail:
The regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. Such genetically engineered organisms and products are considered “regulated articles.”
The regulations in § 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) seeking a determination that an article should not be regulated under 7 CFR part 340. Paragraphs (b) and (c) of § 340.6 describe the form that a petition for a determination of nonregulated status must take and the information that must be included in the petition.
APHIS has received a petition (APHIS Petition Number 08-338-01p) from Pioneer Hi-Bred International, Inc. (Pioneer) of Johnston, IA, seeking a determination of nonregulated status for corn (
As described in the petition, the controlled expression of a seed color marker gene and pollen fertility and sterility genes allows for the generation of red transgenic seed for seed increase of male sterile-female inbred lines and for the production of non-transgenic fertile pollen for use in non-transgenic hybrid commercial seed production. Corn event DP-32138-1 is currently regulated under 7 CFR part 340. Interstate movements and field tests of corn event DP-32138-1 have been conducted under permits issued or notifications acknowledged by APHIS.
Field tests conducted under APHIS oversight allowed for evaluation in a natural agricultural setting while imposing measures to minimize the risk of persistence in the environment after completion of the test. Data are gathered on multiple parameters and used by the applicant to evaluate agronomic characteristics and product performance. These data are used by APHIS to determine if the new variety poses a plant pest risk. Pioneer has petitioned APHIS to make a determination that corn event DP-32138-1 shall no longer be considered a regulated article under 7 CFR part 340.
In section 403 of the Plant Protection Act (7 U.S.C. 7701
APHIS has also prepared a draft environmental assessment (EA) in which it presents two alternatives based on its analyses of data submitted by Pioneer, a review of other scientific data, and field tests conducted under APHIS oversight. APHIS is considering the following alternatives: (1) Take no action,
The draft EA has been prepared to provide the APHIS decisionmaker with a review and analysis of any potential environmental impacts associated with the proposed determination of nonregulated status for corn event DP-32138-1. The draft EA was prepared in accordance with (1) the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
In accordance with § 340.6(d) of the regulations, we are publishing this notice to inform the public that APHIS will accept written comments regarding the petition for a determination of nonregulated status from interested or affected persons for a period of 60 days from the date of this notice. We are also soliciting written comments from interested or affected persons on the draft EA prepared to examine any potential environmental impacts of the proposed determination for the deregulation of the subject corn line, and the plant pest risk assessment. The petition, draft EA, and plant pest risk assessment are available for public review, and copies of the petition, draft EA, and plant pest risk assessment are available as indicated under
After the comment period closes, APHIS will review all written comments received during the comment period and any other relevant information. All comments received regarding the petition, draft EA, and plant pest risk assessment will be available for public review. After reviewing and evaluating the comments on the petition, the draft EA, plant pest risk assessment, and other data, APHIS will furnish a response to the petitioner, either approving or denying the petition. APHIS will then publish a notice in the
7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Forest Service, USDA.
Notice of withdrawal of intent to prepare an environmental impact statement.
The United States Department of Agriculture, Forest Service, Prescott National Forest, is withdrawing the March 2, 2010,
This withdrawal of the Notice of Intent is effective on the date of this publication in the
USDA Forest Service, Prescott National Forest, 344 S Cortez St., Prescott, AZ 86303.
Jodi Wetzstein, Prescott National Forest Silviculturalist; 928-443-8041.
Forest Service, USDA.
Notice of meeting.
The Nye/White Pine County Resource Advisory Committee (RAC) will hold a meeting.
The meeting will be held on January 11th, 2011 and will begin at 10 a.m.
The meeting will be held in Nye County at the Bureau of Land Management, 1553 S. Erie Main Street, Tonopah, Nevada 89049.
Jose Noriega, RAC Coordinator, USDA, Humboldt-Toiyabe National Forest, Ely Ranger District, 825 Avenue E Ely, NV 89301 (775) 289-3031; e-mail
Agenda items include: (1) Introductions, getting acquainted; (2) Understand the role of the committee under the Act; (3) Review operational guides; (4) Elect Chairperson; (5) Review and recommend funding allocation for proposed projects; (6) Determine timeframes for the next round of project proposals; and (7) Public Comment. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Forest Service, USDA.
Notice of meeting.
The Coconino Resource Advisory Committee will meet in Flagstaff, Arizona, to finalize the Project Submission Form, Project Evaluation Checklist, and discuss any additional last minute items to prepare to hear proposals in the future. No proposals will be heard at this meeting.
The meeting will be held January 27, 2011, beginning at 1 p.m. to approximately 4 p.m.
The meeting will be held in the Ponderosa Room of the Coconino County Health Department, 2625 N. King St., Flagstaff, Arizona 86004. Send written comments to Brady Smith, RAC Coordinator, Coconino Resource Advisory Committee, c/o Forest Service, USDA, 1824 S. Thompson St., Flagstaff, Arizona 86001 or electronically to
Brady Smith, Coconino National Forest, (928) 527-3490.
Agenda items for this meeting include (1) Public Comment Period; (2) Project Submission Form discussion and finalization; (3) Project Evaluation Checklist discussion and finalization. The meeting is open to the public.
Forest Service, USDA.
Notice of meeting.
The National Urban and Community Forestry Advisory Council will meet in Washington, DC, January at the USDA Whitten Building. The purpose of the Council's meeting is to discuss finalizing their 2010 annual accomplishment report, recommendations for the Secretary of Agriculture, develop the 2011 plan of work, hear from some of the Urban and Community Forestry grant recipients on completed grant findings, and hear public input related to urban and community forestry.
The meeting will be held on January 26 and 27, 2011, 9 a.m. to 5 p.m. or until Council business is completed.
The meeting will be held at the USDA Whitten Building, 12th and Jefferson Drive, SW., Washington, DC 20250. Phone: 202-205-1054.
Written comments concerning this meeting should be addressed to Nancy Stremple, Executive Staff to National Urban and Community Forestry Advisory Council, 201 14th Street, SW., Yates Building (1 Central) MS-1151, Washington, DC 20250-1151. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. Visitors are encouraged to call ahead to facilitate entry into the Forest Service building.
Mary Dempsey, Staff Assistant to National Urban and Community Forestry Advisory Council, 201 14th Street, SW., Yates Building (1 Central) MS-1151, Washington, DC 20250-1151, phone 202-205-1054.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. Those interested in attending should contact Mary Dempsey to be placed on the meeting attendance list. Council discussion is limited to Forest Service staff and Council members; however, persons who wish to bring urban and community forestry matters to the attention of the Council may file written statements with the Council staff (201 14th Street, SW., Yates Building (1 Central) MS-1151, Washington, DC 20250-1151,
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice to solicit nominees.
The Department of Agriculture's (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA) is seeking nominations for individuals to serve on the USDA Grain Inspection Advisory Committee (Advisory Committee). The Advisory Committee meets twice annually to advise GIPSA on the programs and services it delivers under the U.S. Grain Standards Act (USGSA). Recommendations by the Advisory Committee help GIPSA better meet the needs of its customers who operate in a dynamic and changing marketplace.
GIPSA will consider nominations received by February 2, 2011.
Submit nominations for the Advisory Committee by completing form AD-755. Nominations may be submitted by:
•
•
•
•
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Terri L. Henry, telephone (202) 205-8281 or e-mail
As required by section 21 of the USGSA (7 U.S.C. 87j), as amended, the Secretary of Agriculture established the Grain Inspection Advisory Committee on September 29, 1981, to provide advice to the GIPSA Administrator on implementation of the USGSA. The current authority for the Advisory Committee expires on September 30, 2015. As specified in the USGSA, each member's term is 3 years and no member may serve successive terms.
The Advisory Committee consists of 15 members, appointed by the Secretary, who represent the interests of grain producers, processors, handlers, merchandisers, consumers, exporters, and scientists with expertise in research related to the policies in section 2 of the USGSA (7 U.S.C. 74). Members of the Advisory Committee serve without compensation. USDA may reimburse members for travel expenses, including per diem in lieu of subsistence, for travel away from their homes or regular places of business in performance of Advisory Committee service (
A list of current Advisory Committee members and other relevant information are available on the GIPSA Web site at
GIPSA is seeking nominations for individuals to serve on the Advisory Committee to replace nine members and eleven alternate members whose terms will expire in March 2011.
Persons interested in serving on the Advisory Committee or nominating another individual to serve, may contact: Terri L. Henry by telephone at 202-205-8281, by fax at 202-690-2173, or by electronic mail at
The final selection of Advisory Committee members and alternates is made by the Secretary of Agriculture.
Grain Inspection, Packers and Stockyards Administration.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand and reorganize FTZ 202 is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, and to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, subject to sunset provisions that would terminate
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
1. Privileged foreign status (19 CFR 146.41) must be elected on all foreign status ferrosilicon, molybdenum and titanium (HTSUS 7202.21, 8102.94, 8108.20 and 8108.90) admitted to the subzone.
2. Approval is for an initial period of five years, subject to extension upon review.
3. ThyssenKrupp shall submit supplemental reporting data, as specified by the Executive Secretary, for the purpose of monitoring by the FTZ staff.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to the authority granted in the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), and the Foreign-Trade Zones Board Regulations (15 CFR part 400), the Foreign-Trade Zones Board has adopted the following order:
Import Administration, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Review is scheduled for initiation in February 2011 and will appear in that month's Notice of Initiation of Five-Year Sunset Reviews.
No Sunset Review of countervailing duty orders is scheduled for initiation in February 2011.
No Sunset Review of suspended investigations is scheduled for initiation in February 2011.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in the Department's Policy Bulletin 98.3—
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating a five-year review (“Sunset Review”) of the antidumping and countervailing duty orders listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating the Sunset Review of the following antidumping and countervailing duty orders:
As a courtesy, we are making information related to Sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Internet Web site at the following address:
Pursuant to 19 CFR 351.103 (d), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties to apply for access to proprietary information under administrative protective order (“APO”) immediately following publication in the
Domestic interested parties defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b)) wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218 (c).
Import Administration, International Trade Administration, Department of Commerce.
Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4697.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspension of investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, except for the review of the antidumping duty order on Wooden Bedroom Furniture from the People's Republic of China (“PRC”) (A-570-890), the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review (“POR”). We intend to
If the Department limits the number of respondents selected for individual examination in the administrative review of the antidumping duty order on wooden bedroom furniture from the PRC, it intends to select respondents based on volume data contained in responses to quantity and value questionnaires. Further, the Department intends to limit the number of quantity and value questionnaires issued in the wooden bedroom furniture from the PRC review based on CBP data for U.S. imports classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) headings identified in the scope of the order. Since the units used to measure import quantities are not consistent for the HTSUS headings identified in the scope of the order on wooden bedroom furniture from the PRC, the Department will limit the number of quantity and value questionnaires issued based on the import values in CBP data as a proxy for import quantities. Parties subject to the review to which the Department does not send a quantity and value questionnaire may file a response to the quantity and value questionnaire by the applicable deadline if they desire to be included in the pool of companies from which the Department will select mandatory respondents. Additionally, exporters subject to the review to which the Department does not send a quantity and value questionnaire may file a separate rate application or separate rate certification, as appropriate, by the applicable deadline without filing a response to the quantity and value questionnaire.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters.
Please note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who
As explained in
Six copies of the request should be submitted to the Assistant Secretary for Import Administration, International Trade Administration, Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. The Department also asks parties to serve a copy of their requests to the Office of Antidumping/Countervailing Operations, Attention: Sheila Forbes, in room 3508 of the main Commerce Building. Further, in accordance with 19 CFR 351.303(f)(3)(ii), a copy of each request must be served on the petitioner and each exporter or producer specified in the request.
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
Seth Isenberg and Joshua Morris, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0588 and (202) 482-1779, respectively.
On November 10, 2010, the Department of Commerce (“the Department”) initiated an investigation of multilayered wood flooring from the People's Republic of China (“PRC”).
Under section 703(c)(1)(B) of the Tariff Act of 1930, as amended (the “Act”), the Department may extend the period for reaching a preliminary determination in a countervailing duty investigation until no later than the 130th day after the date on which the administering authority initiates an investigation, if the Department determines that the parties are cooperating and additional time is necessary to make the preliminary determination because the case is extraordinarily complicated. The Department solicited and received comments from parties, and concludes that concerned parties are cooperating. The Department further finds that additional time is required because the number of alleged manufacturers, producers, and exporters listed in the Petition
Moreover, since the
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f).
National Institute of Standards and Technology, Commerce.
Notice.
The National Institute of Standards and Technology (NIST) announces that the following programs are soliciting applications for financial assistance for FY 2011: (1) The NIST Gaithersburg Summer Undergraduate Research Fellowship Programs, and (2) the NIST Boulder Summer Undergraduate Research Fellowship Programs. Each program will only consider applications that are within the scientific scope of the program as described in this notice and in the detailed program descriptions found in the Federal Funding Opportunity (FFO) announcement for these programs. Please note that due to a change in Department of Commerce policy, in future years these programs will be announced only on
See below.
See below.
The
Applications for the Gaithersburg and Boulder programs are separate. Application to one program does not constitute application to the other, and applications will not be exchanged between the Gaithersburg and Boulder programs. If applicants wish to be considered at both sites, two separate applications must be submitted.
Both SURF programs provide an opportunity for the NIST laboratories and the National Science Foundation (NSF) to join in a partnership to encourage outstanding undergraduate students to pursue careers in science and engineering. The objective of the SURF programs is to build a mutually beneficial relationship among the student, the institution, and NIST. The programs are conducted in English and provide research opportunities for students to work with internationally known NIST scientists, to expose them to cutting-edge research and promote the pursuit of graduate degrees in science and engineering. It is expected that the students in the program will have a proficiency in writing and speaking English, the ability to live and work with others, a commitment to honesty, and an interest in learning new things and using their own innovativeness to develop new science. Safety is a top priority at NIST. Students participating in the SURF program will be expected to be safety-conscious, to attend NIST safety training, and to comply with all NIST safety policies and procedures.
The
Program questions should be addressed to Ms. Anita Sweigert, Administrative Coordinator, SURF NIST Gaithersburg Programs, National Institute of Standards and Technology, 100 Bureau Drive, Stop 8400, Gaithersburg, MD 20899-8400, Tel: (301) 975-4200, E-mail:
Funds budgeted for payments to students under these programs are stipends, not salary. The stipend is an amount that is expected to be provided to the participating student to help defray the cost of living, for the duration of the program, in the Washington National Capital Region. The
The actual number of awards made under this announcement will depend on the proposed budgets and the availability of funding. The funding instrument will be a cooperative agreement as NIST will be substantially involved in the program due to collaboration with funding recipients in the scope of work. For all
The
The authority for the
Proposals must include the required forms listed in the FFO, and the following information:
(A) Student Information (student's name and university should appear on all of these documents):
(1) Student application information cover sheet;
(2) Academic transcript for each student nominated for participation (it is recommended that students have a G.P.A. of 3.0 or better, out of a possible 4.0);
(3) A statement of motivation and commitment from each student to participate in the 2011 SURF Program, including a description of the student's prioritized research interests;
(4) A resume for each student;
(5) Two letters of recommendation for each student that should address paragraph (A) of the evaluation criteria below; and
(6) Copy of passport, green card, or birth certificate as confirmation of U.S. citizenship or permanent legal resident status for each student.
(B) Information About the Applicant Institution:
(1) Description of the institution's education and research programs; and
(2) A summary list of the student(s) being nominated.
Institution proposals will be separated into student/institution packets. Each student/institution packet will be comprised of the required application forms, including a complete copy of the student information and a complete copy of the institution information. The student/institution packets will be directed to the
The selection process occurs in three rounds. Each
The SURF Program Director (Selecting Official) for each program, who is a NIST program official who did not participate in the technical evaluations, will then apply the following Selection Factors, which may result in revisions to the rank order: relevance of the student's course of study to the program objectives of the NIST laboratory in which that
Based on these results, the Program Director (Selecting Official) for each laboratory program will divide the rank ordered student/institution packets into three categories: Priority Funding; Fund if Possible; and Do Not Fund. Student/institution packets placed in the Priority Funding category will be selected for funding in that
Student/institution packets placed in the Fund if Possible Category may be considered for funding at a later time by the category-designating
Students not selected for funding by their first or second choice
The final approval of selected applications and award of cooperative agreements will be made by the NIST Grants Officer based on compliance with application requirements as published in this notice and other applicable legal and regulatory requirements. NIST also reserves the right to reject an application where information is uncovered that reflects adversely on an applicant's business integrity, resulting in a determination by the Grants Officer that an applicant is not presently responsible. Applicants may be asked to modify objectives, work plans, or budgets and provide supplemental information required by the agency prior to award. The decision of the Grants Officer is final.
The
(A)
(B)
Each of these factors is given equal weight in the evaluation process.
Program questions should be addressed to Ms. Cynthia Kotary, Administrative Coordinator, SURF NIST Boulder Programs, National Institute of Standards and Technology, 325 Broadway, Mail Stop 104, Boulder, CO 80305-3337, Tel: (303) 497-3319, E-mail:
The actual number of awards made under this announcement will depend on the proposed budgets and the availability of funding. The funding instrument will be a cooperative agreement as NIST will be substantially involved in the program due to collaboration with funding recipients in the scope of work. NIST expects that individual awards to institutions will range from approximately $3,000 to $70,000. Funding for student housing will be included in the cooperative agreements awarded under this notice.
The
The authority for the
(A) Student Information (student's name and university should appear on all of these documents):
(1) Student application information cover sheet;
(2) Academic transcript for each student nominated for participation (it is recommended that students have a G.P.A. of 3.0 or better, out of a possible 4.0);
(3) A statement of motivation and commitment from each student to participate in the 2011 SURF Program, including a description of the student's prioritized research interests;
(4) A resume for each student;
(5) Two letters of recommendation for each student; and
(6) Copy of passport, green card, or birth certificate as confirmation of U.S. citizenship or permanent legal resident status for each student.
(B) Information About the Applicant Institution:
(1) Description of the institution's education and research programs; and
(2) A summary list of the student(s) being nominated, with one paragraph of commentary about each student from a dean or department chair that describes why the students would be successful in the SURF Boulder Program.
Institution proposals will be separated into student/institution packets. Each student/institution packet will be comprised of the required application forms, including a complete copy of the student information and a complete copy of the institution information. The student/institution packets will be directed to a review committee of NIST staff appointed by the SURF NIST Boulder Directors.
First, all applications received in response to this announcement will be reviewed to determine whether or not they are complete and responsive to the scope of the stated program objectives. Incomplete or non-responsive proposals will not be reviewed for technical merit, and the applicant will be so notified. The Program will retain one copy of each non-responsive application for three years for record-keeping purposes. The remaining copies will be destroyed.
Second, each SURF student/university packet will be reviewed by at least three independent, objective NIST employees, who are knowledgeable in the scientific areas of the program and are able to conduct a technical review of each student/university packet based on the Evaluation Criteria described in this notice. The normalized scores based on this merit review will be averaged for each student/institution applicant packet, creating a rank order. The Selecting Official, the Special Assistant to the Director of NIST Physical Measurement Laboratory, shall award in the rank order unless a proposal is justified to be selected out of rank order based upon one or more of the following factors: Availability of funding, and balance or distribution of funds by research or technical disciplines.
The final approval of selected applications and award of financial assistance will be made by the NIST Grants Officer based on compliance with application requirements as published in this notice, compliance with applicable legal and regulatory requirements, and whether the recommended applicants appear to be responsible. Applicants may be asked to modify objectives, work plans, or budgets and provide supplemental information required by the agency prior to award. The decisions of the Grants Officer are final.
Unsuccessful applicants will be notified in writing. The Program will retain one copy of each unsuccessful application for three years for record keeping purposes. The remaining copies will be destroyed.
(A)
(B)
The following information applies to all programs announced in this notice:
Any use of NIST-owned intellectual property by a proposer is at the sole discretion of NIST and will be negotiated on a case-by-case basis if a project is deemed meritorious. The applicant should indicate within the statement of work whether it already has a license to use such intellectual property or whether it intends to seek one.
If any inventions made in whole or in part by a NIST employee arise in the course of an award made pursuant to this notice, the United States government may retain its ownership rights in any such invention. Licensing or other disposition of NIST's rights in such inventions will be determined solely by NIST, and include the possibility of NIST putting the intellectual property into the public domain.
NIST will accept the submission of human subjects protocols that have been approved by Institutional Review Boards (IRBs) currently registered with DHHS and performed by entities possessing a current, valid Federal-wide Assurance (FWA) from DHHS, that are appropriately linked to the IRB that approved the protocol. NIST will not issue a single project assurance (SPA) for any IRB reviewing any human subjects protocol proposed to NIST.
Generally, the NIST does not fund research involving human subjects in foreign countries. NIST will consider, however, the use of preexisting tissue, cells, or data from a foreign source on a limited basis if the following criteria are satisfied:
1. The scientific source is considered unique,
2. An equivalent source is unavailable within the United States,
3. An alternative approach is not scientifically of equivalent merit, and
4. The specific use qualifies for an exemption under the Common Rule.
President Obama has issued Executive Order No. 13,505 (74 FR 10667, March 9, 2009), revoking previous Executive Orders and Presidential statements regarding the use of human embryonic stem cells in research. On July 30, 2009, President Obama issued a memorandum directing that agencies that support and conduct stem cell research adopt the “National Institutes of Health Guidelines for Human Stem Cell Research” (NIH Guidelines), which became effective on July 7, 2009, “to the fullest extent practicable in light of legal authorities and obligations.” On September 21, 2009, the Department of Commerce submitted to the Office of Management and Budget a statement of compliance with the NIH Guidelines. In accordance with the President's memorandum, the NIH Guidelines, and the Department of Commerce statement of compliance, NIST will support and conduct research using only human embryonic stem cell lines that have been approved by NIH in accordance with the NIH Guidelines and will review such research in accordance with the Common Rule and NIST implementing procedures, as appropriate. NIST will not support or conduct any type of research that the NIH Guidelines prohibit NIH from funding. NIST will follow any additional policies or guidance issued by the current Administration on this topic.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Intent (NOI) to prepare an environmental impact statement (EIS); request for comments.
NMFS, Southeast Region, in collaboration with the South Atlantic Fishery Management Council (Council), intends to prepare an EIS to describe and analyze a range of alternatives for management actions to be included in Amendment 5 to the Golden Crab Fishery Management Plan of the South Atlantic Region (Amendment 5). These alternatives will consider measures to develop a catch share program for the golden crab fishery. The purpose of this NOI is to solicit public comments on the scope of issues to be addressed in the EIS.
Written comments on the scope of issues to be addressed in the EIS will be accepted from January 12 to February 14, 5 p.m., Eastern time.
You may submit comments, identified by RIN 0648-BA60, by any one of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Karla Gore; phone: (727) 824-5305.
The Golden Crab FMP relies on a system of traditional fishery management plus limited access. Traditional fishery management includes: measures to provide biological protection to the resource (escape gaps in traps and no retention of female crabs); gear regulations (allowable gear, requirement for degradable panel, tending requirements, gear identification, and maximum trap size by zone); depth limitations and prohibition of possession of whole fish or fillets of snapper-grouper species; data collection requirements (vessel/fishermen and dealer/processor reporting); and a framework procedure to adjust the management program.
The golden crab fishery resource is not overfished or undergoing overfishing. However, there are underlying social and economic problems resulting from gear conflicts, high regulatory costs, and limited markets. To solve these social and economic problems, managers have increasingly turned to various forms of controlled access or effort limitation. Combining more traditional fishery management measures with controlled access has allowed the Council to solve problems in the golden crab fishery.
The Council is considering development and implementation of a catch share program for golden crab in order to: avoid a derby fishery from developing; place limitations on vessel harvest similar to historical participation; and maintain fishermen harvesting flexibility. Recent information indicates increased participation and renewed interest in participation in the golden crab fishery due to technological improvements that have increased quality, price, and marketability of golden crab.
NMFS, in collaboration with the Council, will develop an EIS to describe and analyze management alternatives to address the management needs described above. Those alternatives will include a “no action” alternative regarding each action.
In accordance with NOAA's Administrative Order 216-6, Section 5.02(c), Scoping Process, NMFS, in collaboration with the Council, has identified preliminary environmental issues as a means to initiate discussion
Copies of an information packet will be available from NMFS (
Following publication of this NOI, the Council will conduct public scoping meetings to determine the range of issues to be addressed in the draft EIS (DEIS) and the associated Amendment 5. After the DEIS associated with Amendment 5 is completed, it will be filed with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in the
The Council will consider public comments received on the DEIS in developing the final environmental impact statement (FEIS), and before voting to submit the final amendment to NMFS for Secretarial review, approval, and implementation. NMFS will announce in the
All meetings will begin at 3 p.m. In addition to Amendment 5, the Council intends to scope additional amendments at this series of meetings. Separate NOIs will be prepared for each amendment. The meetings will be physically accessible to people with disabilities. Requests for information packets or for sign language interpretation or other auxiliary aids should be directed to the Council (
Monday, January 24, 2011-Hilton New Bern/Riverfront, 100 Middle Street, New Bern, NC 28560; phone 252-638-3585.
Wednesday, January 26, 2011-Crowne Plaza Charleston Airport, 4831 Tanger Outlet Boulevard, North Charleston, SC 29418; phone 843-744-4422.
Thursday, January 27, 2011-Mighty Eighth Air Force Museum, 175 Bourne Avenue, Pooler, GA 31322; phone 912-748-8888.
Monday, January 31, 2011-Jacksonville Marriott, 4670 Salisbury Road, Jacksonville, FL 32256; phone 904-296-2222.
Tuesday, February 1, 2011-International Palms Resort, 1300 N. Atlantic Avenue, Cocoa Beach, FL 32931; phone 321-783-2271.
Thursday, February 3, 2011-Key Largo Grande Resort, 97000 Overseas Resort, Key Largo, FL 33037; phone 305-852-5553.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Intent (NOI) to prepare an environmental impact statement (EIS); notice of scoping meetings; request for comments.
NMFS, Southeast Region, in collaboration with the South Atlantic Fishery Management Council (Council), intends to prepare an EIS to describe and analyze a range of alternatives for management actions to be included in an amendment to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). These alternatives will consider measures to establish a rebuilding plan for the red grouper stock, while setting annual catch limits (ACLs), accountability measures (AMs), allocations, maximum sustainable yield (MSY), and optimum yield (OY) for red grouper. The purpose of this NOI is to solicit public comments on the scope of issues to be addressed in the EIS.
Written comments on the scope of issues to be addressed in the EIS will be accepted from January 12 to February 14, 5 p.m., eastern time.
You may submit comments, identified by RIN 0648-BA52, by any one of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Kim Iverson; phone: (843) 571-4366.
The red grouper stock in the south Atlantic was assessed through the Southeast, Data, Assessment, and Review (SEDAR) process in 2010. The assessment indicates that the stock is experiencing overfishing and is overfished. Overfishing is a condition when fishing pressure is beyond the allowable level. Overfishing may lead to an overfished condition. A stock is overfished when the biomass is below an identified minimum stock size threshold. Due to low biomass levels, an overfished stock has increased vulnerability to environmental variables and cannot produce the MSY.
As directed by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Council and NMFS must implement a rebuilding plan, through an FMP Amendment or proposed regulations, which ends overfishing immediately and provides for rebuilding the fishery. The intent of a rebuilding plan is to increase biomass of overfished stocks to a sustainable level within a specified period of time. A plan should achieve conservation goals, while minimizing to the extent practicable adverse socioeconomic impacts. NMFS notified the Council of the stock status on June 9, 2010; the Magnuson-Stevens Act
A reauthorization of the Magnuson-Stevens Act in 2007 introduced new tools that, when implemented, would end and prevent overfishing in order to achieve the OY from a fishery. The requirements are referred to as ACLs and AMs. An ACL is the level of annual catch of a stock that, if met or exceeded, triggers some corrective action. AMs are management controls to prevent ACLs from being exceeded and to correct overages of ACLs if they occur. Two examples of AMs include an in-season closure if catch approaches the ACL and reducing the ACL by an overage that occurred the previous fishing year. The EIS will include alternatives that would establish ACLs and AMs for red grouper in the South Atlantic region.
The Council and NMFS are also considering a division of the red grouper ACL into sector-ACLs based upon allocation decisions. A “sector” means a distinct user group to which separate management strategies and separate catch quotas apply. Examples of sectors include commercial and recreational; the recreational sector may also be divided into for-hire and private recreational groups. The Council and NMFS have determined that sector-ACLs and sector-AMs are important components of red grouper management as each sector differs in scientific and management uncertainty. A range of options will be evaluated in the EIS, including those that base allocation decisions on historical landings.
NMFS, in collaboration with the Council, will develop an EIS to describe and analyze alternatives to address the management needs described above. Those alternatives will include a “no action” alternative for each action.
In accordance with NOAA's Administrative Order 216-6, Section 5.02(c), Scoping Process, NMFS, in collaboration with the Council, has identified preliminary environmental issues as a means to initiate discussion for scoping purposes only. These preliminary issues may not represent the full range of issues that eventually will be evaluated in the EIS.
Copies of an information packet will be available from NMFS (
After the draft EIS (DEIS) associated with Amendment 24 is completed, it will be filed with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in the
Following publication of this NOI, the Council will conduct public scoping meetings to determine the range of issues to be addressed in the DEIS and the associated Amendment 24. A
All meetings will begin at 3 p.m. In addition to Amendment 24, the Council intends to scope additional amendments at this series of meetings. Separate NOIs will be prepared for each amendment. The meetings will be physically accessible to people with disabilities. Requests for information packets or for sign language interpretation or other auxiliary aids should be directed to the Council (
Monday, January 24, 2011—Hilton New Bern/Riverfront, 100 Middle Street, New Bern, NC 28560; phone 252-638-3585.
Wednesday, January 26, 2011—Crowne Plaza Charleston Airport, 4831 Tanger Outlet Boulevard, North Charleston, SC 29418; phone 843-744-4422.
Thursday, January 27, 2011—Mighty Eighth Air Force Museum, 175 Bourne Avenue, Pooler, GA 31322; phone 912-748-8888.
Monday, January 31, 2011—Jacksonville Marriott, 4670 Salisbury Road, Jacksonville, FL 32256; phone 904-296-2222.
Tuesday, February 1, 2011—International Palms Resort, 1300 N. Atlantic Avenue, Cocoa Beach, FL 32931; phone 321-783-2271.
Thursday, February 3, 2011—Key Largo Grande Resort, 97000 Overseas Resort, Key Largo, FL 33037; phone 305-852-5553.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Intent (NOI) to prepare an environmental impact statement (EIS); request for comments.
NMFS, Southeast Region, in collaboration with the South Atlantic Fishery Management Council (Council), intends to prepare an EIS to describe and analyze a range of alternatives for management actions to be included in Amendment 21 to the Snapper-Grouper Fishery Management Plan for the South Atlantic Region (Amendment 21). These alternatives will consider several management approaches for limiting effort in the snapper-grouper fishery, including: trip limits, endorsements, cooperatives, catch shares, regional quotas, and State-by-State quotas. The purpose of this amendment is to rationalize effort in the commercial snapper-grouper fishery in order to achieve and maintain optimum yield (OY), prevent overfishing, and rebuild overfished stocks. Rationalizing effort is expected to mitigate some of the problems resulting from derby fishing conditions or at least prevent the condition from becoming more severe. The purpose of this NOI is to solicit public comments on the scope of issues to be addressed in the EIS.
Written comments on the scope of issues to be addressed in the EIS will be accepted from January 12 to February 14, 5 p.m., Eastern time.
You may submit comments, identified by RIN 0648-BA59, by any one of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Karla Gore; phone: (727) 824-5305.
Currently, nine snapper-grouper stocks are undergoing overfishing and five stocks are overfished. The Council and NMFS have implemented numerous regulatory changes in recent years in an effort to end and prevent overfishing and rebuild depleted snapper-grouper stocks. These regulatory measures have resulted in decreases to commercial quotas for several species, which has lead to derby fishing conditions. As a result, the length of time it takes for the quota for some species (
It is anticipated that, under status quo management, incentives for derby behavior will persist in the snapper-grouper fishery, resulting in continued overcapitalization and derby fishery conditions. The fishery is expected to continue to be characterized by higher than necessary levels of capital investment, increased operating costs, increased likelihood of shortened seasons, reduced at-sea safety, wide fluctuations in domestic snapper-grouper supply and depressed ex-vessel prices, which may lead to deteriorating working conditions and lower profitability for participants.
For these reasons, the Council is considering several management approaches for limiting effort in the snapper grouper fishery, including: trip limits, endorsements, cooperatives, catch shares, regional quotas, and State-by-State quotas.
An NOI was previously published on January 22, 2008 (73 FR 3701) to develop an EIS for Amendment 18 to the Snapper-Grouper FMP to consider alternatives to establish a limited access privilege program for the snapper-grouper fishery. However, the Council postponed consideration of this action to a future amendment.
NMFS, in collaboration with the Council will develop an EIS to describe and analyze management alternatives to address the management needs described above. Those alternatives will include a “no action” alternative regarding each action.
In accordance with NOAA's Administrative Order 216-6, Section 5.02(c), Scoping Process, NMFS, in collaboration with the Council, has identified preliminary environmental issues as a means to initiate discussion for scoping purposes only. These preliminary issues may not represent the full range of issues that eventually will be evaluated in the EIS.
Copies of an information packet will be available from NMFS (
Following publication of this NOI, the Council will conduct public scoping meetings to determine the range of issues to be addressed in the DEIS and the associated Amendment 21.
After the draft EIS (DEIS) associated with Amendment 21 is completed, it will be filed with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in the
The Council will consider public comments received on the DEIS in developing the final environmental impact statement (FEIS), and before voting to submit the final amendment to NMFS for Secretarial review, approval, and implementation. NMFS will announce in the
All meetings will begin at 3 p.m. In addition to Amendment 21, the Council intends to scope additional amendments at this series of meetings. Separate NOIs will be prepared for each amendment. The meetings will be physically accessible to people with disabilities. Requests for information packets or for sign language interpretation or other auxiliary aids should be directed to the Council (
Monday, January 24, 2011—Hilton New Bern/Riverfront, 100 Middle Street, New Bern, NC 28560; phone 252-638-3585.
Wednesday, January 26, 2011—Crowne Plaza Charleston Airport, 4831 Tanger Outlet Boulevard, North Charleston, SC 29418; phone 843-744-4422.
Thursday, January 27, 2011—Mighty Eighth Air Force Museum, 175 Bourne Avenue, Pooler, GA 31322; phone 912-748-8888.
Monday, January 31, 2011—Jacksonville Marriott, 4670 Salisbury Road, Jacksonville, FL 32256; phone 904-296-2222.
Tuesday, February 1, 2011—International Palms Resort, 1300 N. Atlantic Avenue, Cocoa Beach, FL 32931; phone 321-783-2271.
Thursday, February 3, 2011—Key Largo Grande Resort, 97000 Overseas Resort, Key Largo, FL 33037; phone 305-852-5553.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Intent (NOI) to prepare an environmental impact statement
NMFS, Southeast Region, in collaboration with the South Atlantic Fishery Management Council (Council), intends to prepare an EIS to describe and analyze a range of alternatives for management actions to be included in an amendment to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). These alternatives will consider measures to establish a long-term red snapper fishery management program in the South Atlantic to optimize yield and rebuild the stock, while minimizing socioeconomic impacts. More specifically, these alternatives will consider the elimination of harvest restrictions on red snapper as the stock increases in biomass. The purpose of this NOI is to solicit public comments on the scope of issues to be addressed in the EIS.
Written comments on the scope of issues to be addressed in the EIS will be accepted from January 12 to February 14, 5 p.m., eastern time.
You may submit comments, identified by RIN 0648-BA53, by any one of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Kim Iverson; phone: (843) 571-4366.
The red snapper stock in the South Atlantic was assessed through the Southeast, Data, Assessment, and Review (SEDAR) process in 2008 and 2010. The assessments indicate that the stock is experiencing overfishing and is overfished. Overfishing is a condition when fishing pressure is beyond the allowable level. Overfishing may lead to an overfished condition. A stock is overfished when the biomass is below an identified minimum stock size threshold. Due to low biomass levels, an overfished stock has increased vulnerability to environmental variables and cannot produce the Maximum Sustainable Yield.
As a result of the 2008 assessment, fishing for red snapper was prohibited temporarily through an interim rule from January 4, 2010, to December 5, 2010, to enable the Council to develop measures to end overfishing in Amendment 17A to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic region (Amendment 17A). Prior regulations included a recreational bag limit of 2 fish per person per day and a 20 inch total length minimum size limit for both commercial and recreational fishermen. Amendment 17A was submitted to the Secretary of Commerce on July 20, 2010, and approved on October 27, 2010. Measures in Amendment 17A included the continuation of the red snapper closure harvest prohibition established through the interim rule.
NMFS, in collaboration with the Council, is considering alternatives to eliminate harvest restrictions on red snapper as the stock increases in biomass. Examples of measures under consideration include the implementation of red snapper trip limits, bag limits, a catch share program, tag program, temporal and spatial closures including those to protect spawning stocks, and gear prohibitions. These preliminary measures may not represent the full range of alternatives that eventually will be evaluated in the EIS.
NMFS, in collaboration with the Council, will develop an EIS to describe and analyze alternatives to address the management needs described above. Those alternatives will include a “no action” alternative for each action.
In accordance with NOAA's Administrative Order 216-6, Section 5.02(c), Scoping Process, NMFS, in collaboration with the Council, has identified preliminary environmental issues as a means to initiate discussion for scoping purposes only. These preliminary issues may not represent the full range of issues that eventually will be evaluated in the EIS.
Copies of an information packet will be available from NMFS (
Following publication of this NOI, the Council will conduct public scoping meetings to determine the range of issues to be addressed in the draft EIS (DEIS) and the associated Amendment 22. After the DEIS associated with Amendment 22 is completed, it will be filed with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in the
The Council will consider public comments received on the DEIS in developing the final environmental impact statement (FEIS), and before voting to submit the final amendment to NMFS for Secretarial review, approval, and implementation. NMFS will announce in the
All meetings will begin at 3 p.m. In addition to Amendment 22, the Council intends to scope additional amendments at this series of meetings. Separate NOIs will be prepared for each amendment. The meetings will be physically accessible to people with disabilities. Requests for information packets or for sign language interpretation or other auxiliary aids should be directed to the Council (
Monday, January 24, 2011—Hilton New Bern/Riverfront, 100 Middle Street, New Bern, NC 28560; phone 252-638-3585.
Wednesday, January 26, 2011—Crowne Plaza Charleston Airport, 4831 Tanger Outlet Boulevard, North Charleston, SC 29418; phone 843-744-4422.
Thursday, January 27, 2011—Mighty Eighth Air Force Museum, 175 Bourne Avenue, Pooler, GA 31322; phone 912-748-8888.
Monday, January 31, 2011—Jacksonville Marriott, 4670 Salisbury
Tuesday, February 1, 2011—International Palms Resort, 1300 N. Atlantic Avenue, Cocoa Beach, FL 32931; phone 321-783-2271.
Thursday, February 3, 2011—Key Largo Grande Resort, 97000 Overseas Resort, Key Largo, FL 33037; phone 305-852-5553.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR Review Workshop for Gulf of Mexico yellowedge grouper and tilefish.
The SEDAR assessments of the Gulf of Mexico stocks of yellowedge grouper and tilefish will consist of a series of workshops and webinars: a Data Workshop, a series of Assessment webinars, and a Review Workshop.
The Review Workshop will take place February 14-17, 2011. The workshop will begin at 1 p.m. on February 14th and conclude at 12 p.m. on February 17th. The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from, or completed prior to the time established by this notice.
The Review Workshop will be held at Embassy Suites Tampa-Downtown Convention Center, 513 S. Florida Avenue, Tampa, FL 33602.
Julie A. Neer, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone: (843) 571-4366.
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop, (2) Assessment Process utilizing webinars and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting Panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and State and Federal agencies.
February 14, 2010: 1 p.m.-8 p.m.; February 15-16, 2010: 8 a.m.-8 p.m.; February 17, 2010: 8 a.m.-12 p.m.
The Review Workshop is an independent peer review of the assessment developed during the Data and Assessment Workshops. Workshop Panelists will review the assessment and document their comments and recommendations in a Review Workshop Summary report.
The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from, or completed prior to the time established by this notice.
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 these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the 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 the Council office (
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 10-76 with attached transmittal, policy justification, and Sensitivity of Technology.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 10-66 with attached transmittal, policy justification, and Sensitivity of Technology.
Defense Acquisition University, DoD.
Notice.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following Federal advisory committee meeting will take place:
1.
2.
3.
4.
5.
6.
7.
8.
Christen Goulding, Protocol Director, DAU, Phone: 703-805-5134, Fax: 703-805-5940, E-mail:
Office of the Secretary of Defense.
Notice to alter a system of records.
The Office of the Secretary of Defense proposes to alter a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action would be effective without further notice on February 2, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155, Ms. Cindy Allard at (703) 588-6830.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on December 17, 2010, to the House Committee on Oversight and Government Reform, the Senate Committee on 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).
Armed Services Military Accession Testing (November 18, 2003, 68 FR 65045).
Delete entry and replace with “DMDC 15 DoD”
Delete entry and replace with “U.S. Military Entrance Processing Command (MEPCOM), 2834 Green Bay Road, North Chicago, IL 60064-3094.
Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.”
Delete entry and replace with “Individual's name, Social Security Number (SSN), address, telephone number, date of birth, sex, ethnic group identification, educational grade, rank, booklet number of ASVAB test, individual's plans after graduation, and individual item responses to ASVAB subtests, test dates and test scores.”
Delete entry and replace with “10 U.S.C 136, Under Secretary of Defense for Personnel & Readiness; DoD Instruction 1304.12E, DoD Military Personnel Accession Testing Programs; Army Regulation 601-222, OPNAVINST 1100.5, Marine Corps Pamphlet 1130.52E, Air Force Joint Instruction 36-2016, and Coast Guard Command Instruction M 1130.24A, Armed Services Military Personnel Accession Testing Programs; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “To establish eligibility for enlistment; verify enlistment and placement scores; verify retest eligibility; and provide aptitude test scores as an element of career guidance to participants in the DoD Student Testing Program. The data is also used for research, marketing evaluation, assessment of manpower trends and characteristics; and related statistical studies and reports. The data is used on a continuing basis for the purpose of regeneration of scores and reclassification, and score quality evaluation. Records are also used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness and conducting research.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' set forth at the beginning of the Office of the Secretary of Defense compilation of systems of records notices apply to this system.”
Delete entry and replace with “Electronic storage media.”
Delete entry and replace with “MEPCOM—
Test scores transmittals and qualification test answer records are maintained for one year then destroyed.
DMDC—
Disposition pending (until the National Archives and Records Administration has approved the disposition, treat records as permanent).”
Delete entry and replace with “Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.”
Delete entry and replace with “Individuals seeking to determine whether information about them is contained in this system should address written inquiries to the Director, Defense Manpower Data Center, 1600 Wilson Blvd., Suite 400, Arlington, VA 22209-2593; or Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.
Individual should provide his/her full name, Social Security Number (SSN), date tested, and signature.”
Delete entry and replace with “Individuals seeking access to information about them contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Individual should provide the name and number of this system of record notice, his/her full name, Social Security Number (SSN), date tested, and signature.”
Delete entry and replace with “The Office of the Secretary of Defense rules for accessing records, for contesting contents and appealing initial agency determinations are published in Office of the Secretary of Defense Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.”
Delete entry and replace with “The individual and ASVAB tests.”
Delete entry and replace with “Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure would compromise the objectivity or fairness of the test or examination process.
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c), and (e) and published in 32 CFR part 311. For additional information contact the system manager.”
Armed Services Military Accession Testing.
U.S. Military Entrance Processing Command (MEPCOM), 2834 Green Bay Road, North Chicago, IL 60064-3094.
Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.
Individuals who have been administered a version of the Armed Services Vocational Aptitude Battery (ASVAB), to include those who subsequently enlisted and those who did not. This applies to high school, college, National Civilian Community Corps, and vocational students who have participated in the DoD Student Testing Program (STP), as well as civilian applicants to the military services and active duty Service members.
Individual's name, Social Security Number (SSN), address, telephone number, date of birth, sex, ethnic group identification, educational grade, rank, booklet number of ASVAB test, individual's plans after graduation, and individual item responses to ASVAB subtests, test dates and test scores.
10 U.S.C. 136, Under Secretary of Defense for Personnel & Readiness; DoD Instruction 1304.12E, DoD Military Personnel Accession Testing Programs; Army Regulation 601-222, OPNAVINST 1100.5, Marine Corps Pamphlet 1130.52E, Air Force Joint Instruction 36-2016, and Coast Guard Command Instruction M 1130.24A, Services Military Personnel Accession Testing Programs; and E.O. 9397 (SSN), as amended.
To establish eligibility for enlistment; verify enlistment and placement scores; verify retest eligibility; and provide aptitude test scores as an element of career guidance to participants in the DoD Student Testing Program. The data is also used for research, marketing evaluation, assessment of manpower trends and characteristics; and related statistical studies and reports. The data is used on a continuing basis for the purpose of regeneration of scores and reclassification, and score quality evaluation. Records are also used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness and conducting research.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' set forth at the beginning of the Office of the Secretary of Defense compilation of systems of records notices apply to this system.
Electronic storage media.
By individual's name and Social Security Number (SSN).
Access to records is restricted to authorized personnel having an official need-to-know. Automated data systems are protected by user identification and manual controls.
MEPCOM—
Test scores transmittals and qualification test answer records are maintained for one year then destroyed.
DMDC—
Disposition pending (until the National Archives and Records Administration has approved the disposition, treat records as permanent).
Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director, Defense Manpower Data Center, 1600 Wilson Blvd., Suite 400, Arlington VA 22209-2593; or Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.
Individual should provide his/her full name, Social Security Number (SSN), date tested, and signature.
Individuals seeking access to information about them contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Individual should provide the name and number of this system of record notice; his/her full name, Social Security Number (SSN), date tested, and signature.
The Office of the Secretary of Defense rules for accessing records, for contesting contents and appealing initial agency determinations are published in Office of the Secretary of Defense Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
The individual and ASVAB tests.
Testing or examination material used solely to determine individual
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c), and (e) and published in 32 CFR part 311. For additional information contact the system manager.
Defense Contract Audit Agency, DoD.
Notice to amend a system of records.
The Defense Contract Audit Agency is proposing to amend 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.
The changes will be effective on February 2, 2011 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Mr. Keith Mastromichalis at (703) 767-1022, or Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
The Defense Contract Audit 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 specific changes to the records systems being amended are set forth below followed by the notices, as amended, published in their entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Standards of Conduct, Conflict of Interest (May 18, 1999, 64 FR 26947).
Delete and replace with “By individual's name, subject and corporation.”
Delete entry and replace with “Permanent. Retain in active files for five years and then retire to Washington National Records Center.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Records Administrator, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
The request should contain the full name of the individual, current address and telephone number.
Personal visits may be made to the above address. In personal visits, the individual should be able to provide acceptable identification, that is, driver's license or employing offices' identification card, and give some verbal information that can be verified with `case' folder.”
Standards of Conduct, Conflict of Interest.
Office of the General Counsel, Headquarters, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
Any DCAA employee who has accepted gratuities from contractors or who has business, professional or financial interests that would indicate a conflict between their private interests and those related to their duties and responsibilities as DCAA personnel. Any DCAA employee who is a member or officer of an organization that is incompatible with their official government position, using public office for private gain, or affecting adversely the confidence of the public in the integrity of the Government. Any DCAA employee who has requested an ethics opinion regarding the propriety of future actions on their part.
Office of the General Counsel-Files contain documents and background material on any apparent or potential conflict of interest or acceptance of gratuities by DCAA personnel. Correspondence may involve interoffice memorandums, correspondence between former DCAA employees and Headquarters staff members, citations used in legal determinations and Agency determinations.
5 U.S.C. 301, Departmental Regulations; DoD 5500.7-R, Joint Ethics Regulation (JER); and E.O. 12731, Principles of Ethical Conduct for Government Officers and Employees.
To provide a historical reference file of cases that are of precedential value to ensure equality of treatment of individuals in like circumstances.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' that appear at the beginning of DCAA's
Paper records in file folders.
By individual's name, subject and corporation.
Under staff supervision during duty hours; buildings have security guards during non-duty hours.
Permanent. Retain in active files for five years and then retire to Washington National Records Center.
General Counsel, Headquarters, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Records Administrator, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
The request should contain the full name of the individual, current address and telephone number.
Personal visits may be made to the above address. In personal visits, the individual should be able to provide acceptable identification, that is, driver's license or employing offices' identification card, and give some verbal information that can be verified with `case' folder.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Records Administrator, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
The request should contain the full name of the individual, current address and telephone number.
Personal visits may be made to the above address. In personal visits, the individual should be able to provide acceptable identification, that is, driver's license or employing offices' identification card, and give some verbal information that can be verified with `case' folder.
DCAA's rules for accessing records, for contesting contents and appealing initial agency determinations are published in DCAA Regulation 5410.10; 32 CFR part 317; or may be obtained from the system manager.
Correspondence from individual's supervisor, DCAA employees, former employees, between DCAA staff members, and between DCAA and other Federal agencies.
None.
Defense Contract Audit Agency, DoD.
Notice to amend a system of records.
The Defense Contract Audit Agency is proposing to amend 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.
The changes will be effective on February 2, 2011 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by any of the following methods:
*
*
Mr. Keith Mastromichalis at (703) 767-1022, or Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
The Defense Contract Audit 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 specific changes to the records systems being amended are set forth below followed by the notices, as amended, published in their entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Legal Opinions (May 18, 1999, 64 FR 26947).
Delete entry and replace with “Full name of the individual, current address and telephone number.
Fraud files contain interoffice memorandums, citations used in determining legal opinion, in some cases copies of investigations, copies of Agency determinations.
Equal Employment Opportunity (EEO) files contain initial appeal, copies of interoffice memorandums, testimony at EEO hearings, copy of Agency determinations and citations used in determining legal opinions.
Grievance files contain correspondence relating to DCAA employees filing grievances regarding leave, removals, resignations, suspensions, disciplinary actions, travel, citations used in determining legal opinion, and Agency determinations.
Merit System Protection Board (MSPB) Appeal files contain interoffice memorandums, citations used in determining the legal position, statements of witnesses, pleadings, briefs, MSPB decisions, notices of judicial appeals, litigation reports and correspondence with the Department of Justice.
Security Violation files contain interoffice correspondence relating to DCAA employee security violations, citations used in determinations, and Agency determinations.”
Delete entry and replace with “Permanent. Retain in active files for five years and retire to Washington National Records Center.”
Delete and replace with “By individual's name, subject and corporation.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Records Administrator, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
Written requests for information should contain the full name of the individual, current address and telephone number.
Personal visits are limited to those offices (Headquarters and Regional offices) listed in the appendix to the agency's compilation of systems of records notices. For personal visits, the individual should be able to provide some acceptable identification, that is driver's license or employing office's identification card and give some verbal information that could be verified with `case' folder.”
Legal Opinions.
Office of General Counsel, Headquarters, Defense Contact Audits Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
Any DCAA employee who files a complaint, with regard to personnel issues, that requires a legal opinion or legal representation for resolution.
Full name of the individual, current address and telephone number.
Fraud files contain interoffice memorandums, citations used in determining legal opinion, in some cases copies of investigations, copies of Agency determinations.
Equal Employment Opportunity (EEO) files contain initial appeal, copies of interoffice memorandums, testimony at EEO hearings, copy of Agency determinations and citations used in determining legal opinions.
Grievance files contain correspondence relating to DCAA employees filing grievances regarding leave, removals, resignations, suspensions, disciplinary actions, travel, citations used in determining legal opinion, and Agency determinations.
Merit System Protection Board (MSPB) Appeal files contain interoffice memorandums, citations used in determining the legal position, statements of witnesses, pleadings, briefs, MSPB decisions, notices of judicial appeals, litigation reports and correspondence with the Department of Justice.
Security Violation files contain interoffice correspondence relating to DCAA employee security violations, citations used in determinations, and Agency determinations.
5 U.S.C. chapters 43, 51, and 75; 5 U.S.C. 301, Departmental Regulations; and the Civil Service Reform Act of 1978.
To maintain a historical reference for matters of legal precedence within DCAA to ensure consistency of action and the legal sufficiency of personnel actions.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' that appear at the beginning of DCAA's compilation of systems of records notices apply to this system.
Paper records in file folders.
By individual's name, subject and corporation.
Under staff supervision during duty hours; security guards are provided during non-duty hours.
Permanent. Retain in active files for five years and retire to Washington National Records Center.
Counsel, Headquarters, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Records Administrator, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
Written requests for information should contain the full name of the individual, current address and telephone number.
Personal visits are limited to those offices (Headquarters and Regional offices) listed in the appendix to the agency's compilation of systems of records notices. For personal visits, the individual should be able to provide some acceptable identification, that is driver's license or employing office's identification card and give some verbal information that could be verified with `case' folder.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Records Administrator, Defense Contract Audit Agency, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
Written requests for information should contain the full name of the individual, current address and telephone number.
Personal visits are limited to those offices (Headquarters and Regional offices) listed in the appendix to the agency's compilation of systems of records notices. For personal visits, the individual should be able to provide some acceptable identification, that is driver's license or employing office's identification card and give some verbal information that could be verified with `case' folder.
DCAA's rules for accessing records, for contesting contents and appealing initial agency determinations are published in DCAA Regulation 5410.10;
Correspondence from individual's supervisor, DCAA employees, former employers, between DCAA staff members, and between DCAA and other Federal agencies.
None.
Per Diem, Travel and Transportation Allowance Committee, DoD.
Notice of Revised Non-Foreign Overseas Per Diem Rates.
The Per Diem, Travel and Transportation Allowance Committee is publishing Civilian Personnel Per Diem Bulletin Number 273. This bulletin lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. AEA changes announced in Bulletin Number 194 remain in effect. Bulletin Number 273 is being published in the
This document gives notice of revisions in per diem rates prescribed by the Per Diem Travel and Transportation Allowance Committee for non-foreign areas outside the continental United States. It supersedes Civilian Personnel Per Diem Bulletin Number 272. Distribution of Civilian Personnel Per Diem Bulletins by mail was discontinued. Per Diem Bulletins published periodically in the
Department of the Army, DoD. Surface Deployment and Distribution Command (SDDC).
Notice.
To implement DoD Instruction 8520.2, dated 1 April 2004, SDDC will require all commercial accounts accessing transportation systems and applications to use a commercial PKI certificate or Transportation Workers Identification Credential (TWIC). This requirement will enhance the security for
Submit comments to SDDC/G6/IMA/TSS, 709 Ward Dr., Bldg 1990, Scott AFB, IL 62225 ATTN: ETA Program Manager.
ETA Program Manager at
The Department of Defense (DOD) and the U.S. Army are enhancing customer identification security as part of an overall program to provide a stronger and more secure authentication process for accessing DOD information systems. As of 1 October 2011, Surface Deployment and Distribution Command (SDDC) will meet this DOD mandate by requiring the use of a digital certificate for industry partners requiring access to SDDC information systems. Userid and password access will be discontinued on 30 September 2011.
The External Certification Authority (ECA) program supports the issuance of DOD-approved certificates to industry partners and other external entities and organizations that conduct business with the DOD. The ECA program is designed to provide a mechanism for these entities to securely communicate with the DOD and authenticate to DOD Information Systems. Additional information can be found at:
The ECA Certificates can be purchased through three sources: VeriSign, Operational Research Consultants (ORC), or Identrust. The following URLs provide additional information and links to purchase sources:
This ECA Certificate purchase information is provided as a convenience to our industry partners and does not constitute endorsement of particular commercial entities by the Surface Deployment and Distribution Command, the United States Department of the Army, or the Department of Defense. We do not exercise any control over the information you may find at these sites or the security of these sites; responsibility for such remains with the individual companies represented.
An alternative identification security option is the Transportation Worker Identification Credential (TWIC). TWIC requirements and how to get a TWIC can be found at the TWIC Web site at:
U.S. Department of Energy.
Submission for Office of Management and Budget (OMB) review; comment request.
The Department of Energy (DOE) has submitted an information collection request to the OMB for extension under the provisions of the Paperwork Reduction Act of 1995. The information collection requests a three-year extension of its Occupational Radiation Protection Program, OMB Control Number 1910-5105. This information collection request covers information necessary to permit DOE and its contractors to provide management control and oversight over health and safety programs concerning worker exposure to ionizing radiation.
Comments regarding this collection must be received on or before February 2, 2011. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at (202) 395-4650.
Written comments should be sent to the DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street, NW., Washington, DC 20503 and to Judith D. Foulke by facsimile at (301) 903-7773 or by e-mail at
The DOE person listed in
This information collection request contains: (1)
Title 10, Code of Federal Regulations, part 835, subpart H.
Western Area Power Administration, DOE.
Notice of Proposed Power, Transmission, and Ancillary Services Rates.
The Western Area Power Administration (Western) is proposing new and revised formula rates and information for the following: Western power, the Central Valley Project (CVP) transmission, the California-Oregon Transmission Project (COTP) transmission, the Pacific Alternating Current Intertie (PACI) transmission, ancillary services, custom product power, and information on Path 15 transmission upgrade. In addition to these existing rates for services, Western also is proposing to implement two new rates and services: Unreserved Use Penalties and Generator Imbalance Services (GI).
Western is not proposing any changes to its existing formula rate methodologies. The proposed rates will provide sufficient revenue to pay all annual costs including interest expense, investments, and aid to irrigation within the allowable time periods. Western's rate brochure providing detailed information on the proposed formula rates will be available January 11, 2011, to all interested parties upon request.
The current rates for existing services expire on September 30, 2011.
The consultation and comment period will begin on the date of publication of the
Western will accept written comments anytime during the consultation and comment period. In addition, Western will accept oral and written comments at a public comment forum. The public comment forum date is: March 1, 2011, 1 p.m. Pacific Standard Time, Folsom, CA.
Send written comments to Mr. Thomas R. Boyko, Regional Manager, or Mr. Charles J. Faust, Rates Manager, Sierra Nevada Customer Service Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630-4710, or e-mail comments to
Western will accept written comments anytime during the consultation and comment period. Western will post comments it receives on Western's Web site at
Western will host both the public information and public comment forums at: Lake Natoma Inn, 702 Gold Lake Drive, Folsom, CA 95630-2559, telephone number (916) 351-1500.
Mr. Charles J. Faust, Rates Manager, Sierra Nevada Customer Service Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630-4710, telephone (916) 353-4468, or e-mail
This
The following discussion provides an overview of the proposed formula rates and components, including a rate comparison, rate recovery, and applicability. Western held 14 public Informal Rate meetings beginning June 2008 through April 2010. Based on stakeholders' comments and Western's analysis, Western is not proposing any changes to existing rate methodologies. Western proposes adding new rate schedules for unreserved use penalties and generator imbalance services. Western will continue to operate as a Sub-Balancing Authority (SBA) under contract with the Sacramento Municipal Utility District, who operates the Host Balancing Authority (HBA).
Prior to the start of each fiscal year (FY), Western will calculate and publish an annual Power Revenue Requirement (PRR) to determine the total cost of power to be allocated to preference customers. For example, by October 1, 2011, Western will publish the PRR for FY 2012, which begins October 1, 2011, and ends September 30, 2012. As part of the rate development, Western prepares a Power Repayment Study (PRS) each FY to determine if revenue will be sufficient to repay, within the required time periods, all costs assigned to the commercial power function. Repayment criteria are based on legislation and applicable policies, including DOE Order RA 6120.2. Generally, the PRR includes operation and maintenance (O&M) expenses, purchased power for Project Use and First Preference (FP) customers' loads, interest and other expenses (including any other statutorily-required costs or charges), investment repayment, and the Washoe Project annual PRR that remains after project use loads are met. Revenues from project use, transmission, ancillary services, and other services are offset against expenses in the PRR; and the remainder is collected from Base Resource (BR) and FP customers. The PRR is reviewed during March of each year; and if such review results in a change of $5 million or more, the PRR is adjusted for the remaining 6-month period. The PRR is an estimate of revenues and costs including investment and repayment projections from the PRS. Any deviation from estimate to actual will increase or decrease annual project repayment. Project repayment is measured over the long term to ensure repayment is met and to maintain rate stability.
The PRR is allocated to Western's preference customers, namely, FP customers based on their FP percentages, and the remaining amount to BR customers based on their BR allocation, adjusted for programs, such as, hourly exchange. The Trinity River Division Act of 1955 (69 Stat. 719) and the Flood Control Act of 1962 (76 Stat. 1173, 1191-1192) accorded first preference to CVP power to customers in Trinity, Tuolumne, and Calaveras Counties. A BR customer, under the 2004 Marketing Plan, is an entity that has executed a BR contract and is allocated a percentage of the BR.
In order for Western to meet the load requirements, beyond delivered BR, for Full Load Service (FLS) customers and Variable Resource (VR) customers, Western may make supplemental power (SP) purchases, pursuant to the Custom Product Power (CPP) rate schedule. FLS and VR customers who contract with Western for such service will pay all SP costs. FLS customers pay a portfolio management charge pursuant to their contract, whereas VR customers pay a scheduling charge pursuant to the proposed rate schedule.
At least annually, Western will publish the CVP transmission rates for point-to-point and network integration transmission service, the seasonal COTP and PACI transmission rates, and CVP regulation and frequency response service rates. Western prepares a detailed cost-of-service study to determine the costs, by project, that support the transfer capability of each transmission system and the costs that support the generation capability of the CVP system. Generally, the costs allocated through the cost-of-service study for the transmission systems include O&M, interest, and depreciation expenses. Western's costs for scheduling, system control and dispatch service associated with CVP, COTP, and PACI transmission service are included and recovered through the respective transmission system's RR. Third-party transmission service costs are passed through directly to each requesting customer.
Spinning and supplemental reserves are charged the price consistent with the California Independent System Operator's (CAISO) market price plus all costs incurred for the sale of these reserves. Customers who have a
Finally, based on the requirements under FERC's Order No. 890, Western proposes adding two new rate schedules to be effective during the new rate period: Unreserved Use Penalties and GI. Western proposes the Unreserved Use Penalties be assessed at 150 percent of the effective point-to-point transmission rate when transmission service is used and not reserved or when used in excess of reservation. Western proposes the GI rate use the same tiered methodology as Western's existing and proposed EI service rate and any subsequent changes. Note, currently Western has no customers subject to this proposed GI rate.
The Path 15 Transmission Upgrade was completed in 2005. Western has turned over the operational control of Western's Path 15 Upgrade to the CAISO. Western maintains the lines and is compensated by Atlantic Path 15, LLC for the Operation and Maintenance work costs. The CAISO charges for use on the Path 15 Upgrade as part of its rates. Western does not charge a separate rate for Path 15. Western collects revenues from the CAISO under its agreements with the CAISO. Under Amendment No. 48, the CAISO remits to Western, wheeling, congestion, and Congestion Revenue Rights revenues associated with Western's rights on the Path 15 transmission.
Western will develop the FP customer percentage prior to the start of each FY. During March of each FY, each FP customer's percentage will be reviewed. If, as a result of the review, there is a change in the FP customer's percentage of more than one-half of one percent, the percentage will be revised for the April-through-September period.
The percentages in the table below are the maximum percentages for each FP customer that will be effective to the MRR during the rate period October 1, 2011, through September 30, 2016. The maximum percentages were determined based on a critically dry year where there are hydrologic conditions that result in low CVP generation and, consequently, low levels of BR. An FP
After the FP customers' share of the annual PRR has been determined, the remainder of the annual PRR is recovered from the BR customers. The BR RR will be collected in two 6-month periods. For October through March, 25 percent of the BR RR will be collected. For April through September, 75 percent of the BR RR will be collected.
A BR RR is calculated by dividing the BR 6-month RR by six. The revenues from the sale of surplus BR will be applied to the annual BR RR for the following FY.
An example of a reallocation program is the Hourly Exchange (HE) Program. BR customers pay for exchange energy, hourly or seasonally, by adjusting the BR percentage that is applied to the BR RR. Adjustments to a customer's BR percentage for seasonal exchanges will be reflected in the customer's BR contract.
An illustration of the adjustment to a customer's BR percentage for HE energy is shown in the example below.
Comparison of the existing to the proposed RR results in a change in costs and not a rate methodology change. The 0.86 percent PRR increase is due to an inflationary change to O&M, as well as increased interest expense. Those costs are offset by increased transmission revenue due to the anticipated completion of assets supporting the transmission function. The table below compares the existing RRs (FY 2011) to the estimated RRs (FY 2012) under the proposed formula rates.
The table below compares the FP percentages as well as their maximum percentages for the two periods.
The change in FP percentages is due to changes in generation and FP customer loads not a rate methodology change. The increase in FP maximum percentage is due to a collective increase in FP customer loads not a rate methodology change.
During the effective rate period, if deemed appropriate, Western will reevaluate the FP maximum percentage based on new data.
The formula rates for CVP FP power and BR power are based on a PRR that recovers: (1) O&M expense allocated to power; (2) CVP network transmission; (3) annual investment and replacement repayment; (4) aid-to-irrigation costs; (5) interest expense; (6) power purchases for firming BR; (7) Washoe project annual costs after project use loads are met; (8) other miscellaneous expenses allocated to power, such as, settlements, California-Oregon Intertie (COI) path operator costs,
Expenses are offset by revenues from project use energy, transmission revenue, ancillary service revenue, scheduling coordinator, portfolio management and VR charge administrative fees, all pass through revenue, and any other miscellaneous revenue.
The PRR will be allocated first to FP customers based on their percentages, subject to the maximum cap, then the remaining amount to BR customers based on their BR allocation percentages, adjusted for programs, such as, HE if applicable.
The BR RR will be collected in two, 6-month periods: 25 percent for October through March and 75 percent for April through September. However, the FP RR is not subject to the 25/75 percent split; and it will be collected evenly over a 12-month period.
The formula rates will be effective at the beginning of each FY and reviewed in March of each year. If the March mid-year review reflects a change of $5 million or more, the annual PRR will be revised. The FP percentages are also reviewed at mid-year. If the mid-year
The formula rates apply to CVP BR and FP power customers. The estimated rates are subject to change prior to the rates taking effect. The rates will be finalized by Western on or before October 1, 2011.
To VR customers requesting scheduling for this service. VR customers will pay a scheduling charge to recover Western's cost for scheduling VR CPP service.
If the CPP is funded through appropriations, Federal reimbursable, or use of receipts authority, the cost of the CPP is passed through to the customer(s) for whom Western has made the purchase. The CPP funded through appropriations, Federal reimbursable, or use of receipts authority that is surplus to the load requirements of the customer(s) will be sold. Proceeds from the sale of surplus CPP funded through use of receipts, Federal reimbursable, or appropriations authority will be applied to the CPP purchase cost for the customer(s) to the extent possible. If the cost of the CPP is fully recovered and proceeds remain from the sale of surplus CPP, the remaining proceeds will be used to reduce the PRR.
The table below illustrates the pass through of the CPP costs to each customer and the treatment of proceeds from the sale of surplus CPP funded through appropriations, Federal reimbursable, or use of receipts authority. As shown below, Customers A, B, and C are responsible for paying the full costs of the CPP purchase made by Western (total CPP RR is $780). The CPP RR of $780 is reduced by the sale of 1 MWh at $45, which reduces the CPP RR to $735. Therefore, the reduced CPP RR of $735 is prorated to each customer based on the amount of CPP purchased on their behalf.
Effective October 1, 2011, Western will charge $38.22 per schedule per day to cover its administrative costs for procuring and scheduling CPP if the customer has not contracted with Western for this type of service through other agreements. If the actual number of schedules for the month is not available, Western will estimate the number of schedules for the month and apply the $38.22 per schedule charge to the estimated number of schedules.
The table below depicts the VR customers charge per schedule for the effective rate period.
Effective October 1, 2011, the CPP cost recovery is not changing from the existing methodology and remains 100 percent pass through under this rate schedule.
Under the proposed formula rate, Component 1, the VR customer's scheduling charge is adjusted to $38.22 per schedule. This is a 23-percent increase from the January 1, 2005, VR customer's charge of $31.07 per schedule. This increase is based on a percentage change in O&M from the 2005 rate case through FY 2010. The FY 2013 VR customer's charge increases 3 percent each year through FY 2016 to reflect inflationary increases. The rate increase is due to inflationary costs not a rate methodology change.
The CPP cost recovery methodology is not changing and remains 100 percent pass through under this rate schedule. The formula rate for CPP applies to power supplied by Western to meet a customer's load. The VR customer charge is to recover Western's cost for scheduling VR customer's CPP service.
Transmission service for three-phase, alternating current at 60 hertz, delivered and metered at the voltages and points of delivery or receipt, adjusted for losses, and delivered to points of delivery. This service includes scheduling and system control and dispatch service needed to support the transmission service.
Western may revise the rate from Component 1 based on either of the following conditions: (1) Updated financial data available in March of each year; or (2) a change in the numerator or denominator that results in a rate change of at least $0.05 per kilowatt month (kWmonth). Rate change notifications will be posted on Western's Open Access Same-Time Information System (OASIS).
Under the proposed formula rate, Component 1, the estimated firm and non-firm point-to-point rate effective October 1, 2011, is $1.32 per kWmonth. This is a 22-percent increase from the October 1, 2010, CVP firm and non-firm point-to-point rate of $1.08 per kWmonth. The rate increase is due to the anticipated completion of assets supporting the transmission function not a rate methodology change.
The formula rate for CVP transmission service is based on a RR that recovers: (1) The CVP transmission system costs for facilities associated with providing transmission service; (2) the non-facility costs allocated to transmission service; (3) costs include O&M costs, cost of capital or interest expense, depreciation expense, and other miscellaneous costs; (4) the cost for transmission scheduling, system control and dispatch service is included in O&M; (5) the pass through of FERC's or other regulatory body's accepted or approved charges or credits; (6) the pass through of the HBA's charges or credits; (7) any other statutorily-required costs or charges; and (8) any other costs associated with transmission service including uncollectible debt. Revenues from the sales of short-term, non-firm transmission will offset the TRR.
The formula rate applies to CVP firm point-to-point transmission service, existing CVP firm pre-Open Access Transmission Tariff (OATT) transmission service, and CVP non-firm transmission service. The estimated rates resulting from the formula rate are subject to change prior to the rates taking effect. The rates will be finalized by Western on or before October 1, 2011.
The Annual Network TRR will be revised when the rate from Component 1 of the CVP transmission rate under Rates Schedule CV-T3 is revised.
Effective October 1, 2011, the estimated monthly NITS RR is $2,237,158. This rate is a 23-percent increase from the October 1, 2010, monthly NITS RR of $1,824,170. The rate increase is due to the anticipated completion of assets supporting the CVP transmission function not a rate methodology change.
The formula rate applies to CVP NITS. The estimated NITS monthly RR, resulting from the formula rate, may change prior to the rates taking effect based on the final CVP TRR. The NITS monthly RR will be finalized by Western on or before October 1, 2011.
The formula rate for CVP NITS is based on a RR that recovers: (1) The CVP transmission system costs for facilities associated with providing transmission service; (2) the non-facility costs allocated to transmission service; (3) costs include O&M cost, cost of capital or interest expense, depreciation expense, and other miscellaneous costs; (4) the cost for transmission scheduling, system control and dispatch; (5) the pass through of FERC's or other regulatory body's accepted or approved charges or credits; (6) the pass through of the HBA's charges or credits; (7) any other statutorily-required costs or charges; and (8) any other costs associated with transmission service including uncollectible debt. Revenues from the sales of short-term, non-firm transmission will offset the TRR. Revenue exceeding cost from unreserved use of transmission penalties will also be applied as an offset to the TRR.
The formula rate applies to CVP NITS transmission service. The estimated rates resulting from the formula rate are subject to change prior to the rates taking effect. The rates will be finalized by Western on or before October 1, 2011.
Western will update the formula rate from Component 1 for COTP firm and non-firm point-to-point transmission service at least 15 days before the start of each COI rating season. Rate change notifications will be posted on the OASIS Web site.
A comparison of the estimated rates resulting from Component 1 of the proposed formula rate for COTP firm point-to-point transmission service to the existing COTP firm point-to-point transmission service rates are shown in the table below.
The estimated firm point-to-point COTP transmission service rate increased primarily due to an inflationary increase of costs not a rate methodology change.
The proposed formula rate for COTP firm and non-firm point-to-point transmission service is based on a RR that recovers: (1) The COTP transmission system costs for facilities associated with providing transmission service; (2) the non-facility costs allocated to transmission service; (3) the cost of scheduling system control and dispatch service associated with COTP transmission; (4) the pass through of FERC's or other regulatory body's accepted or approved charges or credits; (5) the pass through of the HBA's charges or credits; (6) any other statutorily-required costs or charges; and (7) any other costs associated with transmission service including uncollectible debt.
The proposed firm and non-firm formula rate includes Western's cost for transmission scheduling, and system control and dispatch service associated with COTP transmission. The proposed formula rate applies to COTP point-to-point transmission service. The rates resulting from Component 1 of the proposed formula rate may be discounted for short-term sales and revenue from COTP unreserved use penalties.
The estimated rates resulting from the proposed formula rate are subject to change prior to the rates taking effect. The rates resulting from the proposed formula rate for the winter season will be finalized by Western on or before October 15, 2011.
Western will update the formula rate resulting from Component 1 at least 15 days before the start of each COI rating season. Rate change notifications will be posted on the OASIS.
The proposed formula rate for PACI non-firm transmission includes the same three components used in the proposed formula rate for PACI firm transmission.
The estimated firm and non-firm point-to-point rates resulting from Component 1 of the proposed formula rate for PACI transmission service are shown in the example below.
The estimated firm, point-to-point PACI transmission service rate increased slightly due to an inflationary increase of costs not a rate methodology change.
The proposed formula rate for PACI transmission service is based on a RR that recovers: (1) The PACI transmission system costs for facilities associated with providing transmission service; (2) the non-facility costs allocated to transmission service; (3) the pass through of FERC's or other regulatory body's accepted or approved charges or credits; (4) the pass through of the HBA's charges or credits; (5) any other statutorily-required costs or charges; and (6) any other costs associated with transmission service including uncollectible debt.
The proposed formula rate includes Western's cost for transmission scheduling, system control and dispatch service. The proposed formula rate applies to PACI firm and non-firm point-to-point transmission service. The rates resulting from Component 1 of the proposed formula rate may be discounted for short-term sales and revenue from PACI unreserved use penalties. The estimated rates resulting from the proposed formula rate are subject to change prior to the rates taking effect. The rates resulting from the proposed formula rate for the winter season will be finalized by Western on or before October 15, 2011.
Effective October 1, 2011, the cost of this service is not changing from the existing methodology and all costs are pass through under this rate schedule.
These costs are fully recovered from the beneficiaries receiving this service, and this is not changing from the existing rate methodology.
Western proposes to add a penalty rate for unreserved use of transmission for the CVP, COTP, and PACI in a new rate schedule, Rate Schedule CV-UUP1.
The rate for Unreserved Use Penalties service is 150 percent of the approved transmission service rate for point-to-point transmission service assessed as described above, plus 100 percent of the approved ancillary service rates if applicable.
The penalty charge for a transmission customer who engages in unreserved use is 150 percent of Western's approved transmission service rate for point-to-point transmission service assessed as follows: (1) The Unreserved Use Penalty for a single hour of unreserved use will be based upon the rate for daily firm point-to-point service; (2) the Unreserved Use Penalty for more than one assessment for a given duration (
Unreserved Use Penalties will not apply to transmission customers utilizing point-to-point transmission service under Western's OATT as a result of action taken to support reliability. Such actions include reserve activations or uncontrolled event response as directed by the responsible reliability authority such as SBA, HBA Reliability Coordinator, or Transmission Operator.
A transmission customer that exceeds its firm or non-firm reserved capacity is required to pay for all ancillary services identified in Western's OATT associated with the unreserved use of transmission service. The transmission customer or eligible customer will pay for ancillary services based on the amount of transmission service it used but did not reserve. No penalty will be applied to the ancillary service charges.
Unreserved Use Penalties collected over and above the base firm or non-firm point-to-point charge will be distributed to customers as a credit on future TRRs.
This is a new rate schedule effective October 1, 2011, through September 30, 2016.
The rate recovers the cost of transmission and applies a penalty for such unreserved use. The revenue resulting from the penalty portion will be distributed as a credit to the relevant TRRs. The penalty rate is applicable for all unreserved use of transmission and transmission in excess of reservation except, as may be determined by Western, in emergencies or reserve sharing activations. Western will provide written notification 30 days in advance to its transmission customers prior to implementing this penalty rate and will also post a notification on its OASIS Web site indicating the implementation of Unreserved Use Penalties.
This section includes proposed rates for the following services: spinning reserve, supplemental reserve, regulation and frequency response, EI and GI. Western's costs for providing transmission scheduling, system control and dispatch service, and reactive supply and voltage control are included in the appropriate transmission or BR and FP power formula rates.
For customers that have a contractual obligation to provide spinning reserve to Western and do not fulfill that obligation, the penalty for non-performance is the greater of actual cost or 150 percent of the market price.
Western is not proposing a change to the existing formula rate methodology for spinning reserve service.
The spinning reserve charge is calculated for each hour during the month in order to derive the total monthly charge. The proposed formula rate for spinning reserve service is as follows: (1) A price consistent with the CAISO's market price; (2) all costs incurred as a result of the sale of spinning reserves, such as Western's scheduling costs; (3) the cost of energy, capacity, or generation that supports spinning reserve service; (4) the pass through of FERC's or other regulatory body's accepted or approved charges or credits; (5) the pass through of the HBA's charges or credits; and (6) any other statutorily required costs or charges. For customers that have a contractual obligation to provide spinning reserve to Western and do not fulfill that obligation, the penalty for non-performance is the greater of actual cost or 150 percent of the market price.
The cost for spinning reserve required to firm CVP generation for the current hour and the following hour is included in the PRR. Spinning reserves surplus to those required to support the SBA and firm CVP generation may be sold. Surplus spinning reserves will be sold at prices consistent with the CAISO markets. Revenues from the sale of surplus spinning reserves will offset the PRR. The spinning reserve formula rate will apply to SBA customers who contract with Western to provide this service.
For customers that have a contractual obligation to provide supplemental reserve service to Western and do not fulfill that obligation, the penalty for non-performance is the greater of actual cost or 150 percent of the market price.
Western is not proposing a change to the existing formula rate methodology for supplemental reserve service.
The formula rate for supplemental reserve service is as follows: (1) A price consistent with the CAISO's market price; (2) all costs incurred as a result of the sale of supplemental reserve service, such as Western's scheduling costs; (3) the cost of energy, capacity, or generation that supports supplemental reserve service; (4) the pass through of the HBA's charges or credits; (5) the pass through of FERC's or other regulatory body's accepted or approved charges or credits; and (6) any other statutorily required costs or charges.
For customers that have a contractual obligation to provide supplemental reserve to Western and do not fulfill that obligation, the penalty for non-
The cost for supplemental reserves required to firm CVP generation for the current hour and the following hour is included in the PRR. Supplemental reserve service surplus to those required to support the SBA and firm CVP generation may be sold. Surplus supplemental reserves will be sold at prices consistent with the CAISO markets. Revenues from the sale of supplemental reserves will offset the PRR. The supplemental reserve formula rate will apply to SBA customers who contract with Western to provide this service.
The annual RR includes: (1) The CVP generation costs associated with providing Regulation; and (2) the non-facility costs allocated to Regulation.
The annual regulating capacity is one-half of the total regulating capacity bandwidths provided by Western under the interconnected operations agreements with SBA members.
The penalty for nonperformance by an SBA customer who has committed to self-provision for their regulating capacity requirement will be the greater of actual costs or 150 percent of the market price.
Western will revise the formula rate resulting from Component 1 based on either of the following two conditions: (1) Updated financial data available in March of each year; or (2) a change in the numerator or denominator that results in a rate change of at least $0.25 per kWmonth.
Western is not proposing a change to the existing formula rate methodology. The Regulation rate effective October 1, 2010, is $4.65 per kWmonth. Based on the existing threshold for a rate change of $0.25, we do not expect the rate to change effective October 1, 2011.
The annual RR includes: (1) The CVP generation costs associated with providing Regulation; and (2) the non-facility costs allocated to Regulation.
The Regulation RR will be recovered from SBA customers that have contracted with Western for this service. The revenues from Regulation service will be applied to the PRR. The estimated RR resulting from the proposed formula rate is subject to change prior to the rates taking effect. The RR will be finalized by Western on or before October 1, 2011.
EI service uses the deviation bandwidth that is established in the service agreement or Interconnected Operations Agreements (IOA).
Deviations which occur as a result of actions taken to support reliability will be resolved in accordance with existing contractual requirements. Such actions include reserve activations or uncontrolled event responses as directed by the responsible reliability authority such as SBA, HBA, Reliability Coordinator, or Transmission Operator.
Western is not proposing a change to the existing formula rate methodology. Any changes to EI charges result from changes to actual cost or market prices.
Western is proposing to maintain its existing tier methodology for EI. While FERC Order No. 890 defines a three-tier methodology, it allows alternatives to
Western's existing EI rate schedule follows the intent by: (1) Charges under a tiered methodology where, within the bandwidth, energy is exchanged, over deliveries are lost to the system, and under deliveries are charged the greater of 150 percent of the CAISO market price or Western's actual cost; (2) penalties outside the bandwidth also provide incentives for good scheduling practices; and (3) to the extent that an entity incorporates intermittent resources, Western proposes eliminating the 150 percent of market price factor for under deliveries. Western will charge the greater of market price or Western's actual cost.
Given that Western's customers will be operating under existing agreements during the applicable rate period, Western will review FERC Order No. 890
Accordingly, for deviations outside of the bandwidth, the EI service charge is recovered using the greater of 150 percent of the market price or Western's actual cost. The actual cost is calculated using CVP generation RR and associated energy. Additional costs subject to recovery include HBA's charges or credits, FERC's or other regulatory body's accepted or approved charges or credits, and any other statutorily-required costs or charges.
The EI service charge will be recovered from SBA customers that have contracted with Western for this service. The revenues from EI service will be applied to the PRR. Since the actual cost is calculated based on Western's cost of generation, it is subject to change prior to the effective rate period.
Below is an example of how the EI charge is calculated using Component 1.
To derive the total monthly charge for Customer A, the EI is calculated for each hour that it occurs during the month.
The EI charge is based upon a comparison between the real-time energy pricing from the CAISO for each hour multiplied by 150 percent and Western's actual cost for that same hour. The higher of the two is applied to derive the EI charge. EI charge for October 1, HE 1, is calculated as follows:
Imbalances that occur as a result of action taken by the generator, at Western's request, to support reliability will not be subject to penalties. Such actions include directives by SBA, HBA, Reliability Coordinators, or reserve activations and frequency correction initiatives.
To the extent that an entity incorporates variable resources, treatment of such will be determined in the associated contract.
GI is subject to the deviation bandwidth to be established in the service agreement or IOA.
Deviations which occur as a result of actions taken to support reliability will be resolved in accordance with existing contractual requirements. Such actions include reserve activations or uncontrolled event responses as directed by the responsible reliability authority such as SBA, HBA, Reliability Coordinator, or Transmission Operator.
To the extent that an entity incorporates intermittent resources, deviations will be charged as follows: (1) For deviations within the bandwidth, there will be no financial settlement; rather, GI will be tracked and settled with energy; (2) negative deviations (under delivery), outside the deviation bandwidth, will be charged the greater of market price or actual cost; and (3) positive deviations (over delivery), outside the deviation bandwidth, will be lost to the system.
This is a new rate schedule effective October 1, 2011, through September 30, 2016.
Western is proposing to adopt its existing EI methodology for GI. Similar to EI, FERC Order No. 890 defines a three-tier methodology for GI. The order allows alternatives to
Similar to Western's existing EI rate schedule, GI will follow the intent by: (1) Charges under a tiered methodology; where, within the bandwidth, energy is exchanged, over deliveries are lost to the system, and under deliveries are charged the greater of 150 percent of the CAISO market price or Western's actual cost; (2) penalties outside the bandwidth also provide incentives for good scheduling practices; and (3) to the extent that an entity incorporates intermittent resources, Western proposes eliminating the 150 percent of market price factor for under deliveries. Western will charge the greater of market price or Western's actual cost.
Currently, Western has no existing customers under GI. Western will review FERC Order No. 890
Accordingly, for deviations outside of the bandwidth, the GI charge is recovered using the greater of 150 percent of the market price or Western's actual cost. The actual cost is calculated using CVP generation RR and associated energy. Additional costs subject to recovery include HBA's charges or credits, FERC's or other regulatory body's accepted or approved charges or credits, and any other statutorily required costs or charges.
The GI charge will be recovered from SBA customers that have contracted with Western for this service. The revenues from GI will be applied to the PRR. Since the actual cost is calculated based on Western's cost of generation, it is subject to change prior to the effective rate period.
Below is an example of how the GI charge is calculated using Component 1.
To derive the total monthly charge for Customer A, the GI is calculated for each hour that it occurs during the month.
The GI charge is based upon a comparison between the real-time energy pricing from the CAISO for each hour multiplied by 150 percent and Western's actual cost for that same hour. The greater of the two is applied to derive the GI charge. The following table is an example of how Western determines the GI charge related to the GI in the table above:
GI charges will not apply as a result of action taken to support reliability. Such actions include reserve activations or uncontrolled event response as directed by the responsible reliability authority, such as, SBA, HBA, Reliability Coordinator, or Transmission Operator.
To the extent that an entity incorporates VRs, treatment of such will be determined in the associated contract.
GI and EI service charges/energy accounting will be netted within the hour, or in accordance with approved policies and procedures, with charges for both services allowable only when the imbalances for both are deficit rather than offsetting (note that this only applies to netting within the bandwidth).
Potential Example of an Addition Presented above:
Transmission Provider or SBA can charge customer for both GI and EI service in the same hour, but not if the imbalances offset each other.
Example of Offsetting:
Example of Aggravating (increasing—absolute value)
These proposed rates for COTP, PACI, CVP transmission, Western power, and related services are being established pursuant to the DOE Organization Act (42 U.S.C. 7101-7352); the Reclamation Act of 1902 (ch. 1093, 32 Stat. 388), as amended and supplemented by subsequent enactments, particularly section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485(c)); and other acts that specifically apply to the project involved.
By Delegation Order No. 00-037.00, effective December 6, 2001, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to Western's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand, or to disapprove such rates to FERC. Existing DOE procedures for public participation in power rate adjustments (10 CFR part 903) were published on September 18, 1985 (50 FR 37835).
All brochures, studies, comments, letters, memorandums, or other documents made or kept by Western for developing the proposed rates are available for inspection and copying at the Sierra Nevada Regional Office, located at 114 Parkshore Drive, Folsom, California.
In compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
Environmental Protection Agency (“EPA”).
Notice of final action.
This notice announces that on November 18, 2010, the Environmental Appeals Board (EAB) of the EPA denied Petitions for Review of a Federal Prevention of Significant Deterioration (PSD) Permit issued to Russell City Energy Center, LLC by the Bay Area Air Quality Management District (“BAAQMD”).
The effective date for the EAB's decision is November 18, 2010. Pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. 7607(b)(1), judicial review of this permit decision, to the extent it is available, may be sought by filing a Petition for Review in the United States Court of Appeals for the Ninth Circuit on or before March 4, 2011.
The documents relevant to this notice are available for public inspection during normal business hours at the following address: U.S. Environmental Protection Agency, Region 9, 75 Hawthorne St., San Francisco, CA 94105. To arrange viewing of these documents, call Shaheerah Kelly at (415) 947-4156. Due to building security procedures, please call Ms. Kelly at least 24 hours before you would like to view the documents.
Shaheerah Kelly, Air Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne St., San Francisco, CA 94105. Anyone who wishes to review the EAB decision can obtain it at
On December 17, 2010, the EAB issued an Order denying the Motion and Supplemental Motion for Reconsideration and/or Clarification and Stay.
The EPA is hereby granting a waiver of the Buy American Requirements of ARRA Section 1605 under the authority of Section 1605(b)(2) [manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality] to the Town of Smyrna, DE (“Town”), for the purchase of GreensandPlus pressure filter media, manufactured in Brazil, for six pressure filters. This is a project specific waiver and only applies to the use of the specified product for the ARRA project being proposed. Any
The Assistant Administrator of the Office of Administration and Resources Management has concurred on this decision to make an exception to the requirements of Section 1605(a) of ARRA. This action permits the purchase of GreensandPlus pressure filter media for the proposed project being implemented by the Town of Smyrna.
Robert Chominski, Deputy Associate Director, (215) 814-2162, or David McAdams, Environmental Engineer, (215) 814-5764, Office of Infrastructure & Assistance (OIA), Water Protection Division, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.
In accordance with ARRA Section 1605(c), the EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy American requirements, to the Town of Smyrna, Delaware for the purchase of non-domestic GreensandPlus pressure filter media for six pressure filters. EPA has evaluated the Town's basis for procuring the GreensandPlus pressure filter media for these filters. Based upon information submitted by the Town and its consulting engineer, EPA has concluded that there are no filter media manufactured in the United States in sufficient and reasonable quantity and of a satisfactory quality to meet the technical specifications for the Town to pursue the purchase of domestically manufactured filter media.
Section 1605 of the ARRA requires that none of the appropriated funds may be used for the construction, alteration, maintenance, or repair of a public building or a public works project unless all of the iron, steel, and manufactured goods used in the project is produced in the United States, or unless a waiver is provided to the recipient by the head of the appropriate agency, here the EPA. A waiver may be provided under Section 1605(b) if EPA determines that (1) applying these requirements would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and the relevant manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.
EPA has determined that Town's waiver request may be treated as timely even though the request was made after the construction contract was signed. Consistent with the direction of the OMB Guidance at 2 CFR 176.120, EPA has evaluated the Town's request to determine if the request, though made after the contract date, can be treated as if it were timely made. EPA will generally regard waiver requests with respect to components that were specified in the bid solicitation or in a general/primary construction contract as “late” if submitted after the contract date. However, in this case EPA has determined that the Town's request may be treated as timely because the need for a waiver was not foreseeable at the time the contract was signed. The project was bid and the general contractor submitted documentation that Greensand filter media utilized in preparing their bid met the ARRA Buy American provisions. The need for a waiver was not determined until after the contract was signed, when the contractor was informed by the manufacturer of Greensand that they were no longer making this product and recommended the GreensandPlus pressure filter media as an alternative product. They then were notified that the GreensandPlus pressure filter media was made in Brazil. Accordingly, EPA will evaluate the request as a timely request.
The Town is requesting a waiver of the Buy American provision for the GreensandPlus filter media for six pressure filters. The Town has three well houses that each contains two pressure filters for their water treatment system. The project involves the replacement of standard manganese greensand in three well houses. The Town provided supporting documentation that the manufacturer, Inversand Company (Inversand), has temporarily shut down production of manganese greensand. Inversand advised its customers to instead use its GreensandPlus filter media, which is manufactured in Brazil, as an alternative product. The Town has stated that GreensandPlus filter media is compatible with existing treatment facilities, and the use of GreensandPlus filter media is expected to reduce overall operational costs. Detailed evaluation of all of the submitted documentation by EPA Region III, Office of Infrastructure and Assistance, and EPA's national contractor indicates that the Town did not know that the GreensandPlus filter media was made in Brazil until after the project was awarded. In addition, submitted documentation showed that the Town would require replacement/modification of the existing underdrain and associated filter piping if any of the other filter media were used in the project. Due to the existing backwash piping configuration, a lower backwash rate is needed which could be attained by the GreensandPlus filter media without replacement of the underdrain or piping. The GreensandPlus filter media will be capable of treating the raw water presently produced by the Town, removing iron and other impurities to comply with all State of Delaware Drinking Water Quality Regulations. Thus, the use of domestic filter media would require replacement of the underdrain and associated piping which would increase the cost of the project. In addition, the evaluation of the supporting documentation also demonstrated that the foreign filter media will be able to meet the proposed project design and specifications with no additional cost to the Town.
The Town has provided information to the EPA demonstrating that there are no filter media manufactured in the United States in sufficient and reasonable quantity and of a satisfactory quality to meet the required technical specifications. Eight domestic manufacturers of filter media were considered for this project but did not meet the specifications for the project.
The April 28, 2009 EPA HQ Memorandum, Implementation of Buy American provisions of Public Law 111-5, the “American Recovery and Reinvestment Act of 2009”, defines
The purpose of the ARRA is to stimulate economic recovery in part by funding current infrastructure construction, not to delay projects that are “shovel ready” by requiring utilities, such as the Town, to revise their standards and specifications, institute a new bidding process, and potentially choose a more costly, less efficient project. The imposition of ARRA Buy American requirements on such projects otherwise eligible for State Revolving Fund assistance would result in unreasonable delay and thus displace the “shovel ready” status for this project. To further delay construction is in direct conflict with a fundamental economic purpose of the ARRA, which is to create or retain jobs. The OIA has reviewed this waiver request and to the best of our knowledge at the time of review has determined that the supporting documentation provided by the Town is sufficient to meet the criteria listed under Section 1605(b) and in the April 28, 2009, “Implementation of Buy American provisions of Public Law 111-5, the `American Recovery and Reinvestment Act of 2009' Memorandum:” Iron, steel, and the manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality. The basis for this project waiver is the authorization provided in Section 1605(b)(2). Due to the lack of production of this product in the United States in sufficient and reasonably available quantities and of a satisfactory quality in order to meet the Town's technical specifications, a waiver from the Buy American requirement is justified.
The March 31, 2009 Delegation of Authority Memorandum provided Regional Administrators with the authority to issue exceptions to Section 1605 of ARRA within the geographic boundaries of their respective regions and with respect to requests by individual grant recipients. Having established both a proper basis to specify the particular good required for this project, and that this manufactured good was not available from a producer in the United States, the Town of Smyrna is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of GreensandPlus filter media using ARRA funds as specified in the Town of Smyrna's request of October 1, 2010. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers “based on a finding under subsection (b).”
Pub. L. 111-5, section 1605.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 20, 2011.
A. Federal Reserve Bank of Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
1.
Federal Trade Commission (“FTC” or “Commission”).
Notice.
The information collection requirements described below has been submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”). The FTC is seeking public comments on its proposal to extend through February 28, 2014, the current clearance under OMB Control Number 3084-0108 for information collection requirements contained in its Used Motor Vehicle Trade Regulation Rule (“Used Car Rule” or “Rule”). That clearance expires on February 28, 2011.
Comments must be filed by February 2, 2011.
Interested parties are invited to submit written comments electronically or in paper form by following the instructions in the Request for Comments part of the
Requests for additional information should be addressed to John C. Hallerud, Attorney, Midwest Region, Federal Trade Commission, 55 West Monroe, Suite 1825, Chicago, Illinois 60603, (312) 960-5634.
The Used Car Rule facilitates informed purchasing decisions by requiring used car dealers to disclose information about warranty coverage, if any, and the mechanical condition of used cars that they offer for sale. The Rule requires that used car dealers display a form called a “Buyers Guide” on each used car offered for sale that, among other things, discloses information about warranty coverage.
Under the Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501-3521, Federal agencies must obtain approval from
Comments should refer to “Used Car Rule: FTC File No. P067609” to facilitate the organization of comments. Please note that your comment B including your name and your State B will be placed on the public record of this proceeding, including on the publicly accessible FTC Web site, at
Because comments will be made public, they should not include any sensitive personal information, such as any individual's Social Security Number; date of birth; driver's license number or other State identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential” as provided in Section 6(f) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing matter for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c).
Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted using the following Web link
All comments should additionally be sent to OMB. Comments may be submitted by U.S. Postal Mail to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street, NW., Washington, DC 20503. Comments, however, should be submitted via facsimile to (202) 395-5167 because U.S. Postal Mail is subject to lengthy delays due to heightened security precautions.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC Web site, to the extent practicable, at
On October 12, 2010, the FTC sought comment on the information collection requirements associated with the Rule, 16 CFR part 455. 75 FR 62538. No comments were received. Accordingly, the FTC retains its previously published burden estimates.
The Rule has no recordkeeping requirements. The estimated burden relating solely to disclosure requirements is 1,974,589 hours. As explained in more detail below, this estimate is based on the number of used car dealers (53,735
The Rule requires that used car dealers display a one-page, double-sided Buyers Guide on each used car that they offer for sale. The component tasks associated with the Rule's required display of Buyers Guides include: (1) Ordering and stocking Buyers Guides; (2) entering data on Buyers Guides; (3) displaying the Buyers Guides on vehicles; (4) revising Buyers Guides as necessary; and (5) complying with the Rule's requirements for sales conducted in Spanish.
Staff estimates that approximately fifty percent of used cars sold by dealers are sold “as is,” with the other half sold under warranty. Therefore, staff estimates that the overall time required to enter data on Buyers Guides consists of 408,856 hours for used cars sold without a warranty (24,531,374 vehicles × 50% × 2 minutes per vehicle) and 613,284 hours for used cars sold under warranty (24,531,374 vehicles × 50% × 3 minutes per vehicle) for a cumulative estimated total of 1,022,140 hours.
Calculations from United States Census Bureau surveys indicate that approximately 6.5 percent of the United States population speaks Spanish at home, without also speaking fluent English.
Office of Minority Health, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice: Correction.
The Department of Health and Human Services published a notice in the
Ms. Monica A. Baltimore, Phone: 240-453-2882 Fax: 240-453-2883.
In the
The meeting will be held on Monday, February 21, 2011 from 9 a.m. to 5 p.m. and Tuesday, February 22, 2011 from 9 a.m. to 1 p.m.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Carol E. Walker, Acting CDC Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Healthcare System Surge Capacity at the Community Level—New—National Center for Emerging and Zoonotic Infectious Diseases, (NCEZID), Centers for Disease Control and Prevention, (CDC).
The Healthcare Preparedness Activity, Division of Healthcare Quality Promotion (DHQP) at the Centers for Disease Control and Prevention (CDC) works with other Federal agencies, State governments, medical societies and other public and private organizations to promote collaboration amongst healthcare partners, and to integrate healthcare preparedness into Federal, State and local public health preparedness planning. The goal of the Activity is to help local communities' healthcare delivery and public health sectors effectively and efficiently prepare for and respond to urgent and emergent threats.
Surge is defined as a marked increase in demand for resources such as personnel, space and material. Health care providers manage both routine surge (predictable fluctuations in demand associated with the weekly calendar, for example) as well as unusual surge (larger fluctuations in demand caused by rarer events such as pandemic influenza). Except in extraordinary cases, providers are expected to manage surge while adhering to their existing standards for quality and patient safety. Currently, health care organizations are expected to prepare for and respond to surges in demand ranging from a severe catastrophe (for example, a nuclear detonation) to more common, less severe events (for example, a worse-than-usual influenza season). The Centers for Disease Control and Prevention (CDC) and Federal agencies have dedicated considerable funding and technical assistance towards developing and coordinating community-level responses to surges in demand, but it remains a difficult task.
While there is extensive research on managing collaborations during times of extraordinary pressure where response to surge takes precedence over other activities, less is known about developing and maintaining integrated collaborations during periods where the system must respond to unusual surge but also continue the routine provision of health care. In particular, studies have not explored how these collaborations can build on sustainable relationships between a broad range of stakeholders (including primary care providers) in communities with different market structures and different degrees of investment in public health.
This study aims to generate information about the role of community-based collaborations in disaster preparedness that the CDC can use to develop its programs guiding and supporting these collaborations. This project will explore barriers and facilitators to coordination on surge response in ten communities, eight of which have been studied longitudinally since the mid-1990s as part of the Center for Studying Health System Change's (HSC's) Community Tracking Study (CTS). Interviews of local healthcare stakeholders will be conducted at 10 sites.
Interviews will be conducted at a total of 63 organizations over the two years of this project. Within each of the ten communities studied, two emergency practitioner respondents (one from a safety-net hospital and one from a non-safety-net hospital), two primary care providers (one from a large practice and one from a small practice) and two local preparedness experts (one from the County or local public health agency, and one coordinator or collaboration leader) will be interviewed. In three sites (Phoenix, Greenville and Seattle) an additional respondent will be identified from an outlying rural area to offer the perspective of providers in those communities. There is no cost to respondents except their time.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the final Federal share disproportionate share hospital (DSH) allotments for Federal FY (FY) 2009 and the preliminary Federal share DSH allotments for FY 2011. This notice also announces the final FY 2009 and the preliminary FY 2011 limitations on aggregate DSH payments that States may make to institutions for mental disease and other mental health facilities. In addition, this notice includes background information describing the methodology for determining the amounts of States' FY DSH allotments.
Richard Strauss, (410) 786-2019.
Under section 1923(f)(3) of the Social Security Act (the Act), States' Federal fiscal year (FY) 2003 disproportionate share hospital (DSH) allotments were calculated by increasing the amounts of the FY 2002 allotments for each State (as specified in the chart, entitled “DSH Allotment (in millions of dollars)”, contained in section 1923(f)(2) of the Act) by the percentage change in the Consumer Price Index for all Urban Consumers (CPI-U) for the prior fiscal year. The allotment, determined in this way, is subject to the limitation that an increase to a State's DSH allotment for a FY cannot result in the DSH allotment exceeding the greater of the State's DSH allotment for the previous FY or 12 percent of the State's total medical assistance expenditures for the allotment year (this is referred to as the 12 percent limit).
Most States'
Section 1001(a) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173, enacted on December 8, 2003) amended section 1923(f)(3) of the Act to provide for a “Special, Temporary Increase In Allotments On A One-Time, Non-Cumulative Basis.” Under this provision, States' FY 2004 DSH allotments were determined by increasing their FY 2003 allotments by 16 percent, and the FY DSH allotment amounts so determined were not subject to the 12 percent limit.
Under the methodology contained in section 1923(f)(3)(C) of the Act, as amended by section 1001(a)(2) of the MMA, the non-Low-DSH States' DSH allotments for FY 2005 and subsequent FYs continue at the same level as the States' DSH allotments for FY 2004 until a “fiscal year specified” occurs. The fiscal year specified is the first FY for which the Secretary estimates that a State's DSH allotment equals (or no longer exceeds) the DSH allotment as would have been determined under the statute in effect before the enactment of the MMA. We determine whether the fiscal year specified has occurred under a special parallel process. Specifically, under this parallel process, a “parallel” DSH allotment is determined for FYs after 2003 by increasing the State's DSH allotment for the previous FY by the percentage change in the CPI-U for the prior FY, subject to the 12 percent limit. This is the methodology as would otherwise have been applied under section 1923(f)(3)(A) of the Act, notwithstanding the application of the provisions of MMA. The fiscal year specified, is the FY in which the parallel DSH allotment calculated under this special parallel process equals or exceeds the FY 2004 DSH allotment, as determined under the MMA provisions. Once the fiscal year specified occurs for a State, that State's FY DSH allotment will be calculated by increasing the State's previous actual FY DSH allotment (which would be equal to the FY 2004 DSH allotment) by the percentage change in the CPI-U for the previous FY, subject to the 12 percent limit. The following example illustrates how the FY DSH allotment would be calculated for FYs after FY 2004.
However, as amended by section 1001(b)(4) of the MMA, section 1923(f)(5)(B) of the Act also contains criteria for determining whether a State is a Low-DSH State, beginning with FY 2004. This provision is described in section I.D.
Section 1001(b)(1) of the MMA amended section 1923(f)(5) of the Act regarding the calculation of the FY DSH allotments for “Low-DSH” States for FY 2004 and subsequent fiscal years. Specifically, under section 1923(f)(5)(B) of the Act, as amended by section 1001(b)(4) of the MMA, a State is considered a Low-DSH State for FY 2004 if its total DSH payments under its State plan for FY 2000 (including Federal and State shares) as reported to CMS as of August 31, 2003, are greater than 0 percent and less than 3 percent of the State's total FY 2000 expenditures under its State plan for medical assistance. For States that meet the Low-DSH criteria, their FY 2004 DSH allotments are calculated by increasing their FY 2003 DSH allotments by 16 percent. Therefore, for FY 2004, Low-DSH States' FY DSH allotments are calculated in the same way as the DSH allotments for regular States, which under section 1923(f)(3) of the Act, get the special temporary increase for FY 2004.
Furthermore, for States meeting the MMA's Low-DSH definition, the DSH allotments for FYs 2005 through 2008 will continue to be determined by increasing the previous FY's DSH allotment by 16 percent. The Low-DSH States' DSH allotments for FYs 2004 through 2008 are not subject to the 12 percent limit. The Low-DSH States' DSH allotments for FYs 2009 and subsequent FYs are calculated by increasing those States' DSH allotments for the prior FY by the percentage change in the CPI-U for that prior fiscal year. For FYs 2009 and thereafter, the DSH allotments so determined would be subject to the 12 percent limit.
Under section 1923(h) of the Act, Federal financial participation (FFP) is not available for DSH payments to institutions for mental diseases (IMDs) and other mental health facilities that are in excess of State-specific aggregate limits. Under this provision, this aggregate limit for DSH payments to IMDs and other mental health facilities is the lesser of a State's FY 1995 total computable (State and Federal share) IMD and other mental health facility DSH expenditures applicable to the State's FY 1995 DSH allotment (as reported on the Form CMS-64 as of January 1, 1997), or the amount equal to the product of the State's current year total computable DSH allotment and the applicable percentage.
Each State's IMD limit on DSH payments to IMDs and other mental health facilities was calculated by first determining the State's total computable DSH expenditures attributable to the FY 1995 DSH allotment for mental health facilities and inpatient hospitals. This calculation was based on the total computable DSH expenditures reported by the State on the Form CMS-64 as mental health DSH and inpatient hospital DSH as of January 1, 1997. We then calculate an “applicable percentage.” The applicable percentage for FY 1998 through FY 2000 (1995 IMD DSH percentage) is calculated by dividing the total computable amount of IMD and mental health DSH expenditures applicable to the State's FY 1995 DSH allotment by the total computable amount of all DSH expenditures (mental health facility plus inpatient hospital) applicable to the FY 1995 DSH allotment. For FY 2001 and thereafter, the applicable percentage is defined as the lesser of the applicable percentage as calculated above (for FYs 1998 through 2001) or 50 percent for FY 2001; 40 percent for FY 2002; and 33 percent for each subsequent fiscal year.
The applicable percentage is then applied to each State's total computable FY DSH allotment for the current fiscal year. The State's total computable FY DSH allotment is calculated by dividing the State's Federal share DSH allotment for the FY by the State's Federal medical assistance percentage (FMAP) for that fiscal year.
In the final step of the calculation of the IMD DSH Limit, the State's total computable IMD DSH limit for the FY is set at the lesser of the product of a State's current FY total computable DSH allotment and the applicable percentage for that FY, or the State's FY 1995 total computable IMD and other mental health facility DSH expenditures applicable to the State's FY 1995 DSH allotment as reported on the Form CMS-64.
The MMA legislation did not amend the Medicaid statute with respect to the calculation of the IMD DSH limit.
In general, we initially determine States' DSH allotments and IMD DSH limits for a FY using estimates of medical assistance expenditures, including DSH expenditures in their Medicaid programs. These estimates are provided by States each year on the August quarterly Medicaid budget reports (Form CMS-37) before the FY for which the DSH allotments and IMD DSH limits are being determined. Also, as part of the basic determination of preliminary DSH allotments for a FY, we use the available CPI-U percentage increase that is available before the beginning of the FY for which the allotment is being determined to determine the preliminary FY DSH allotment. For example, in determining the preliminary FY 2011 DSH allotment, we would apply the CPI-U percentage increase for FY 2010 that was available just before the beginning of FY 2011 on October 1, 2010.
The DSH allotments and IMD DSH limits determined using these estimates and CPI-U percentage increases
The notice published in the
This notice announces the
Section 1923(f)(6)(A) of the Act, as amended by section 404 of Public Law 109-432 (enacted on December 20, 2006), section 204 of Public Law 110-173 (enacted on December 29, 2007), section 202 of Public Law 110-275 (enacted on July 15, 2008), section 616 of Public Law 111-3 (enacted on February 4, 2009), and most recently as amended by Section 1054 of Public Law 111-152 (enacted on March 30, 2010) provides for the determination of a DSH allotment for the State of Tennessee for each of FYs 2007 through FY 2011, for 2 periods encompassing FY 2012, and for FY 2013. In accordance with this provision, Tennessee's DSH allotment for each of FYs 2007 through 2011 is the greater of $280 million and the FY 2007 Federal medical assistance percentage of the DSH payment adjustments reflected in the State's TennCare Demonstration Project for the demonstration year ending in 2006. In accordance with this provision, the State's Federal share DSH allotment for each of FYs 2007 through 2011 is $305,451,928. Furthermore, Tennessee's DSH allotment for the period October 1, 2011 through December 31, 2011 (the first quarter of FY 2012) is one-fourth of this amount; that is, $76,362,982. Section 1923(f)(6)(A)(ii) of the Act further limits the amount of Federal funds that are available for DSH payments that Tennessee may make in each of the FYs 2007 through 2011, and for the first quarter of FY 2012 to 30 percent of the DSH allotment. In this regard, the limit on the DSH payments that the State of Tennessee may make is effectively $91,635,578 (30 percent of $305,451,928) for each FY 2007 through FY 2011, and $22,908,895 (30 percent of $76,362,982) for the period October 1, 2011 through December 31, 2011 (the first quarter of FY 2012. The statute also provides for additional allotments for Tennessee for the period January 1, 2011 through September 30, 2012 (quarters 2 through 4 of FY 2012) and for all of FY 2013; future
Section 1923(f)(6)(B) of the Act, as amended by section 404 of Public Law 109-432, section 204 of Public Law 110-173, section 202 of Public Law 110-275, section 616 of Public Law 111-3 (enacted on February 4, 2009) most recently as amended by Section 10201(e)(1) of Public Law 111-148 (enacted on March 23, 2010) provides for a DSH allotment for the State of Hawaii for each of FYs 2007 through 2011, for 2 periods encompassing FY 2012, and certain other provisions providing for a DSH allotment for FY 2013. In accordance with the statute, Hawaii's DSH allotment each year for FY 2007 through FY 2011 is $10 million. Furthermore, for the period October 1, 2011 through December 31, 2011 (the first quarter of FY 2012) Hawaii's DSH allotment is $2.5 million, and for the period January 1, 2012 through September 30, 2012 Hawaii's DSH allotment is $7.5 million. Future
Section 5002 of the Recovery Act added a new section 1923(f)(3)(E) of the Act; this new section provides for a temporary increase in States' DSH allotments only for FY 2009 and FY 2010.
States' preliminary FY 2009 DSH allotments were previously published in the
As described in section F. above, we typically publish States' preliminary DSH allotments based on expenditure estimates and CPI-U percentage increases available before the FY for which the preliminary DSH allotment is being determined. The preliminary DSH allotments are subsequently finalized after the FY is over and when the applicable inputs for determining the DSH allotments (that is, the applicable expenditures and the CPI-U percentage increase for the previous FY) are final.
Due to the Recovery Act temporary increase for FY 2009, in this notice we revised the
The final FY 2009 allotments contained in this
Sections 1923(f)(3)(E) of the Act, as amended by Section 5002 of the Recovery Act, in general (with the exceptions for certain States described above) provided for a 2.5 percent increase in States' FY 2009 DSH allotments and for States' FY 2010 DSH allotments to be determined as the higher of:
• 102.5 percent of the DSH allotment for FY 2009, as determined under the Recovery Act provision, or
• The FY 2010 DSH allotment as would otherwise be calculated without the application of the Recovery Act provision.
The final FY 2009 DSH allotments contained in this
As indicated, the Recovery Act DSH allotment provisions apply only for FY 2009 and FY 2010; that is, States' DSH allotments for FY 2011 are determined as DSH allotments were determined prior to the enactment of the Recovery Act.
Section E above described the determination of States' IMD DSH limits for FYs beginning FY 1998 and after, as determined under section 1923(h) of the Act. Section 5002 of the Recovery Act did not amend section 1923(h) of the Act. Accordingly, States' preliminary IMD DSH limits for FY 2009 and FY 2010, the FYs for which the Recovery Act provisions are applicable, were determined as under the existing provisions. As described in section E above, States' DSH allotments are an element of the determination of the IMD DSH limit. Therefore, the DSH allotments for FY 2009 and FY 2010, as determined under the Recovery Act provisions, were used in calculating States' Final FY 2009 (as contained in this
Chart 1 of the Addendum to this notice provides the States' final FY 2009 DSH allotments as discussed above in section I.H.1 of this notice. As discussed in that section of this notice, the revised preliminary FY 2009 DSH allotments were previously published in the
We are reiterating the parallel process provision because we determined that FY 2009 was the fiscal year specified for all non-Low DSH States (except Louisiana). Therefore, as indicated in section 1923(f)(3)(C)(ii) of the Act, the Final FY 2009 DSH allotment for all non-Low DSH States (except Louisiana) is equal to the prior FY 2008 DSH allotment increased by the CPI-U increase for FY 2008 (4.4 percent). Chart 1 contains the final FY 2009 DSH allotments. For the non-Low DSH States for which the FY 2009 is the fiscal year specified, the FY 2010 and subsequent FY DSH allotments are calculated by increasing the prior FY DSH allotment by the CPI-U increase for the prior fiscal year.
For Low-DSH States, the FY 2009 DSH allotment is calculated using the same methodology as for the non-Low DSH States for which the fiscal year specified has occurred. That is, for FY 2009 and following FYs, the DSH allotment for Low-DSH States is calculated by increasing the prior FY DSH allotment by the percentage change in the CPI-U for the prior fiscal year.
The preliminary FY 2009 allotments were initially determined using the States' August 2008 expenditure estimates submitted by the States on the Form CMS-37, and the percentage increase in the CPI-U for the previous FY that was available before the beginning of FY 2009. As discussed in section I.H.1 above, based on the updated CPI-U percentage increase for FY 2008 (from 4.0 percent to 4.4 percent), and the enactment of section 5002 of the Recovery Act (which provides that States' FY 2009 DSH allotments are equal to 102.5 percent of these allotments as would otherwise be determined for the FY), we revised the preliminary FY 2009 DSH allotments, which were published in the
Chart 2 of the Addendum to this notice provides the preliminary FY 2011 DSH allotments determined in accordance with the section 1923(f)(3) of the Act, as described in section I.H.2. As described in that section of this notice, the Recovery Act provisions which increased States' DSH allotments for FY 2009 and FY 2010 are not applicable for determining States' FY 2011 DSH allotments. States' final FY 2011 DSH allotments will be published in the
As discussed in section I.E. and I.H.3 above of this notice, section 1923(h) of the Act specifies the methodology to be used to establish the limits on the amount of DSH payments that a State can make to IMDs and other mental health facilities. FFP is not available for IMD or DSH payments that exceed the IMD limits. In this notice, we are publishing the final FY 2009 IMD DSH Limit and the preliminary FY 2011 IMD DSH Limit determined in accordance with the provisions discussed above, and for FY 2009, reflecting the DSH allotments for the FY determined under the provisions of section 1923(f)(3)(E) of the Act, as amended by section 5002 of the Recovery Act.
Charts 3 and 4 of the Addendum to this notice detail each State's final IMD DSH Limit for FY 2009 and the preliminary IMD DSH Limit for FY 2011, respectively, determined in accordance with section 1923(h) of the Act.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 1993), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This notice does reach the $100 million economic threshold and thus is considered a major rule under the Congressional Review Act.
There are no changes between the revised preliminary and final FY 2009 DSH allotments and FY 2009 IMD DSH limits.
The preliminary FY 2011 DSH allotments being published in this notice are about $365 million less than the preliminary FY 2010 DSH allotments published in the
The preliminary FY 2011 IMD DSH Limits being published in this notice are about $23 million less than the preliminary FY 2010 IMD DSH Limits published in
The RFA requires agencies to analyze options for regulatory relief of small businesses, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7.0 million to $34.5 million in any one year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because the Secretary has determined that this notice will not have significant economic impact on a substantial number of small entities. Specifically, the effects of the various controlling statutes on providers are not impacted by a result of any independent regulatory impact and not this notice. The purpose of the notice is to announce the latest distributions as required by the statute.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Core-Based Statistical Area for Medicaid payment regulations and has fewer than 100 beds. We are not preparing analysis for section 1102(b) of the Act because the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.
The Medicaid statute (including as most recently amended by the Recovery Act) specifies the methodology for determining the amounts of States' DSH allotments and IMD DSH limits; and as described previously, results in increases in States' DSH allotments and IMD DSH limits for the FYs referred to. The statute applicable to these allotments and limits does not apply to the determination of the amounts of DSH payments made to specific DSH hospitals; rather, these allotments and limits represent an overall limit on the total of such DSH payments. In this regard, we do not believe that this notice will have a significant economic impact on a substantial number of small entities.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this notice does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.
The methodologies for determining the States' fiscal year DSH allotments and IMD DSH Limits, as reflected in this notice, were established in accordance with the methodologies and formula for determining States' allotments as specified in statute. This notice does not put forward any further discretionary administrative policies for determining such allotments.
As required by OMB Circular A-4 (available at
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
This addendum contains the charts 1 through 4 (preceded by associated keys) that are referred to in the preamble of this notice.
Key to Chart 1. Final DSH Allotments for FY 2009.
Key to Chart 2. Preliminary DSH Allotments for FY 2011.
Key to Chart 3. Final IMD DSH Limit for FY 2009.
Key to Chart 4. Preliminary IMD DSH Limit for FY 2011.
Health Resources and Services Administration (HRSA), HHS.
Notice of noncompetitive program supplemental award.
HRSA will be issuing non-competitive supplemental grant funding to the University of Wisconsin, Laboratory of Hygiene, Madison, Wisconsin, under the Maternal Child and Health Bureau's Blood Lead Proficiency Testing Program. The University of Wisconsin will use these funds to initiate an orderly closeout of HRSA-funded activities which clearly fall within the purview of the Centers for Disease Control and Prevention's “Preventing Lead Poisoning in Young Children” initiative at their National Center for Environmental Health. This action will also accord the University of Wisconsin and the Center additional time to solicit recommendations from the CDC's Advisory Committee on Childhood Lead Poisoning Prevention with respect to future funding for this activity.
The Maternal and Child Health Bureau (MCHB) has continuously supported the National Blood Lead and Erythrocyte Protoprophyrin (EP) Proficiency Testing Program through the University of Wisconsin since 1988. Childhood lead poisoning is a well-characterized public health problem in
Section 501(c)(1) of the Social Security Act, as amended.
The participation of large numbers of these labs in voluntary proficiency was by design, and represents a public health success by assuring blood lead screening accuracy where there would otherwise be no evaluation. Three factors contribute to this. First, is the HRSA support of this program, which has been increased to accommodate the additional labs.
This support allows laboratories to participate at no cost, a vital consideration for voluntary participants. The second factor is the effort of the NBLPT Program to integrate the new technology shortly after it became available, and collaboration with the manufacturer to promote participation. The third factor is that some States have initiated PT requirements, deeming this quality check of sufficient importance to mandate successful participation as a requisite for Medicaid reimbursement. This State-level action illustrates the importance of this PT participation, and may be the beginning of a trend that will serve to increase participation even more.
The University of Wisconsin will use these funds to initiate an orderly closeout of HRSA-funded activities which clearly falls within the purview of the Centers for Disease Control and Prevention's “Preventing Lead Poisoning in Young Children” initiative at their National Center for Environmental Health. This extension with funding will also accord the University of Wisconsin and the Center to solicit recommendations from the CDC's Advisory Committee on Childhood Lead Poisoning Prevention with respect to future funding for this activity.
David Heppel, M.D., Director, Division of Child, Adolescent and Family Health, Maternal and Child Health Bureau, Health Resources and Services Administration, 5600 Fishers Lane, Room 18A-30, Rockville, MD 20857; 301-443-2250;
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the following National Advisory body scheduled to meet during the month of February 2011.
The National Advisory committee on Rural Health will convene its sixty-seventh meeting in the time and place specified below:
Thursday morning at 9 a.m. the Committee will continue to hear panel presentations on ACA-related provisions and will then break into subcommittees on each of those topics for further discussion. The day will conclude with a period of public comment at approximately 4:30 p.m.
Friday morning at 9 a.m. the Committee will summarize key findings from the meeting and develop a work plan for the next quarter and the June meeting.
Thomas Morris, MPA, Executive Secretary, National Advisory Committee on Rural Health and Human Services, Health Resources and Services Administration, Parklawn Building, Room 10B-45, 5600 Fishers Lane, Rockville, MD 20857, Telephone (301) 443-0835, Fax (301) 443-2803.
Persons interested in attending any portion of the meeting should contact Tish Scolnick at the Office of Rural Health Policy (ORHP) via Telephone at (301) 443-0835, or by e-mail at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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 concept meeting, proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Dated:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the Laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified Laboratories and Instrumented Initial Testing Facilities (IITF) is published in the
If any Laboratory/IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1042, One Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. The “Mandatory Guidelines for Federal Workplace Drug Testing Programs”, as amended in the revisions listed above, requires {or set} strict standards that Laboratories and
To become certified, an applicant Laboratory/IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a Laboratory/IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and Instrumented Initial Testing Facilities (IITF) in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A Laboratory/IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated November 25, 2008 (73 FR 71858), the following Laboratories and Instrumented Initial Testing Facilities (IITF) meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection: 1651-0034.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: CBP Regulations Pertaining to Customs Brokers (19 CFR part 111). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information being collected. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before February 2, 2011.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
U.S. Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104-13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
CBP Form 3124, “Application for Customs Broker License”
If additional information is required contact: Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor,
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection: 1651-0129.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Haiti Haitian Hemispheric Opportunity through Partnership Encouragement (“Haiti HOPE”) Act of 2006. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before February 2, 2011.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
U.S. Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104-13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
Those wishing to claim duty-free treatment under this program must prepare a declaration of compliance which identifies and details the costs of the beneficiary components of production and non-beneficiary components of production to show that the 50% value content requirement was satisfied. The information collected under the Haiti Hope Act is provided for in 19 CFR 10.848.
If additional information is required contact: Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, Washington, DC 20229-1177, at (202) 325-0265.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Colette Pollard, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Room 4160, Washington, DC 20410-5000; telephone (202) 402-3400, (this is not a toll-free number) or e-mail Ms. Pollard at
Arlette Mussington (202) 402-4109, for copies of the proposed forms and other available documents. (This is not a toll-free number). Additional information is provided at
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology;
Number of respondents:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Bureau of Indian Affairs, Interior.
Notice of Approved Tribal-State Compact Amendment.
This notice publishes approval of the 2010 Amendments to the Menominee Indian Tribe of Wisconsin (“Tribe”) and the State of Wisconsin Gaming Compact of 1992, as Amended in 1999, 2000, and 2003.
Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Public Law 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish in the
National Park Service, Interior.
Notice of Meetings.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770, 5 U.S.C. App 1, 10), notice is hereby given of the meeting of the Paterson Great Falls National Historical Park Advisory Commission.
The Commission will meet on the following days in 2011:
These meetings will be held at the Paterson Museum at 2 Market Street (intersection of Spruce Street) in Paterson, New Jersey.
Bill Bolger, Project Director, Paterson Great Falls National Historical Park National
The Paterson Great Falls NHP Federal Advisory Commission was authorized by Congress and signed by the President on March 30, 2009, (Pub. L. 111-11, Title VII, Subtitle A, Section 7001, Subsection e) “to advise the Secretary in the development and implementation of the management plan.” The agendas for these meetings will be published by press release.
This meeting will be open to the public and time will be reserved for public comment. Oral comments will be summarized for the record. If individuals wish to have their comments recorded verbatim they must submit them in writing. Written comments and requests for agenda items may be submitted electronically to
United States International Trade Commission.
Institution of five-year reviews concerning the countervailing duty and antidumping duty orders on fresh and chilled Atlantic salmon from Norway.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the countervailing duty and antidumping duty orders on fresh and chilled Atlantic salmon from Norway would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
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(5) An
Participation in the reviews and public service list.—Persons, including industrial users of the
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
Limited disclosure of business proprietary information (BPI) under an administrative protective order (APO) and APO service list.—Pursuant to section 207.7(a) of the Commission's rules, the Secretary will make BPI submitted in these reviews available to authorized applicants under the APO issued in the reviews, provided that the application is made no later than 21 days after publication of this notice in the
Certification.—Pursuant to section 207.3 of the Commission's rules, any person submitting information to the Commission in connection with these reviews must certify that the information is accurate and complete to the best of the submitter's knowledge. In making the certification, the submitter will be deemed to consent, unless otherwise specified, for the Commission, its employees, and contract personnel to use the information provided in any other reviews or investigations of the same or comparable products which the Commission conducts under Title VII of the Act, or in internal audits and investigations relating to the programs and operations of the Commission pursuant to 5 U.S.C. Appendix 3.
Written submissions.—Pursuant to section 207.61 of the Commission's rules, each interested party response to this notice must provide the information specified below. The deadline for filing such responses is February 2, 2011. Pursuant to section 207.62(b) of the Commission's rules, eligible parties (as specified in Commission rule 207.62(b)(1)) may also file comments concerning the adequacy of responses to the notice of institution and whether the Commission should conduct expedited or full reviews. The deadline for filing such comments is March 18, 2011. All written submissions must conform with the provisions of sections 201.8 and 207.3 of the Commission's rules and any submissions that contain BPI must also conform with the requirements of sections 201.6 and 207.7 of the Commission's rules. The Commission's rules do not authorize filing of submissions with the Secretary by facsimile or electronic means, except to the extent permitted by section 201.8 of the Commission's rules, as amended, 67 FR 68036 (November 8, 2002). Also, in accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or APO service list as appropriate), and a certificate of service must accompany the document (if you are not a party to the reviews you do not need to serve your response).
Inability to provide requested information.—Pursuant to section 207.61(c) of the Commission's rules, any interested party that cannot furnish the information requested by this notice in the requested form and manner shall notify the Commission at the earliest possible time, provide a full explanation of why it cannot provide the requested information, and indicate alternative forms in which it can provide equivalent information. If an interested party does not provide this notification (or the Commission finds the explanation provided in the notification inadequate) and fails to provide a complete response to this notice, the Commission may take an adverse inference against the party pursuant to section 776(b) of the Act in making its determinations in the reviews.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and E-mail address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the countervailing duty order and the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Institution of five-year reviews concerning the antidumping duty orders on heavy forged hand tools from China.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping duty orders on heavy forged hand tools from China would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
(1)
(2) The
(3) The
(4) The
(5) An
Participation in the reviews and public service list.—Persons, including industrial users of the
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
Limited disclosure of business proprietary information (BPI) under an administrative protective order (APO) and APO service list.—Pursuant to section 207.7(a) of the Commission's rules, the Secretary will make BPI submitted in these reviews available to authorized applicants under the APO issued in the reviews, provided that the application is made no later than 21 days after publication of this notice in the
Inability to provide requested information.—Pursuant to section 207.61(c) of the Commission's rules, any interested party that cannot furnish the information requested by this notice in the requested form and manner shall notify the Commission at the earliest possible time, provide a full explanation of why it cannot provide the requested information, and indicate alternative forms in which it can provide equivalent information. If an interested party does not provide this notification (or the Commission finds the explanation provided in the notification inadequate) and fails to provide a complete response to this notice, the Commission may take an adverse inference against the party pursuant to section 776(b) of the Act in making its determinations in the reviews.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and e-mail address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of U.S. commercial shipments of the
(d) The quantity and value of U.S. internal consumption/company transfers of the
(e) The value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S.
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) The quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) The quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Institution of a five-year review concerning the antidumping duty order on paper clips from China.
The Commission hereby gives notice that it has instituted a review pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping duty order on paper clips from China would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
(1)
(2) The
(3) The
(4) The
(5) An
Participation in the review and public service list.—Persons, including industrial users of the
Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
Limited disclosure of business proprietary information (BPI) under an administrative protective order (APO) and APO service list.—Pursuant to section 207.7(a) of the Commission's rules, the Secretary will make BPI submitted in this review available to authorized applicants under the APO issued in the review, provided that the application is made no later than 21 days after publication of this notice in the
Inability to provide requested information.—Pursuant to section 207.61(c) of the Commission's rules, any interested party that cannot furnish the information requested by this notice in the requested form and manner shall notify the Commission at the earliest possible time, provide a full explanation of why it cannot provide the requested information, and indicate alternative forms in which it can provide equivalent information. If an interested party does not provide this notification (or the Commission finds the explanation provided in the notification inadequate) and fails to provide a complete response to this notice, the Commission may take an adverse inference against the party pursuant to section 776(b) of the Act in making its determination in the review.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number,
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this review by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of U.S. commercial shipments of the
(d) The quantity and value of U.S. internal consumption/company transfers of the
(e) The value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) The quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) The quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (optional) A statement of whether you agree with the above definitions of the
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
National Institute of Justice.
Notice and request for comments on the Draft Metal Detector Standards for Public Safety.
In an effort to obtain comments from interested parties, the U.S. Department of Justice, Office of Justice Programs, National Institute of Justice (NIJ) will make available to the general public the following draft standards for metal detectors:
1. Walk-through Metal Detector Standard for Public Safety.
2. Hand-held Metal Detector Standard for Public Safety.
The opportunity to provide comments on these voluntary standards is open to industry technical representatives, law enforcement agencies and organizations, research, development and scientific communities, and all other stakeholders and interested parties. Those individuals wishing to obtain and provide comments on the draft standard under consideration are directed to the following Web site:
Please note that all comments received are considered part of the public record and may be made available for public inspection online. Such information includes personal identifying information (such as name and address) voluntarily submitted by the commenter.
If you wish to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not wish for it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not wish to be posted online in the first paragraph of your comment and clearly identify what information you would like redacted.
If you wish to submit confidential business information as part of your comment but do not wish for it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online.
Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file (which will be made available for public inspection upon request), but not posted online.
The comment period will be open from January 1, 2011, to February 15, 2011.
Casandra Robinson, by telephone at 202-305-2596 [
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on November 12, 2010, applicable to workers of International Business Machines (IBM), Global Sales Operations Organization, Sales and Distribution Business Unit, Relations Analyst and Band 8 Program Manager Roles, one teleworker location in Charleston, West Virginia. The notice was published in the
At the request of the petitioner, the Department reviewed the certification for workers of the subject firm.
New findings show that worker separations occurred during the relevant time period affecting one teleworker in Louisville, Kentucky of International Business Machines (IBM), Global Sales Operations Organization, Sales and Distribution Business Unit, Relations Analyst and Band 8 Program Unit. The teleworker in Louisville, Kentucky provided Relations Analyst and Band 8 Program Manager services.
Accordingly, the Department is amending the certification to include one teleworker in Louisville, Kentucky of International Business Machines (IBM), Global Sales Operations Organization, Sales and Distribution Business Unit, Relations Analyst and Band 8 Program Unit.
The intent of the Department's certification is to include all workers of the subject firm who were adversely affected by a shift of services like or directly competitive with the Relations Analyst and Band 8 Program Manager services supplied by the workers to a foreign country.
The amended notice applicable to TA-W-74,575 is hereby issued as follows:
All workers of International Business Machines (IBM) Global Sales Operations Organization, Sales and Distribution Business Unit, Relations Analyst and Brand 8 Program Manager Roles, one teleworker located in Charleston, West Virginia (TA-W-74,575); International Business Machines (IBM), Global Sales Operations Organization, Sales and Distribution Business Unit, Relations Analyst and Brand 8 Program Manager Roles, one teleworker located in Dallas, Texas (TA-W-74,575A); International Business Machines (IBM), Global Sales Operations Organization, Sales and Distribution Business Unit, Relations Analyst and Brand 8 Program Manager Roles, two teleworkers located in Atlanta, Georgia (TA-W-74,575B); International Business Machines (IBM), Global Sales Operations Organization, Sales and Distribution Business Unit, Relations Analyst and Brand 8 Program Manager Roles, one teleworker
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on June 10, 2010, applicable to workers of Faurecia Emissions Control Technologies, Troy, Michigan, including on-site leased workers from Adecco Employment Services, Troy, Michigan. The Department's notice of determination 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 activities related to the supply of corporate shared services such as information technology, financial, human resources, and purchasing support.
The company reports that workers leased from Emcon Technologies were employed on-site at the Troy, Michigan location of Faurecia Emissions Control Technologies. 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 workers leased from Emcon Technologies working on-site at the Troy, Michigan location of Faurecia Emissions Control Technologies.
The amended notice applicable to TA-W-73,609 is hereby issued as follows:
All workers of Faurecia Emissions Control Technologies, including on-site leased workers from Adecco Employment Services and Emcon Technologies, Troy, Michigan, who became totally or partially separated from employment on or after February 22, 2009, through June 10, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
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 December 31, 2008, applicable to workers of Continental Structural Plastics, North Baltimore, Ohio. The notice was published in the
At the request of the UAW, Local 1889, the Department reviewed the certification for workers of the subject firm. The workers produced exterior body panels and under body structural components for automobiles. The firm has since closed, eliminating the possibility of a new petition to cover these workers.
New information shows that workers leased from Kelly Services and Time Staffing were employed on-site at the North Baltimore, Ohio location of Continental Structural Plastics. 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 workers leased from Kelly Services and Time Staffing working on-site at the North Baltimore, Ohio location of Continental Structural Plastics.
The amended notice applicable to TA-W-64,458 is hereby issued as follows:
All workers of Continental Structural Plastics, including on-site leased workers from Kelly Services and Time Staffing, North Baltimore, Ohio, who became totally or partially separated from employment on or after November 11, 2007, through December 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, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility To Apply for Worker Adjustment Assistance on March 25, 2010, applicable to workers and former workers of Kennametal, Inc., Irwin, Pennsylvania (subject firm). The Department's Notice of Determination was published in the
Information obtained by the Department revealed that the appropriate subdivision covered by the certification includes an auxiliary facility producing carbide tips.
Based on these findings, the Department is amending this certification to include workers of Kennametal, Inc., Bedford, Pennsylvania, including on-site leased workers of Spherion Staffing Services.
The amended notice applicable to TA-W-70,851 is hereby issued as follows:
All workers of Kennametal, Inc., Irwin, Pennsylvania (TA-W-70,851) and Kennametal, Inc., including on-site leased workers from Spherion Staffing Services, Bedford, Pennsylvania (TA-W-70,851A), who became totally or partially separated from employment on or after May 28, 2008, through March 25, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on March 2, 2010, applicable to workers of Hewlett Packard Company, Personal Systems Group—Desktop Organization at four separate locations: Cupertino, California (including off-site teleworkers reporting to this location); Fort Collins, Colorado (TA-W-73,102A); Houston, Texas (TA-W-73,102B); and King of Prussia, Pennsylvania (TA-W-73,102C). The Department's notice of determination was published in the
New investigations were initiated in response to petitions filed on October 20, 2010 by a California State workforce official (TA-W-74,753) and November 23, 2010 by a company official (TA-W-74,917) on behalf of workers in 36 States in the Customer Warranty, Emerging Business, Supply Chain, Volume Operations, Worldwide Sales, and Americas Region Organizations within the Personal Systems Group of the Hewlett Packard Company. The workers are engaged in marketing, sales, call center, customer experience, solutions, engineering, supply chain, research, and product development services for personal computing system products.
The investigations established that workers in the Customer Warranty,
Therefore, at the request of the company official, certification number TA-W-73,102 is being amended to include workers in 36 States in the Customer Warranty, Emerging Business, Supply Chain, Volume Operations, Worldwide Sales, and Americas Region Organizations who were totally or partially separated or threatened with total or partial separation on or after December 9, 2008 through March 2, 2012. Petitions TA-W-74,753 and TA-W-74,917 are being terminated.
The amended notice applicable to TA-W-73,102 is hereby issued as follows:
All workers of Hewlett Packard Company, Personal Systems Group, in the following organizations: Desktop Organization, at the following locations only: Cupertino, California (73,102); Fort Collins, Colorado (73,102A); Houston, Texas (73,102B); and King of Prussia, Pennsylvania (73,102C); and Customer Warranty, Emerging Business, Supply Chain, Volume Operations, Worldwide Sales, and Americas Region Organizations, at the following locations: Anaheim, Cupertino, Oxnard, Palo Alto, Roseville, San Diego, and Sunnyvale, California, and teleworkers across California (TA-W-73,102); Colorado Springs and Fort Collins, Colorado, and teleworkers across Colorado (TA-W-73,102A); Austin, Houston, and Richardson, Texas, and teleworkers across Texas (TA-W-73,102B); King of Prussia and Philadelphia, Pennsylvania, and teleworkers across Pennsylvania (TA-W-73,102C); teleworkers across Alabama (TA-W-73,102D); Conway, Arkansas (TA-W-73,102E); teleworkers across Arizona (TA-W-73,102F); Nashua, Connecticut, and teleworkers across Connecticut (TA-W-73,102G); Miami, Florida, and teleworkers across Florida (TA-W-73,102H); Alpharetta and Atlanta, Georgia, and teleworkers across Georgia (TA-W-73,102I); Des Moines, Iowa (TA-W-73,102J); Boise, Idaho (TA-W-73,102K); Downers Grove, Illinois, and teleworkers across Illinois (TA-W-73,102L); Carmel, Indianapolis, and Plainfield, Indiana, and teleworkers across Indiana (TA-W-73,102M); teleworkers across Kansas (TA-W-73,102N); teleworkers across Kentucky (TA-W-73,102O); Andover, Marlborough, Nashua, and Westborough, Massachusetts, and teleworkers across Massachusetts (TA-W-73,102P); Bethesda, Maryland, and teleworkers across Maryland (TA-W-73,102Q); Farmington Hills, Michigan, and teleworkers across Michigan (TA-W-73,102R); Minneapolis, Minnesota, and teleworkers across Minnesota (TA-W-73,102S); teleworkers across Missouri (TA-W-73,102T); Greensboro, North Carolina, and teleworkers across North Carolina (TA-W-73,102U); Omaha, Nebraska (TA-W-73,102V); Marlborough and Nashua, New Hampshire, and teleworkers across New Hampshire (TA-W-73,102W); teleworkers across New Jersey (TA-W-73,102X); Rio Rancho, New Mexico (TA-W-73,102Y); Syracuse, New York and teleworkers across New York (TA-W-73,102Z); teleworkers across Ohio (TA-W-73,102AA); teleworkers across Oklahoma (TA-W-73,102BB); teleworkers across Oregon (TA-W-73,102CC); teleworkers across Tennessee (TA-W-73,102DD); teleworkers across Utah (TA-W-73,102EE); Richmond, Virginia, and teleworkers across Virginia (TA-W-73,102FF); teleworkers across Vermont (TA-W-73,102GG); Bellevue and Vancouver, Washington, and teleworkers across Washington (TA-W-73,102HH); Greenville, Wisconsin, and teleworkers across Wisconsin (TA-W-73,102II), who became totally or partially separated from employment on or after December 9, 2008 through March 2, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on November 23, 2010, applicable to workers of Ocwen Loan Servicing, LLC, including workers whose wages were reported under HomEQ Servicing, North Highland, California. The notice was published in the
At the request of the company, the Department reviewed the certification for workers of the subject firm. The workers supply loan servicing.
The Raleigh, North Carolina location operated in conjunction with the North Highland, California location. Both locations were part of the overall servicing operation and served the same customer base of mortgage loans, and were affected by the subject firm shifting loan services to a foreign country.
Accordingly, the Department is amending the certification to include workers of the Raleigh, North Carolina location of Ocwen Loan Servicing, LLC, including workers whose wages were reported under HomEQ Servicing.
The amended notice applicable to TA-W-74,610 is hereby issued as follows:
All workers of Ocwen Loan Servicing, LLC, including workers whose wages were reported under HomEQ Servicing, North Highland, California (TA-W-74,610), and Ocwen Loan Servicing, LLC, including workers whose wages were reported under HomEQ Servicing, Raleigh, North Carolina (TA-W-74,610A), who became totally or partially separated from employment on or after September 7, 2009, through November 23, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 7, 2010, applicable to workers of General Motors Company, formerly known as General Motors Corporation, Willow Run Transmission Plant, Ypsilanti, Michigan. The notice was published in the
At the request of the State, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of automotive transmissions and transmission components.
The company reports that workers leased from Quaker Chemical were employed on-site at the Ypsilanti, Michigan location of General Motors Company, formerly known as General Motors Corporation, Willow Run Transmission Plant. The Department has determined that on-site workers from Quaker Chemical were sufficiently under the control of General Motors Company, formerly known as General Motors Corporation, Willow Run Transmission Plant to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Quaker Chemical working on-site at the Ypsilanti, Michigan location of General Motors Company, formerly known as General Motors Corporation, Willow Run Transmission Plant.
The amended notice applicable to TA-W-72,319 is hereby issued as follows:
All workers General Motors Company, formerly known as General Motors Corporation, Willow Run Transmission Plant, including on-site leased workers from Aerotek, Securitas, Knight Management, PLMSI, Acro and Quaker Chemical, Ypsilanti, Michigan, who became totally or partially separated from employment on or after September 14, 2008, through July 7, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on April 14, 2010, applicable to workers of GMPT Warren Transmission, GM Powertrain Division, a subsidiary of General Motors Company, Warren, Michigan. The Department's notice was published in the
At the request of the United Automobile, Aerospace & Agriculture Implement Workers of America (UAW), Local 909, the Department reviewed the certification.
The company reports that workers leased from Knight Facilities Management were employed on-site at the Warren, Michigan location of the subject firm. The Department has determined that these workers were sufficiently under the control of GMPT Warren Transmission, GM Powertrain Division, a subsidiary of General Motors Company, to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Knight Facilities Management working on-site at the Warren, Michigan location of GMPT Warren Transmission, GM Powertrain Division, a subsidiary of General Motors Company.
The amended notice applicable to TA-W-71,374 is hereby issued as follows:
All workers of GMPT Warren Transmission, GM Powertrain Division, a subsidiary of General Motors Company, including on-site leased workers from Knight Facilities Management, Warren, Michigan, who became totally or partially separated from employment on or after June 16, 2008, through April 14, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
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 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. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) the increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) there has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) the shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies 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) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) the acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary 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(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) notice of an affirmative determination described in subparagraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
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 or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (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(c) (downstream producer for a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1), or (b)(1), or (c)(1)(employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued in cases where these petitions were not filed in accordance with the requirements of 29 CFR 90.11. Every petition filed by workers must be signed by at least three individuals of the petitioning worker group. Petitioners separated more than one year prior to the date of the petition cannot be covered under a certification of a petition under Section 223(b), and therefore, may not be part of a petitioning worker group. For one or more of these reasons, these petitions were deemed invalid.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
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 threatened to begin and the subdivision of the firm involved.
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 January 13, 2011.
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 January 13, 2011.
Copies of these petitions may be requested under the Freedom of Information Act. Requests may be submitted by fax, courier services, or mail, to FOIA Disclosure Officer, Office of Trade Adjustment Assistance (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 or to
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the Aeronautics Committee of the NASA Advisory Council. The meeting will be held for the purpose of soliciting from the aeronautics community and other persons research and technical information relevant to program planning.
Thursday, January 20, 2011, 9 a.m. to 4:30 p.m., Local Time; Friday, January 21, 2011, 8 a.m. to 11 a.m., Local Time.
National Aeronautics and Space Administration Headquarters, Room 6B42, 300 E Street, SW., Washington, DC 20546.
Ms. Susan L. Minor, Executive Secretary for
The meeting will be open to the public up to the capacity of the room. Any person interested in participating in the meeting by Webex and telephone should contact Ms. Susan L. Minor at (202) 358-0566 for the Web link, toll-free number and passcode. The agenda for the meeting includes the following topics:
• Aeronautics Budget Overview.
• Systems Analysis and Strategic Planning.
• Agency/Aeronautics Research Mission Directorate (ARMD) Workforce Planning.
• Aviation environmental research and regulatory environment.
• Aeronautics Committee 2011 Planning.
It is imperative that these meetings be held on this date to accommodate the scheduling priorities of the key participants. Attendees will be requested to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. U.S. citizens will need to show valid, officially-issued picture identification such as driver's license to enter the NASA Headquarters building (West Lobby—Visitor Control Center) and must state that they are attending the NASA Advisory Council Aeronautics Committee meeting in conference room 6B42 before receiving an access badge. All non-U.S. citizens must fax a copy of their passport, and print or type their name, current address, citizenship, company affiliation (if applicable) to include address, telephone number, and their title, place of birth, date of birth, U.S. visa information to include type, number, and expiration date, U.S. Social Security Number (if applicable), Permanent Resident Alien card number and expiration date (if applicable), and place and date of entry into the U.S., to Susan Minor, NASA Advisory Council Aeronautics Committee Executive Secretary, FAX 202-358-3602, by no less than 8 working days prior to the meeting. Non-U.S. citizens will need to show their Passport or Permanent Resident Alien card to enter the NASA Headquarters building. For questions, please call Susan Minor at (202) 358-0566.
National Science Foundation (NSF).
Notice.
NSF is hereby granting a limited exemption of section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111-5, 123 Stat. 115, 303 (2009), with respect to the purchase of the anti-roll tank control system that will be used in the Alaska Region Research Vessel (ARRV). An anti-roll tank is a system that is built into a vessel's hull to reduce rolling motion when operating at sea.
January 3, 2011.
National Science Foundation, 4201 Wilson Blvd., Arlington, Virginia 22230.
Mr. Jeffrey Leithead, Division of Acquisition and Cooperative Support, 703-292-4595.
In accordance with section 1605(c) of the Recovery Act and section 176.80 of Title 2 of the Code of Federal Regulations, the National Science Foundation (NSF) hereby provides notice that on October 22, 2010, the NSF Chief Financial Officer, in accordance with a delegation order from the Director of the agency, granted a limited project exemption of section 1605 of the Recovery Act (Buy American provision) with respect to the anti-roll tank control system that will be used in the ARRV. The basis for this exemption is section 1605(b)(2) of the Recovery Act, in that a “passive-controlled” anti-roll tank control system of satisfactory quality is not produced in the United States in sufficient and reasonably available commercial quantities. The cost of the anti-roll tank control system (~$130,000) represents less than 0.1% of the total $148 million Recovery Act award provided toward construction of the ARRV.
The Recovery Act appropriated $400 million to NSF for several projects being funded by the Foundation's Major Research Equipment and Facilities Construction (MREFC) account. The ARRV is one of NSF's MREFC projects. Section 1605(a) of the Recovery Act, the Buy American provision, states that none of the funds appropriated by the Act “may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.”
The ARRV has been developed under a cooperative agreement awarded to the University of Alaska, Fairbanks (UAF) that began in 2007. UAF executed the shipyard contract in December 2009 and the project is proceeding toward construction. The purpose of the Recovery Act is to stimulate economic recovery in part by funding current construction projects like the ARRV that are “shovel ready” without requiring projects to revise their standards and specifications, or to restart the bidding process again.
Subsections 1605(b) and (c) of the Recovery Act authorize the head of a Federal department or agency to waive the Buy American provision if the head of the agency finds that: (1) Applying the provision would be inconsistent with the public interest; (2) the relevant goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) the inclusion of the goods produced in the United States will increase the cost of the project by more than 25 percent. If the head of the Federal department or agency waives the Buy American provision, then the head of the department or agency is required to publish a detailed justification in the
Installation of an anti-roll tank system is included in the construction specifications to improve the ARRV's response to roll motion. Anti-roll tanks are a relatively simple and efficient way to improve the comfort and safety of personnel sailing aboard the ship. They consist of a tank filled with fluid (usually seawater) that is designed to slow the rate of water transfer from one side of the vessel to the other, trapping the larger amount of water on the higher side of the vessel. The water is trapped
The ARRV will operate as a global class ship within the U.S. academic research vessel fleet. As such, it is expected to deploy worldwide where it will encounter a wide variety of sea conditions. Over the vessel's service life, the ARRV is likely to be deployed to Arctic and Antarctic waters, the north Pacific and north Atlantic where the average wave lengths and heights can be extreme as well as vary dramatically. Vessels working in these high latitudes are subject to demanding and often dangerous conditions due to low temperatures, high winds, and rough seas.
The addition of the anti-roll tank was a high priority recommendation from the Final Design Review (FDR) held in October 2008. The review panel recognized the need for the vessel to periodically work well beyond the Arctic waters that the hull was initially optimized for. At that time, the design of the ARRV was fairly well advanced. Besides the addition of hull length to incorporate the tank structure itself, the type of anti-roll tank specified must meet the following technical requirements based on the status of the project:
• Ability to minimize ship's roll response in a wide variety of sea states (either “Active” or “Passive-controlled”).
• Minimize impact on construction cost (low complexity, low additional power).
• Minimize operating cost (low complexity).
Failure to meet any of these technical requirements would have severe negative consequences for the project with regard to nonperformance and significant added program cost. It would also result in a vessel that could not successfully support open water science equipment deployments over the anticipated operating range which includes the high polar regions (north and south), as well as the Gulf of Alaska, the north Pacific and the north Atlantic. The average wave lengths and heights encountered in these areas are widely different which means the vessel motions produced will be widely different.
Following FDR, the project conducted a detailed anti-roll tank study to assess alternatives. A passive-controlled anti-roll tank system was determined to be the best option over a simpler passive system because of its ability to be “tuned” to a wide variety of sea conditions. Since the ARRV will operate as a global-ranging vessel with an emphasis on the high latitudes, an anti-roll tank that can respond to the widely varying sea states encountered is essential. Otherwise, vessel motions will not be adequately reduced to permit safe and effective science operations. All global research vessels are fitted with similar anti-roll tanks. In addition, the system has low power requirements and compared to a fully “active” system has a minimal design impact. In short, the passive-controlled system provides the best performance for the least impact on the existing design.
Reducing the vessel's roll response decreases the number of days per year that the ship would have to halt science operations because of excessive ship's motion. At a certain point, the vessel motions become severe enough that the crew and science party are no longer effective due to seasickness or fatigue. Once this occurs, the ability to complete the science mission goes down dramatically either causing cancellation of science objectives or extension of the mission to fully complete the objectives. The chance of injuring personnel and/or damaging equipment also goes up dramatically. The daily rate for the ARRV is estimated at $45,000 per day in 2014 dollars. Given that the vessel will operate mainly in the high latitudes, losing 10% of the ship's schedule (30 days) annually due to weather would be likely if a technically compliant anti-roll tank were not fitted in the vessel. In as little as two years the lost science time to the agency could easily exceed the entire cost of the anti-roll tank addition (~$2.2 million).
For the purposes of this exemption request, the “anti-roll tank system” includes only the manufactured goods that make up the control portion of the system; namely the control panel, control valves, safety valves, air filters, switches, accumulators, sensors, and spare parts. This request does not include the fabrication of the tanks and cross-over piping which are part of the ship structure being fabricated by the shipyard (~$2.0 million) all of which will be U.S. steel and U.S. manufacture.
The market research for this exemption was done by the shipyard in the summer of 2010 and verified by the UAF project team in September 2010. As noted in UAF's request for this exemption, the shipyard performed market research by reviewing industry publications and the Internet in order to assess whether there exists a domestic capability to provide an anti-roll tank system that meets the necessary requirements for safe and successful operation in high latitudes and multiple ocean environments. Only three (3) potential suppliers were identified; two (2) were foreign-owned and the third was domestic. The shipyard compared the existing product lines for compliance with the anti-roll tank technical specifications and requirements as identified above. Following a presentation at the shipyard, it was determined that the one domestic supplier did not provide a system with the required passive-controlled capability. They supplied only a passive system which cannot be tuned to various sea conditions. Furthermore, although domestically-owned it was determined that the system from the single domestic supplier was not actually manufactured domestically. The result of the shipyard's independent market research is consistent with a determination made by the project team in early 2009 when conducting the anti-roll tank study.
The project's conclusion is there are no US manufacturers who produce a suitable anti-roll system that meets all of the ARRV requirements so an exemption to the Buy American requirements is necessary.
In the absence of a domestic supplier that could provide a requirements-compliant anti-roll tank system, UAF requested that NSF issue a Section 1605 exemption determination with respect to the purchase of a foreign-supplied, requirements-compliant anti-roll tank system, so that the vessel will meet the specific design and technical requirements which, as explained above, are necessary for this vessel to be able to perform its mission safely and successfully. Furthermore, the shipyard's market research as verified by UAF indicated that an anti-roll tank system compliant with the ARRV's technical specifications and requirements is commercially available from foreign vendors within their standard product lines.
NSF's Division of Acquisition and Cooperative Support (DACS) and other NSF program staff reviewed the UAF exemption request submittal, found that
On October 22, 2010, based on the finding that no domestically produced anti-roll tank system met all of the ARRV's technical specifications and requirements and pursuant to section 1605(b), the NSF Chief Financial Officer, in accordance with a delegation order from the Director of the agency, granted a limited project exemption of the Recovery Act's Buy American requirements with respect to the procurement of a passive-controlled anti-roll tank control system.
National Science Foundation (NSF).
Notice.
NSF is hereby granting a limited exemption of section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111-5, 123 Stat. 115, 303 (2009), with respect to the purchase of the weather facsimile machine that will be used in the Alaska Region Research Vessel (ARRV). A weather facsimile (weather fax) is an electronic machine designed to automatically receive near-real time marine weather information.
January 3, 2011.
National Science Foundation, 4201 Wilson Blvd., Arlington, Virginia 22230.
Mr. Jeffrey Leithead, Division of Acquisition and Cooperative Support, 703-292-4595.
In accordance with section 1605(c) of the Recovery Act and section 176.80 of Title 2 of the Code of Federal Regulations, the National Science Foundation (NSF) hereby provides notice that on October 22, 2010, the NSF Chief Financial Officer (CFO), in accordance with a delegation order from the Director of the agency, granted a limited project exemption of section 1605 of the Recovery Act (Buy American provision) with respect to the weather fax that will be used in the ARRV. The basis for this exemption is section 1605(b)(2) of the Recovery Act, in that weather faxes of satisfactory quality are not produced in the United States in sufficient and reasonably available commercial quantities. The cost of the weather fax is approximately $11,000, which represents less than .01% of the value of the total $148 million Recovery Act award provided toward construction of the ARRV.
The Recovery Act appropriated $400 million to NSF for several projects being funded by the Foundation's Major Research Equipment and Facilities Construction (MREFC) account. The ARRV is one of NSF's MREFC projects. Section 1605(a) of the Recovery Act, the Buy American provision, states that none of the funds appropriated by the Act “may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.”
The ARRV has been developed under a cooperative agreement awarded to the University of Alaska, Fairbanks (UAF) that began in 2007. Shipyard selection is complete and UAF executed the construction contract in December 2009. The purpose of the Recovery Act is to stimulate economic recovery in part by funding current construction projects like the ARRV that are “shovel ready” without requiring projects to revise their standards and specifications, or to restart the bidding process again.
Subsections 1605(b) and (c) of the Recovery Act authorize the head of a Federal department or agency to waive the Buy American provision if the head of the agency finds that: (1) Applying the provision would be inconsistent with the public interest; (2) the relevant goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) the inclusion of the goods produced in the United States will increase the cost of the project by more than 25 percent. If the head of the Federal department or agency waives the Buy American provision, then the head of the department or agency is required to publish a detailed justification in the
The requirement for a weather fax was part of the construction specifications for the ARRV. A weather fax provides valuable, near-real time weather information to the ship as an aid for planning science operations and transit voyages. It is a standard piece of electronic bridge equipment throughout the world as it provides the ship operator with an excellent and necessary forecasting tool to assess weather impact on operations. The specification requirements for the weather fax include:
1. Performance, reliability, maintainability, durability, size, and weight.
2. Regulatory body approval.
3. Availability of spare parts.
4. Operate within the 2 MHz to 25 MHz range.
5. Built-in receiver.
6. Built-in thermal printer.
7. Human Machine Interface that allows the operator easy access for system set-up.
8. Pre-programmed with 150 channels for the existing facsimile stations world-wide and allow manual programming by the operator.
9. Internal back-up battery.
10. Automatic start/stop recording and printing.
An important feature operationally is being a stand-alone unit with a built in printer and automatic operation. This provides the bridge watch with a hard copy of weather charts and weather satellite images in the pilothouse without having to access a computer or keep track of when a facsimile station is scheduled to transmit. The automatic operation is critical to minimize distractions to the bridge watch who can then retrieve the hard copy for analysis at a time that will not impact navigational duties. Science and routine vessel operational duties are demanding, especially in the high latitudes where the ARRV will operate. Any unnecessary distractions in the pilothouse can jeopardize the safety of the vessel.
The ARRV will operate as a Global class ship within the U.S. academic research vessel fleet. As such, it is expected to deploy worldwide where it is likely to encounter highly variable weather conditions. Over the vessel's service life, the ARRV is likely to be deployed to Arctic and Antarctic waters, the north Pacific and north Atlantic
The market research for this exemption was done by the shipyard in the summer of 2010 and verified by the UAF project team in July 2010. As noted in UAF's request for this exemption, the shipyard performed market research by reviewing industry publications, the Internet (including the Marine Electronics Journal Web site) and contacting various electronic supply companies in order to assess whether there exists a domestic capability to provide a weather fax that meets the necessary requirements for safe and successful operation world-wide. Eighteen (18) potential vendors were identified with only six (6) manufacturing a weather fax. Of the six, only one (1) was a U.S. manufacturer. The shipyard then compared the existing product lines for compliance with the weather fax technical specifications and requirements as identified above. It was found that the one U.S. manufacturer did not make a unit that was stand-alone. Instead, the system uses a personal computer to provide both the human interface and printing capability of the weather charts. This requires the bridge watch to actively manage and interface with the system, which takes their attention from other navigational and operational duties. This distraction increases the likelihood of collision, grounding, failure to adequately monitor over-the-side science operations, and inadvertently sailing into dangerous weather conditions. Because of this, all modern ocean-going vessels have at least one stand-alone weather fax system.
The project's conclusion is there are no U.S. manufacturers who produce a suitable weather fax unit that meets all of the ARRV requirements so an exemption to the Buy American requirements is necessary.
In the absence of a domestic supplier that could provide a requirements-compliant weather fax, UAF requested that NSF issue a Section 1605 exemption determination with respect to the purchase of a foreign-supplied, requirements-compliant weather fax, so that the vessel will meet the specific design and technical requirements which, as explained above, are necessary for this vessel to be able to perform its mission safely and successfully. Furthermore, the shipyard's market research as verified by UAF indicated that a weather fax compliant with the ARRV's technical specifications and requirements is commercially available from foreign vendors within their standard product lines.
NSF's Division of Acquisition and Cooperative Support (DACS) and other NSF program staff reviewed the UAF exemption request submittal, found that it was complete, and determined that sufficient technical information was provided in order for NSF to evaluate the exemption request and to conclude that an exemption is needed and should be granted.
On October 22, 2010, based on the finding that no domestically produced weather fax met all of the ARRV's technical specifications and requirements and pursuant to section 1605(b), the NSF Chief Financial Officer, in accordance with a delegation order from the Director of the agency, granted a limited project exemption of the Recovery Act's Buy American requirements with respect to the procurement of the marine weather fax.
The U.S. Nuclear Regulatory Commission (NRC) has received and expects to receive exemption requests from several nuclear power reactor licensees. Each expected exemption request will be from the implementation date requirement of Title 10 of the Code of Federal Regulations (10 CFR) 73.55. The NRC is authorized to issue exemptions pursuant to 10 CFR 73.5. In accordance with 10 CFR 51.21, the NRC has performed a programmatic environmental assessment of these exemption requests. The NRC concluded that the proposed action constitutes administrative (timing) changes that would not impact the environmental resources near any specified nuclear power plant. Based upon the results of this programmatic environmental assessment, the NRC is issuing a finding of no significant impact.
The proposed action may include issuing exemptions to nuclear power plant licensees for up to 40 nuclear power plant sites, all of which have already been granted plant-specific exemptions granting additional time to implement some of the new requirements of 10 CFR 73.55. These sites are:
Specifically, the licensees for each of these plants may propose an additional alternate date for full compliance beyond the March 31, 2010 date required by 10 CFR 73.55(a)(1), and if approved by the NRC, would be granted a plant-specific exemption. The proposed action, an exemption extending the schedule for completion of actions required by the revised 10 CFR 73.55, would not involve any physical changes to the reactor(s), fuel, plant structures, support structures, land, or water at each nuclear power plant site. If granted, a plant-specific safety evaluation will be included in the letter to the licensee approving the exemption from the regulation.
The proposed action is needed to continue to exempt up to 40 nuclear power plant sites from being in full compliance with new requirements contained in 10 CFR 73.55. The original implementation date was March 31, 2010 and previous exemptions were granted to several licensees from meeting that date. Another round of exemptions is needed to provide these licensees with additional time to comply with the rule requirements. While licensees completed much of the work required by the 10 CFR 73.55 rule change at their plants by the March 31, 2010 implementation date, affected licensees require additional time to complete all newly required modifications.
The NRC regulation, 10 CFR 73.55, requires NRC nuclear power plant licensees to implement various physical protection requirements to prevent radiological sabotage. The NRC has completed its environmental assessment of the proposed action, and has concluded that, should NRC decide to grant a 10 CFR 73.55 compliance date exemption to these plants, extending the implementation deadline would not significantly affect plant safety and would not significantly affect the probability of an accident.
The proposed action would not increase the radiological hazard beyond what was analyzed in the environmental assessment and finding of no significant impact made by the Commission in promulgating its revisions to 10 CFR 73.55 as discussed in the
In addition, there will be no construction or major renovation of any buildings or structures, nor any ground disturbing activities associated with an extension of the compliance deadline. Licensees would not increase or decrease their workforce, nor is traffic to or around any of the subject power plants expected to increase, as a result of an extension of the compliance deadline. Therefore, providing licensees with additional time to comply with the revised requirements of 10 CFR 73.55 would not alter land use, air quality, and water use (quality and quantity) conditions or National Pollutant Discharge Elimination System permits at each of the nuclear power plants that may be the subject of an exemption request. Aquatic and terrestrial habitat in the vicinity of each power plant; threatened, endangered, and protected species under the Endangered Species Act; and essential fish habitat covered by the Magnuson-Stevens Act would not be affected. In addition, historic and cultural resources, socioeconomic conditions, and minority and low-income populations in the vicinity of each power plant would also not be affected by this action.
As previously noted, in promulgating its amendments to 10 CFR part 73, the Commission prepared an environmental assessment of the rule change and published a finding of no significant impact (10 CFR parts 50, 52, 72, and 73, Power Reactor Security Requirements, 74 FR 13926 (March 27, 2009)). Thus, through the proposed action, the Commission would be granting additional time for the licensees to comply with regulatory requirements for which the Commission has already found no significant impact.
For the foregoing reasons, the NRC concludes that there would be no significant radiological or non-radiological environmental impacts associated with the extension of the implementation date of the new requirements of 10 CFR 73.55.
As an alternative to the proposed action, the NRC considered denial of the proposed actions (
Denial of the exemption requests would result in the licensees being in non-compliance with 10 CFR 73.55(a)(1) and thus, subject to NRC enforcement action. The end result, however, would still be ultimate licensee compliance with the requirements of 10 CFR 73.55, but with the added expense to both the NRC and the licensees of any enforcement actions. The NRC concludes that the environmental impacts of the proposed exemption and the “no action” alternative are similar.
The proposed action does not involve the use of any different resources than those considered in the final environmental statements for the granting of the operating licenses for these nuclear power plants and for those plants that have had their licenses renewed, in NUREG-1437, “Generic Environmental Impact Statement for License Renewal of Nuclear Plants,” published in May 1996, and its supplements published from 1999 to the present.
On the basis of the above environmental assessment, which in accordance with 10 CFR 51.32(a)(4), is incorporated into this finding of no significant impact by reference, the NRC concludes that the proposed action constitutes an administrative change (timing) that would not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
Further details with respect to the proposed action will be available as individual licensees request exemptions. Portions of these requests may contain proprietary and safeguards information and, accordingly, will not available to the public. Other parts of these documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O-1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available records will be accessible electronically from the Agencywide Document Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site:
Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR Reference staff by telephone at 1-800-397-4209 or 301-415-4737, or send an e-mail to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of Issuance and Availability of Regulatory Guide 3.71, Revision 2, “Nuclear Criticality Safety Standards for Fuels and Material Facilities.”
Tamara D. Powell, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-492-3211 or e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is issuing a revision to an existing guide in the agency's “Regulatory Guide” series. This series was developed to describe and make available to the public information such as methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
Revision 2 of Regulatory Guide 3.71, entitled, “Nuclear Criticality Safety Standards for Fuels and Material Facilities,” was issued with a temporary identification as Draft Regulatory Guide, DG-3030. Regulatory Guide 3.71 provides applicants, licensees, and certificate holders with updated guidance concerning criticality safety standards that the NRC has endorsed for use with nuclear fuels and material facilities. As such, Regulatory Guide 3.71 describes methods that the NRC staff considers acceptable for complying with the NRC's regulations in Title 10, of the Code of Federal Regulations, parts 70, “Domestic Licensing of Special Nuclear Material,” and 76, “Certification of Gaseous Diffusion Plants” (10 CFR parts 70 and 76).
The NRC staff has revised Regulatory Guide 3.71 to provide guidance on complying with these portions of the NRC's regulations. This guide describes procedures for preventing nuclear criticality accidents in operations that involve handling, processing, storing, and/or transporting special nuclear material at fuel and material facilities. It also endorses specific nuclear criticality safety standards developed by the American Nuclear Society's Standards Subcommittee 8 (ANS-8), “Operations with Fissionable Materials Outside Reactors.” Regulatory Guide 3.71 is not intended for use by nuclear reactor licensees.
In July 2010, DG-3030 was published with a public comment period of 60 days from the issuance of the guide. The public comment period closed on September 29, 2010. The staff's responses to the public comments received are located in the NRC's Agencywide Documents Access and Management System under Accession Number ML103210349. Electronic copies of Regulatory guide 3.71, Revision 2 are available through the NRC's public Web site under “Regulatory Guides” at
In addition, regulatory guides are available for inspection at the NRC's Public Document Room (PDR) located at Room O-1F 21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852-2738. The PDR's mailing address is USNRC PDR, Washington, DC 20555-0001. The PDR can also be reached by telephone: 301-415-4737 or 800-397-4209, by fax: 301-415-3548, and by e-mail:
Regulatory guides are not copyrighted, and Commission approval is not required to reproduce them.
For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission (NRC).
Notice of Availability.
As part of the consolidated line item improvement process (CLIIP), the NRC is announcing the availability of the model application (with model no significant hazards consideration determination) and model safety evaluation (SE) for the plant-specific adoption of Technical Specifications Task Force (TSTF) Traveler TSTF-513, Revision 3, “Revise PWR [pressurized water reactor] Operability Requirements and Actions for RCS [reactor coolant system] Leakage Instrumentation.” TSTF-513, Revision 3, is available in the Agencywide Documents Access and Management System (ADAMS) under Accession Number ML102360355. The proposed changes would revise the Standard Technical Specifications (STS) to define a new time limit for restoring inoperable RCS leakage detection instrumentation to operable status and establish alternate methods of monitoring RCS leakage when one or more required monitors are inoperable. Changes to the Technical Specifications (TS) Bases are included, which reflect the proposed changes and more accurately reflect the contents of the facility design bases related to the operability of the RCS leakage detection instrumentation. The CLIIP model SE will facilitate expedited approval of plant-specific adoption of TSTF-513, Revision 3.
The model application (with model no significant hazards consideration determination) and model SE for the plant-specific adoption of TSTF-513, Revision 3, are available electronically under ADAMS Accession Number ML101340271. The NRC staff disposition of comments received on the Notice of Opportunity for Comment announced in the
Mr. Matthew Hamm, Reactor Systems Engineer, Technical Specifications Branch, Mail Stop: O-7C2A, Division of Inspection and Regional Support, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1472 or e-mail:
TSTF-513, Revision 3, is applicable to PWR plants. Licensees opting to apply for this TS change are responsible for reviewing TSTF-513, Revision 3, and the NRC staff's model SE, referencing the applicable technical justifications, providing any necessary plant-specific information, and assessing the completeness and accuracy of their license amendment request (LAR). It is acceptable for licensees to use plant-specific system names, TS numbering and titles. The NRC will process each amendment application responding to this notice of availability according to applicable NRC rules and procedures.
The CLIIP does not prevent licensees from requesting an alternate approach or proposing changes other than those proposed in TSTF-513, Revision 3. However, significant deviations from the approach recommended in this notice or the inclusion of additional changes to the license require additional NRC staff review and would not be reviewed as a part of the CLIIP. This may increase the time and resources needed for the review or result in NRC staff rejection of the LAR. Licensees desiring significant deviations or additional changes should instead submit an LAR that does not claim to adopt TSTF-513, Revision 3.
For the Nuclear Regulatory Commission,
Submission for Office of Management and Budget (OMB) review; comment request.
The Peace Corps has submitted the following two (2) information collection to the Office of Management and Budget (OMB) for extension under the provisions of the Paperwork Reduction Act of 1995. This notice invites the public to comment on the renewal of two information collections: Correspondence Match Educator Enrollment Form and Teacher Survey (OMB 0420-0513) and Peace Corps Week Brochure (OMB 0420-0529). Peace Corps invites comments on whether the proposed collections of information is necessary for proper performance of the functions of the Peace Corps, including whether the information will have practical use; the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the information to be collected; and, ways to minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Comments regarding this collection must be received on or before February 2, 2011.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB approval number and should be sent via e-mail to:
Denora Miller, FOIA Officer, Peace Corps, 1111 20th Street, NW., Washington, DC 20526, (202) 692-1236, or e-mail at
Proposal to renew the following three (3) information collections currently approved collection of information:
1.
2.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add Priority Mail Contract 33 to the competitive product list. This notice addresses procedural steps associated with this filing.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel,
Pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. The instant contract has been assigned Docket No. CP2011-49.
• Attachment A—a redacted copy of Governors' Decision No. 09-6, originally filed in Docket No. MC2009-25, authorizing certain Priority Mail contracts;
• Attachment B—a redacted copy of the contract;
• Attachment C—a proposed change in the Mail Classification Schedule competitive product list;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and supporting documents under seal.
In the Statement of Supporting Justification, Josen Punnoose, Manager, Shipping Support (A), Shipping Services, asserts that the service to be provided under the contract will cover its attributable costs, make a positive contribution to institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the specific Priority Mail Contract 33, under seal.
The Commission establishes Docket Nos. MC2011-13 and CP2011-49 for consideration of the Request pertaining to the proposed Priority Mail Contract
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642 and 39 CFR part 3015 and 39 CFR part 3020, subpart B. Comments are due no later than January 4, 2011. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Derrick D. Dennis to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2011-13 and CP2011-49 for consideration of the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Derrick D. Dennis is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than January 4, 2011.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add Priority Mail Contract 33 to the competitive product list. This notice addresses procedural steps associated with this filing.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel,
Pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. The instant contract has been assigned Docket No. CP2011-49.
• Attachment A—a redacted copy of Governors' Decision No. 09-6, originally filed in Docket No. MC2009-25, authorizing certain Priority Mail contracts;
• Attachment B—a redacted copy of the contract;
• Attachment C—a proposed change in the Mail Classification Schedule competitive product list;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and supporting documents under seal.
In the Statement of Supporting Justification, Josen Punnoose, Manager, Shipping Support (A), Shipping Services, asserts that the service to be provided under the contract will cover its attributable costs, make a positive contribution to institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the specific Priority Mail Contract 33, under seal.
The Commission establishes Docket Nos. MC2011-13 and CP2011-49 for consideration of the Request pertaining to the proposed Priority Mail Contract 33 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642 and 39 CFR part 3015 and 39 CFR 3020, subpart B. Comments are due no later than January 4, 2011. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Derrick D. Dennis to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2011-13 and CP2011-49 for consideration of the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Derrick D. Dennis is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than January 4, 2011.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add Express Mail Contract 11 to the competitive product list. This notice addresses procedural steps associated with this filing.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel,
Pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. The contract has been assigned Docket No. CP2011-50.
• Attachment A—a redacted copy of Governors' Decision No. 09-14, originally filed in Docket Nos. MC2010-5 and CP2010-5, authorizing certain Express Mail contracts;
• Attachment B—a redacted copy of the contract;
• Attachment C—a proposed change in the Mail Classification Schedule competitive product list;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and supporting documents under seal.
In the Statement of Supporting Justification, Josen Punnoose, Manager, Shipping Support (A), Shipping Services, asserts that the service to be provided under the contract will cover its attributable costs, make a positive contribution to institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the specific Express Mail Contract 11, under seal.
The Commission establishes Docket Nos. MC2011-14 and CP2011-50 for consideration of the Request pertaining to the proposed Express Mail Contract 11 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642 and 39 CFR part 3015 and 39 CFR 3020, subpart B. Comments are due no later than January 4, 2011. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Derrick D. Dennis to serve as Public Representative in these dockets.
It is ordered:
1. The Commission establishes Docket Nos. MC2011-14 and CP2011-50 for consideration of the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Derrick D. Dennis is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than January 4, 2011.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add Priority Mail—Non-published Rates to the competitive product list. This notice addresses procedural steps associated with this filing.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel,
On December 17, 2010, the Postal Service requested that the Commission add Priority Mail—Non-published Rates to the competitive product list within the Mail Classification Schedule (MCS).
• Attachment 1—a redacted copy of Governors' Decision No. 10-6 and attachments thereto, including MCS language describing Priority Mail—Non-published Rates, pricing and methodology, management analysis, and certification that the prices and methodology satisfy applicable criteria;
• Attachment 2—a model contract between the Postal Service and a customer of Priority Mail—Non-published Rates;
• Attachment 3—a Statement of Supporting Justification as required by 39 CFR 3020.32; and
• Attachment 4—an application for non-public treatment of materials to maintain redacted portions of the Governors' Decision, with attachments, and supporting documents under seal.
1. The Commission establishes Docket Nos. MC2011-15 and CP2011-51 to consider matters raised in the Postal Service's December 17, 2010 Request.
2. Comments are due January 11, 2011. Reply comments are due January 18, 2011.
3. Pursuant to 39 U.S.C. 505, the Commission appoints Derrick D. Dennis to represent the interests of the general public in this proceeding.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the shares of the following fund of the WisdomTree Trust (“Trust”) under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): WisdomTree Asia Bond Fund (“Fund”). The shares of the Fund are collectively referred to herein as the “Shares.”
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 proposes to list and trade the Shares of the WisdomTree Asia Bond Fund under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange.
WisdomTree Asset Management, Inc. (“WisdomTree Asset Management”) is the investment adviser (“Adviser”) to the Fund.
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the Investment Company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such Investment Company portfolio.
According to the Registration Statement, the Fund seeks to provide investors with a high level of total return consisting of both income and capital appreciation. The Fund is an actively managed exchange-traded fund (“ETF”). The Fund is designed to provide exposure to a broad range of Asian government and corporate bonds through investment in both local currency (
The Fund seeks to achieve its investment objective through direct and indirect investments in Fixed Income Securities issued by governments and corporations in Asian countries. The Fund intends to focus on the developing/emerging market economies in Asia, primarily China, Hong Kong, India, Indonesia, South Korea, Malaysia, the Philippines, Singapore, Taiwan and Thailand. While the Fund is permitted to invest in developed market economies, this is not a focus of the Fund. Therefore, although the Fund is permitted to do so, the Fund is unlikely to invest in issuers in Japan, Australia, or New Zealand.
The Fund is designed to provide broad exposure to Asian government and corporate bonds and will invest in a range of instruments with varying credit risk and duration. The Fund
The Fund intends to invest at least 70% of its net assets in Fixed Income Securities.
The Adviser represents that Asian sovereign debt is typically issued in large par size and tends to be very liquid. Local currency-denominated Asian debt issued by supranational entities is also actively traded. Intra-day, executable price quotations on such instruments are available from major broker-dealer firms. Intra-day price information is available through subscription services, such as Bloomberg and Thomson Reuters, which can be accessed by Authorized Participants and other investors.
According to the Registration Statement, the Fund typically will maintain aggregate portfolio duration of between 2 and 8 years. Aggregate portfolio duration is a measure of the portfolio's sensitivity to changes in the level of interest rates. The Fund's actual portfolio duration may be longer or shorter depending upon market conditions.
The universe of Asian Fixed Income Securities includes securities that are rated “investment grade” as well as “non-investment grade” securities. The Fund is designed to provide a broad-based, representative exposure to Asian government and corporate bonds and therefore will invest in both investment grade and non-investment grade securities in a manner designed to provide this exposure. The Fund expects that it will have 75% or more of its assets invested in investment grade securities, and no more than 25% of its assets invested in non-investment grade securities. Because the Fund is designed to provide exposure to a broad range of Asian government and corporate bonds, and because the debt ratings of the Asian governments and those corporate issuers will change from time to time, the exact percentage of the Fund's investments in investment grade and non-investment grade securities will change from time to time in response to economic events and changes to the credit ratings of the Asian government and corporate issuers.
The Fund will hold Fixed Income Securities of at least 13 non-affiliated issuers. The Fund will not concentrate 25% or more of the value of its total assets (taken at market value at the time of each investment) in any one industry, as that term is used in the 1940 Act (except that this restriction does not apply to obligations issued by the U.S. government, or any non-U.S. government, or their respective agencies and instrumentalities or government-sponsored enterprises).
The Fund intends to qualify each year as a regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code of 1986, as amended. The Fund will invest its assets, and otherwise conduct its operations, in a manner that is intended to satisfy the qualifying income, diversification and distribution requirements necessary to establish and maintain RIC qualification under Subchapter M. The Subchapter M diversification tests generally require that (i) the Fund invest no more than 25% of its total assets in securities (other than securities of the U.S. government or other RICs) of any one issuer or two or more issuers that are
In addition to satisfying the above referenced RIC diversification requirements, no portfolio security held by the Fund (other than U.S. government securities and non-U.S. government securities) will represent more than 30% of the weight of the portfolio and the five highest weighted portfolio securities of the Fund (other than U.S. government securities and/or non-U.S. government securities) will not in the aggregate account for more than 65% of the weight of the portfolio. For these purposes, the Fund may treat repurchase agreements collateralized by U.S. government securities or non-U.S. government securities as U.S. or non-U.S. government securities, as applicable.
The Fund intends to invest in Money Market Securities in order to help manage cash flows in and out of the Fund, such as in connection with payment of dividends or expenses, and to satisfy margin requirements, to provide collateral or to otherwise back investments in derivative instruments. For these purposes, Money Market Securities include: short-term, high-quality obligations issued or guaranteed by the U.S. Treasury or the agencies or instrumentalities of the U.S. government; short-term, high-quality securities issued or guaranteed by non-U.S. governments, agencies and instrumentalities; repurchase agreements backed by U.S. government securities; money market mutual funds; and deposits and other obligations of U.S. and non-U.S. banks and financial institutions. All Money Market Securities acquired by the Fund will be rated investment grade; except that the Fund may invest in unrated Money Market Securities that are deemed by the Adviser or Sub-Adviser to be of comparable quality to money market securities rated investment grade.
The Fund may use derivative instruments as part of its investment strategies. Examples of derivative instruments include listed futures contracts,
With respect to certain kinds of derivative transactions entered into by the Fund that involve obligations to make future payments to third parties, including, but not limited to, futures, forward contracts, swap contracts, the purchase of securities on a when-issued or delayed delivery basis, or reverse repurchase agreements, under applicable Federal securities laws, rules, and interpretations thereof, the Fund must “set aside” liquid assets, or engage in other measures to “cover” open positions with respect to such transactions.
The Fund may engage in foreign currency transactions, and may invest directly in foreign currencies in the form of bank and financial institution deposits, certificates of deposit, and bankers acceptances denominated in a specified non-U.S. currency. The Fund may enter into forward currency contracts in order to “lock in” the exchange rate between the currency it will deliver and the currency it will receive for the duration of the contract.
The Fund may enter into swap agreements, including interest rate swaps and currency swaps (
The Fund may invest in the securities of other investment companies (including money market funds and ETFs). The Fund may invest up to an aggregate amount of 10% of its net assets in illiquid securities. Illiquid securities include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets.
The Fund will not invest in non-U.S. equity securities.
The Fund issues and redeems Shares on a continuous basis at NAV
Additional information regarding the Shares and the Fund, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions and taxes is included in the Registration Statement.
The Fund's Web site (
In addition, for the Fund, an estimated value, defined in Rule 8.600 as the “Portfolio Indicative Value,” that reflects an estimated intraday value of the Fund's portfolio, will be disseminated. The Portfolio Indicative Value will be based upon the current value for the components of the Disclosed Portfolio and will be updated and disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session on the Exchange. In addition, during hours when the markets for Fixed Income Securities in the Fund's portfolio are closed, the Portfolio Indicative Value will be updated at least every 15 seconds during the Core Trading Session to reflect currency exchange fluctuations.
The dissemination of the Portfolio Indicative Value, together with the Disclosed Portfolio, will allow investors to determine the value of the underlying portfolio of the Fund on a daily basis and to provide a close estimate of that value throughout the trading day.
Information regarding market price and volume of the Shares is and will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. The previous day's closing price and trading volume information will be published daily in the financial section of newspapers. Quotation and last-sale information for the Shares will be available via the Consolidated Tape Association high-speed line.
Intra-day and end-of-day prices are readily available through major market data providers and broker-dealers for the Fixed Income Securities, Money Market Securities and derivative instruments held by the Fund.
The Shares will be subject to Rule 8.600, which sets forth the initial and continued listing criteria applicable to Managed Fund Shares. The Exchange represents that, for initial and/or continued listing, the Shares must be in compliance with Rule 10A-3 under the Exchange Act,
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund. Shares of the Fund will be halted if the “circuit breaker” parameters in NYSE Arca Equities Rule 7.12 are reached. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities and/or financial instruments comprising the Disclosed Portfolio of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares will be subject to Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. Eastern time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which includes Managed Fund Shares) to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable Federal securities laws.
The Exchange's current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange may obtain information via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members of the ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. Eastern time each trading day.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 November 5, 2010, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade the Shares of the Funds under NYSE Arca Equities Rule 8.200, Commentary .02.
ProShare Capital Management LLC, a Maryland limited liability company, serves as the Sponsor of the Trust and is a commodity pool operator and commodity trading advisor.
If a Fund is successful in meeting its objective, its value (before fees and expenses) should gain approximately as much on a percentage basis as the level of its corresponding Index when it rises. Conversely, its value (before fees and expenses) should lose approximately as much on a percentage basis as the level of its corresponding Index when it declines. Each Fund will acquire exposure through VIX futures contracts traded on the CBOE Futures Exchange (“CFE”) (“VIX Futures Contracts”), such that each Fund has exposure intended to approximate the benchmark at the time of the net asset value (“NAV”) calculation.
Each Fund will not be actively managed by traditional methods, which typically involve effecting changes in the composition of a portfolio on the basis of judgments relating to economic, financial, and market considerations with a view toward obtaining positive results under all market conditions. Rather, the Sponsor will seek to cause the NAV to track the performance of an Index, even during periods in which that benchmark is flat or moving in a manner which causes the NAV of a Fund to decline.
The Indexes act as a measure of volatility as reflected by the price of certain VIX Futures Contracts (“Index Components”), with the price of each VIX Futures Contract reflecting the market's expectation of future volatility. Each Index seeks to reflect the returns that are potentially available from holding an unleveraged long position in certain VIX Futures Contracts. Unlike the Indexes, the VIX, which is not a benchmark for either Fund, is calculated based on the prices of put and call options on the S&P 500, which are traded on the CBOE.
The S&P 500 VIX Short-Term Futures Index employs rules for selecting the Index Components and a formula to calculate a level for the Index from the prices of these components. Specifically, the Index Components represent the prices of the two near-term VIX futures months, replicating a position that rolls the nearest month VIX Futures Contract to the next month VIX Futures Contract on a daily basis in equal fractional amounts. This results in a constant weighted average maturity of one month. The roll period begins on the Tuesday prior to the monthly CFE VIX Futures Contracts settlement date and runs through the Tuesday prior to the subsequent month's CFE VIX Futures Contract settlement date.
The S&P 500 VIX Mid-Term Futures Index also employs rules for selecting the Index Components and a formula to calculate the level of the Index from the prices of these components. Specifically, the Index Components represent the prices for four contract months of VIX Futures Contracts, representing a market-based estimation of constant maturity, five-month forward implied VIX values. The S&P 500 VIX Mid-Term Futures Index measures the return from a rolling long position in the fourth, fifth, sixth, and seventh month VIX Futures Contracts, and rolls continuously throughout each month while maintaining positions in the fifth and sixth month contracts. This results in a constant weighted average maturity of five months.
Additional information regarding the Funds and the Shares, the Indexes and calculation of Index values, investment strategies, risks, creation and redemption procedures, fees, portfolio holdings and disclosure policies, distributions and taxes, availability of information, trading rules and halts, and surveillance procedures, among other things, can be found in the Registration Statement and in the Notice, as applicable.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Web site disclosure of the portfolio composition of the Funds will occur at the same time as the disclosure by the Funds of the portfolio composition to Authorized Participants so that all market participants are provided portfolio composition information at the same time. In addition, if the Exchange becomes aware that the NAV with respect to the Shares is not disseminated to all market participants at the same time, the Exchange will halt trading in the Shares until such time as the NAV is available to all market participants. Further, the Exchange may halt trading during the day in which an interruption to the dissemination to the IOPV, the value of the Index, the VIX, or the value of the underlying VIX Futures Contracts occurs. If such interruption persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption.
The Exchange has represented that the Shares are deemed to be equity securities subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Funds will meet the initial and continued listing requirements applicable to Trust Issued Receipts in NYSE Arca Equities Rule 8.200 and Commentary .02 thereto.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable Federal securities laws.
(4) Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IOPV will not be calculated or publicly disseminated; (b) the procedures for purchases and redemptions of Shares in Creation Baskets and Redemption Baskets (and that Shares are not individually redeemable); (c) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (d) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (e) trading information.
(5) The Shares must be in compliance with NYSE Arca Equities Rule 5.3 and Rule 10A-3 under the Act.
(6) A minimum of 100,000 Shares of each of the Funds will be outstanding as of the start of trading on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Exchange Act”),
On October 6, 2010, NFA requested that the CFTC make a determination that review of the proposed rule change of NFA is not necessary.
The proposed amendments to NFA Compliance Rule 2-9's Interpretive Notice entitled “Enhanced Supervisory Requirements” (“Notice”) would provide limited relief for some Members that currently would qualify for the enhanced supervisory requirements (“Requirements”) based on a firm principal's previous affiliation with another Member firm that was subject to the Requirements; makes changes to the enhanced capital requirements in light of a recent increase in the futures commission merchant (“FCM”) minimum capital requirement; makes changes to deal with the enhanced capital requirements for commodity pool operators (“CPOs”) and commodity trading advisors (“CTAs”) in a manner more consistent with the nature of their business; requires specific items to be included in a firm's written supervisory procedures; requires quarterly rather than monthly reports on a firm's compliance with the Requirements; and includes clarifying language in three areas: (1) Charging abnormally high commissions and fees; (2) the effect that receiving a waiver has on determining whether a Member is a firm that has met the criteria for future situations involving the Requirements; and (3) the status of a “five year” Disciplined Firm after it has been dropped from the “five year” list.
The text of the Interpretive Notice is available on NFA's Web site at
In its filing with the Commission, NFA 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. NFA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Section 15A(k) of the Exchange Act
Member firms trigger the Requirements based upon the regulatory background of either their associated persons (“APs”) or principals. Member firms triggering the Requirements must record all telephone conversations with customers and prospects, pre-submit promotional material, adopt written supervisory procedures and either operate under a guarantee agreement or maintain an enhanced capital level. The proposed amendments to the Notice include:
• Limited relief for some Members that would currently qualify for the Requirements based on a firm principal's previous affiliation with another Member firm that was subject to the Requirements;
• Changes to the enhanced capital requirements in light of a recent increase in the FCM minimum capital requirement;
• Changes to deal with the enhanced capital requirements for CPOs and CTAs in a manner more consistent with the nature of their business;
• Requiring specific items to be included in a firm's written supervisory procedures;
• Requiring quarterly rather than monthly reports on a firm's compliance with the Requirements; and
• Clarifying language regarding: (1) Charging abnormally high commissions and fees; (2) the effect that receiving a waiver has on future situations involving the Requirements; and (3) the status of a “five year” Disciplined Firm after it has been dropped from the “five year” list.
Historically, a Member would trigger the Requirements only if it had a defined percentage of APs who had previously worked for a Disciplined Firm.
In 2005, NFA's Board made revisions to the Notice after recognizing that the principals of several firms that had triggered the Requirements had avoided them by simply closing their firms and opening other firms that had a mix of APs that did not trigger the Requirements. NFA noted that the new firms typically had APs from the closed firm who had worked at Disciplined Firms, but their percentage ratios to the overall AP population of the new firms were below the triggering point for imposing the Requirements. NFA's Board addressed this issue by amending the Notice to provide that once a firm had triggered the Requirements, then any other firms of which the principals of the qualifying firm are also principals would become subject to the Requirements.
NFA believes that the 2005 revision has been generally effective in discouraging the practice of sham reorganizations to avoid the Requirements. However, NFA has found
NFA has identified a set of five criteria that apply to approximately 60 individuals and approximately five entities that do not appear to raise undue concerns regarding their ability to effectively supervise their firms. Those criteria include the following:
• The principal has not been personally subject to a disciplinary action by NFA or the CFTC;
• The principal has been a principal of only one firm that has qualified for the Requirements;
• The principal has never been a principal or an AP of a current Disciplined Firm;
• The firm in the principal's history that triggered the Requirements either received a full waiver from the Requirements or abided by the Requirements for at least two years and is no longer subject to the Requirements; and
• The firm in the principal's history that triggered the Requirements has not become subject to a sales practice action since triggering the Requirements.
NFA believes that exempting Members from adopting the Requirements when those Requirements are triggered by a principal who meets the aforementioned five criteria would eliminate the need for some waiver petitions (which are typically granted), saving time and undue complications for the affected Members, the Telemarketing Procedures Waiver Committee (“Waiver Committee”) and NFA staff. NFA believes that this exemption could provide relief to certain principals whose profiles indicate that they are unlikely to pose any supervisory issues. In addition, NFA does not believe that this change will diminish customer protection because the principals that will be exempted are those principals who would almost always have been granted a waiver based on meeting the aforementioned criteria.
The Notice currently provides that FCMs affected by the Notice are required to maintain adjusted net capital (“ANC”) of at least $1,000,000. When this provision was adopted the minimum ANC level was $500,000. However, the minimum ANC for all FCMs was raised to $1,000,000 in March 2010, rendering the current provision moot.
NFA proposes to revise the language in the Notice regarding the enhanced level of ANC required to be maintained by affected FCMs to tie the required enhanced ANC to the minimum ANC for FCMs. The proposed amendments would track the approach taken by the Board in 2008 to deal with changes to the enhanced ANC provision for Forex Dealer Members (“FDMs”). Specifically, rather than set a defined number, it would tie the enhanced ANC level for FCMs to the early warning requirement under CFTC rules, which is currently 150% of required ANC. NFA believes that this revision would not only bring the current enhanced ANC obligation into harmony with that required of FDMs, but would also provide flexibility in light of any future changes to the level of the minimum ANC required of FCMs.
The Notice currently requires CPOs and CTAs that trigger the Requirements to maintain ANC of at least $250,000. In addition, affected CPOs and CTAs are currently subject to the financial recordkeeping and reporting requirements applicable to FCMs.
According to NFA, it is relatively uncommon for CPOs and CTAs to qualify for the Requirements, and if CPOs and CTAs do qualify, they often request relief from the $250,000 capital requirement even if they are required to tape. The Waiver Committee has dealt with ten waiver petitions from CPO or CTA Members and completely denied five of those petitions. Four of those firms are no longer NFA Members. The other five received partial waivers that reduced the enhanced ANC requirement. Two waivers set the required ANC level at $100,000, two set it at $75,000, and one eliminated the obligation altogether. Three of the five firms that received waivers remain NFA Members. In granting these petitions, the Waiver Committee recognized that because CPOs and CTAs do not have a minimum net capital requirement, imposing the reduced $100,000 requirement was sufficient to meet the purpose of the requirement.
In light of the Waiver Committee's past decisions regarding this issue, NFA proposes to amend the Notice to reduce the ANC required of CPOs and CTAs that trigger the Requirements from the current $250,000 to $100,000. In addition, the proposed amendments to the Notice would provide that the financial recordkeeping and reporting obligations of affected CPOs and CTAs be simplified by merely requiring them to demonstrate compliance with their enhanced ANC obligation to NFA upon request.
The proposed amendments to the Notice identify specific areas that would need to be addressed by an affected Member in the written supervisory procedures they are required to prepare. NFA believes that this addition will give clear guidance as to the minimum standards to be met in preparing written supervisory procedures. Generally, the proposed language requires procedures for monitoring, cataloging and logging taped conversations in an affected Member's written supervisory procedures.
The Notice currently requires affected Members to file monthly reports regarding their compliance with the Requirements. It has been NFA's experience in reviewing these reports that most of them tend to be repetitious in nature. Nevertheless, NFA feels that the reports are useful in that they periodically bring the Member's focus to bear on the Requirements, create a written historical record and, on occasion, may provide the impetus for corrective action by the Member. NFA proposes to change the frequency of the obligation to file such reports from monthly to quarterly. NFA believes that lengthening the frequency for filing the reports will not in any way diminish customer protection because the reports alone do not typically form the basis of an NFA investigation or disciplinary action. Moreover, NFA uses other methods to monitor Member compliance with the Requirements.
Members that charge 50% or more of their active customers round-turn commissions, fees and other charges that total $100 or more per futures, forex or option contract are required to adopt the Requirements. NFA represents that it has recently encountered situations in which Members purchase out-of-the-money options and charge a commission just short of $100. In these situations there are additional charges if the option is liquidated that would bring total charges above $100; however, NFA believes that it is often the case that the out-of-the-money options expire worthless and no additional costs are assessed. The result is that some Members are able to avoid the Requirements by encouraging their customers to take on riskier out-of-the-money positions that are less likely to
Members that engage in the practice described above are, in NFA's view, clearly within the group of Members that the Board believed should be subject to the Requirements when it chose to use high commissions and fees as a trigger for imposing the Requirements. Therefore, the proposed amendments to the Notice provide that trading an options contract that would result in total commissions, fees and other charges of $100 or more if the trade was liquidated will be deemed to have been charged $100 even if the contract is not ultimately liquidated.
The proposed amendments to the Notice would add language that NFA believes would clarify that a Member that receives a full or partial waiver is still deemed to be a Member that has met the criteria for purposes of the Notice.
From 1993 until 2007, the term “Disciplined Firm” included only Members that had been permanently barred from the industry as the result of a sales practice or promotional material action. In 2007, the amendments to the Notice added Members that had been sanctioned in any way in a sales practice or promotional material action within the preceding five years to the definition of a Disciplined Firm. This resulted in the creation of a list of “five year” Disciplined Firms that is separate from the list of permanent Disciplined Firms. The electronic reporting system that monitors Disciplined Firms automatically removes these firms from the Disciplined Firm list once five years have passed.
According to NFA, there has been some confusion expressed as to whether a “five year” Disciplined Firm is still considered to be a Disciplined Firm for purposes of triggering the Requirements once the firm is dropped from the “five year” list. NFA believes that the proposed amendments to the Notice would eliminate this confusion by simply adding the word “current” before the term “Disciplined Firm” in four relevant places in Section III (B)(1) of the Notice.
Amendments to the Interpretive Notice regarding NFA Compliance Rule 2-9: Enhanced Supervisory Requirements were previously filed with the SEC in SR-NFA-2003-01, Exchange Act Release No. 34-47533 (Mar. 19, 2003), 68 FR 14733 (Mar. 26, 2003); SR-NFA-2005-01, Exchange Act Release No. 34-52808 (Nov. 18, 2005), 70 FR 71347 (Nov. 28, 2005); SR-NFA-2006-01, Exchange Act Release No. 34-53568 (Mar. 29, 2006), 71 FR 16850 (Apr. 4, 2006); SR-NFA-2007-03, Exchange Act Release No. 34-55710 (May 4, 2007), 72 FR 26858 (May 11, 2007); SR-NFA-2007-07, Exchange Act Release No. 34-57142 (Jan. 14, 2008), 73 FR 3502 (Jan. 18, 2008); and SR-NFA-2008-01, Exchange Act Release No. 34-57640 (Apr. 9, 2008), 73 FR 20341 (Apr. 15, 2008).
NFA believes that the proposed rule change is authorized by, and consistent with, Section 15A(k)(2)(B) of the Exchange Act.
NFA believes that the portion of the proposed rule change that exempts Members from adopting the Requirements when those Requirements are triggered by a principal who meets the specified five criteria should lessen the burden on competition by eliminating the need for waiver requests that are typically granted and decreasing the number of firms that are subject to the requirement by automatically exempting firms that qualify based on principals whose profiles indicate that they are unlikely to pose supervisory problems.
NFA does not believe that the proposed changes to CPO and CTA capital requirements and reporting requirements for firms that trigger the Requirements would impose any burden on competition.
Although the proposed rule change would require FCMs subject to the Requirements to maintain additional capital, NFA believes that the increase is necessary in order to maintain the purpose behind the Requirements, and is also consistent with the approach NFA adopted with respect to FDMs. The minimum capital level for all FCMs was recently increased to $1,000,000, which is the same amount currently required of FCMs subject to the enhanced requirement. In order for the enhanced Requirements to maintain their original purpose, NFA believes that the capital requirement must be increased. Rather than setting another fixed dollar amount, the proposed amendment would tie the required enhanced ANC to the early warning requirement under CFTC rules (150% of minimum ANC). This revision would impose the same standard on FCM and FDM Members and take into consideration any future changes to ANC levels.
The proposed rule change identifies specific areas that need to be addressed by an affected Member in the written supervisory procedures it is currently required to prepare. NFA represents that the changes would not impose additional substantive requirements on Members. Rather, NFA believes this language would address requests for Members for specific guidance on how to comply with their obligation to monitor, catalog and log taped conversations. Therefore, NFA does not believe this change imposes any burden on competition.
The current rule requires Members that charge 50% or more of their active customers round-turn commissions, fees and other charges that total $100 or more per futures, forex or option
NFA believes that the proposed provision that changes a Member's reporting obligation with respect to its report on compliance with the Requirements will also lessen the burden on Members. Under this provision, a Member will be permitted to file this report on a quarterly rather than monthly basis.
NFA believes that the final two proposed revisions do not add any burden to competition because they are merely clarifying current requirements. One proposed rule change would add language that NFA believes makes it clear that a Member that receives a full or partial waiver is still deemed to be a Member that has met the criteria for purposes of the Notice. Another proposed rule change would add the word “current” before the term “Disciplined Firm” in four relevant places in order to clarify that a “five year” Disciplined Firm will no longer be a Disciplined Firm for purposes of triggering the Requirements once the firm is dropped from the “five year” list.
NFA states that it worked with its Member Advisory Committees in developing the rule change. NFA did not, however, publish the rule change to its membership for comment. NFA states that it did not receive comment letters concerning the rule change.
On October 20, 2010, the CFTC notified NFA that it had approved the rule change, and therefore, NFA is permitted to make the amendments effective as of this date.
Within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) 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 Exchange 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 Elizabeth M. Murphy, 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.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions to OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, e-mail, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
(OMB), Office of Management and Budget,
(SSA), Social Security Administration, DCBFM,
The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than March 4, 2011. Individuals can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410-965-8783 or by writing to the above e-mail address.
1.
2.
3.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA has forwarded the information collection request described in this notice to the Office of Management and Budget (OMB) to renew an information collection. We published a
Please submit comments by February 2, 2011.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA-2010-0175.
Mr. Kenneth Petty, (202) 366-6654, Office of Planning, Environment, and Realty; Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Transit Administration, U.S. Department of Transportation.
Notice of Intent to Prepare an Environmental Impact Statement.
The Federal Transit Administration (FTA), as the lead Federal agency, and the Chicago Transit Authority (CTA) intend to prepare a Tier 1 Environmental Impact Statement (Tier 1 EIS) for the North Red and Purple Line Modernization (RPM) Project in Cook County, Illinois. The CTA operates the rapid transit system in Cook County, Illinois. The proposed project, described more completely within, would bring the North Red and Purple lines up to a state of good repair from the track structure immediately north of Belmont Station in Chicago, Illinois to the Linden terminal in Wilmette, Illinois. The purpose of this Notice of Intent is to (1) alert interested parties regarding the intent to prepare the EIS, (2) to provide information on the nature of the proposed project and possible alternatives, and (3) to invite public participation in the EIS process.
Written comments on the scope of the EIS, including the project's purpose and need, the alternatives to be considered, the impacts to be evaluated, and the methodologies to be used in the evaluations should be sent to CTA on or before February 18, 2011.
• Monday, January 24, 2011; 6 p.m. to 8:30 p.m.; at St. Augustine College, 1345 West Argyle Street, Chicago, IL 60640.
• Tuesday, January 25, 2011; 6 p.m. to 8:30 p.m.; at the Nicholas Senn High School, 5900 North Glenwood Avenue, Chicago, IL 60660.
• Wednesday, January 26, 2011; 6 p.m. to 8:30 p.m.; at the New Field Primary School, 1707 West Morse Avenue, Chicago, IL 60626.
• Thursday, January 27, 2011; 6 p.m. to 8:30 p.m.; at the Fleetwood-Jourdain Community Center, 1655 Foster Street, Evanston, IL 60201.
The buildings to be used for the scoping meetings are accessible to persons with disabilities. Any individual who requires special assistance or language translation, such as a sign language interpreter, to participate in the scoping meeting should contact Mr. Jeff Wilson, Government and Community Relations Officer, Chicago Transit Authority, at 312-681-2712 or
Scoping materials describing the project purpose and need and the alternatives proposed for analysis will be available at the meetings and on the CTA Web site
An interagency scoping meeting will be held on Monday, January 24 at 10:30 a.m. at CTA Headquarters, in Conference Room 2A, 567 W. Lake Street, Chicago, IL 60661. Representatives of Native American Tribal governments and Federal, State, regional, and local agencies that may have an interest in any aspect of the project will be invited to be participating or cooperating agencies, as appropriate.
Comments will be accepted at the public scoping meetings or they may be sent to Mr. Steve Hands, Strategic Planning and Policy, Chicago Transit Authority, P.O. Box 7602, Chicago, IL 60680-7602, or via e-mail at
Mr. Reginald Arkell, Community Planner, Federal Transit Administration, Region V, 200 West Adams Street, Suite 320, Chicago, IL 60606, phone 312-886-3704, e-mail
The FTA and CTA invite all interested individuals and organizations, public agencies, and Native American Tribes to comment on the scope of the Tier 1 EIS, including the project's purpose and need, the alternatives to be studied, the impacts to be evaluated, and the evaluation methods to be used. The Tier 1 EIS will be a planning level EIS that will allow the CTA and FTA to use the National Environmental Policy Act (NEPA) process as a tool to involve agencies and the public in the decision making process for the project as well as to capture any associated or cumulative impacts on the environment. This process will ensure that: the complete 9.5-mile RPM corridor is analyzed; the EIS is used to help refine and prioritize design concepts, and; related components of the project are grouped together for future analysis. After this Tier 1 EIS process is complete, component projects can each be evaluated more specifically with a second-tier EIS and/or other NEPA environmental documentation as needed. These ensuing NEPA documents can reference and summarize information from the Tier 1 EIS and concentrate on the issues specific to the subsequent actions (40 CFR 1502.20). Comments should address (1) the project's priorities and appropriate cost-effective alternatives and components, and (2) any significant environmental impacts relating to the alternatives.
NEPA “scoping” (40 CFR 1501.7) has specific and fairly limited objectives, one of which is to identify the
Once the scoping process is completed, a scoping report and annotated outline will be prepared and shared with interested agencies and the public. The report and outline serves at least three worthy purposes, including (1) documenting the results of the scoping process; (2) contributing to the transparency of the process; and (3) providing a clear roadmap for concise development of the environmental document.
The purpose of the North Red and Purple Line Modernization project is to bring the existing crucial transit asset into a state of good repair, while reducing travel times, improving access to job markets, responding to shifts in travel demand, better utilizing existing transit infrastructure and providing access to persons with disabilities in the north lakefront and north suburbs of Chicago. This project would also support the area's economic development initiatives and current transit supportive development patterns.
The need for the project is based on the following considerations: the North Red and Purple Line infrastructure is significantly past its useful life as most of it was constructed between 1900 and 1922; much of the infrastructure is dilapidated and continued degradation could increase the cost of maintenance and compromise service in the future; transit trips are delayed and unreliable due to antiquated infrastructure; the community relies on these facilities for all trip types including work access and reverse commutes; 15 of the 21 stations within the project area do not have access for persons with disabilities; the volume of passengers, over 128,000 trips on an average weekday representing over 19% of all weekday and 23% of all weekend CTA rail trips, could not be accommodated either on the currently congested road network or through bus transportation alternatives; and the project area population is growing, highly transit-reliant, and diverse.
The project area extends from the track structure immediately north of Belmont station to Linden station, which is approximately 9.5 miles and includes 21 stations and two rail yards, the Howard Yard and the Linden Yard. Currently, the Red and Purple Lines operate beside each other on 4 tracks for 5.7 miles from north of Belmont station to Howard station, of which 1.9 miles is located on steel elevated structure and 3.8 miles on earthen embankment. The Purple Line operates alone on 2 tracks for 3.8 miles from Howard station to Linden station on earthen embankment.
The project area traverses dense urban single and multi family residential, commercial, and educational land uses and includes portions of Chicago's North Side, Evanston, and Wilmette, Illinois. The project area includes numerous parks and cemeteries, and crosses the North Shore Channel of the Chicago River.
Several alternatives are proposed for analysis in the EIS. Public input received during scoping will help to select, reject and/or revise the following alternatives.
The purpose of this Tier 1 EIS process is to study, in a public setting, the effects of the proposed project and its alternatives on the quality of the human and natural environment. Areas of investigation for transit projects generally include, but are not limited to: Land use, development potential, land acquisition and displacements, historic resources, visual and aesthetic qualities, air quality, noise and vibration, energy use, safety and security, and ecosystems, including threatened and endangered species. Investigation may reveal that the proposed project will or will not substantially affect many of these areas. Measures will be identified to avoid, minimize, or mitigate any significant adverse impacts.
The regulations implementing NEPA, as well as provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), calls for public involvement in the EIS process. Section 6002 of SAFETEA-LU requires that FTA and CTA do the following: (1) Extend an invitation to other Federal and non-Federal agencies and Native American Tribes that may have an interest in the proposed project to become “participating agencies;” (2) provide an opportunity for involvement by participating agencies and the public to help define the purpose and need for a proposed project, as well as the range of alternatives for consideration in the EIS; and (3) establish a plan for coordinating public and agency participation in, and comment on, the environmental review process. An invitation to become a participating or cooperating agency, with scoping materials appended, will be extended to other Federal and non-Federal agencies and Native American Tribes that may have an interest in the proposed project. It is possible that FTA and CTA will not be able to identify all Federal and non-Federal agencies and Native American Tribes that may have such an interest. Any Federal or non-Federal agency or Native American Tribe interested in the proposed project that does not receive an invitation to become a participating agency should notify at the earliest opportunity the Project Manager identified above under
A comprehensive public involvement program and a Coordination Plan for public and interagency involvement will be developed for the project and posted on CTA's Web site,
The Paperwork Reduction Act seeks, in part, to minimize the cost to the taxpayer of the creation, collection, maintenance, use, dissemination, and disposition of information. Consistent with this goal and with principles of economy and efficiency in government, it is FTA policy to limit insofar as possible distribution of complete printed sets of environmental documents. Accordingly, unless a specific request for a complete printed set of environmental documents is received (preferably in advance of printing), FTA and its grantees will distribute only the executive summary of the environmental document together with a Compact Disc of the complete environmental document. A complete printed set of the environmental document will be available for review at the CTA's offices and elsewhere; an electronic copy of the complete environmental document will also be available on the CTA's Web page.
The EIS will be prepared in accordance with NEPA and its implementing regulations issued by the Council on Environmental Quality (40 CFR Parts 1500-1508) and with the FTA/Federal Highway Administration regulations “Environmental Impact and Related Procedures” (23 CFR Part 771).
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for extension of a currently approved collection of information.
This notice solicits public comments on continuation of the requirements for the collection of information on safety standards. Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
This document describes a collection of labeling information on five Federal motor vehicle safety standards, for which NHTSA intends to seek OMB approval. The labeling requirements include brake fluid warning, glazing labeling, safety belt labeling, and vehicle certification labeling.
Comments must be received on or before March 4, 2011.
You may submit comments (identified by the DOT Docket ID Number above) by any of the following methods:
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•
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Regardless of how you submit your comments, you should mention the docket number of this document. You may call the Docket at (202) 366-9324. Please identify the proposed collection of information for which a comment is provided, by referencing its OMB clearance number. It is requested, but not required, that two copies of the comment be provided.
Note that all comments received will be posted without change to
Complete copies of each request for collection of information may be obtained at no charge from Mrs. Lori Summers, U.S. Department of Transportation, NHTSA, Room W43-320, 1200 New Jersey Avenue SE., Washington, DC 20590. Mrs. Summer's telephone number is (202) 366-4917 and fax number is (202) 366-7002.
Under the Paperwork Reduction Act of 1995, before a proposed collection of information is submitted to OMB for approval, Federal agencies must first publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) How to enhance the quality, utility, and clarity of the information to be collected;
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses.
In compliance with these requirements, NHTSA asks for public comments on the following proposed collection of information:
The Secretary is authorized to invoke such rules and regulations, as deemed necessary to carry out these requirements. Using this authority, the agency issued the following FMVSS and regulations, specifying labeling requirements to aid the agency in achieving many of its safety goals:
FMVSS No. 105, “Hydraulic and electric brake systems,”
FMVSS No. 135, “Light vehicle brake systems,”
FMVSS No. 205, “Glazing materials,”
FMVSS No. 209, “Seat belt assemblies,” and
Part 567, “Certification.”
This notice requests comments on the labeling requirements of these FMVSS and regulations.
FMVSS No. 105, “Hydraulic and electric brake systems” and FMVSS No. 135, “Light vehicle brake systems,” require that each vehicle shall have a brake fluid warning statement in letters at least one-eighth of an inch high on the master cylinder reservoirs and located so as to be visible by direct view.
FMVSS No. 205, “Glazing materials,” provides labeling requirements for glazing and motor vehicle manufacturers. In accordance with the standard, NHTSA requires each new motor vehicle glazing manufacturer to request and be assigned a unique mark or number. This number is then used by the manufacturer as their unique company identification on their self-certification label on each piece of motor vehicle glazing. As part of that certification label, the company must identify with the simple two or three digit number assigned by the agency and the model of the glazing. In addition to these requirements, which apply to all glazing, certain specialty glazing items, such as standee windows in buses, roof openings, and interior partitions made of plastic require that the manufacturer affix a removable label to each item. The label specifies cleaning instructions, which will minimize the loss of transparency. Other information may be provided by the manufacturer but is not required.
FMVSS No. 209, “Seat belt assemblies,” requires safety belts to be labeled with the year of manufacture, the model, and the name or trademark of the manufacturer (S4.1(j)). Additionally replacement safety belts that are for use only in specifically stated motor vehicles must have labels or accompanying instruction sheets to specify the applicable vehicle models and seating positions (S4.1(k)). All other replacement belts are required to be accompanied by an installation instruction sheet (S4.1(k)).
Seat belt assemblies installed as original equipment in new motor vehicles need not be required to be labeled with position/model information. This information is only useful if the assembly is removed with the intention of using the assembly as a replacement in another vehicle; this is not a common practice.
Part 567, “Certification,” requires each manufacturer or distributor of motor vehicles to furnish to the dealer, or distributor of the vehicle, a certification that the vehicle meets all applicable FMVSS. This certification is required by that provision to be in the form of a label permanently affixed to the vehicle. Under 49 U.S.C. 32504, vehicle manufacturers are directed to make a similar certification with regard to bumper standards. To implement this requirement, NHTSA issued 49 CFR Part 567. The agency's regulations establish form and content requirements for the certification labels.
44 U.S.C. 3506(c); delegation of authority at 49 CFR 1.50.
Surface Transportation Board.
30-day notice of request for approval: Waybill Sample.
As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3519 (PRA), the Surface Transportation Board (STB or Board) has submitted a request to the Office of Management and Budget (OMB) for an extension of approval for the collection of the Waybill Sample. The Board previously published a notice about this collection in the
Comments on this information collection should be submitted by January 31, 2011.
Written comments should be identified as “Paperwork Reduction Act Comments, Surface Transportation Board, Waybill Sample.” These comments should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Kimberly Nelson, Surface Transportation Board Desk Officer, by fax at (202) 395-6974; by mail at Room 10235, 725 17th Street, NW., Washington, DC 20503; or by e-mail at
Under the PRA, a Federal agency conducting or sponsoring a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Under § 3506(b) of the PRA, Federal agencies are required to provide, concurrent with an agency's submitting a collection to OMB for approval, a 30-day notice and comment period, through publication in the
Office of the General Counsel, U.S. Department of Energy.
Notice of proposed rulemaking and public hearing.
The U.S. Department of Energy (DOE or the Department) proposes to amend its existing regulations governing compliance with the National Environmental Policy Act (NEPA). The majority of the changes are proposed for the categorical exclusions provisions contained in its NEPA Implementing Procedures, with a small number of related changes proposed for other provisions. These proposed changes are intended to better align the Department's regulations, particularly its categorical exclusions, with DOE's current activities and recent experiences, and to update the provisions with respect to current technologies and regulatory requirements. DOE proposes to establish 20 new categorical exclusions, and to remove two categorical exclusion categories, one environmental assessment (EA) category, and two environmental impact statement (EIS) categories. Other proposed changes modify and clarify DOE's existing provisions.
Comments should be received by (or, if mailed, postmarked by) February 17, 2011 to ensure consideration. Late comments may be considered to the extent practicable. DOE will hold a public hearing on February 4, 2011, from 1 p.m. to 4 p.m. in Washington, DC. Persons who wish to speak at the public hearing should register before 3 p.m. on February 1, 2011, as described in
Documents relevant to this rulemaking are posted at
Submit comments, labeled “DOE NEPA Implementing Procedures, RIN 1990-AA34,” by one of the following methods:
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For general information about DOE's NEPA procedures, contact Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance, at 202-586-4600 or leave a message at 800-472-2756. To register to speak at the public hearing and for questions concerning how to comment on this proposed rule, contact Ms. Yardena Mansoor, Office of NEPA Policy and Compliance, at
The National Environmental Policy Act of 1969 (42 U.S.C. 4321
The Council on Environmental Quality's (CEQ's) NEPA implementing regulations (40 CFR parts 1500-1508) establish three levels of review for proposed actions—EIS, EA, and categorical exclusion determinations—each involving different levels of information and analysis. An EIS is a detailed analysis of the potential environmental impacts of a proposed action (and alternatives) that may have a significant impact on the environment.
DOE establishes categorical exclusions pursuant to a rulemaking, such as this one, for defined classes of actions that the Department determines are supported by a record showing that they normally will not have significant environmental impacts, individually or cumulatively. DOE establishes categorical exclusions based on its experience, the experience of other agencies, and information provided by the public.
A complete list of DOE's current categorical exclusions can be found at 10 CFR part 1021, subpart D, appendices A and B. Appendix A lists categorical exclusions applicable to general agency actions (for example, routine administrative, financial, and personnel actions). Appendix B lists categorical exclusions that are applicable to specific agency actions.
Under the regulations, before a proposed action may be categorically excluded, DOE must determine in accordance with 10 CFR 1021.410(b) that: (1) The proposed action fits within
In addition, to fit within a class of actions in appendix B, a proposed action must satisfy certain conditions known as “integral elements” (appendix B, paragraphs (1) through (4)). Briefly, these conditions ensure that an excluded action would not have the potential to cause significant environmental impacts due to, for example, a threatened violation of applicable environmental, safety, and health requirements, or by disturbing hazardous substances such that there would be uncontrolled or unpermitted releases.
With this proposed rule, DOE proposes to update its NEPA regulations (10 CFR part 1021), primarily with changes to subpart D and with a few changes to subpart C. Most changes are to categorical exclusions (subpart D, appendices A and B, discussed in Sections IV.D and IV.E below, respectively), including establishing new categorical exclusions and modifying existing categorical exclusions. DOE also proposes to make changes to its classes of actions that normally require an EA (appendix C, discussed in Section IV.F) or EIS (appendix D, discussed in Section IV.G). In addition, DOE proposes to change several procedural provisions of the Department's regulations (Section IV.C) and modify wording for consistency and clarity (Section IV.B).
The Department last updated its categorical exclusions in 1996. Since that time, the range of activities in which DOE is involved has changed and expanded. For example, in recent years, DOE has received more applications for financial support from private applicants for actions that promote energy efficiency and energy independence. DOE has received thousands of applications under grant and loan programs established by the Energy Policy Act of 2005, the Energy Independence and Security Act of 2007, and the American Recovery and Reinvestment Act of 2009. Another change since 1996 is the growth and development of new technologies in the private and public sectors, including energy efficient and renewable energy technologies, and DOE's experience with those technologies. Through this proposed rulemaking, DOE proposes to update its categorical exclusions to address the Department's current activities and its experience and bring the provisions up-to-date with current technology and regulatory requirements.
DOE has sought input from a number of different sources. First, DOE issued an internal memorandum on December 7, 2009, soliciting suggestions for new categorical exclusions or revisions from DOE Program and Field Offices, including DOE's network of NEPA Compliance Officers. Second, DOE Office of NEPA Policy and Compliance staff identified additional candidates for new or expanded categorical exclusions by reviewing the archive of DOE EAs that led to findings of no significant impact (FONSIs), researched the existing categorical exclusions established by approximately 50 Federal agencies, and reviewed existing DOE categorical exclusions to identify potential new categorical exclusions or revisions. Third, on December 29, 2009, DOE published a Request for Information in the
The comments included proposals for new categorical exclusions and suggested revisions to limit or expand existing categorical exclusions or other related provisions. DOE addresses these comments in its discussion of specific classes of actions in Section IV. Comments of a more general nature that were not associated with a particular provision are addressed below in Section V.
As described above, DOE reviewed and evaluated each of the proposed revisions, reviewed past DOE NEPA analyses and other agencies' NEPA analyses and categorical exclusions, and drafted proposed categorical exclusions and revisions. DOE created a Technical Support Document that presents proposed changes and information that supplements the Preamble discussion of the supporting basis for the changes. (
DOE proposes to amend 10 CFR part 1021, subparts C and D. The majority of changes are proposed for the categorical exclusion provisions at 10 CFR part 1021, subpart D, appendices A and B, with a small number of related changes proposed for other provisions within subparts C and D.
DOE proposes to add 20 new categorical exclusions. These categorical exclusions (in the order in which they appear in appendix B) address: Stormwater runoff control; lead-based paint removal; recycling stations; determinations of excess real property; small-scale educational facilities; small-scale indoor research and development projects using nanoscale materials; research activities in salt water and freshwater environments; experimental wells for injection of small quantities of carbon dioxide; combined heat and power or cogeneration systems; small-scale renewable energy research and development and pilot projects; solar photovoltaic systems; solar thermal systems; wind turbines; ground source heat pumps; biomass power plants; methane gas recovery and utilization systems; alternative fuel vehicle fueling stations; electric vehicle charging
DOE also proposes to modify many of the existing categorical exclusions. These revisions include substantive changes, as well as changes to reflect current regulatory or statutory references and requirements, and punctuation and grammatical changes to improve readability, clarity, and internal consistency. (By “substantive” changes DOE means a change that is more than a clarifying or consistency change; this term includes changes that alter the scope or meaning of a provision or that result in the addition or deletion of a provision.)
The proposed changes would better align DOE's categorical exclusions with its current activities and its experience and bring the provisions up-to-date with current technology and regulatory requirements. The changes would also facilitate compliance with NEPA by providing for more efficient review of actions (helping the Department meet the goals set forth by Congress, for example, in the Energy Policy Act of 2005), and allowing the Department to focus its resources on proposed actions that have the potential for significant environmental impacts.
DOE invites interested persons to participate in this rulemaking by submitting comments on the proposed rule and on the supporting information for proposed changes set forth in the Preamble and the Technical Support Document. Comments would be particularly useful to DOE if those comments: (1) Provide information to support or oppose a proposed change (for example, describing experience with similar actions that did or did not have significant environmental impacts or providing references to such experience); (2) justify increased or lessened limitations on the application of a categorical exclusion; or (3) explain recommended changes in addition to those that DOE proposes and provide the rationale for such additional changes. As appropriate, comments should refer to the specific section of the proposed rule to which the comment applies, identify a comment as a general comment, or identify a comment as a new proposal.
DOE will consider all timely comments received in response to this notice of proposed rulemaking, whether presented orally at the public hearing or written and submitted electronically or by mail.
Comments may be submitted by one of the methods in the
The
The time, date, and location of the public hearing are listed in the
Any person who has an interest in the topics addressed in this proposed rule may speak at the public hearing, either as an individual or as a representative of a group or organization of interested persons. Persons wishing to speak should register in advance, as described in
DOE will designate an official or facilitator to preside at the public hearing. The public hearing will be informal and not a judicial or evidentiary-type hearing. DOE reserves the right to schedule the order of speakers and to establish the procedures governing the conduct of the hearing. To ensure that all persons wishing to make a presentation can be heard, DOE may limit each presentation to 10 minutes or less. The presiding official or facilitator will announce any further procedural rules needed for the proper conduct of the public hearing. After the public hearing, interested persons may submit further comments until the end of the comment period.
A transcript of the hearing will be made and posted at
DOE is particularly interested in receiving comments and views of interested parties on several topics. As discussed in more detail in Section IV.B below, DOE seeks comments on its use of the phrases “including, but not limited to,” and “such as” to introduce lists of examples. Unless otherwise specified, DOE's lists of examples are not intended to be exhaustive of all possible actions that fit within a categorical exclusion. DOE also seeks comments on its use of the phrase “would not have the potential to cause significant impacts” (or a similar construct) in lieu of the use of terms such as “adverse” or “substantial” as modifiers for potential impacts. DOE believes that the proposed phrase more accurately reflects NEPA and the CEQ NEPA regulations.
DOE is particularly interested in receiving comments and views of interested parties on the proposals relating to the following classes of actions:
DOE also welcomes comments on those categorical exclusions for classes of actions for which DOE has not proposed any revisions at this time.
This section describes and explains the proposed amendments to the existing DOE NEPA regulations at 10 CFR part 1021, subparts C and D.
In subpart C, Implementing Procedures, the proposed amendments are minor technical changes. Specifically, to correct internal references, DOE proposes changes to three sections in subpart C: (1) 10 CFR 1021.311—Notice of intent and scoping; (2) 10 CFR 1021.322—Findings of no significant impact; and (3) 10 CFR 1021.331—Mitigation action plans. These proposed minor technical changes to subpart C are not discussed further below.
In subpart D, DOE proposes extensive substantive and clarifying changes. Recurring proposals for subpart D are described in Section IV.B and then unique proposed changes to subpart D are described in Sections IV.C through IV.G. Support for the proposed revisions is summarized below, and more information regarding the supporting basis for certain provisions is provided in the Technical Support Document.
DOE's NEPA regulations at 10 CFR part 1021 include subpart D, which lists classes of actions and the typical level of NEPA review required for those classes of actions. Subpart D appendices A and B describe DOE's categorical exclusions. Appendix C describes classes of actions that normally require preparation of an EA, but not necessarily an EIS, and appendix D describes classes of actions that normally require preparation of an EIS.
Listing a class of actions in these appendices does not constitute a conclusive determination regarding the appropriate level of NEPA review for a proposed action. Rather, the listing creates an initial assumption that the defined level of review is appropriate for the listed actions. As indicated in the existing 10 CFR 1021.400(c) and (d), this assumption does not apply when there are extraordinary circumstances related to the proposed action that may affect the significance of the environmental effects of the action.
DOE proposes to make several types of changes to its subpart D regulations: these revisions include substantive changes, as well as changes to reflect current regulatory or statutory references and requirements, and punctuation and grammatical changes to improve readability, clarity, and internal consistency. A proposed change does not imply that any previous application of these regulations was inappropriate.
DOE also proposes to delete the tables of contents for the classes of actions in subpart D, and instead to precede each section or paragraph with a short title. These short titles are included merely to guide the reader and do not have any regulatory effect.
Some of the proposed changes apply multiple times throughout the provisions; others are made in the context of a specific provision. Section IV.B of this proposed rule contains an explanation of proposals that recur, that is, that affect more than one class of actions, instead of duplicating the explanation for multiple individual classes of actions. Descriptions of specific individual proposed changes and support for such changes begin with Section IV.C. With respect to certain proposed changes, a more detailed explanation of the supporting basis is provided in the Technical Support Document. (The Technical Support Document and the “redline/strikeout” markup of DOE's existing regulations that show the proposed changes are available at
DOE proposes certain changes to its regulations that recur throughout subpart D. Seven recurring proposals are described below and are followed by a listing of the existing provisions where the recurring proposals occur. Discussion of these recurring proposals is not repeated in the discussion of classes of actions in Section IV below.
DOE also proposes to modify certain technology-specific vocabulary to reflect current usage, updates to references, and minor changes to punctuation and grammar to improve internal consistency. For example, to update technology-specific vocabulary, DOE proposes to change “electric powerlines” to “electric transmission lines” in several categorical exclusions. DOE also proposes to update references, as in categorical exclusion B3.12, which would reference the latest edition of a Centers for Disease Control manual. DOE is proposing to correct typographical errors (for example, changing “with” to “within” in categorical exclusion B1.13). Also, for certain classes of actions, DOE is proposing the addition of cross-references to related classes of actions. For example, DOE is proposing to add a cross-reference to the proposed new categorical exclusion B1.33 into the existing categorical exclusion B1.6.
To clarify use of terms reflecting proximity, and to promote consistency in its categorical exclusions, DOE is proposing to delete the word “adjacent” from its categorical exclusions and use “contiguous” and “nearby,” as appropriate. DOE proposes to use the word “contiguous,” where the intended application is “touching along a boundary or at a point” or “being in actual contact.” In contrast, DOE is proposing to use the word “nearby,” where the intended application is “not distant” or “in proximity, but not necessarily touching.” In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.31, B2.1, B4.7, B5.8, B5.12.
DOE proposes to use the phrases “including, but not limited to,” “including,” and “such as” to introduce lists of examples. DOE considers the phrases to be synonymous. Unless otherwise specified, DOE's lists of examples are not intended to be exhaustive of all possible actions that fit within a class of actions. DOE proposes generally to use “including, but not limited to,” the first time that examples are introduced in a provision and “such as” for any needed clarification of the examples. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: 1021.410(b)(2), A1, A6, A9, A12, B(4), B1.3, B1.5, B1.9, B1.10, B1.11, B1.12, B1.13, B1.15, B1.16, B1.17, B1.20, B1.21, B1.24, B1.27, B1.29, B1.31, B1.32, B2.4, B2.5, B3.1, B3.4, B3.6, B3.7, B3.8, B3.9, B3.10, B3.11, B3.12, B3.13, B4.4, B4.6, B4.7, B4.9, B4.10, B4.11, B5.1, B5.2, B5.3, B5.4, B5.5, B5.6, B5.12, B6.1, B6.2, B6.3, B6.4, B7.2, C8, C16.
DOE proposes to use the phrase “in accordance with applicable requirements” in several of its categorical exclusions for emphasis. DOE recognizes that all actions must be conducted in accordance with all applicable requirements. However, with certain categorical exclusions, DOE finds it appropriate to refer specifically to this requirement, and, further, in some cases also to provide one or more examples of applicable requirements. By referring to a specific requirement, DOE does not imply that the requirement is relevant to all actions to which the categorical exclusion may apply, or that the referenced requirement is the only one that applies to a proposed action. DOE's proposed wording is intended to allow for the evolution of the requirements over time. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.2, B1.3, B1.9, B1.16, B1.17, B1.29, B2.5, B3.8, B3.12, B5.4, B5.6, B6.1, B7.2.
Appendices A and B contain a number of provisions that contain the word “adverse,” or the use of “any” or “no” as descriptors of, or surrogates for, impacts. Through this proposed rulemaking, DOE proposes to replace these terms with “would not have the potential to cause significant impacts” or a similar construct (for example, describing a physical change that serves as a surrogate for impacts, such as in categorical exclusions B1.18, B3.4, B3.9, and B5.2). By the proposed changes, DOE's implementing regulations are now clearly aligned with the regulatory standard in NEPA.
DOE's review of the existing provisions demonstrated the need for clarification and consistency. For example, the existing categorical exclusion B3.8 requires that the action “would not result in any permanent change to the ecosystem.” A literal reading of this categorical exclusion would bar its use if there were any permanent change to the ecosystem, even a change that would not have the potential to cause significant impacts. DOE acknowledges that this is not what NEPA requires and thus DOE proposes to rephrase the categorical exclusion to incorporate the appropriate NEPA standard, phrased as “would not have the potential to cause significant impacts on the ecosystem.” In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B(4), B1.5, B1.11, B1.18, B1.24, B1.31, B2.3, B3.1, B3.3, B3.8, B3.9, B4.6, B5.1, B5.2, B5.12, C8.
In recent years, DOE's proposed actions have included more applicant proposals, including those for DOE loan guarantees, grants, cooperative agreements, and other forms of financial assistance, particularly for programs created under the Energy Policy Act of 2005, the Energy Independence and Security Act of 2007, and the American Recovery and Reinvestment Act of 2009. In an applicant situation, DOE's proposed action normally would not be located on a DOE site, but rather on private property or land administered by other agencies (
In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.13, B1.15, B1.29, B1.32, B3.1, B6.10, C7, D7.
In DOE's experience, the potential for certain types of actions to have significant impacts on the human environment is generally avoided when that action takes place within a previously disturbed or developed area,
DOE uses adjectives (such as “small,” “small-scale,” “minor,” “negligible,” “short,” and “short-term”) as limitations in a variety of its existing and proposed provisions and recognizes that these descriptors are subjective. In general, DOE did not and does not propose to define these terms, and DOE would apply a reasonable interpretation to such terms within the context of individual proposals. The CEQ regulations state that “significantly,” as used in NEPA, requires consideration of context and intensity.
For example, in considering whether the use of 5-10 acres of land is “small”
In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.2, B1.13, B1.15, B3.6, B3.8, B4.13, B5.1, B5.4, B5.7, C8.
DOE proposes to clarify four requirements in 10 CFR 1021.410. First, DOE proposes to remove the reference to Section 102(2)(E) of NEPA to clarify that DOE's consideration of unresolved conflicts concerning alternative uses of available resources is independent of the need to evaluate alternatives in an EA as indicated in Section 102(2)(E) of NEPA.
Second, in 10 CFR 1021.410(b)(3), DOE proposes to refer explicitly to the requirement that a categorically excludable project has not been segmented. DOE also proposes to change its references to the CEQ regulations to clarify consideration of potential cumulative impacts (40 CFR 1508.27(b)(7)), and to clarify that its references to 40 CFR 1506.1 and 10 CFR 1021.211 concern limitations on actions during EIS preparation.
Third, DOE proposes to add site preparation and purchase and installation of equipment to 10 CFR 1021.410(d) as examples of activities foreseeably necessary to implement proposals that are encompassed within the class of actions.
Fourth, DOE proposes to codify its policy to document and post online appendix B categorical exclusion determinations at 10 CFR 1021.410(e), consistent with the policy established by the Deputy Secretary of Energy's
For an explanation of recurring proposals applicable to the appendix A categorical exclusions, please
DOE proposes to replace “agency” with “DOE” to clarify that this categorical exclusion applies only to DOE business actions. DOE also proposes to limit such actions to administrative, financial, and personnel actions.
To increase transparency of DOE's NEPA processes, DOE proposes to delete this categorical exclusion and to incorporate its key components within B1.24, which also addresses property transfers, so that any categorically excluded property transfers are documented and made available to the public. (
In response to DOE's December 2009 Request for Information, a commentor expressed concern that DOE, in making land transfer decisions under existing categorical exclusion A7, would be “circumventing local authority” and “normal land use planning and zoning processes.”
DOE proposes to clarify this categorical exclusion by providing site visits as an additional example of an action included within the category.
DOE proposes to clarify this categorical exclusion by providing additional examples of actions included within the class of actions (
For an explanation of recurring proposals applicable to the appendix B categorical exclusions, please
In appendix B(4), DOE proposes to clarify its use of “environmentally sensitive resource,” defining it as “typically a resource that has been identified as needing protection through Executive Order, statute, or regulation by Federal, State, or local government, or a Federally recognized Indian Tribe.” This definition is not intended to, and does not, grant, expand, create, or diminish any legally enforceable rights, benefits, or responsibilities, substantive or procedural, not otherwise granted or created under existing law. Nor shall this language be construed to alter, amend, repeal, interpret, or modify Tribal sovereignty, any treaty rights of any Indian Tribes, or to preempt, modify, or limit the exercise of any such rights.
In appendix B(4)(i), DOE proposes to add “Federally recognized Indian Tribe” to its list of entities that designate property as historically, archeologically, or architecturally significant. DOE also proposes to redefine other environmentally sensitive properties as “determined to be eligible” for listing on the National Register of Historic Places (rather than the phrase “eligible for listing,” which is used in the existing provision, but is not the proper characterization of an official listing). In appendix B(4)(iii), DOE proposes to apply the same definition of floodplains and wetlands in its NEPA regulations as that used in DOE's floodplain and wetland environmental review regulations (10 CFR part 1022.4). In appendix B(4)(iv), DOE proposes to supplement the list of areas having special designation with additional examples (national monuments and scenic areas). In appendix B(4)(v), DOE proposes changes to the prime agricultural lands listing to conform to the terminology of the applicable regulation (7 CFR 658.2(a), “Farmland Protection Policy Act: Definitions”).
In response to the Department's December 2009 Request for Information, one commentor addressed DOE's list of “environmentally sensitive resources” in appendix B(4). First, the commentor indicated that DOE must recognize State and Tribal protected or candidate species and habitat as equal to Federally designated or considered species and
Second, the commentor stated that “groundwater and aquifers are State, not Federal resources” and indicated that DOE's regulations must protect and preserve all aquifers, and not just sole-source aquifers. The commentor further stated that adverse impacts to rivers, lakes, and bays, among other bodies of water, should not be allowed “unless they are specifically covered by a State and/or Tribal discharge permit under appropriate authority.” DOE is not proposing a change to the existing appendix B(4)(vi), which lists “special sources of water (such as sole source aquifers, wellhead protection areas, and other water sources that are vital in a region)” in its list of environmentally sensitive resources, because those resources are listed as examples and are not the only water sources to be considered in applying a categorical exclusion. Further, the existing appendix B(4) includes States and Federally recognized Tribes as entities with jurisdiction to identify water sources needing protection.
DOE proposes to change this categorical exclusion to encompass the setting of “prices” as well as “rates” (prices apply to products, and rates apply to services) and to consider price and rate changes instead of only increases. DOE proposes to change the measure of inflation specified in this categorical exclusion from the Gross National Product fixed weight price index, which the Department of Commerce no longer publishes, to the implicit price deflator for Gross Domestic Product. (
DOE proposes to provide additional examples of training actions (namely, small-scale and short-duration force-on-force exercises, and decontamination and spill cleanup training), and has added the condition that all training exercises and simulations be conducted under appropriately controlled conditions and in accordance with applicable requirements. The term “force-on-force” as used in this categorical exclusion refers to activities such as assault and defensive team exercises conducted by security forces or military units, often on parcels of DOE property not in use. Exercises that test the ability of security forces to defend a facility are one common example of this type of training. DOE's experience with these types of security force and military training actions and emergency response training at its sites indicates that they fit within the class of actions. (
DOE proposes to clarify that routine maintenance actions may occur as a result of nonroutine events (
DOE proposes to clarify the scope of the categorical exclusion by providing additional examples of activities. Specifically, DOE is proposing to clarify that replacement is included in the categorical exclusion's scope under items (a), (c), and (e), as well as the existing example of repair; to add “lighting” to those items that can be repaired or replaced (item (e)); to add “scraping and grading of unpaved surfaces” to the example of road and parking area resurfacing (item (j)); and to add the additional example of “removal of debris” under item (p). DOE's experience with these activities has demonstrated that they properly fit within this class of actions.
In response to the Department's December 2009 Request for Information, one commentor stated that use of pesticides for outdoor or aquatic use should not be the subject of a categorical exclusion; instead an EA should be prepared. The commentor expressed a specific concern about the possibility for environmental impacts beyond the intended application. In existing categorical exclusion B1.3, DOE has described routine maintenance activities including localized vegetation and pest control. DOE now proposes to clarify that any routine maintenance activities would be conducted in a manner in accordance with applicable requirements. In the case of pesticides and other chemicals, for example, the proposed change would provide that the application would be in accordance with the registered and approved uses established by appropriate authorities to minimize the possibility of environmental impacts beyond the product's intended application.
DOE proposes to delete the words “within an existing building or structure,” so as to include modifications to ponds, which may be outdoor components of cooling water systems. This proposed expansion of the scope of this categorical exclusion would address the need for improvements to an entire cooling water system, rather than only those parts of a system associated with structures. Based on DOE experience, minor improvements would not have the potential to cause significant impacts, provided the three limitations placed on the scale and type of improvements listed in the categorical exclusion are met.
DOE also proposes to add minor improvements of existing steam plants in the scope of the categorical exclusion. DOE's experience is that these actions, when subject to the three limitations placed on the scale and type of such improvements, fit appropriately within this class of actions and would not have the potential to cause significant impacts.
DOE proposes to update the existing categorical exclusion by adding examples of current technology and equipment that improve operational efficiency and stability of the nation's power grid, commonly referred to as “smart grid” technologies. Based on DOE's experience, such technology and equipment (
DOE proposes to include repair and in-kind replacement of lighting within the scope of this categorical exclusion. Within the context of this categorical exclusion, in-kind replacement is defined as replacement that does not result in a significant change in the expected useful life, design capacity (for example, energy output in lumens), function, or shielding of existing
DOE proposes to clarify that the limitation in this categorical exclusion applies to fencing that would have the potential to cause significant impacts to surface water flow or wildlife populations or migration, as opposed to individual animal movements. Fencing can and probably often does affect individual movements, but such impacts on individual animals would not be considered significant unless the context and intensity of the impacts would have the potential to cause significant impacts to wildlife populations or migration.
DOE proposes to delete the restriction that explosives or propellants must have failed in outdoor tests and thus to expand the categorical exclusion to include explosives or propellants that failed in indoor tests. Whether the explosives or propellants were tested indoors or outdoors, the outdoor detonation or burning of those explosives or propellants would not have the potential to cause significant impacts. The phrase “otherwise not consumed in testing” refers to excess or residual explosive or propellant materials that remain after a test is completed. DOE also proposes to specify one type of permit under the Resource Conservation and Recovery Act that could be applicable.
In response to DOE's December 2009 Request for Information, one commentor requested that DOE specify the amount, types, and methods allowed for the activities included in this categorical exclusion. DOE has determined that the limits contained in this categorical exclusion do not require quantification and is not proposing any changes to the categorical exclusion in response to this comment.
DOE proposes to expand the scope of the categorical exclusion to include more projects related to transportation, recreation, and fitness (
DOE also proposes to include a condition in the categorical exclusion that the actions be consistent with existing rights-of-way and approved land use or transportation improvement plans. In addition, DOE proposes to replace “railroads” with the term “rail lines,” adding branch or spur lines as examples. DOE's experience is that the construction of rail access to or within an existing site has generally occurred at a scale that is better characterized by these small-scale activities—branch line (a secondary rail line which may branch off a main line) and spur (a rail track on which cars are left for loading, unloading, or rail car storage).
In response to the DOE's December 2009 Request for Information, a commentor stated that road construction or expansion should not be the subject of a categorical exclusion. Further, the commentor expressed a concern about the potential for damage to “high quality, high priority habitat” as a result of constructing and operating roads and that use of such a categorical exclusion would limit or circumvent consideration of appropriate mitigation for habitat disturbance or loss. As outlined above, DOE's proposed amendments to categorical exclusion B1.13 require the construction, acquisition, and relocation of short access roads and rail lines to be consistent with applicable right-of-way conditions and approved land use or transportation improvement plans. Furthermore, consideration of the integral elements in applying this categorical exclusion addresses the possibility of damage to “high quality, high priority habitat” because, among other things, one of the “environmentally sensitive resources” to consider in those integral elements is habitat for Federally or State-listed species. (
DOE proposes to expand the list of examples of support buildings and support structures to include those for “small-scale fabrication (such as machine shop activities and modular buildings), assembly, and testing of non-nuclear equipment or components.” Such structures are comparable to, or smaller in scale than, other structures given as examples in the categorical exclusion, and DOE's experience at DOE sites is that siting, construction, and operation of these activities normally fit within the class of actions. Also, DOE proposes to further clarify the scope of the categorical exclusion by specifying that it excludes facilities for nuclear weapon activities.
DOE proposes to add “modification,” “abandonment,” and “removal” to the list of activities included in this class of actions in order to describe the complete life cycle of categorically excluded towers. In DOE's experience, modification, abandonment, and removal of these towers and associated facilities, when subject to the restrictions in this categorical exclusion, would have fewer impacts than construction and would not have the potential to cause significant impacts.
DOE proposes to include meteorological towers as an additional example of applicable facilities within this categorical exclusion because DOE has determined that the environmental impacts resulting from siting, construction, modification, operation, abandonment, and removal of meteorological towers would be similar to the impacts from these activities relating to microwave and radio towers already contained in the scope of the existing categorical exclusion.
DOE proposes to clarify the restriction in the existing categorical exclusion, by replacing “great visual value” with a more objective criteria of “governmentally designated scenic area” and cross-referencing to the relevant integral element (appendix B(4)(iv)).
DOE proposes to add to the scope of this categorical exclusion by referencing activities taken to protect cultural resources and by including examples of those activities (fencing, labeling, or flagging). DOE's Power Marketing Administrations often engage in such activities for cultural and wildlife protection purposes, and these activities would not have the potential to cause significant impacts. DOE also proposes to include a condition in the categorical exclusion that the activities would be conducted in accordance with an existing natural or cultural resource plan, if any.
In response to DOE's December 2009 Request for Information, one commentor questioned whether there should be a
The application of this categorical exclusion is intended to be based on existing data and knowledge about historical uses of the area, including chemical and other processes employed. DOE has extensive experience (former Rocky Flats Site, Hanford Site, Idaho National Laboratory, and other sites) in determining the potential for release of harmful substances from activities through modeling and safety basis authorization documentation. Potential hazards are considered before taking action (for example, demolition actions), and monitoring is conducted, as appropriate, to verify that there are no harmful releases of radiological or hazardous materials. Potential for releases can reliably be determined through site inventories, the use of well-established release models, and established best practices.
As discussed under categorical exclusion A7 (above), DOE proposes to delete A7 and incorporate its key components, including transfers of personal property (equipment and materials), within B1.24. By doing this, DOE makes categorical exclusion determinations for property transfers subject to documentation and online posting. DOE proposes to remove the reference to “uncontaminated” as unnecessary given the incorporation of the substance of this limitation in the revised categorical exclusion.
DOE proposes to delete the phrases “there would not be any lessening in quality or increases in volumes, concentrations, or discharge rates, of wastes, air emissions, or water effluents” and “environmental impacts would generally be similar to those before the transfer” as potentially inconsistent. DOE proposes to replace these phrases with “there would be no potential for release of substances at a level, or in a form, that could pose a threat to public health or the environment” and “would not have the potential to cause a significant change in impacts from the transfer.” Such terminology will, in DOE's experience, ensure that any property transfers under this categorical exclusion would not have the potential to cause significant impacts.
In response to DOE's December 2009 Request for Information, a commentor expressed concern that DOE, in making land transfer decisions under existing categorical exclusion A7, would be “circumventing local authority” and “normal land use planning and zoning processes.” The potential applicability of such authority and processes to a potential land transfer would be addressed on a case-by-case basis.
DOE proposes to include in B1.25 actions undertaken to protect cultural resources. DOE's Power Marketing Administrations often engage in property transfers for cultural protection purposes. Based on this experience, DOE finds property transfers intended for protecting cultural resources normally would not have the potential to cause significant impacts. Further, DOE proposes to remove the limitation that only associated buildings supporting certain purposes are to be transferred with property under this categorical exclusion, because the existing purpose of structures present on a property to be transferred for wildlife or cultural resource purposes is unrelated to environmental impacts associated with such transfer.
Also, for the reasons discussed for categorical exclusion B1.24, above, DOE proposes to eliminate the references to “uncontaminated,” but include a limitation on actions subject to categorical exclusion B1.25, that there would be no potential for release of a substance at a level or in a form, that could pose a threat to public health or the environment.
DOE proposes to add “expansion” and “modification” to the list of activities included in this categorical exclusion in order to include all aspects of the life cycle of the disposal facilities. In DOE's experience, expansion and modification actions, when subject to the limitations expressed in this categorical exclusion, would have fewer impacts than construction, and would not have the potential to cause significant impacts.
DOE proposes to modify this categorical exclusion (based on its experience transferring materials and equipment) to remove the condition that the amounts of materials, equipment, or waste being transferred must be “small and incidental” to the amount of such material at the receiving site. Instead, DOE proposes to add a condition that the receiving site has existing storage capacity and management capability for the material.
In addition, DOE proposes to limit use of the categorical exclusion to, as appropriate, facilities and operations that are already permitted, licensed, and approved. That is, this proposed categorical exclusion would not apply to circumstances where the receiving site requires a permit or license amendment or variance from its existing approvals in order to receive or manage the materials, and it also would not apply to circumstances where the receiving facilities are not yet completed and operational.
DOE has decades of experience transporting materials, including various types of radioactive materials and waste, and has completed NEPA reviews of such transportation under many different scenarios. DOE NEPA reviews of such transfers consistently show that these actions would not have the potential to cause significant impacts. Nevertheless, DOE will continue to analyze transportation impacts in EAs and EISs where the scope of the proposed action presents the potential for significant impacts or where the proposed action fails to meet the conditions contained in this categorical exclusion. (
DOE proposes several changes to this categorical exclusion. DOE proposes to add “installation” to the list of actions, which is now limited to the “relocation” of machinery and equipment; explicitly include “operation” of installed or relocated machinery and equipment; add “manufacturing machinery” in the list of examples of machinery and equipment; and clarify that the scope of the categorical exclusion includes modifications to an existing building, within or contiguous to a previously disturbed or developed area, provided that the modifications do not appreciably increase the footprint or height of the existing building or have the potential to cause significant changes to the type and magnitude of environmental impacts. DOE also proposes to delete the restriction that uses of the installed or relocated equipment be similar to their former uses, because it is duplicative of the limitation that the actions be consistent with the general missions of the receiving structure. DOE has determined
In response to DOE's December 2009 Request for Information, one commentor suggested that DOE categorically exclude projects (
Because DOE proposes to broaden the scope of this categorical exclusion to include actions off DOE sites (
DOE proposes a new categorical exclusion for stormwater runoff control practices that reduce stormwater runoff and maintain natural hydrology. The actions included in the proposed categorical exclusion are found in Environmental Protection Agency's Guidance No. EPA 841-B-09-001, Technical Guidance on Implementing the Stormwater Runoff Requirements for Federal Projects under Section 438 of the Energy Independence and Security Act (December 2009). Based on the experience of Federal agencies, the opinions of subject matter experts, and private sector experience developing and deploying stormwater runoff control and low impact development practices, the types of actions included in this categorical exclusion are, in most cases, mitigation or best management practices commonly employed to protect surface water quality and to reduce erosion associated with runoff. DOE has concluded that such activities would not have the potential to cause significant environmental impacts. (
DOE proposes a new categorical exclusion for the containment, removal, and disposal of lead-based paint. This proposed categorical exclusion is based on laws and regulations governing such activities for buildings and other structures. Use of the proposed categorical exclusion would require adherence to applicable laws and regulations. Further, the creation of this categorical exclusion is supported by existing lead paint removal categorical exclusions from the Environmental Protection Agency and the Department of the Army. DOE has determined that such paint removal actions would not have the potential to cause significant impacts. (
DOE proposes a new categorical exclusion for the siting, construction, modification, and operation of a recycling or compostable material drop-off, collection, and transfer station on or contiguous to developed or previously disturbed land and in an area where such a facility would be consistent with existing zoning requirements. The Department of Homeland Security and the Department of Agriculture's Rural Utilities Service have existing categorical exclusions for similar facilities. Specifically, Homeland Security has a categorical exclusion for the recycling of non-hazardous materials from routine/operational activities, and the Rural Utilities Service has a categorical exclusion for the construction of facilities for the transfer of waste that will be recycled or stored. DOE has determined that the limitations placed on recycling stations proposed in this new categorical exclusion would ensure that such actions would not have the potential to cause significant impacts. (
DOE proposes a new categorical exclusion for determinations that real property is excess to the needs of the Department. This proposed categorical exclusion includes associated reporting of such determinations to the General Services Administration and the Bureau of Land Management, as appropriate. DOE would allow the categorical exclusion of reporting of excess property, but the actual disposal of real property is not included in the scope of this proposed categorical exclusion.
Other Federal agencies (
DOE proposes to clarify that improvements to enhance workplace habitability may include installation of equipment necessary for the improvements by adding “installation” before its examples of improvements. DOE has determined that installation and subsequent operation of equipment necessary for improvements to workplace habitability would not have the potential for significant environmental impacts.
DOE proposes clarifying the scope of the existing categorical exclusion by providing additional examples of instrumentation (water consumption monitors and controls).
DOE proposes to delete the reference to DOE Order 5480.6 (“Safety of DOE owned Nuclear Reactors”) because it has been cancelled. Actions previously encompassed by the Order are still performed by DOE and other organizations to qualify equipment for use and are still appropriate for a categorical exclusion, and DOE proposes to provide examples of such actions. Calibration of sensors and diagnostic equipment, crane and lift-gear certifications, and high efficiency particulate air (“HEPA”) filter testing and certifications, to name a few, are activities that DOE proposes to list as examples in the categorical exclusion. These types of actions have been performed routinely by DOE, other
DOE proposes changes to this categorical exclusion to better reflect the current scope of DOE's sealed source recovery activities. At the time the existing categorical exclusion was established, the focus of DOE's efforts was primarily the recovery of DOE-owned radioactive materials that had been loaned or leased, such as to universities for research, and a small number of sealed sources. DOE later established the Off-Site Source Recovery Project (OSRP) to reflect an increased emphasis on recovery of sealed sources from Nuclear Regulatory Commission (NRC) and Agreement State licensees in response to requests from the NRC and other Federal or State agencies. After 2001, DOE further expanded the scope of OSRP to focus on the recovery of sources with a wider variety of radioisotopes of concern from a public health, safety, or national security perspective. Due to their high activity and portability, many sealed sources could be used either individually or in aggregate in radiological dispersal devices commonly referred to as “dirty bombs.” DOE prioritizes the recovery of radioactive sealed sources based on threat reduction criteria developed in coordination with the NRC. DOE's experience with the recovery of more than 25,000 radioactive sealed sources since 1979 demonstrates that these activities are routinely conducted and do not have the potential to cause significant environmental impact.
DOE proposes to simplify the existing categorical exclusion to address the recovery of radioactive sealed sources and sealed source-containing devices from domestic or foreign locations provided that (1) the recovered items are transported and stored in compliant containers, and (2) the receiving site has sufficient existing storage capacity and all required licenses, permits, and approvals.
These proposed changes would reflect changes in DOE's source recovery activities since the existing categorical exclusion was formulated. First, recovery activities are no longer limited to requests from NRC or other Federal or State agencies. DOE also considers requests for source recovery from foreign governments and private parties, including private parties in foreign countries. Also, DOE provides financial and technical support to third parties (principally the Conference of Radiation Control Program Directors) for source recovery activities. Second, the scope of DOE activities is not limited to materials or licensees addressed in 10 CFR 51.22(14).
The proposed changes also would remove the reference to certain items that are not sealed sources (such as uranium shielding material and packaged radioactive waste not exceeding 50 curies). DOE has determined that the packaging, transportation, and storage of these types of materials normally would fit within categorical exclusion B1.30, Transfer actions. (
DOE proposes several changes to categorical exclusion B3.1. DOE proposes to limit the scope of this categorical exclusion to terrestrial characterization and monitoring, as DOE is proposing a new categorical exclusion for such actions in salt water and freshwater environments (categorical exclusion B3.16 below). DOE also proposes to limit categorically excluded activities to those that would not have the potential to cause significant impacts from ground disturbance. Based on a project description for seismic surveying submitted by a commentor in response to DOE's December 2009 Request for Information, and after considering the potential scale of seismic surveying projects, DOE proposes to also limit the scope of the categorical exclusion so as not to include large-scale reflection or refraction testing with regard to seismic techniques.
One commentor responding to DOE's Request for Information suggested that DOE's list of categorical exclusions match all the categorical exclusions currently being used by the Bureau of Land Management and the U.S. Forest Service, particularly for geophysical surveys for exploration of geothermal resources. Another commentor suggested that DOE include a categorical exclusion for terrestrial seismic survey activities. In response to both comments, DOE notes that item (a) of the existing B3.1 categorical exclusion lists geological, geophysical, and geochemical surveying and mapping, including seismic surveying, as examples of actions in the scope of the categorical exclusion. Thus DOE determined that it was not necessary to propose new categorical exclusions in response to these comments.
DOE proposes to clarify the scope of the existing categorical exclusion, however, by providing additional examples of actions that DOE's experience has demonstrated properly fit within this class of actions. In response to the suggestion above and from another commentor concerning geothermal resources, DOE proposes to include temperature gradient surveying as an example of geophysical surveying activities encompassed within item (a). DOE also proposes to add underground reservoir response testing for item (d). The potential impacts of aquifer and reservoir response testing are well-known and normally insignificant; underground reservoir response testing could help determine, for example, whether further study of a reservoir for carbon sequestration purposes is warranted. DOE also proposes to add drilling using truck or mobile-scale equipment and modification, use, and plugging of boreholes as representative examples of small-scale drilling activities under item (f). DOE experience indicates that these changes would not have the potential to cause significant impacts. (
DOE proposes to modify this categorical exclusion to include actions undertaken to protect cultural resources. These types of actions (such as walking a site, visually surveying, and digging small, shallow test holes with hand tools) are similar to types of actions undertaken for wildlife protection and would not have the potential to cause significant impacts.
DOE proposes changes to this categorical exclusion for clarity. First, DOE proposes to delete the phrase “indoor bench-scale research,” which DOE views as encompassed within “small-scale research and development,” which is more easily understood. DOE also proposes to define “demonstration actions” in the context of this categorical exclusion and the related EA class of actions C12 as “actions that are undertaken at a scale to show whether a technology would be viable on a larger scale and suitable for commercial deployment. Demonstration actions frequently follow research and development and pilot projects that are directed at establishing proof of
DOE proposes to modify the scope of the categorical exclusion. DOE proposes to expand the categorical exclusion by providing additional examples of resources (brine, carbon dioxide, coalbed methane, gas hydrate) for which exploratory or experimental wells may be drilled. For carbon sequestration wells, DOE proposes to list examples of possible uses, including, but not limited to, the study of saline formations, enhanced oil recovery, and enhanced coalbed methane extraction. DOE also proposes to expand the locations where the infill wells may be drilled (now only in fields with operating wells) to fields with properly abandoned wells or unminable coal seams.
DOE proposes to limit this categorical exclusion to the terrestrial environment and to require that characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers.
DOE experience with new infill exploratory and experimental (test) oil, gas, and geothermal wells continues to show that they would not have the potential to cause significant impacts. DOE experience also shows that the potential impacts of infill exploratory and test wells for substances such as brine, carbon dioxide, coalbed methane, and gas hydrate would be similar and would not have the potential to cause significant impacts under the limitations of this proposed categorical exclusion. Based on DOE's experience, the proposal to expand the scope of this categorical exclusion, subject to the proposed additional limitations, would not have the potential to cause significant impacts.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
DOE is proposing two new categorical exclusions covering small-scale research activities in salt water and freshwater environments, and those two categorical exclusions limit the types of activities and their location specifically to protect aquatic environments. (
DOE is also proposing to clarify that this categorical exclusion includes small-scale biomass and biofuels research. Given the current focus on the development of biomass and biofuel production and the need for proof of concept research in this area, DOE proposes to state explicitly that small test plots for energy-related biomass or biofuels research (including the use of genetically engineered plants) are within the scope of this categorical exclusion.
Research using genetically engineered plants to be grown specifically for biomass production has reached the point where field tests are being performed outdoors for proof of concept purposes. At the same time, residues from biotechnology crops such as corn and soybeans are being tested as feedstocks for biofuel production. Such plants are currently regulated by the U.S. Department of Agriculture and these existing regulatory regimes have analyzed the environmental impacts resulting from the experimental and commercial growth of these crops, so there is no need for DOE to analyze separately these impacts to show their insignificance. DOE has determined that a categorical exclusion would be appropriate for small field tests, provided that the applicant already has all the necessary authorizations from the U.S. Department of Agriculture and received all necessary permissions to proceed with the trial. (
This categorical exclusion was initially created for demonstration actions under DOE's Clean Coal Technology Demonstration Program. However, after many years of experience with projects that reduce emissions and waste generation at existing fossil fuel facilities and, more recently, at alternative energy facilities, DOE is proposing modifications to the categorical exclusion for these activities regardless of whether or not they are part of DOE's Clean Coal Technology Demonstration Program. Specifically, DOE is proposing to expand the scope of this categorical exclusion to include projects to reduce emissions and waste generation at alternative fuel (
Based on its experience with these activities, DOE has found that projects that demonstrate ways to reduce emissions and waste generation at existing fossil or alternative fuel combustion or utilization facilities would not have the potential to cause significant impacts. (
Further, DOE proposes to remove from B3.9(c) the two-year limitation on the addition or replacement of equipment for reduction or control of sulfur dioxide, oxides of nitrogen, or other regulated substances at existing facilities. In DOE's experience, the potential for significant impacts of such projects does not depend on the duration of the demonstration. Moreover, two years may be too short a period of time for an adequate demonstration of equipment whose continued use is likely to be beneficial.
In addition to the provisions of B3.9(c), DOE proposes explicitly to include the addition or modification of equipment for capture and control of carbon dioxide or other regulated substances, provided that adequate infrastructure is in place to manage such substances. The use of such equipment offers the potential for environmental benefits by providing needed information on the costs, operability, and reliability of capture technologies that could enable their future deployment in existing conventional coal and other fuel utilization facilities. DOE's knowledge and experience with the physical or chemical unit processes
DOE proposes to modify this categorical exclusion by more clearly specifying the operating parameters for particle accelerators. This categorical exclusion currently has only one limiting parameter (primary beam energy less than approximately 100 million electron volts (MeV)). DOE's proposed modification would provide two additional limiting parameters (average beam power less than approximately 250 kilowatts (kW) and average current of 2.5 milliamperes (mA)). The voltage would be allowed to increase, as long as the resulting average current was 2.5 mA. Such result could be accomplished by lowering the power (wattage). Alternately, the wattage could increase if voltage decreased to result in an average current of 2.5 mA. DOE has determined that the use of three parameters will provide flexibility in the application of the categorical exclusion, but the actions still would not have the potential to cause significant impacts. (
The existing categorical exclusion precludes DOE from categorically excluding outdoor burn, impact, drop, puncture, and similar tests involving radiological sources, whether or not they were encapsulated. Because encapsulated sources can be used safely in these types of tests, DOE proposes to expand the scope of the categorical exclusion to cover their use under certain conditions. Specifically, DOE is proposing that nondestructive actions such as detector/sensor development and testing and first responder field training, using encapsulated sources that contain source, special nuclear, or byproduct materials, be included in the scope of this categorical exclusion. DOE experience demonstrates that such activities can be done safely and would not have the potential to cause significant impacts.
DOE proposes a new categorical exclusion for the siting, construction or modification, operation, and decommissioning of small-scale educational facilities, including, but not limited to, conventional teaching laboratories, libraries, classroom facilities, auditoriums, museums, visitors centers, exhibits, and associated offices within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible). Based on DOE's experience, and supported by past NEPA analyses, such activities, under the limitations provided, would not have the potential to cause significant impacts. (
DOE proposes a new categorical exclusion for the siting, construction, or modification, operation, and decommissioning of facilities for indoor small-scale research and development and small-scale pilot projects using nanoscale materials, in accordance with applicable requirements necessary to ensure the containment of any biohazardous materials. Construction or modification would be within or contiguous to an already developed area (where active utilities and currently used roads are readily accessible). This proposed categorical exclusion includes activities that are already in the scope of B3.6 (Small-scale research and development, laboratory operations, and pilot projects); however, as part of its rulemaking effort, DOE finds it appropriate to propose a categorical exclusion that specifically addresses nanoscale activities.
DOE has extensive small-scale or laboratory-scale experience working with engineered (intentionally created, rather than natural or incidentally formed) nanoscale materials. For example, DOE is participating in interagency workgroups, such as the National Nanotechnology Initiative (
Laboratory-scale experimentation with nanoscale materials has been the subject of four DOE EAs, in which the Department has analyzed the construction and operation of nanomaterials facilities. DOE has determined that, with appropriate controls in place (as specified in the proposed categorical exclusion and described above), these activities would not have the potential to cause significant impacts. (
DOE is particularly interested in receiving comments on this proposed categorical exclusion.
DOE proposes a new categorical exclusion for small-scale, temporary surveying, site characterization, and research actions to be performed in salt water and freshwater environments. DOE proposes limiting the actions covered by this categorical exclusion to the acquisition of rights-of-way, easements, and temporary use permits; data collection, environmental monitoring, and nondestructive research programs; resource evaluation activities; collection of various types of data and samples; installation of monitoring and recording devices; installation of equipment for flow testing of existing wells; and ecological and environmental research in a small area.
DOE proposes specifically to exclude the construction or installation of permanent facilities or devices and to exclude the drilling of resource exploration or extraction wells. In addition, DOE has included several limits on the type, scope, and location of covered actions to protect the aquatic environment from potential significant impacts.
DOE proposes to limit the covered actions in this categorical exclusion through the following conditions. Covered actions under this categorical exclusion would be conducted in accordance with, where applicable, an approved spill prevention, control, and response plan, and would incorporate appropriate control technologies and
DOE has determined that, subject to the proposed limitations, the activities would not have the potential to cause significant impacts. DOE is particularly interested in receiving comments on this categorical exclusion due to heightened sensitivity to activities in the salt water environment in light of recent oil-related incidents. (
DOE proposes to make a number of recurring changes to the categorical exclusion provisions applicable to power resources. In reference to adding electric power resources (such as wind farms) into an electric power system, DOE proposes to use the term “interconnection” rather than the term “integration” now used in its existing classes of actions. “Interconnection” is the current term used in the electric transmission field for such actions. DOE, therefore, proposes changes to the following provisions: B4.1, B4.11, B4.12, B4.13.
DOE proposes to delete references to “main transmission system” in its existing classes of actions as unnecessary because DOE actions would only apply to its own transmission system. DOE, therefore, proposes changes to the following provisions: B4.11, B4.12.
DOE proposes to add pipeline rights-of-way as locations where actions could occur that are now categorically excluded or proposed for categorical exclusion in previously developed or disturbed transmission line rights-of-way. The impacts from siting, constructing, operating, or decommissioning actions in these linear rights-of-way are essentially similar. DOE, therefore, proposes changes to the following provisions: B4.7, B4.12. (DOE also proposes a similar change to EA class of actions C4.)
DOE proposes to simplify the description of the scope of this categorical exclusion, without changing the scope. The categorical exclusion would still apply to electric power contracts, policies, and plans that do not involve a new generation resource and do not involve changes in the normal operating limits of existing generation resources. DOE proposes to delete the existing reference to “excess electric power” as unnecessary as it simply applies to power that is available for transmission. DOE is proposing changes to its corresponding classes of actions for EAs (C7) and EISs (D7), as discussed below in Section IV.F and IV.G, respectively.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
DOE proposes to clarify this categorical exclusion by adding “power management activities” to its existing categorical exclusion for power marketing services to indicate that the activities that are appropriately categorically excluded do not necessarily need to be taken in the context of marketing power. The existing categorical exclusion was established based on the experience of DOE's power marketing administrations, but has been appropriately applied recently by other elements of the Department, for example, in evaluating actions under the American Recovery and Reinvestment Act. The proposed change would provide transparency to DOE's application of this categorical exclusion, and DOE has determined that the covered actions would not have the potential to cause significant impacts.
DOE proposes to add “load shaping projects (such as the installation and use of flywheels and battery arrays)” to the list of example actions in this categorical exclusion. With the wider deployment and accompanying improvement in load shaping technologies, DOE's experience indicates that these actions fit within the scope of this categorical exclusion.
DOE proposes that certain actions associated with adding fiber optic cable to transmission facilities (such as vaults and pulling and tensioning sites) be within the scope of this categorical exclusion with certain limitations. DOE has found that it is often necessary to place vaults and pulling and tensioning sites outside of rights-of-way. DOE has determined that, if vaults or such sites are in nearby previously disturbed or developed areas, they would not have the potential to cause significant environmental impact.
DOE proposes to add examples of crossing agreements affecting a transmission facility's rights-of-way that DOE has determined are in the scope of this categorical exclusion, namely natural gas pipelines, communications cables, and roads.
DOE proposes to add “abandonment” and “restoration” of rights-of-way to the list of activities in this categorical exclusion, because DOE has determined that these actions, which generally follow the removal of electric transmission lines and substations, would not have the potential to cause significant impacts.
DOE proposes to add interconnection facilities to its categorical exclusion for construction or modification of electric power substations because the facilities have similar equipment and function. Substations switch, step down, or regulate voltage of electricity being transmitted, and may serve as controls and transfer points on a transmission system; interconnection facilities add electric power resources to transmission systems through similar functions.
DOE proposes that actions under this categorical exclusion, instead of being limited to those that do not interconnect a new generation resource (under the existing categorical exclusion), be limited to interconnecting new generation resources that meet two conditions: The new generation resource (1) would be eligible for categorical exclusion under the DOE NEPA regulations (that is, under proposed categorical exclusions for combined heat and power or cogeneration systems (B5.14), solar energy (B5.16 and B5.17), wind energy (B5.18), biomass power plants (B5.20), methane gas recovery and utilization systems (B5.21) and drop-in hydroelectric systems (B5.24)), and (2) would be equal to or less than 50
DOE is also proposing to delete actions regarding construction, upgrading, or rebuilding transmission lines from this categorical exclusion because substation actions do not necessarily involve transmission line actions. Categorically excluded transmission line actions are addressed in proposed B4.12 and B4.13.
DOE is proposing to delete the restriction that facilities under this categorical exclusion be limited to no more than 230 kilovolts because DOE has determined that voltage of a substation or interconnection facility is not a determinant of the potential for significant environmental impacts.
In response to the Department's December 2009 Request for Information, one commentor suggested that DOE categorically exclude modifications and upgrades to existing substations to accommodate electricity generated from renewable energy sources, to the extent that an upgrade does not increase the overall capacity of the substation or the disturbed areas associated with the substation, noting that additional capacity is needed at substations throughout the electric grid. DOE notes that it is proposing to delete the restriction that facilities under this categorical exclusion be limited to no more than 230 kilovolts.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
DOE proposes to incorporate within the scope of categorical exclusion B4.12 an action currently addressed in the existing categorical exclusion B4.11, that is “relocation of existing electric transmission lines approximately 20 miles in length or less.” By doing so, transmission line construction and rebuilding activities will be consolidated in categorical exclusions B4.12 and B4.13, rather than also included in categorical exclusion B4.11, which predominantly relates to substations and interconnection facilities. DOE's long-term experience with electric transmission line construction indicates that the approximately 10-mile limit for categorical exclusion of transmission line construction outside of a previously disturbed or developed right-of-way, and the approximately 20-mile limit for categorical exclusion of transmission line in a previously disturbed right-of-way, have been reliable guides to the appropriate level of NEPA review for the actions.
DOE proposes that actions under this categorical exclusion, instead of being limited to those that do not interconnect a new generation resource (as under the existing categorical exclusion), be limited to interconnecting new generation resources that meet the two conditions discussed with respect to categorical exclusion B4.11.
In response to the Department's December 2009 Request for Information, one commentor suggested that the addition of transmission lines to existing transmission line or pipeline rights-of-way be categorically excluded. The commentor noted that additional transmission capacity is required to move electricity generated by renewable resources to population centers and that adding that capacity in an existing right-of-way will have very little environmental impact. DOE agrees and does not restrict the addition of transmission lines to an existing transmission or pipeline right-of-way if the limitations specified in the categorical exclusion are met.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
DOE proposes to continue to categorically exclude the upgrading and rebuilding of existing transmission lines of approximately 20 miles in length or less (including minor relocations of small segments of such lines), as under the existing categorical exclusion B4.13. DOE also proposes to categorically exclude the use of the upgraded or rebuilt lines for the interconnection of new generation resources that meet the two conditions discussed with respect to categorical exclusion B4.11. Further, DOE proposes to delete the purposes for which minor relocations of the existing line may occur.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
In B5.1, DOE proposes four types of changes to the existing categorical exclusion: (1) Adding examples to better represent the type of energy conservation actions, including those for which DOE provides financial assistance, that fall within the scope of this categorical exclusion, (2) adding actions to conserve water, (3) deleting reference to renewable energy research and development because DOE is proposing separate categorical exclusions for those actions (under B5.15 and B5.25 below), and (4) including new B5.1(b).
In B5.1(a), DOE proposes to clarify the scope of the categorical exclusion by providing additional examples of conservation actions similar in nature to the existing examples, such as weatherization, energy efficiency for vehicles and transportation (such as fleet change out), power storage (such as flywheels and batteries, generally less than 10 MW), and transportation management systems (such as traffic signal control systems). DOE's experience with these proposed covered actions demonstrate that they fit within the scope of the categorical exclusion. In addition, to ensure that the categorical exclusion would not encompass actions with potentially significant impacts on the human environment, DOE proposes to clarify that the actions include building renovations or new structures, provided that they occur in a previously disturbed or developed area. Also, DOE proposes to clarify that the categorical exclusion could also involve actions in the academic or institutional sectors.
In B5.1(b), DOE proposes to include rulemakings that establish energy conservation standards in the scope of this categorical exclusion. DOE has prepared numerous EAs and FONSIs for rulemakings that establish energy conservation standards for consumer products and industrial equipment and has determined that, within the limitations on the scope of actions that could be taken under the proposed categorical exclusion, establishment of such standards would not have the potential to cause significant impacts. The limitations on scope of actions concern changes in manufacturing infrastructure, uses of available resources, disposal, and energy consumption. (
DOE is particularly interested in receiving comments on B5.1(b) of this categorical exclusion.
DOE proposes to broaden the scope of this categorical exclusion by not limiting it to oil, gas, and geothermal facilities, but by providing examples of materials that could be conveyed by pump and piping configurations (that is, by adding as examples, air, brine, carbon dioxide, produced water, steam, and water to the currently listed materials). DOE also proposes to clarify
DOE proposes to broaden the scope of this categorical exclusion for storage and injection wells by not limiting the wells to those for oil, brine, geothermal, and gas wells, but by adding these wells as examples: Carbon dioxide, coalbed methane, and gas hydrate wells. DOE's experience has demonstrated that actions associated with the modification and abandonment (including plugging) of carbon dioxide and similar wells normally do not have the potential to cause significant impacts. DOE is proposing to limit use of the categorical exclusion to situations where there is low potential for seismicity, subsidence, and contamination of freshwater aquifers and where the actions are otherwise consistent with best practices and DOE protocols, including those that protect against uncontrolled releases of harmful materials. DOE is also proposing to clarify that “gas” in the existing categorical exclusion refers to natural gas.
DOE proposes to broaden the scope of this categorical exclusion by not limiting it to actions including oil, produced water, brine, and geothermal pipelines, but also to exclude repair and replacement actions on pipelines carrying materials similar in nature (such as air, carbon dioxide, hydrogen gas, natural gas, nitrogen gas, steam, and water). In DOE's experience, the conveyance of the proposed additional materials similar to those currently categorically excluded normally does not pose a potential to cause significant impacts. DOE also proposes to clarify that upgrading, rebuilding, and minor relocation may be involved in repair or replacement of pipelines. Further, DOE proposes to list Army Corps of Engineer permits as one type of requirement that may apply to these actions, while also acknowledging that there may be others.
DOE proposes to broaden the scope of this categorical exclusion by not limiting it to oil, steam, geothermal or natural gas resources, but by providing additional examples (air, brine, carbon dioxide, hydrogen gas, nitrogen gas, produced water, and water) of materials potentially conveyed by pipeline segments under this categorical exclusion. The potential impacts resulting from pipelines conveying the additional materials would be similar to those from the existing categorically excluded materials. DOE's experience conveying these materials has demonstrated that they would not have the potential to cause significant impacts.
DOE further proposes to remove the limitation that pipelines must be within a single industrial complex. DOE proposes to remove that limitation because potential impacts do not depend on whether the action is conducted within an arbitrary boundary. DOE is therefore proposing to replace the reference to “DOE facilities” with references to “existing source facilities” and “existing receiving facilities.” Categorically excluded actions are limited to short pipelines, which DOE proposes be generally less than 20 miles in length in previously developed or disturbed areas.
DOE is proposing to clarify that the National Oil and Hazardous Substances Pollution Contingency Plan is not necessarily the only applicable requirement for oil spill cleanup by making this an example of an applicable requirement.
DOE proposes to add disapprovals to the current scope (approvals) for consistency with existing classes of actions C13, D8, and D9.
DOE proposes to add disapprovals to the current scope (approvals) for consistency with existing classes of actions C13, D8, and D9. DOE proposes to include in the scope of this categorical exclusion pipelines generally less than 20 miles in length in previously disturbed or developed rights-of-way.
DOE proposes to delete two references to provisions of the Powerplant and Industrial Fuel Use Act as those provisions have been deleted from the Act.
DOE proposes to broaden the scope of this categorical exclusion by not limiting it to oil, gas, and geothermal wells, but by providing additional examples (brine, carbon dioxide, coalbed methane and gas hydrate) of wells that could be restored to functionality. DOE's experience with these materials has demonstrated that the potential impacts would be similar in nature to the impacts of wells using materials named in the existing categorical exclusion and that workover of such wells would not have the potential to cause significant impacts. In addition, DOE is proposing to limit use of the categorical exclusion to situations where there is low potential for seismicity, subsidence, and contamination of freshwater aquifers, and where the actions are otherwise consistent with best practices and DOE protocols, including those that protect against uncontrolled releases of harmful materials. DOE is also proposing to clarify that “gas” in the existing categorical exclusion refers to “natural gas.”
DOE proposes a new categorical exclusion for experimental wells for the injection of small quantities of carbon dioxide in locally characterized geologically secure storage formations at or near existing carbon dioxide sources. The activities encompassed in the new proposed categorical exclusion are intended to help determine the suitability of geological formations for large-scale sequestration, as information from small-scale projects can be used to ensure that commercial-scale projects can be conducted safely and in an environmentally sound manner.
The proposed categorical exclusion is supported by DOE's National Energy Technology Laboratory's experience with carbon sequestration wells, through DOE-directed research projects and collaboration with the nationwide network of regional carbon sequestration partnerships tasked with determining the best technologies for carbon capture, storage, and sequestration. Through this work, DOE has gained substantial experience with small-scale carbon sequestration, showing that these projects can be managed safely and would not have the potential to cause significant impacts. In addition, the proposed categorical exclusion is supported by FONSIs for
Based on experience with small-scale projects, DOE proposes that the injection of carbon dioxide under this categorical exclusion be limited to, in aggregate, less than 500,000 tons over the duration of a project. In addition, DOE also proposes a number of conditions that the project must meet in order for the activity to be categorically excluded. For example, the proposed categorical exclusion would require that characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers. DOE's proposed limitations will ensure that injection of carbon dioxide at this scale would not have significant impacts. (
DOE is particularly interested in receiving comments on this categorical exclusion, including the limit of 500,000 tons of carbon dioxide over the duration of the project.
DOE proposes a new categorical exclusion for the conversion to, and replacement or modification of, combined heat and power or cogeneration systems at existing facilities provided that the action would not have the potential to cause a significant increase in the quantity or rate of air emissions and would not have the potential to cause significant impacts to water resources.
DOE has determined that combined heat and power or cogeneration system activities under this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these systems would be modifications to existing systems, and thus generally would not involve more than minor changes to facility footprints and do not involve major new construction, and (2) these systems would improve operating efficiency (such as making use of otherwise waste heat) and thus would be designed to lessen potential impacts.
As part of DOE's proposal to clarify and focus existing categorical exclusion B5.1 on energy efficiency and conservation actions (including research and development-related actions), DOE proposes a separate categorical exclusion for small-scale renewable energy research and development and pilot projects. In doing so, DOE proposes to limit the covered actions to those in previously disturbed and developed areas and to emphasize that such actions would be in accordance with applicable requirements and incorporate appropriate controls and practices.
In addition, this proposal is responsive to a commentor's suggestion to have a categorical exclusion for small-scale pilot projects for renewable energy generation, modeled on DOE's existing categorical exclusion B6.2 for pilot-scale waste collection and treatment facilities.
DOE is particularly interested in receiving comments on this categorical exclusion.
As part of DOE's proposal to clarify and focus existing categorical exclusion B5.1 on energy efficiency and conservation actions, and in response to commentors' suggestions to include more explicitly renewable energy technologies, DOE is proposing several new categorical exclusions. DOE proposes eight new categorical exclusion classes of actions involving renewable energy technologies, as described below. The proposed categorical exclusions apply to the installation, modification, operation, and removal of small-scale, commercially available renewable energy technologies. DOE proposes to specify conditions by technology (
The proposed categorical exclusions in B5.16-B5.24 identify many of the types of projects for which DOE has made categorical exclusion determinations based on existing categorical exclusion B5.1. The actions listed in these proposed categorical exclusions are also consistent with categorical exclusions promulgated by other Federal agencies, EAs and FONSIs prepared by DOE and other Federal agencies, the opinions of subject matter experts, and private sector experience developing and deploying renewable energy technologies. DOE has determined that the activities under these categorical exclusions, when subject to the proposed limitations, would not have the potential to cause significant impacts because the categorical exclusions apply specifically to systems that are: (1) Located on or adjacent to existing structures, or on previously developed or disturbed land, (2) sited in accordance with local land use and zoning requirements, and (3) designed to incorporate appropriate control technologies and best management practices to lessen potential impacts.
The proposed categorical exclusions are responsive to the numerous suggestions that DOE received, both from within DOE and in response to its December 2009 Request for Information, to include explicitly renewable energy technologies and associated equipment in its categorical exclusions. Several commentors also suggested that DOE categorically exclude actions intended to “co-locate renewables” or to support “distributed generation projects.” These suggestions describe similar actions that: (1) Support the operation of an existing facility by providing a renewable energy source on-site, (2) would be compatible with existing land use, and (3) would require minimal to no expansion of the footprint of an existing facility. As a result, DOE's review of available data led it to propose to exclude select small-scale, renewable energy technology projects, under specified proposed conditions, for the purpose of providing a renewable energy generation capability to existing facilities (specifically, B5.16-B5.21).
The actions listed in categorical exclusion B5.16 apply to the installation, modification, operation, and removal of commercially available solar photovoltaic systems located on a building or other existing structure (
DOE has determined that the solar photovoltaic system activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because (1) these are systems located on or adjacent to existing structures, or on previously developed or disturbed land, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these systems generally would support the operation of an existing facility (
DOE is particularly interested in receiving comments on this categorical exclusion.
DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of commercially available small-scale solar thermal systems (
DOE has determined that the solar thermal system activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because (1) these are small-scale systems located on or contiguous to an existing building, or in a previously developed or disturbed area, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these systems generally would support the operation of an existing building (
DOE is particularly interested in receiving comments on this categorical exclusion.
DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of small (
DOE has determined that the activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because (1) these are small-scale wind turbines located within a previously developed or disturbed area, and thus generally involve no more than minor changes to an existing footprint and do not involve major new construction, and (2) these systems generally would support improved operation of an existing facility (
DOE is particularly interested in receiving comments on this categorical exclusion.
DOE proposes a new categorical exclusion for commercially available, small-scale ground source heat pumps, designed to include appropriate leakage and contaminant control measures (
DOE has determined that the ground source heat pump system activities under this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these are systems located within or adjacent to existing structures, or on previously developed or disturbed land, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these systems generally would support the operation of an existing facility (
DOE is particularly interested in receiving comments on this categorical exclusion.
DOE proposes a new categorical exclusion for small-scale biomass power plants, designed using commercially available technologies for an average energy output of 10 megawatts, to support the operation of single facilities (
DOE has determined that the activities covered by this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these are systems located within or adjacent to existing structures, or within previously developed or disturbed areas, and thus generally involve no more than minor changes to facility footprints or land use, and (2) these systems generally would support the operation of an existing building or contiguous facilities (
DOE is particularly interested in receiving comments on this categorical exclusion.
DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of commercially available methane gas recovery and utilization systems on or contiguous to an existing landfill or wastewater treatment plant, or within a previously disturbed and developed area. The actions listed in this proposed categorical exclusion are consistent with categorical exclusion determinations for methane gas recovery and utilization technologies that DOE has made based on existing regulations.
DOE has determined that the methane recovery and utilization system activities under this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these are modifications to existing waste disposal or treatment facilities, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these modifications generally would improve operating efficiency (
DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of fueling stations for compressed natural gas, hydrogen, ethanol or other commercially available biofuels that are located on the site of a current or former fueling station, or in a previously disturbed or developed area controlled by the owner of the existing facility and vehicle fleet the station is meant to service. The actions listed in this proposed categorical exclusion are consistent with categorical exclusion determinations DOE has made based on existing regulations for alternative fuel vehicle fueling technologies and an EA and FONSI prepared by DOE. (
DOE has determined that the alternative vehicle fueling system activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because these are systems located at existing stations, or on previously developed or disturbed land, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction. These systems would support the operation and use of alternative fuel vehicles (
DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of electric vehicle stations within a previously disturbed or developed area. The actions listed in this proposed categorical exclusion are consistent with categorical exclusion determinations DOE has made based on existing regulations.
DOE has determined that the electric vehicle charging station activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because these are systems located on previously developed or disturbed land, and thus generally do not involve major new construction. These systems would support the use of electric vehicles (
DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of commercially available small-scale, drop-in, run-of-the-river hydroelectric systems where there would not be the potential for significant impacts to threatened and endangered species or significant impacts on water quality, temperature, flow, or volume.
The term “run-of-the-river” as used in this categorical exclusion refers to hydroelectric systems that would be fully dependent on the natural flow of the river or stream at the point of system installation; would have no water storage, such as in an impoundment; and would involve no water diversion from the stream or river. The term “drop-in” refers to prefabricated systems that are placed in a river or stream, not systems that are constructed in a river or stream such as a dam. Under this categorical exclusion, DOE envisions small turbines placed in a stream or river for small operations, where all energy would likely be consumed on-site (
DOE has determined that the activities under this categorical exclusion would not have the potential to cause significant impacts when subject to the proposed limitations: involve no water storage or water diversion; be located only in areas upstream of a natural anadromous fish barrier (such as a waterfall that has historically prevented anadromous fish passage); and involve no major construction, modification of stream or river channels, or the use of heavy equipment. Projects in the scope of this categorical exclusion generally support adjacent uses with a renewable source of direct electricity production. Such activities also may serve to lessen potential air emissions impacts when compared to traditional systems where electrical energy is generated by fossil fuel sources.
DOE is particularly interested in receiving comments on this categorical exclusion.
DOE proposes to create a new categorical exclusion for small-scale renewable energy research and development and pilot projects in salt water and freshwater environments. Research with respect to wave or tidal energy or the growth and harvest of algae as biomass for proof of concept purposes would be appropriate projects in this class of actions. However, as with B3.16, DOE proposes to impose similar limits on the scope and location of the activities to ensure that renewable energy research is conducted in a manner that would not have the potential to cause significant impacts. These actions are consistent with categorical exclusion determinations DOE has made based on existing regulations, EAs and FONSIs prepared by other Federal agencies, and the opinions of subject matter experts. (See the Technical Support Document.)
DOE proposes specifically to exclude the construction or installation of permanent facilities or devices and to exclude the drilling of wells for resource exploration or extraction. In addition, DOE has included several limits on the type, scope, and location of covered actions to protect the aquatic environment from potential significant impacts.
DOE proposes to limit the covered actions in this categorical exclusion through the following conditions. Covered actions under this categorical exclusion would be conducted in accordance with, where applicable, an approved spill prevention, control, and response plan, and would incorporate appropriate control technologies and best management practices. Furthermore, none of the above activities would occur (1) within areas of hazardous natural bottom conditions, or (2) within the boundary of an established marine sanctuary or wildlife refuge, a governmentally proposed marine sanctuary or wildlife refuge, or a recognized area of high biological sensitivity, or outside those areas if the activities would have the potential to cause significant impacts within those areas. Additionally, no permanent facilities or devices would be constructed or installed. The categorical exclusion also lists other factors, specific to aquatic environments, to be considered by proponents of covered actions before applying this categorical exclusion to ensure that the activities would not have the potential to have significant impacts.
DOE is particularly interested in receiving comments on this categorical exclusion.
DOE proposes to remove the specified limit of 5 years duration for categorically excluded short-term, small-scale cleanup actions because in DOE's experience that duration has not been representative of the potential for significant environmental impacts. DOE proposes to retain a specified limit to cost, but to raise the limit from approximately $5 million to approximately $10 million, in light of the fact that this cost limitation has not been revised since 1996. DOE also proposes to add encapsulation, physical or chemical separation, and compaction to the examples of treatment methods. DOE proposes to change the text of the categorical exclusion from “would not affect future groundwater remediation” to “would not unduly limit future groundwater remediation” because a literal reading of the existing categorical exclusion would bar its use if there were any affect on future groundwater remediation.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
Existing B6.7 refers to a DOE regulation that was repealed in 1995. That regulation implemented a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which is no longer in effect. Therefore, DOE proposes deleting this categorical exclusion, marking B6.7 as “removed and reserved” in the regulations.
DOE proposes to identify “expansion” as within the scope of this categorical exclusion, which limits total facility size to 50,000 square feet.
For an explanation of recurring proposals applicable to the appendix C classes of actions, please see Section IV.B, Recurring Proposals, above, where they are discussed and the particular classes of actions affected are listed. The short titles listed below for particular classes of actions reflect DOE's proposed titles.
DOE proposes to delete EA class of actions C2 because DOE has not prepared an EA and FONSI under C2.
DOE proposes changes to this class of actions to conform to the changes DOE is proposing for categorical exclusions B4.12 and B4.13. Proposed changes to C4 would address electric transmission lines of lengths greater than those to which categorical exclusions might apply.
DOE proposes changes to this class of actions to conform to the changes DOE has proposed for categorical exclusion B4.1. This provision addresses the establishment and implementation of contracts, policies, and marketing and allocation plans related to electric power acquisition or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources that are equal to or less than 50 average megawatts and that would not be eligible for categorical exclusion under 10 CFR part 1021; (2) changes in the normal operating limits of generation resources equal to or less than 50 average megawatts; or (3) service to discrete new loads of less than 10 average megawatts over a 12-month period. DOE also proposes to delete the description that implies that this class of actions applies only to DOE power marketing operations and facilities at DOE sites.
DOE is particularly interested in receiving comments on the proposed revisions to this provision.
DOE proposes changes to this class of actions to conform to the changes DOE is proposing for categorical exclusion B1.20. Proposed changes to C8 would address large-scale activities undertaken to protect cultural resources.
DOE proposes to change the parameters for when an EA would normally be required to conform to the changes DOE is proposing for categorical exclusion B3.10. Whether an EA would normally be required would depend upon the energy associated with the particle acceleration facility.
DOE proposes changes to this class of actions to conform to the changes DOE is proposing for categorical exclusion B3.6. Proposed changes to C12 would address “demonstration actions,” which are outside the scope of B3.6.
DOE proposes changes for consistency with categorical exclusions B5.7 and B5.8.
For an explanation of recurring proposals applicable to the appendix D classes of actions, please
DOE proposes deleting D5, Main transmission system additions, and D6, Integrating transmission facilities, because there is redundancy and ambiguity between D5 and D6 that makes them of limited utility. Furthermore, there is overlap between D5 (addition of new lines) and C4 (construction of new lines) in the current regulations, which makes it difficult to discern which category is appropriate for a specific project. DOE also proposes not to have EIS categories that correspond to the categorical exclusions and the EA class of actions that address the level of NEPA review for electric transmission facilities and lines (B4.11, B4.12, B4.13, and C4). Based on DOE experience, the level of NEPA review for transmission facilities and lines that are not categorically excluded is at least at an EA level, but does not necessarily warrant an EIS level. DOE has found that the determination whether an EA or an EIS is appropriate is project-specific (
DOE is particularly interested in receiving comments on these provisions.
DOE proposes changes to this class of actions to conform to changes that DOE is proposing for both categorical exclusion B4.1 and the EA class of actions C7. This provision addresses establishment and implementation of contracts, policies, and marketing and allocation plans related to electric power acquisition or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources greater than 50 average megawatts; (2) changes in the normal operating limits of generation resources greater than 50 average megawatts; or (3) service to discrete new loads of 10 average megawatts or more over a 12-month period. DOE also proposes to delete the description that implies that this class of actions applies only to its power marketing operations and facilities at its sites.
DOE is particularly interested in receiving comments on the proposed revisions to this provision.
DOE proposes changes for consistency with categories B5.7, B5.8, and C13.
DOE proposes changes for consistency with categories B5.7, B5.8, and C13.
DOE reviewed and evaluated each of the suggestions provided by the 11 respondents to its December 2009 Request for Information, as discussed above in Section II. Many of the comments included proposals for new categorical exclusions and revisions to limit or expand existing categorical exclusions, or were related to other existing provisions in subpart D of the DOE NEPA regulations. In addition to comments related to specific provisions, which are discussed above in Section IV.C through IV.G, DOE received comments of a more general nature, not associated with a particular provision. These comments and DOE's responses are presented below.
DOE conducts its government-to-government consultations with Tribal Nations in accordance with its American Indian Tribal Government Policy, as outlined in DOE Order 1230.2. With respect to Federally recognized Indian Tribe interests, also
A commentor requested that DOE's December 2009 Request For Information “not be used to remove types of projects that are currently required to perform an EA or EIS.” As discussed further in Section IV.G, DOE is proposing to remove two classes of actions that are now listed as normally requiring an EIS, D5, Main transmission system additions, and D6, Integrating transmission facilities. DOE has found that, for the most part, it has been able to mitigate impacts such that those impacts are not significant. DOE is proposing to remove one EA class of actions (C2, Rate increases more than inflation, not power marketing). DOE has not been able to identify any proposed action that has been included in that class of actions.
DOE currently has an existing categorical exclusion, B3.7, for the siting, construction, and operation of new infill exploratory and experimental (test) wells, including geothermal wells, drilled in a geological formation that has existing operating wells. Although DOE is proposing to add certain restrictions, DOE does not believe these changes would make the permitting process for geothermal wells more difficult. In addition, DOE is proposing a new categorical exclusion, B5.19, for the installation, modification, operation, and removal of commercially available small-scale ground source heat pumps to support operations in single facilities or contiguous facilities. (See discussion of B3.7 and B5.19 in Section IV.E, above.)
In determining whether an action constitutes a major Federal action for purposes of NEPA, DOE considers the degree of Federal control over or involvement in a project. As part of this consideration, DOE examines the total amount and percentage of Federal funding among other factors. In many cases, the fact that Federal government funding is in the range of 10 percent (or less) of total project costs will make the percentage of Federal funding an important factor in finding that an action is not a major Federal action. These are essentially the same factors suggested by the commentor. DOE also may consider other factors specific to the proposed action at issue. DOE finds this case-by-case approach workable and consistent with applicable precedent and does not propose to establish specific criteria through this proposed rulemaking for determining whether a proposed action constitutes a major Federal action.
Today's proposed rule has been determined to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
In this proposed rule, DOE proposes amendments that establish, modify, and clarify procedures for considering the environmental effects of DOE actions within DOE's decisionmaking process,
The Regulatory Flexibility Act (5 U.S.C. 601
DOE has reviewed today's proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed revisions to 10 CFR part 1021 streamline the environmental review for proposed actions, resulting in a decrease in burdens associated with carrying out such reviews. For example, the proposed revisions are expected to reduce in aggregate the number of EAs that DOE is required to prepare, thus reducing the burden on applicants to prepare an EA for DOE's consideration, pay for the preparation of an EA, and/or provide environmental information for DOE's use in preparing an EA. During the past 10 years, DOE has completed approximately 30 EAs per year. The number of EAs completed each year has not varied significantly. However, in 2010, DOE expects to complete more than 75 EAs which reflect an increase in the number of proposed projects as a result of the American Recovery and Reinvestment Act. DOE expects the number of EAs it prepares after 2010 will be closer to historical norms. The cost per EA has ranged from $3,000 to $630,000; the average and median cost has been $100,000 and $65,000, respectively. DOE expects that although the number of EAs it prepares annually could increase in response to recent emphasis on certain program areas, such as renewable energy technologies, proposed new categorical exclusions in these areas would reduce the number of EAs that might otherwise be required. In addition, the costs of making a categorical exclusion determination are less than those to prepare an EA. DOE estimates that DOE's administrative costs for research, staff time, and Web-posting for a categorical exclusion determination would most likely be less than $2,000 on average. Applicants may sometimes incur costs in providing environmental information DOE requires when making a categorical exclusion determination. While DOE does not have data on such applicant costs, DOE estimates that such costs would be similar to DOE's costs for a categorical exclusion determination, and much less than the cost of a typical EA. Although the number of EAs that would be avoided and the associated costs saved by applicants is uncertain, the proposed revisions are expected to result in a net decrease in environmental review costs and thus, are expected to have a beneficial cost impact. DOE estimates that approximately 15 percent of the EAs prepared in the last 10 years were funded by applicants, while the other 85 percent were funded by DOE. Although DOE does not have data on what percentage of those applicants qualified as small entities, a beneficial cost impact is expected to be felt by entities of all sizes.
On the basis of the foregoing, DOE tentatively certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this proposed rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).
This proposed rulemaking will impose no new information or record-keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and Tribal governments. Subsection 101(5) of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or Tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary Federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or Tribal governments, or to the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and Tribal governments. 2 U.S.C. 1534.
The proposed rule would amend DOE's existing regulations governing compliance with NEPA to better align DOE's regulations, particularly its categorical exclusions, with its current activities and recent experiences, and update the provisions with respect to current technologies and regulatory requirements. The proposed rule would not result in the expenditure by State, local, and Tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. The proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1)(i) Is a significant regulatory action under Executive Order 12866, or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy, and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
DOE has determined pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this proposed rule would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.
The Secretary of Energy has approved publication of this notice of proposed rulemaking.
Environmental impact statements.
For the reasons stated in the Preamble, DOE proposes to amend part 1021 of chapter X of title 10 of the Code of Federal Regulations as set forth below:
1. The authority citation for part 1021 continues to read as follows:
42 U.S.C. 7101
2. Section 1021.311 is amended by revising the first sentence in paragraph (d) and revising paragraph (f) to read as follows:
(d) Except as provided in paragraph (f) of this section, DOE shall hold at least one public scoping meeting as part of the public scoping process for a DOE EIS. * * *
(f) A public scoping process is optional for DOE supplemental EISs (40 CFR 1502.9(c)(4)). If DOE initiates a public scoping process for a supplemental EIS, the provisions of paragraphs (a) through (e) of this section shall apply.
3. Section 1021.322 is amended by revising the last sentence of paragraph (f) to read as follows:
(f) * * * A revised FONSI is subject to all provisions of this section.
4. Section 1021.331 is amended by revising paragraph (b) to read as follows:
(b) In certain circumstances, as specified in § 1021.322(b)(1), DOE shall also prepare a Mitigation Action Plan for commitments to mitigations that are essential to render the impacts of the proposed action not significant.
5. Subpart D is revised to read as follows:
(a) This subpart identifies DOE actions that normally:
(1) Do not require preparation of either an EIS or an EA (are categorically excluded from preparation of either document) (appendices A and B to this subpart D);
(2) Require preparation of an EA, but not necessarily an EIS (appendix C to this subpart D); or
(3) Require preparation of an EIS (appendix D to this subpart D).
(b) Any completed, valid NEPA review does not have to be repeated, and no completed NEPA documents need to be redone by reasons of these regulations, except as provided in § 1021.314.
(c) If a DOE proposal is encompassed within a class of actions listed in the appendices to this subpart D, DOE shall proceed with the level of NEPA review indicated for that class of actions, unless there are extraordinary circumstances related to the specific proposal that may affect the significance of the environmental effects of the proposal.
(d) If a DOE proposal is not encompassed within the classes of actions listed in the appendices to this subpart D, or if there are extraordinary circumstances related to the proposal that may affect the significance of the environmental effects of the proposal, DOE shall either:
(1) Prepare an EA and, on the basis of that EA, determine whether to prepare an EIS or a FONSI; or
(2) Prepare an EIS and ROD.
(a) The actions listed in appendices A and B to this subpart D are classes of actions that DOE has determined do not individually or cumulatively have a significant effect on the human environment (categorical exclusions).
(b) To find that a proposal is categorically excluded, DOE shall determine the following:
(1) The proposal fits within a class of actions that is listed in appendix A or B to this subpart D;
(2) There are no extraordinary circumstances related to the proposal that may affect the significance of the environmental effects of the proposal. Extraordinary circumstances are unique situations presented by specific proposals, including, but not limited to, scientific controversy about the environmental effects of the proposal; uncertain effects or effects involving unique or unknown risks; and unresolved conflicts concerning alternative uses of available resources; and
(3) The proposal has not been segmented to meet the definition of a categorical exclusion. Segmentation can occur when a proposal is broken down into small parts in order to avoid the appearance of significance of the total action. The scope of a proposal must include the consideration of connected and cumulative actions, that is, the proposal is not connected to other actions with potentially significant impacts (40 CFR 1508.25(a)(1)), is not related to other actions with individually insignificant but cumulatively significant impacts (40 CFR 1508.27(b)(7)), and is not precluded by 40 CFR 1506.1 or § 1021.211 of this part concerning limitations on actions during EIS preparation.
(c) All categorical exclusions may be applied by any organizational element of DOE. The sectional divisions in appendix B to this subpart D are solely for purposes of organization of that appendix and are not intended to be limiting.
(d) A class of actions includes activities foreseeably necessary to proposals encompassed within the class of actions (such as award of implementing grants and contracts, site preparation, purchase and installation of equipment, and associated transportation activities).
(e) Categorical exclusion determinations for actions listed in appendix B shall be documented and made available to the public by posting online, generally within two weeks of the determination, unless additional time is needed in order to review and protect classified information, “confidential business information,” or other information that DOE would not disclose pursuant to the Freedom of Information Act (FOIA) (5 U.S.C. 552). Posted categorical exclusion determinations shall not disclose classified information, “confidential business information,” or other information that DOE would not disclose pursuant to FOIA. (
Routine actions necessary to support the normal conduct of DOE business limited to administrative, financial, and personnel actions.
Contract interpretations, amendments, and modifications that are clarifying or administrative in nature.
Adjustments, exceptions, exemptions, appeals and stays, modifications, or rescissions of orders issued by the Office of Hearings and Appeals.
Interpretations and rulings with respect to existing regulations, or modifications or rescissions of such interpretations and rulings.
Rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended.
Rulemakings that are strictly procedural, including, but not limited to, rulemaking (under 48 CFR chapter 9) establishing procedures for technical and pricing proposals and establishing contract clauses and contracting practices for the purchase of goods and services, and rulemaking (under 10 CFR part 600) establishing application and review procedures for, and administration, audit, and closeout of, grants and cooperative agreements.
Awards of contracts for technical support services, management and operation of a government-owned facility, and personal services.
Information gathering (including, but not limited to, literature surveys, inventories, site visits, and audits), data analysis (including, but not limited to, computer modeling), document preparation (including, but not limited to, conceptual design, feasibility studies, and analytical energy supply and demand studies), and information dissemination (including, but not limited to, document publication and distribution, and classroom training and informational programs), but not including site
Reports and recommendations on legislation or rulemaking that are not proposed by DOE.
Technical advice and planning assistance to international, national, State, and local organizations.
Emergency preparedness planning activities, including, but not limited to, the designation of onsite evacuation routes.
Administrative, organizational, or procedural Policies, Orders, Notices, Manuals, and Guides.
Approval of technical exchange arrangements for information, data, or personnel with other countries or international organizations (including, but not limited to, assistance in identifying and analyzing another country's energy resources, needs and options).
Approval of DOE participation in international “umbrella” agreements for cooperation in energy research and development activities that would not commit the U.S. to any specific projects or activities.
The classes of actions listed below include the following conditions as integral elements of the classes of actions. To fit within the classes of actions listed below, a proposal must be one that would not:
(1) Threaten a violation of applicable statutory, regulatory, or permit requirements for environment, safety, and health, or similar requirements of DOE or Executive Orders;
(2) Require siting and construction or major expansion of waste storage, disposal, recovery, or treatment facilities (including incinerators), but the proposal may include categorically excluded waste storage, disposal, recovery, or treatment actions or facilities;
(3) Disturb hazardous substances, pollutants, contaminants, or CERCLA-excluded petroleum and natural gas products that preexist in the environment such that there would be uncontrolled or unpermitted releases; or
(4) Have the potential to cause significant impacts on environmentally sensitive resources. An environmentally sensitive resource is typically a resource that has been identified as needing protection through Executive Order, statute, or regulation by Federal, State, or local government, or a Federally recognized Indian Tribe. An action may be categorically excluded if, although sensitive resources are present, the action would not have the potential to cause significant impacts on those resources (such as construction of a building with its foundation well above a sole-source aquifer or upland surface soil removal on a site that has wetlands). Environmentally sensitive resources include, but are not limited to:
(i) Property (such as sites, buildings, structures, and objects) of historic, archeological, or architectural significance designated by Federal, State, or local governments, or a Federally recognized Indian Tribe, or property determined to be eligible for listing on the National Register of Historic Places;
(ii) Federally-listed threatened or endangered species or their habitat (including critical habitat) or Federally-proposed or candidate species or their habitat (Endangered Species Act); State-listed endangered or threatened species or their habitat; and Federally-protected marine mammals and Essential Fish Habitat (Marine Mammals Protection Act; Magnuson-Stevens Fishery Conservation and Management Act);
(iii) Floodplains and wetlands (as defined in 10 CFR 1022.4, “Compliance with Floodplain and Wetland Environmental Review Requirements: Definitions,” or its successor);
(iv) Areas having a special designation such as Federally- and State-designated wilderness areas, national parks, national monuments, national natural landmarks, wild and scenic rivers, State and Federal wildlife refuges, scenic areas (such as National Scenic and Historic Trails or National Scenic Areas), and marine sanctuaries;
(v) Prime or unique farmland, or other farmland of statewide or local importance, as defined at 7 CFR 658.2(a), “Farmland Protection Policy Act: Definitions,” or its successor;
(vi) Special sources of water (such as sole-source aquifers, wellhead protection areas, and other water sources that are vital in a region); and
(vii) Tundra, coral reefs, or rain forests.
Changing rates for services or prices for products marketed by parts of DOE other than Power Marketing Administrations, and approval of rate or price changes for non-DOE entities, that are consistent with the change in the implicit price deflator for the Gross Domestic Product published by the Department of Commerce, during the period since the last rate or price change.
Training exercises and simulations (including, but not limited to, firing-range training, small-scale and short-duration force-on-force exercises, emergency response training, fire fighter and rescue training, and decontamination and spill cleanup training) conducted under appropriately controlled conditions and in accordance with applicable requirements.
Routine maintenance activities and custodial services for buildings, structures, rights-of-way, infrastructures (including, but not limited to, pathways, roads, and railroads), vehicles and equipment, and localized vegetation and pest control, during which operations may be suspended and resumed, provided that the activities would be conducted in a manner in accordance with applicable requirements. Custodial services are activities to preserve facility appearance, working conditions, and sanitation (such as cleaning, window washing, lawn mowing, trash collection, painting, and snow removal). Routine maintenance activities, corrective (that is, repair), preventive, and predictive, are required to maintain and preserve buildings, structures, infrastructures, and equipment in a condition suitable for a facility to be used for its designated purpose. Such maintenance may occur as a result of severe weather (such as hurricanes, floods, and tornados), wildfires, and other such events. Routine maintenance may result in replacement to the extent that replacement is in-kind and is not a substantial upgrade or improvement. In-kind replacement includes installation of new components to replace outmoded components, provided that the replacement does not result in a significant change in the expected useful life, design capacity, or function of the facility. Routine maintenance does not include replacement of a major component that significantly extends the originally intended useful life of a facility (for example, it does not include the replacement of a reactor vessel near the end of its useful life). Routine maintenance activities include, but are not limited to:
(a) Repair or replacement of facility equipment, such as lathes, mills, pumps, and presses;
(b) Door and window repair or replacement;
(c) Wall, ceiling, or floor repair or replacement;
(d) Reroofing;
(e) Plumbing, electrical utility, lighting, and telephone service repair or replacement;
(f) Routine replacement of high-efficiency particulate air filters;
(g) Inspection and/or treatment of currently installed utility poles;
(h) Repair of road embankments;
(i) Repair or replacement of fire protection sprinkler systems;
(j) Road and parking area resurfacing, including construction of temporary access to facilitate resurfacing, and scraping and grading of unpaved surfaces;
(k) Erosion control and soil stabilization measures (such as reseeding and revegetation);
(l) Surveillance and maintenance of surplus facilities in accordance with DOE Order 435.1, “Radioactive Waste Management,” or its successor;
(m) Repair and maintenance of transmission facilities, such as replacement
(n) Routine testing and calibration of facility components, subsystems, or portable equipment (such as control valves, in-core monitoring devices, transformers, capacitors, monitoring wells, lysimeters, weather stations, and flumes);
(o) Routine decontamination of the surfaces of equipment, rooms, hot cells, or other interior surfaces of buildings (by such activities as wiping with rags, using strippable latex, and minor vacuuming), and removal of contaminated intact equipment and other material (not including spent nuclear fuel or special nuclear material in nuclear reactors); and
(p) Removal of debris.
Installation or modification of air conditioning systems required for temperature control for operation of existing equipment.
Minor improvements to existing steam plants and cooling water systems (including, but not limited to, modifications of existing cooling towers and ponds), provided that the improvements would not: (1) Create new sources of water or involve new receiving waters; (2) have the potential to cause significant impacts on water withdrawals or the temperature of discharged water; or (3) increase introductions of, or involve new introductions of, hazardous substances, pollutants, contaminants, or CERCLA-excluded petroleum and natural gas products.
Installation or modification of retention tanks or small (normally under one acre) basins and associated piping and pumps for existing operations to control runoff or spills (such as under 40 CFR part 112). Modifications include, but are not limited to, installing liners or covers. (See also B1.33 of this appendix.)
Acquisition, installation, operation, modification, and removal of electricity transmission control and monitoring devices for grid demand and response, communication systems, data processing equipment, and similar electronic equipment.
Modifications to screened water intake and outflow structures such that intake velocities and volumes and water effluent quality and volumes are consistent with existing permit limits.
Placement of airway safety markings on, painting of, and repair and in-kind replacement of lighting on electrical transmission lines and antenna structures, wind turbines, and similar structures in accordance with applicable requirements (such as Federal Aviation Administration standards).
Routine, onsite storage at an existing facility of activated equipment and material (including, but not limited to, lead) used at that facility, to allow reuse after decay of radioisotopes with short half-lives.
Installation of fencing, including, but not limited to border marking, that would not have the potential to cause significant impacts on wildlife populations or migration or surface water flow.
Outdoor detonation or burning of explosives or propellants that failed (duds), were damaged (such as by fracturing), or were otherwise not consumed in testing. Outdoor detonation or burning would be in areas designated and routinely used for those purposes under existing applicable permits issued by Federal, State, and local authorities (such as a permit for a RCRA miscellaneous unit (40 CFR part 264, subpart X)).
Construction, acquisition, and relocation, consistent with applicable right-of-way conditions and approved land use or transportation improvement plans, of pedestrian walkways and trails, bicycle paths, small outdoor fitness areas, and short access roads and rail lines (such as branch and spur lines).
Refueling of operating nuclear reactors, during which operations may be suspended and then resumed.
Siting, construction or modification, and operation of support buildings and support structures (including, but not limited to, trailers and prefabricated and modular buildings) within or contiguous to an already developed area (where active utilities and currently used roads are readily accessible). Covered support buildings and structures include, but are not limited to, those for office purposes; parking; cafeteria services; education and training; visitor reception; computer and data processing services; health services or recreation activities; routine maintenance activities; storage of supplies and equipment for administrative services and routine maintenance activities; security (such as security posts); fire protection; small-scale fabrication (such as machine shop activities), assembly, and testing of non-nuclear equipment or components; and similar support purposes, but exclude facilities for nuclear weapons activities and waste storage activities, such as activities covered in B1.10, B1.29, B1.35, B2.6, B6.2, B6.4, B6.5, B6.6, and B6.10 of this appendix.
Removal of asbestos-containing materials from buildings in accordance with applicable requirements (such as 40 CFR part 61, “National Emission Standards for Hazardous Air Pollutants”; 40 CFR part 763, “Asbestos”; 29 CFR part 1910, subpart I, “Personal Protective Equipment”; and 29 CFR part 1926, “Safety and Health Regulations for Construction”; and appropriate State and local requirements, including certification of removal contractors and technicians).
Removal of polychlorinated biphenyl (PCB)-containing items (including, but not limited to, transformers and capacitors), PCB-containing oils flushed from transformers, PCB-flushing solutions, and PCB-containing spill materials from buildings or other aboveground locations in accordance with applicable requirements (such as 40 CFR part 761).
Siting, construction, and operation of additional water supply wells (or replacement wells) within an existing well field, or modification of an existing water supply well to restore production, provided that there would be no drawdown other than in the immediate vicinity of the pumping well, and the covered actions would not have the potential to cause significant long-term decline of the water table, and would not have the potential to cause significant degradation of the aquifer from the new or replacement well.
Siting, construction, modification, operation, abandonment, and removal of microwave, radio communication, and meteorological towers and associated facilities, provided that the towers and associated facilities would not be in a governmentally designated scenic area (see B(4)(iv) of this appendix) unless otherwise authorized by the appropriate governmental entity.
Small-scale activities undertaken to protect cultural resources (such as fencing, labeling, and flagging) or to protect, restore, or improve fish and wildlife habitat, fish passage facilities (such as fish ladders and minor diversion channels), or fisheries. Such activities would be conducted in accordance with an existing natural or cultural resource plan, if any.
Noise abatement measures (including, but not limited to, construction of noise barriers and installation of noise control materials).
Relocation of buildings (including, but not limited to, trailers and prefabricated buildings) to an already developed area
Demolition and subsequent disposal of buildings, equipment, and support structures (including, but not limited to, smoke stacks and parking lot surfaces), provided that there would be no potential for release of substances at a level, or in a form, that could pose a threat to public health or the environment.
Transfer, lease, disposition, or acquisition of interests in personal property (including, but not limited to, equipment and materials) or real property (including, but not limited to, permanent structures and land), provided that under reasonably foreseeable uses (1) there would be no potential for release of substances at a level, or in a form, that could pose a threat to public health or the environment and (2) the covered actions would not have the potential to cause a significant change in impacts from before the transfer, lease, disposition, or acquisition of interests.
Transfer, lease, disposition, or acquisition of interests in land and associated buildings for cultural resources protection, habitat preservation, or fish and wildlife management, provided that there would be no potential for release of substances at a level, or in a form, that could pose a threat to public health or the environment.
Siting, construction, expansion, modification, replacement, operation, and decommissioning of small (total capacity less than approximately 250,000 gallons per day) wastewater and surface water treatment facilities whose liquid discharges are externally regulated, and small potable water and sewage treatment facilities.
Activities that are required for the disconnection of utility services (including, but not limited to, water, steam, telecommunications, and electrical power) after it has been determined that the continued operation of these systems is not needed for safety.
Minor activities that are required to place a facility in an environmentally safe condition where there is no proposed use for the facility. These activities would include, but are not limited to, reducing surface contamination, and removing materials, equipment or waste (such as final defueling of a reactor, where there are adequate existing facilities for the treatment, storage, or disposal of the materials, equipment or waste). These activities would not include conditioning, treatment, or processing of spent nuclear fuel, high-level waste, or special nuclear materials.
Siting, construction, expansion, modification, operation, and decommissioning of small (less than approximately 10 acres) solid waste disposal facilities for construction and demolition waste, in accordance with applicable requirements (such as 40 CFR part 257, “Criteria for Classification of Solid Waste Disposal Facilities and Practices,” and 40 CFR part 61, “National Emission Standards for Hazardous Air Pollutants”) that would not release substances at a level, or in a form, that could pose a threat to public health or the environment.
Transfer actions, in which the predominant activity is transportation, provided that (1) the receipt and storage capacity and management capability for the amount and type of materials, equipment, or waste to be moved already exists at the receiving site and (2) all necessary facilities and operations at the receiving site are already permitted, licensed, or approved, as appropriate. Such transfers are not regularly scheduled as part of ongoing routine operations.
Installation or relocation and operation of machinery and equipment (including, but not limited to, laboratory equipment, electronic hardware, manufacturing machinery, maintenance equipment, and health and safety equipment), provided that uses of the installed or relocated items are consistent with the general missions of the receiving structure. Covered actions include modifications to an existing building, within or contiguous to a previously disturbed or developed area, that are necessary for equipment installation and relocation. Such modifications would not appreciably increase the footprint or height of the existing building or have the potential to cause significant changes to the type and magnitude of environmental impacts.
Traffic flow adjustments to existing roads (including, but not limited to, stop sign or traffic light installation, adjusting direction of traffic flow, and adding turning lanes), and road adjustments (including, but not limited to, widening and realignment) that are within an existing right-of-way and consistent with approved land use or transportation improvement plans.
Design, construction, and operation of control practices to reduce stormwater runoff and maintain natural hydrology. Activities include, but are not limited to, those that reduce impervious surfaces (such as vegetative practices and use of porous pavements), best management practices (such as silt fences, straw wattles, and fiber rolls), and use of green infrastructure or other low impact development practices (such as cisterns and green roofs).
Containment, removal, and disposal of lead-based paint in accordance with applicable requirements (such as provisions relating to the certification of removal contractors and technicians at 40 CFR part 745, “Lead-Based Paint Poisoning Prevention In Certain Residential Structures”).
Siting, construction, modification, and operation of recycling or compostable material drop-off, collection, and transfer stations on or contiguous to a previously disturbed or developed area and in an area where such a facility would be consistent with existing zoning requirements. The stations would have appropriate facilities and procedures established in accordance with applicable requirements for the handling of recyclable or compostable materials and household hazardous waste (such as paint and pesticides). Except as specified above, the collection of hazardous waste for disposal and the processing of recyclable or compostable materials are not included in this class of actions.
Determinations that real property is excess to the needs of DOE and, in the case of acquired real property, the subsequent reporting of such determinations to the General Services Administration or, in the case of lands withdrawn or otherwise reserved from the public domain, the subsequent filing of a notice of intent to relinquish with the Bureau of Land Management, Department of the Interior. Covered actions would not include disposal of real property.
Modifications within or contiguous to an existing structure, in a previously disturbed or developed area, to enhance workplace habitability (including, but not limited to, installation or improvements to lighting, radiation shielding, or heating/ventilating/air conditioning and its instrumentation, and noise reduction).
Installation of, or improvements to, building and equipment instrumentation (including, but not limited to, remote control panels, remote monitoring capability, alarm and surveillance systems, control systems to provide automatic shutdown, fire detection and protection systems, water consumption monitors and flow control systems, announcement and emergency warning systems, criticality and radiation monitors and alarms, and safeguards and security equipment).
Installation of, or improvements to, equipment for personnel safety and health (including, but not limited to, eye washes,
Activities undertaken to (1) qualify equipment for use or improve systems reliability or (2) augment information on safety-related system components. These activities include, but are not limited to, transportation container qualification testing, crane and lift-gear certification or recertification testing, high efficiency particulate air filter testing and certification, stress tests (such as “burn-in” testing of electrical components and leak testing), and calibration of sensors or diagnostic equipment.
Safety and environmental improvements of a facility (including, but not limited to, replacement and upgrade of facility components) that do not result in a significant change in the expected useful life, design capacity, or function of the facility and during which operations may be suspended and then resumed. Improvements include, but are not limited to, replacement/upgrade of control valves, in-core monitoring devices, facility air filtration systems, or substation transformers or capacitors; addition of structural bracing to meet earthquake standards and/or sustain high wind loading; and replacement of aboveground or belowground tanks and related piping, provided that there is no evidence of leakage, based on testing in accordance with applicable requirements (such as 40 CFR part 265, “Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities” and 40 CFR part 280, “Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks”). These actions do not include rebuilding or modifying substantial portions of a facility (such as replacing a reactor vessel).
Recovery of radioactive sealed sources and sealed source-containing devices from domestic or foreign locations provided that (1) the recovered items are transported and stored in compliant containers, and (2) the receiving site has sufficient existing storage capacity and all required licenses, permits, and approvals.
Site characterization and environmental monitoring (including, but not limited to, siting, construction, modification, operation, and dismantlement and abandonment of characterization and monitoring devices, and siting, construction, and associated operation of a small-scale laboratory building or renovation of a room in an existing building for sample analysis). Such activities would not have the potential to cause significant impacts from ground disturbance. Covered activities include, but are not limited to, site characterization and environmental monitoring under CERCLA and RCRA. (This class of actions excludes activities in salt water and freshwater.
(a) Geological, geophysical (such as gravity, magnetic, electrical, seismic, radar, and temperature gradient), geochemical, and engineering surveys and mapping, and the establishment of survey marks. Seismic techniques would not include large-scale reflection or refraction testing;
(b) Installation and operation of field instruments (such as stream-gauging stations or flow-measuring devices, telemetry systems, geochemical monitoring tools, and geophysical exploration tools);
(c) Drilling of wells for sampling or monitoring of groundwater or the vadose (unsaturated) zone, well logging, and installation of water-level recording devices in wells;
(d) Aquifer and underground reservoir response testing;
(e) Installation and operation of ambient air monitoring equipment;
(f) Sampling and characterization of water, soil, rock, or contaminants (such as drilling using truck- or mobile-scale equipment, and modification, use, and plugging of boreholes);
(g) Sampling and characterization of water effluents, air emissions, or solid waste streams;
(h) Installation and operation of meteorological towers and associated activities (such as assessment of potential wind energy resources);
(i) Sampling of flora or fauna; and
(j) Archeological, historic, and cultural resource identification in compliance with 36 CFR part 800 and 43 CFR part 7.
Aviation activities for survey, monitoring, or security purposes that comply with Federal Aviation Administration regulations.
Field and laboratory research, inventory, and information collection activities that are directly related to the conservation of fish and wildlife resources or to the protection of cultural resources, provided that such activities would not have the potential to cause significant impacts on fish and wildlife habitat or populations or to cultural resources.
Drop, puncture, water-immersion, thermal, and fire tests of transport packaging for radioactive or hazardous materials to certify that designs meet the applicable requirements (such as 49 CFR 173.411 and 173.412 and 10 CFR 71.73).
Tank car tests under 49 CFR part 179 (including, but not limited to, tests of safety relief devices, pressure regulators, and thermal protection systems).
Siting, construction, modification, operation, and decommissioning of facilities for small-scale research and development projects; conventional laboratory operations (such as preparation of chemical standards and sample analysis); and small-scale pilot projects (generally less than 2 years) frequently conducted to verify a concept before demonstration actions, provided that construction or modification would be within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible). For purposes of this category, “demonstration actions” means actions that are undertaken at a scale to show whether a technology would be viable on a larger scale and suitable for commercial deployment. Demonstration actions frequently follow research and development and pilot projects that are directed at establishing proof of concept.
Siting, construction, and operation of new terrestrial infill exploratory and experimental (test) wells in a locally characterized geological formation in a field that contains existing operating wells, properly abandoned wells, or unminable coal seams containing natural gas, provided that the site characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers, and the actions are otherwise consistent with applicable best practices and DOE protocols, including those that protect against uncontrolled releases of harmful materials. Such wells may include those for brine, carbon dioxide, coalbed methane, gas hydrate, geothermal, natural gas, and oil. Uses for carbon sequestration wells include, but are not limited to, the study of saline formations, enhanced oil recovery, and enhanced coalbed methane extraction.
Outdoor terrestrial ecological and environmental research in a small area (generally less than 5 acres), including, but not limited to, siting, construction, and operation of a small-scale laboratory building or renovation of a room in an existing building for associated analysis, provided that such activities would not have the potential to cause significant impacts on the ecosystem. These actions include, but are not limited to, small test plots for energy-related biomass or biofuels research. Such research may include the use of genetically engineered plants where the test plot of such plants and associated activities have been authorized by the U.S. Department of Agriculture, in accordance with applicable requirements (such as 7 CFR part 340),
Projects to reduce emissions and waste generation at existing fossil or alternative fuel combustion or utilization facilities, provided that these projects would not have the potential to cause a significant increase in the quantity or rate of air emissions. For this category of actions, “fuel” includes coal, oil, natural gas, hydrogen, syngas, and biomass. Neither “fuel” nor “alternative fuel” herein includes nuclear fuels. Covered actions include, but are not limited to:
(a) Test treatment of the throughput product (solid, liquid, or gas) generated at an existing and fully operational fuel combustion or utilization facility;
(b) Addition or replacement of equipment for reduction or control of sulfur dioxide, oxides of nitrogen, or other regulated substances that requires only minor modification to the existing structures at an existing fuel combustion or utilization facility, for which the existing use remains essentially unchanged;
(c) Addition or replacement of equipment for reduction or control of sulfur dioxide, oxides of nitrogen, or other regulated substances that involves no permanent change in the quantity or quality of fuel burned or used and involves no permanent change in the capacity factor of the fuel combustion or utilization facility; and
(d) Addition or modification of equipment for capture and control of carbon dioxide or other regulated substances, provided that adequate infrastructure is in place to manage such substances.
Siting, construction, modification, operation, and decommissioning of particle accelerators, including electron beam accelerators, with primary beam energy less than approximately 100 million electron volts (MeV) and average beam power less than approximately 250 kilowatts (kW), and associated beamlines, storage rings, colliders, and detectors, for research and medical purposes (such as proton therapy), and isotope production, within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible), or internal modification of any accelerator facility regardless of energy, that does not increase primary beam energy or current. In cases where the beam energy exceeds 100 MeV, the average beam power must be less than 250 kW, so as not to exceed an average current of 2.5 milliamperes (mA).
Outdoor tests and experiments for the development, quality assurance, or reliability of materials and equipment (including, but not limited to, weapon system components) under controlled conditions. Covered actions include, but are not limited to, burn tests (such as tests of electric cable fire resistance or the combustion characteristics of fuels), impact tests (such as pneumatic ejector tests using earthen embankments or concrete slabs designated and routinely used for that purpose), or drop, puncture, water-immersion, or thermal tests. Covered actions would not involve source, special nuclear, or byproduct materials, except that encapsulated sources that contain source, special nuclear, or byproduct materials may be used for nondestructive actions such as detector/sensor development and testing and first responder field training.
Siting, construction, modification, operation, and decommissioning of microbiological and biomedical diagnostic, treatment and research facilities (excluding Biosafety Level-3 and Biosafety Level-4), in accordance with applicable requirements or best practices (such as Biosafety in Microbiological and Biomedical Laboratories, 5th Edition, Feb. 2007, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, and the National Institutes of Health) including, but not limited to, laboratories, treatment areas, offices, and storage areas, within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible). Operation may include the purchase, installation, and operation of biomedical equipment (such as commercially available cyclotrons that are used to generate radioisotopes and radiopharmaceuticals, and commercially available biomedical imaging and spectroscopy instrumentation).
Performing magnetic fusion experiments that do not use tritium as fuel, within existing facilities (including, but not limited to, necessary modifications).
Siting, construction, modification, operation, and decommissioning of small-scale educational facilities (including, but not limited to, conventional teaching laboratories, libraries, classroom facilities, auditoriums, museums, visitor centers, exhibits, and associated offices) within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible). Operation may include, but is not limited to, purchase, installation, and operation of equipment (such as audio/visual and laboratory equipment) commensurate with the educational purpose of the facility.
Siting, construction, modification, operation, and decommissioning of facilities for indoor small-scale research and development projects and small-scale pilot projects using nanoscale materials in accordance with applicable requirements (such as engineering, worker safety, procedural, and administrative regulations) necessary to ensure the containment of any biohazardous materials. Construction and modification activities would be within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible).
Small-scale, temporary surveying, site characterization, and research activities in salt water and freshwater environments, limited to:
(a) Acquisition of rights-of-way, easements, and temporary use permits;
(b) Data collection, environmental monitoring, and nondestructive research programs;
(c) Resource evaluation activities including surveying and mapping, but excluding seismic activities other than passive techniques;
(d) Collection of geological, paleontological, mineralogical, geochemical, biological, and geotechnical data and samples, but excluding large-scale vibratory coring techniques;
(e) Installation of monitoring and recording devices;
(f) Installation of equipment for flow testing of existing wells including equipment for fluid analysis; and
(g) Ecological and environmental research provided that such activities would not have the potential to cause significant impacts on the ecosystem.
These activities would be conducted in accordance with, where applicable, an approved spill prevention, control, and response plan and would incorporate appropriate control technologies and best management practices. None of the above activities would occur within the boundary of an established marine sanctuary or wildlife refuge, a governmentally proposed marine sanctuary or wildlife refuge, or a governmentally recognized area of high biological sensitivity (such as protected areas and other areas of known ecological importance, whale and marine mammal mating and calving/pupping areas, and fish and invertebrate spawning and nursery areas recognized as being limited or unique and vulnerable to perturbation; these areas can occur in bays, estuaries, near shore, and far offshore, and may vary seasonally), or outside those areas if the activities would have the potential to cause significant impacts within those areas. No permanent facilities or devices would be constructed or installed. Covered actions do not include drilling of resource exploration or extraction wells.
Establishment and implementation of contracts, policies, and marketing and allocation plans related to electric power acquisition or transmission that involve only the use of the existing transmission system and existing generation resources operating within their normal operating limits.
Export of electric energy as provided by Section 202(e) of the Federal Power Act over existing transmission systems or using
Rate changes for electric power, power transmission, and other products or services provided by a Power Marketing Administration that are based on a change in revenue requirements if the operations of generation projects would remain within normal operating limits.
Power marketing services and power management activities (including, but not limited to, storage, load shaping, seasonal exchanges, and other similar activities), provided that the operations of generating projects would remain within normal operating limits.
Temporary adjustments to river operations to accommodate day-to-day river fluctuations, power demand changes, fish and wildlife conservation program requirements, and other external events, provided that the adjustments would occur within the existing operating constraints of the particular hydrosystem operation.
Additions or modifications to electric power transmission facilities that would not have the potential to cause significant impacts beyond the previously disturbed or developed facility area (including, but not limited to, switchyard rock grounding upgrades, secondary containment projects, paving projects, seismic upgrading, tower modifications, load shaping projects (such as the installation and use of flywheels and battery arrays), changing insulators, and replacement of poles, circuit breakers, conductors, transformers, and crossarms).
Adding fiber optic cables to transmission facilities or burying fiber optic cable in existing transmission line or pipeline rights-of-way. Covered actions may include associated vaults and pulling and tensioning sites outside of rights-of-way in nearby previously disturbed or developed areas.
New electricity transmission agreements, and modifications to existing transmission arrangements, to use a transmission facility of one system to transfer power of and for another system, provided that no new generation projects would be involved and no physical changes in the transmission system would be made beyond the previously disturbed or developed facility area.
Granting or denying requests for multiple uses of a transmission facility's rights-of-way (including, but not limited to, grazing permits and crossing agreements for electric lines, water lines, natural gas pipelines, communications cables, roads, and drainage culverts).
Deactivation, dismantling, and removal of electric transmission facilities (including, but not limited to, electric transmission lines, substations, and switching stations) and abandonment and restoration of rights-of-way (including, but not limited to, associated access roads).
Construction or modification of electric power substations or interconnection facilities (including, but not limited to, switching stations and support facilities) that are not for the interconnection of a new generation resource into a Power Marketing Administration's transmission system, unless: (1) The new generation resource would be eligible for categorical exclusion under this part and (2) the new generation resource would be equal to or less than 50 average megawatts.
Construction of electric transmission lines approximately 10 miles in length or less inside or outside of previously disturbed or developed transmission line or pipeline rights-of-way, or approximately 20 miles in length or less inside of previously disturbed or developed transmission line or pipeline rights-of-way, that are not for the interconnection of a new generation resource into a Power Marketing Administration's transmission system, unless: (1) The new generation resource would be eligible for categorical exclusion under this part and (2) the new generation resource would be equal to or less than 50 average megawatts.
Upgrading or rebuilding approximately 20 miles in length or less of existing electric transmission lines, which may involve minor relocations of small segments of the transmission lines, that is not for the interconnection of a new generation resource into a Power Marketing Administration's transmission system, unless: (1) The new generation resource would be eligible for categorical exclusion under this part and (2) the new generation resource would be equal to or less than 50 average megawatts.
(a) Actions to conserve energy or water, demonstrate potential energy or water conservation, and promote energy efficiency that would not have the potential to cause significant changes in the indoor or outdoor concentrations of potentially harmful substances. These actions may involve financial and technical assistance to individuals (such as builders, owners, consultants, manufacturers, and designers), organizations (such as utilities), and governments (such as State, local, and Tribal). Covered actions include, but are not limited to weatherization (such as insulation and replacing windows and doors); programmed lowering of thermostat settings; placement of timers on hot water heaters; installation or replacement of energy efficient lighting, low-flow plumbing fixtures (such as faucets, toilets, and showerheads), heating, ventilation, and air conditioning systems, and appliances; installation of drip-irrigation systems; improvements in generator efficiency and appliance efficiency ratings; efficiency improvements for vehicles and transportation (such as fleet changeout); power storage (such as flywheels and batteries, generally less than 10 megawatt equivalent); transportation management systems (such as traffic signal control systems, car navigation, speed cameras, and automatic plate number recognition); development of energy-efficient manufacturing, industrial, or building practices; and small-scale energy efficiency and conservation research and development and small-scale pilot projects. Covered actions include building renovations or new structures, provided that they occur in a previously disturbed or developed area. Covered actions could involve commercial, residential, agricultural, academic, institutional, or industrial sectors. Covered actions do not include rulemakings, standard-settings, or proposed DOE legislation, except for those actions listed in B5.1(b) of this appendix.
(b) Covered actions include rulemakings that establish energy conservation standards for consumer products and industrial equipment, provided that the actions would not: (1) Have the potential to cause a significant change in manufacturing infrastructure (such as construction of new manufacturing plants with considerable associated ground disturbance); (2) involve significant unresolved conflicts concerning alternative uses of available resources (such as rare or limited raw materials); (3) have the potential to result in a significant increase in the disposal of materials posing significant risks to human health and the environment (such as RCRA hazardous wastes); or (4) have the potential to cause a significant increase in energy consumption in a State or region.
Modifications to existing pump and piping configurations (including, but not limited to, manifolds, metering systems, and other instrumentation on such configurations conveying materials such as air, brine, carbon dioxide, geothermal system fluids, hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam, and water). Covered modifications would not have the potential to cause significant changes to design process flow rates or permitted air emissions.
Modification (but not expansion) or plugging and abandonment of wells, provided that site characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers, and the actions are otherwise consistent with best practices and DOE
Repair, replacement, upgrading, rebuilding, or minor relocation of pipelines within existing rights-of-way, provided that the actions are in accordance with applicable requirements (such as Army Corps of Engineers permits under section 404 of the Clean Water Act). Pipelines may convey materials including, but not limited to, air, brine, carbon dioxide, geothermal system fluids, hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam, and water.
Construction and subsequent operation of short (generally less than 20 miles in length) pipeline segments conveying materials (such as air, brine, carbon dioxide, geothermal system fluids, hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam, and water) between existing source facilities and existing receiving facilities (such as facilities for use, reuse, transportation, storage, and refining), provided that the pipeline segments are within previously disturbed or developed rights-of-way.
Removal of oil and contaminated materials recovered in oil spill cleanup operations and disposal of these materials in accordance with applicable requirements (such as the National Oil and Hazardous Substances Pollution Contingency Plan).
Approvals or disapprovals of new authorizations or amendments of existing authorizations to import or export natural gas under section 3 of the Natural Gas Act that involve minor operational changes (such as changes in natural gas throughput, transportation, and storage operations) but not new construction.
Approvals or disapprovals of new authorizations or amendments of existing authorizations to import or export natural gas under section 3 of the Natural Gas Act that involve new cogeneration powerplants (as defined in the Powerplant and Industrial Fuel Use Act of 1978, as amended) within or contiguous to an existing industrial complex and requiring generally less than 10 miles of new natural gas pipeline or 20 miles within previously disturbed or developed rights-of-way.
Grants or denials of temporary exemptions under the Powerplant and Industrial Fuel Use Act of 1978, as amended, for electric powerplants.
For existing electric powerplants, grants or denials of permanent exemptions under the Powerplant and Industrial Fuel Use Act of 1978, as amended, other than exemptions under section 312(c) relating to cogeneration and section 312(b) relating to certain State or local requirements.
For new electric powerplants, grants or denials of permanent exemptions from the prohibitions of Title II of the Powerplant and Industrial Fuel Use Act of 1978, as amended, to permit the use of certain fuel mixtures containing natural gas or petroleum.
Workover (operations to restore production, such as deepening, plugging back, pulling and resetting lines, and squeeze cementing) of existing wells (including, but not limited to, activities associated with brine, carbon dioxide, coalbed methane, gas hydrate, geothermal, natural gas, and oil) to restore functionality, provided that workover operations are restricted to the existing wellpad and do not involve any new site preparation or earthwork that would have the potential to cause significant impacts on nearby habitat; that site characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers; and the actions are otherwise consistent with best practices and DOE protocols, including those that protect against uncontrolled releases of harmful materials.
Siting, construction, operation, plugging, and abandonment of experimental wells for the injection of small quantities of carbon dioxide (and other incidentally co-captured gases) in locally characterized, geologically secure storage formations at or near existing carbon dioxide sources to determine the suitability of the formations for large-scale sequestration, provided that (1) the characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers; (2) the wells are otherwise in accordance with applicable requirements, best practices, and DOE protocols, including those that protect against uncontrolled releases of harmful materials; and (3) the wells and associated drilling activities are sufficiently remote so that they would not have the potential to cause significant impacts related to noise and other vibrations. Wells may be used for enhanced oil or natural gas recovery or for secure storage of carbon dioxide in saline formations or other secure formations. Over the duration of a project, the wells would be used to inject, in aggregate, less than 500,000 tons of carbon dioxide into the geologic formation. Covered actions exclude activities in salt water and freshwater environments. (See B3.16 of this appendix for activities in salt water and freshwater environments.)
Conversion to, replacement of, or modification of combined heat and power or cogeneration systems (the sequential or simultaneous production of multiple forms of energy, such as thermal and electrical energy, in a single integrated system) at existing facilities, provided that the conversion, replacement, or modification would not have the potential to cause a significant increase in the quantity or rate of air emissions and would not have the potential to cause significant impacts to water resources.
Small-scale renewable energy research and development projects and small-scale pilot projects located within a previously disturbed or developed area. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of commercially available solar photovoltaic systems located on a building or other structure (such as rooftop, parking lot or facility, and mounted to signage, lighting, gates, or fences), or if located on land, generally comprising less than 10 acres within a previously disturbed or developed area. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of commercially available small-scale solar thermal systems (including, but not limited to, solar hot water systems) located on or contiguous to a building, and if located on land, generally comprising less than 10 acres within a previously disturbed or developed area. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of commercially available small wind turbines, with a total height generally less than 200 feet (measured from the ground to the maximum height of blade rotation) that (1) are located within a previously disturbed or developed area; (2) are located more than 10 nautical miles from an airport or aviation navigation aid; (3) are located more than 1.5 nautical miles from National Weather Service or Federal Aviation Administration Doppler weather radar; (4) would not have the potential to cause significant impacts on bird or bat species; and (5) are sited or designed such that the project would not have the potential to cause significant impacts to
The installation, modification, operation, and removal of commercially available small-scale ground source heat pumps to support operations in single facilities (such as a school and community center) or contiguous facilities (such as an office complex) (1) only where major associated activities (such as drilling and discharge) are regulated, and appropriate leakage and contaminant control measures would be in place; (2) that would not have the potential to cause significant changes in subsurface temperature; and (3) would be located within a previously disturbed or developed area. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of small-scale biomass power plants (generally less than 10 megawatts), using commercially available technology (1) intended primarily to support operations in single facilities (such as a school and community center) or contiguous facilities (such as an office complex); (2) that would not affect the air quality attainment status of the area and would not have the potential to cause a significant increase in the quantity or rate of air emissions and would not have the potential to cause significant impacts to water resources; and (3) would be located within a previously disturbed or developed area. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of commercially available methane gas recovery and utilization systems installed within a previously disturbed or developed area on or contiguous to an existing landfill or wastewater treatment plant that would not have the potential to cause a significant increase in the quantity or rate of air emissions. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of alternative fuel vehicle fueling stations (such as for compressed natural gas, hydrogen, ethanol and other commercially available biofuels) on the site of a current or former fueling station, or within a previously disturbed or developed area within the boundaries of a facility managed by the owners of a vehicle fleet. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of electric vehicle charging stations, using commercially available technology, within a previously disturbed or developed area. Covered actions are limited to areas where access and parking are in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
The installation, modification, operation, and removal of commercially available small-scale, drop-in, run-of-the-river hydroelectric systems that would (1) involve no water storage or water diversion from the stream or river channel where the system is installed and (2) not have the potential to cause significant impacts on water quality, temperature, flow, or volume. Covered systems would be located up-gradient of a natural anadromous fish barrier and where there would not be the potential for significant impacts to threatened or endangered species. Covered actions would involve no major construction or modification of stream or river channels, and the hydroelectric systems would be placed and secured in the channel without the use of heavy equipment. Covered actions would be in accordance with applicable requirements (such as local land use and zoning requirements) in the proposed project area and would incorporate appropriate control technologies and best management practices.
Small-scale renewable energy research and development projects and small-scale pilot projects located in salt water and freshwater environments. Activities would be in accordance with, where applicable, an approved spill prevention, control, and response plan, and would incorporate appropriate control technologies and best management practices. Covered actions would not occur (1) within areas of hazardous natural bottom conditions or (2) within the boundary of an established marine sanctuary or wildlife refuge, a governmentally proposed marine sanctuary or wildlife refuge, or a governmentally recognized area of high biological sensitivity (such as protected areas and other areas of known ecological importance, whale and marine mammal mating and calving/pupping areas, and fish and invertebrate spawning and nursery areas recognized as being limited or unique and vulnerable to perturbation; these areas can occur in bays, estuaries, near shore, and far offshore, and may vary seasonally), or outside those areas if the activities would have the potential to cause significant impacts within those areas. No permanent facilities or devices would be constructed or installed. Covered actions do not include drilling of resource exploration or extraction wells, use of large-scale vibratory coring techniques, or seismic activities other than passive techniques.
Small-scale, short-term cleanup actions, under RCRA, Atomic Energy Act, or other authorities, less than approximately 10 million dollars in cost, to reduce risk to human health or the environment from the release or threat of release of a hazardous substance other than high-level radioactive waste and spent nuclear fuel, including treatment (such as incineration, encapsulation, physical or chemical separation, and compaction), recovery, storage, or disposal of wastes at existing facilities currently handling the type of waste involved in the action. These actions include, but are not limited to:
(a) Excavation or consolidation of contaminated soils or materials from drainage channels, retention basins, ponds, and spill areas that are not receiving contaminated surface water or wastewater, if surface water or groundwater would not collect and if such actions would reduce the spread of, or direct contact with, the contamination;
(b) Removal of bulk containers (such as drums and barrels) that contain or may contain hazardous substances, pollutants, contaminants, CERCLA-excluded petroleum or natural gas products, or hazardous wastes (designated in 40 CFR part 261 or applicable State requirements), if such actions would reduce the likelihood of spillage, leakage, fire, explosion, or exposure to humans, animals, or the food chain;
(c) Removal of an underground storage tank including its associated piping and underlying containment systems in accordance with applicable requirements (such as RCRA, subtitle I; 40 CFR part 265, subpart J; and 40 CFR part 280, subparts F and G) if such action would reduce the likelihood of spillage, leakage, or the spread of, or direct contact with, contamination;
(d) Repair or replacement of leaking containers;
(e) Capping or other containment of contaminated soils or sludges if the capping or containment would not unduly limit future groundwater remediation and if needed to reduce migration of hazardous substances, pollutants, contaminants, or CERCLA-excluded petroleum and natural gas products into soil, groundwater, surface water, or air;
(f) Drainage or closing of man-made surface impoundments if needed to maintain the integrity of the structures;
(g) Confinement or perimeter protection using dikes, trenches, ditches, or diversions,
(h) Stabilization, but not expansion, of berms, dikes, impoundments, or caps if needed to maintain integrity of the structures;
(i) Drainage controls (such as run-off or run-on diversion) if needed to reduce offsite migration of hazardous substances, pollutants, contaminants, or CERCLA-excluded petroleum or natural gas products or to prevent precipitation or run-off from other sources from entering the release area from other areas;
(j) Segregation of wastes that may react with one another or form a mixture that could result in adverse environmental impacts;
(k) Use of chemicals and other materials to neutralize the pH of wastes;
(l) Use of chemicals and other materials to retard the spread of the release or to mitigate its effects if the use of such chemicals would reduce the spread of, or direct contact with, the contamination;
(m) Installation and operation of gas ventilation systems in soil to remove methane or petroleum vapors without any toxic or radioactive co-contaminants if appropriate filtration or gas treatment is in place;
(n) Installation of fences, warning signs, or other security or site control precautions if humans or animals have access to the release; and
(o) Provision of an alternative water supply that would not create new water sources if necessary immediately to reduce exposure to contaminated household or industrial use water and continuing until such time as local authorities can satisfy the need for a permanent remedy.
The siting, construction, and operation of temporary (generally less than 2 years) pilot-scale waste collection and treatment facilities, and pilot-scale (generally less than 1 acre) waste stabilization and containment facilities (including siting, construction, and operation of a small-scale laboratory building or renovation of a room in an existing building for sample analysis), provided that the action (1) supports remedial investigations/feasibility studies under CERCLA, or similar studies under RCRA (such as RCRA facility investigations/corrective measure studies) or other authorities and (2) would not unduly limit the choice of reasonable remedial alternatives (such as by permanently altering substantial site area or by committing large amounts of funds relative to the scope of the remedial alternatives).
Improvements to environmental monitoring and control systems of an existing building or structure (such as changes to scrubbers in air quality control systems or ion-exchange devices and other filtration processes in water treatment systems), provided that during subsequent operations (1) any substance collected by the environmental control systems would be recycled, released, or disposed of within existing permitted facilities and (2) there are applicable statutory or regulatory requirements or permit conditions for disposal, release, or recycling of any hazardous substance or CERCLA-excluded petroleum or natural gas products that are collected or released in increased quantity or that were not previously collected or released.
Siting, construction, modification, expansion, operation, and decommissioning of an onsite facility for storing packaged hazardous waste (as designated in 40 CFR part 261) for 90 days or less or for longer periods as provided in 40 CFR 262.34(d), (e), or (f) (such as accumulation or satellite areas).
Siting, construction, modification, expansion, operation, and decommissioning of an onsite facility for characterizing and sorting previously packaged waste or for overpacking waste, other than high-level radioactive waste, provided that operations do not involve unpacking waste. These actions do not include waste storage (covered under B6.4, B6.6, B6.10 of this appendix, and C16 of appendix C) or the handling of spent nuclear fuel.
Modification (excluding increases in capacity) of an existing structure used for storing, packaging, or repacking waste other than high-level radioactive waste or spent nuclear fuel, to handle the same class of waste as currently handled at that structure.
Minor operational changes at an existing facility to minimize waste generation and for reuse of materials. These changes include, but are not limited to, adding filtration and recycle piping to allow reuse of machining oil, setting up a sorting area to improve process efficiency, and segregating two waste streams previously mingled and assigning new identification codes to the two resulting wastes.
Small-scale temporary measures to reduce migration of contaminated groundwater, including the siting, construction, operation, and decommissioning of necessary facilities. These measures include, but are not limited to, pumping, treating, storing, and reinjecting water, by mobile units or facilities that are built and then removed at the end of the action.
Siting, construction, modification, expansion, operation, and decommissioning of a small upgraded or replacement facility (less than approximately 50,000 square feet in area) within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible) for storage of waste that is already at the site at the time the storage capacity is to be provided. These actions do not include the storage of high-level radioactive waste, spent nuclear fuel or any waste that requires special precautions to prevent nuclear criticality. (
Planning and implementation of emergency measures pursuant to the International Energy Program.
Approval of import or export of small quantities of special nuclear materials or isotopic materials in accordance with applicable requirements (such as the Nuclear Non-Proliferation Act of 1978 and the “Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978” (43 FR 25326, June 9, 1978)).
Rate changes for electric power, power transmission, and other products or services provided by Power Marketing Administrations that are based on changes in revenue requirements if the operations of generation projects would not remain within normal operating limits.
Upgrading or rebuilding more than approximately 20 miles in length of existing electric transmission lines; or construction of electric transmission lines (1) more than approximately 10 miles in length outside previously disturbed or developed transmission line or pipeline rights-of-way or (2) more than approximately 20 miles in length within previously disturbed or developed transmission line or pipeline rights-of-way.
Implementation of a Power Marketing Administration system-wide vegetation management program.
Implementation of a Power Marketing Administration system-wide erosion control program.
Establishment and implementation of contracts, policies, and marketing and allocation plans related to electric power acquisition or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources that are equal to or less than 50 average megawatts and that would not be eligible for categorical exclusion under this part; (2) changes in the normal operating limits of generation resources equal to or less than 50 average megawatts; or (3) service to discrete new loads of less than10 average megawatts over a 12-month period.
Large-scale activities undertaken to protect cultural resources (such as fencing, labeling, and flagging) or to protect, restore, or improve fish and wildlife habitat, fish passage facilities (such as fish ladders and minor diversion channels), or fisheries.
Field demonstration projects for wetlands mitigation, creation, and restoration.
Siting, construction or modification, operation, and decommissioning of low- or medium-energy (when the primary beam energy exceeds approximately 100 million electron volts and the average beam power exceeds approximately 250 kilowatts or where the average current exceeds 2.5 milliamperes) particle acceleration facilities, including electron beam acceleration facilities, and associated beamlines, storage rings, colliders, and detectors for research and medical purposes, within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible).
Siting, construction, and operation of energy system demonstration actions (including, but not limited to, wind resource, hydropower, geothermal, fossil fuel, biomass, and solar energy, but excluding nuclear). For purposes of this category, “demonstration actions” means actions that are undertaken at a scale to show whether a technology would be viable on a larger scale and suitable for commercial deployment. Demonstration actions frequently follow research and development and pilot projects that are directed at establishing proof of concept.
Approvals or disapprovals of authorizations to import or export natural gas under section 3 of the Natural Gas Act involving minor new construction (such as adding new connections, looping, or compression to an existing natural gas or liquefied natural gas pipeline, or converting an existing oil pipeline to a natural gas pipeline using the same right-of-way).
Siting, construction (or expansion), operation, and decommissioning of wastewater, surface water, potable water, and sewage treatment facilities with a total capacity greater than approximately 250,000 gallons per day, and of lower capacity wastewater and surface water treatment facilities whose liquid discharges are not subject to external regulation.
Siting, construction (or expansion), and operation of research and development incinerators for any type of waste and of any other incinerators that would treat nonhazardous solid waste (as designated in 40 CFR 261.4(b)).
Siting, construction, modification to increase capacity, operation, and decommissioning of packaging and unpacking facilities (such as characterization operations) and large storage facilities (greater than approximately 50,000 square feet in area) for waste, except high-level radioactive waste, generated onsite or resulting from activities connected to site operations. These actions do not include storage, packaging, or unpacking of spent nuclear fuel. (See also B6.4, B6.5, B6.6, and B6.10 of appendix B.)
Strategic Systems, as defined in DOE Order 430.1, “Life-Cycle Asset Management,” or its successor, and designated by the Secretary.
Siting, construction, operation, and decommissioning of nuclear fuel reprocessing facilities.
Siting, construction, operation, and decommissioning of uranium enrichment facilities.
Siting, construction, operation, and decommissioning of power reactors, nuclear material production reactors, and test and research reactors.
Establishment and implementation of contracts, policies, and marketing and allocation plans related to electric power acquisition or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources greater than 50 average megawatts; (2) changes in the normal operating limits of generation resources greater than 50 average megawatts; or (3) service to discrete new loads of 10 average megawatts or more over a 12-month period.
Approvals or disapprovals of authorizations to import or export natural gas under section 3 of the Natural Gas Act involving construction of major new natural gas pipelines or related facilities (such as liquefied natural gas terminals and regasification or storage facilities) or significant expansions and modifications of existing pipelines or related facilities).
Approvals or disapprovals of authorizations to import or export natural gas under section 3 of the Natural Gas Act involving major operational changes (such as a major increase in the quantity of liquefied natural gas imported or exported).
Siting, construction, operation, and decommissioning of major treatment, storage, and disposal facilities for high-level waste and spent nuclear fuel, including geologic repositories, but not including onsite replacement or upgrades of storage facilities for spent nuclear fuel at DOE sites where such replacement or upgrade would not result in increased storage capacity.
Siting, construction or expansion, and operation of disposal facilities for transuranic (TRU) waste and TRU mixed waste (TRU waste also containing hazardous waste as designated in 40 CFR part 261).
Siting, construction, and operation of incinerators, other than research and development incinerators or incinerators for nonhazardous solid waste (as designated in 40 CFR 261.4(b)).