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Office of the Secretary, DHS.
Final rule; full compliance date.
Pursuant to the Department of Homeland Security's REAL ID regulations, States must be in full compliance with the REAL ID Act of 2005 by May 11, 2011. This final rule changes that date to January 15, 2013. This change will give States the time necessary to ensure that driver's licenses and identification cards issued by States meet the security requirements of the REAL ID Act.
Effective on March 7, 2011.
Steve Kozar, Office of State-Issued Identification Support, Screening Coordination Office, Department of Homeland Security, Washington, DC 20528 (202) 447-3368.
The REAL ID Act of 2005 (the Act)
On January 29, 2008, DHS promulgated a final rule implementing the requirements of the Act.
At the time DHS promulgated the REAL ID final rule, DHS recognized that many States were having trouble meeting the statutory requirements of the Act. In an attempt to balance DHS's responsibility to ensure that driver's licenses and identification cards intended to be used for official Federal purposes met certain statutory and regulatory requirements with the operational needs of the States, DHS bifurcated the requirements for compliance with the Act.
As the REAL ID program has developed further, States have continued to experience trouble meeting the statutory requirements of the Act. As a result of these difficulties, in December 2009, DHS stayed until further notice the date by which states are required to demonstrate material compliance.
Since promulgation of the REAL ID final rule, DHS has worked very closely with the States to assist with implementation and has awarded large amounts of grant funds. These efforts have assisted States in making significant progress toward meeting most of the REAL ID requirements. Since 2008, DHS has awarded States 150 separate grants that collectively total approximately $175,000,000.
Of the grant money expended by the States, the majority has been spent on the following items:
(1) Facility infrastructure upgrades, including security cameras at DMV locations, modification of facilities to limit public access to sensitive equipment and card production materials storage locations, and the addition of or upgrades to security alarms, doors, or other electronic detection equipment;
(2) Upgrades of IT infrastructure or systems overhaul (including modernization of IT systems to ensure all in-State DMVs are interoperable), software upgrades to improve the ability to protect personal identity information, upgrades of network communication, and ensuring the ability to use the DHS Systematic Alien Verification for Entitlements System (SAVE), DHS's electronic immigration verification system;
(3) Document security enhancement, including the development of more tamper-resistant documents with enhanced security features, and the use of facial recognition software to detect a person with multiple identity documents or social security numbers;
(4) Equipment upgrades, including document scanners, high-resolution digital scanners, and high-speed printers; and
(5) Reengineering of business practices, including converting from an over-the-counter issuance to a more secure central issuance process, minimizing the potential for insider fraud.
These enhancements have allowed States to make significant progress toward achieving compliance with many parts of the REAL ID regulation, including several provisions of Subpart B (minimum documentation, verification, and card issuance requirements), Subpart C (source document retention and DMV databases), and Subpart D (security at DMVs and driver's license and identification card production facilities). There are, however, still significant portions of the regulation, mostly involving document verification and markings, that most States will be unable to meet by May 11, 2011.
The inability of States to fully comply with the requirements of REAL ID by
As a result of these factors, and because of the significant progress many States are making towards achieving full compliance, DHS believes that a change of the full compliance deadline from May 11, 2011 to January 15, 2013 is warranted. This change will give States more time to ensure that the documents they issue meet the security requirements of the REAL ID Act.
Without this change, as of the full compliance date, licenses and identification cards issued by States will not be accepted for official purposes. “Official purpose” as defined in both the Act and the regulation includes, but is not limited to, accessing Federal facilities and boarding Federally regulated commercial aircraft. Individuals possessing licenses and identification documents issued by non-compliant States would either have to undergo additional screening or provide alternative documents to pass through security at airports and to access Federal facilities. DHS estimates that over 90 percent of the documents shown for identity purposes for boarding Federally regulated commercial aircraft and for accessing Federal facilities are driver's licenses or other State-issued identity documents. Requiring individuals to obtain alternative or additional identity documents or to undergo additional screening would result in significant disruptions to commercial airline travel and to the ability of the public to conduct business with the Federal government.
The Administrative Procedure Act (APA) provides that an agency may dispense with notice and comment rulemaking procedures when an agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”
As discussed above, throughout the development and implementation of the REAL ID program, DHS has engaged in extensive, ongoing discussions with the States regarding their ability to comply with the REAL ID Act and the DHS regulations. Based on those communications, DHS has learned that the States, despite their good-faith efforts, will not be able to meet the May 11, 2011 deadline. If States are unable to meet the May 11, 2011 full compliance deadline, and the deadline is not changed, as of that date, Federal agencies, including the Transportation Security Administration (TSA), cannot accept State-issued driver's licenses or identification cards for use in boarding commercial aircraft. This would severely disrupt commercial aviation, as travelers would either have to obtain and use alternative TSA approved documents or submit to additional screening to pass through security at airports. Thus, it would be contrary to the public interest to inflict a significant and substantial burden on the traveling public and the travel industry. Furthermore, to seek public comment prior to changing the full compliance date would be impracticable, given that such comments could not be received and acted upon prior to the full compliance date.
Based on the above, DHS finds that notice and comment rulemaking, in this instance, would be impracticable, unnecessary, and contrary to the public interest. For the same reason, DHS finds good cause to make this rule effective immediately upon publication in the
This rule constitutes a “significant regulatory action” under Executive Order 12866, as supplemented by Executive Order 13563, and therefore has been reviewed by the Office of Management and Budget (OMB). Executive Order 12866 defines “significant regulatory action” as one that is likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. This final rule, however, makes changes for which notice and comment are not necessary. Accordingly, DHS is not required to prepare a regulatory flexibility analysis. 5 U.S.C. 603, 604.
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 these 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 Unfunded Mandates Reform 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 million (adjusted for inflation) or more in any one year. This final rule will not result in such an expenditure.
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.
DHS has analyzed this rule under Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” DHS has determined that it is not a “significant energy action” under that Order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
Document security, Driver's licenses, Identification cards, Motor vehicle administrations, Physical security.
For the reasons set forth above, the Department of Homeland Security amends 6 CFR part 37 as follows:
49 U.S.C. 30301 note 6 U.S.C. 111, 112.
Department of Energy (DOE).
Final rule.
DOE is amending the Human Reliability Program (HRP) rule to designate the appropriate Under Secretary as the person with the authority to issue a final written decision to recertify or revoke the certification of an individual in the HRP. This action places decisional authority in the Under Secretary responsible for the operational functioning of the program in which the certification issue arises. It also streamlines internal procedures and facilitates timely final agency decision-making. This amendment modifies internal agency responsibilities but does not alter substantive rights or obligations under current law.
John Gurney, Office of the General Counsel, GC-53, 1000 Independence Avenue, SW., Washington, DC 20585;
Pursuant to the Atomic Energy Act of 1954 (the AEA), the DOE owns, leases, operates or supervises activities at facilities in various locations in the United States. Many of these facilities are involved in researching, testing, producing, disassembling, or transporting nuclear explosives, which, when combined with Department of Defense delivery systems, become nuclear weapons systems. These facilities are often involved in other activities that affect the national security. Compromise of these and other DOE facilities would severely damage national security. To guard against such compromise, DOE established the Human Reliability Program (HRP), 10 CFR part 712. 69 FR 3213 (January 23, 2004). The HRP is designed to ensure that individuals who occupy positions affording unescorted access to certain materials, facilities, and programs meet the highest standards of reliability, as well as physical and mental suitability, through a system of continuous evaluation of those individuals. The purpose of this continuous evaluation is to identify, in a timely manner, individuals whose judgment may be impaired by physical or mental/personality disorders; the use of illegal drugs or the abuse of legal drugs or other substances; the abuse of alcohol; or any other condition or circumstance that may represent a reliability, safety, or security concern.
The HRP requires that all individuals who work in positions affording unescorted access to certain materials, facilities, and programs be certified as meeting the highest standards of reliability and physical and mental/personality suitability before such access may be granted.
Under current regulations, an individual's HRP certification is subject to immediate review in the event a supervisor has a reasonable belief that the individual is not reliable, based on either a safety or security concern (10 CFR 712.19(a)). During the pendency of the review, the individual will be removed from assigned HRP duties. This temporary removal is an interim, precautionary action and does not constitute a determination of reliability or access authorization status. If the removal is based on a general security concern, 10 CFR 712.19 provides for resolution under 10 CFR part 710, subpart A (General Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material). Individuals who are removed from HRP duties for reasons not related to general security concerns (
As promulgated in 2004, the existing part 712 rule designates the Deputy Secretary as the person responsible for conducting the review of the hearing officer's opinion and the Director, Office of Security's recommendation, and issuing a final written decision. This designation has proved to be impracticable, as the responsibility to review the entire record of every HRP certification suspension proceeding conducted before DOE's Office of Hearings and Appeals imposes an undue burden upon the Department's second highest-ranking official, given the substantial number and nature of the Deputy Secretary's responsibilities for the management of the Department. Consequently, to relieve this burden, promote administrative efficiency, and facilitate prompt resolution of HRP certification suspension cases, DOE is amending the HRP rule to assign the responsibility for reviewing the recommendation of the Chief Health, Safety, and Security Officer to the particular Under Secretary with cognizance over the program which makes the HRP certification in question. The amendment will streamline internal procedures, and more closely align the final agency decision in HRP certification suspension cases with the responsibilities of the relevant secretarial officer.
None of the regulatory amendments in this final rule alter substantive rights or obligations under current law.
This final rule has been approved by the Office of the Secretary of Energy.
Today's regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB).
The regulatory amendments in this notice of final rulemaking reflect a transfer of function that relates solely to internal agency organization, management or personnel. As such, pursuant to 5 U.S.C. 553(a)(2), this rule is not subject to the rulemaking requirements of the Administrative Procedure Act, including the requirements to provide prior notice and an opportunity for public comment and a 30-day delay in effective date.
The Regulatory Flexibility Act (5 U.S.C. 601
As this rule of agency organization, management and personnel is not subject to the requirement to provide prior notice and an opportunity for public comment under 5 U.S.C. 553 or any other law, this rule is not subject to the analytical requirements of the Regulatory Flexibility Act.
This final rule does not impose a collection of information requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501
DOE has concluded that promulgation of this rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321
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. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does 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 Federal 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. 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, this final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector. DOE has determined that today's regulatory action does not impose a Federal mandate on State, local or tribal governments or on the private sector.
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 rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
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 guideline 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 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 the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, 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) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) 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 is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).
For the reasons stated in the preamble, part 712 of chapter III of title 10, Code of Federal Regulations, is amended as set forth below:
42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 5814-5815; 42 U.S.C. 7101
U.S. Small Business Administration
Notice of tribal consultation meeting; request for comments.
The U.S. Small Business Administration (SBA or Agency) announces that it is holding a tribal consultation meeting in Las Vegas, Nevada to discuss the recent changes to the 8(a) Business Development (BD) program regulations and take general comments on 8(a) BD program provisions. Additionally, SBA will take comments on the mandatory reporting of community benefits of provision 13 CFR 124.604. Testimony presented at this tribal consultation meeting will become part of the administrative record for SBA's consideration when the Agency deliberates on approaches to tracking community benefits.
The tribal consultation meeting will be held on Thursday, March 17, 2011 from 1 p.m. to 3 p.m. at the Reservation Economic Summit (RES) Conference in the Las Vegas Hilton, Las Vegas, Nevada.
The tribal consultation meeting pre-registration deadline date is March 10, 2011 at 5 p.m. (Eastern Standard Time).
1. The Las Vegas Tribal Consultation Meeting address is the Las Vegas Hilton, 3000 Paradise Road, Las Vegas, NV 89109.
2. Send pre-registration requests to attend and/or testify to Mr. Marcus Grignon, Office of Native American Affairs, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416; by e-mail to
3. Send all written comments to Ms. LaTanya Wright, Senior Advisor, Office of Business Development, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416;
If you have questions on SBA's Final Rule
On February 11, 2011 (74 FR 55694) SBA issued a Final Rule, publicly available at
SBA received several comments recommending it delay implementation of any reporting of benefits requirement to allow affected firms to gather and synthesize this data. In addition, these commenters encouraged SBA to establish a task force, comprised of native leaders and SBA, to further study how this requirement could be best implemented without imposing an undue burden on tribes, ANCs, NHOs or CDCs, or on their affected 8(a) Participants. SBA agreed and delayed implementation of new § 124.604 for six months after the effective date for the other provisions of the final rule. These tribal consultations are for the purpose of developing best practices for collecting and utilizing the data. SBA expects that two Participants owned by the same tribe, ANC, NHO or CDC will submit identical data describing the benefits provided by the tribe, ANC, NHO or CDC.
The purpose of this tribal consultation meeting is to conform to the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments”; to provide interested parties with an opportunity to discuss the 8(a) BD Program regulatory changes; and for SBA to obtain the comments of SBA's stakeholders on approaches to tracking community benefits. In addition to general oral and written comments about 8(a) BD program provisions, SBA is requesting oral and written comments on approaches to tracking community benefits as required by the 8(a) BD Program regulations. SBA considers tribal consultation meetings a valuable component of its deliberations and believes that this tribal consultation meeting will allow for constructive dialogue with the tribal community, Tribal Leaders, Elders and elected members of Alaska Native Villages or their appointed representatives.
The format of this tribal consultation meeting will consist of a panel of SBA representatives who will preside over the session. The oral and written testimony will become part of the administrative record for SBA's consideration. Written testimony may be submitted in lieu of oral testimony.
SBA will analyze the testimony, both oral and written, along with any written comments received. SBA officials may ask questions of a presenter to clarify or further explain the testimony. The purpose of the tribal consultation is to discuss changes to the 8(a) BD Program with the tribal community, Tribal Leaders, Elders and elected members of Alaska Native Villages or their appointed representatives and to seek their comments on approaches to tracking community benefits. SBA requests that the comments focus on the new regulatory changes as stated in the Agency's Final Rule. SBA requests that commenters not raise issues pertaining to other SBA small business programs.
Presenters may provide a written copy of their testimony. SBA will accept written material that the presenter wishes to provide that further supplements his or her testimony. Electronic or digitized copies are encouraged.
The tribal consultation meeting will be held for two hours. The meeting will begin at 1 p.m. and end at 3 p.m. (Pacific Standard Time). SBA will adjourn early if all those scheduled have delivered their testimony.
SBA respectfully requests that an elected or appointed representative of the tribal communities that are interested in attending please pre-register in advance and indicate whether you would like to testify at the hearing. Registration requests should be received by SBA by March 10, 2011 at 5 p.m. (Eastern Standard Time). Please contact Mr. Marcus Grignon in SBA's Office of Native American Affairs in writing at
If you are interested in testifying, please include the following information relating to the person testifying: Name, Organization affiliation, Address, Telephone number, E-mail address and Fax number. SBA will attempt to accommodate all interested parties who wish to present testimony. Based on the number of registrants, it may be necessary to impose time limits to ensure that everyone who wishes to testify has the opportunity to do so. SBA will confirm in writing the registration of presenters and attendees.
For information on facilities or services for individuals with disabilities or to request special assistance at the tribal consultation meeting, contact Mr. Marcus Grignon at the telephone number or e-mail address indicated under the
15 U.S.C. 632, 634(b)(6), 636(b), 637(a), 644 and 662(5); Pub. L. 105-135, sec. 401
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the modification of the Bell Helicopter Textron Canada Limited (Bell) model 206B and 206L series helicopters. These model helicopters will have novel or unusual design features when modified by installing the Hoh Aeronautics, Inc. (Hoh) complex autopilot/stabilization augmentation system (AP/SAS) that has potential failure conditions with more severe adverse consequences than those envisioned by the existing applicable airworthiness regulations. These special conditions contain the added safety standards the Administrator considers necessary to ensure the failures and their effects are sufficiently analyzed and contained.
The effective date of these special conditions is February 25, 2011. We must receive your comments by May 6, 2011.
You may send your comments by e-mail to:
Mark Wiley, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Policy Group (ASW-111), 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222-5134; facsimile (817) 222-5961; or e-mail to
The substance of these special conditions has been subjected to the notice and comment period previously and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Further, a delay in the effective date of these special conditions would significantly delay issuance of the design approval and thus delivery of the helicopter, which is imminent. Therefore, the FAA has determined that prior public notice and comment are unnecessary, impracticable, and contrary to the public interest, and finds good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.
While we did not precede this with a notice of proposed special conditions, we invite interested people to take part in this action by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will file in the special conditions docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to let you know we received your mailed comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On July 13, 2009, Hoh submitted an application to the FAA's Los Angles Aircraft Certification Office (LA ACO) for a supplemental type certificate (STC) to install an AP/SAS on the Bell model 206B, 206L, 206L-1, 206L-3, and 206L-4 (206L series) helicopters. The Bell model 206B and 206L series helicopters are 14 CFR part 27 Normal category, single turbine engine, conventional helicopters designed for civil operation. These helicopter models are capable of carrying four passengers with one pilot, and have a maximum gross weight of between approximately 3,200 to 4,450 pounds, depending on the model. The major design features include a 2-blade, teetering main rotor, a 2-blade anti-torque tail rotor, a skid landing gear, and a visual flight rule (VFR) basic avionics configuration. Hoh proposes to modify these model helicopters by installing a two-axis AP/SAS.
Under 14 CFR 21.115, Hoh must show that the Bell model 206B and 206L series helicopters, as modified by the installed AP/SAS, continue to meet the 14 CFR 21.101 standards. The baseline of the certification basis for the unmodified Bell model 206B and 206L series helicopters is listed in Type Certificate Number H2SW. Although the Bell 206B, 206L, 206L-1, and 206L-3 were certificated under Civil Air Regulations (CAR) 6.606, the Bell model 206L-4 was certificated to § 27.1309; the applicant has voluntarily agreed to comply with § 27.1309 as part of the certification basis for this STC for all of these models. Additionally, compliance must be shown to any applicable equivalent level of safety findings, exemptions, and special conditions, prescribed by the Administrator as part of the certification basis.
If the Administrator finds the applicable airworthiness regulations (that is, 14 CFR part 27), as they pertain to this STC, do not contain adequate or appropriate safety standards for the Bell model 206B and 206L series helicopters because of a novel or unusual design feature, special conditions are prescribed under § 21.101(d).
In addition to the applicable airworthiness regulations and special conditions, Hoh must show compliance of the AP/SAS STC-altered Bell model 206B and 206L series helicopters with the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.101.
The Hoh AP/SAS incorporates novel or unusual design features, for installation in a Bell model 206B, 206L, 206L-1, 206L-3, or 206L-4 helicopter, Type Certificate Number H2SW. This AP/SAS performs non-critical control functions, since this model helicopter has been certificated to meet the applicable requirements independent of this system. However, the possible failure conditions for this system, and their effect on the continued safe flight and landing of the helicopters, are more severe than those envisioned by the present rules.
The effect on safety is not adequately covered under § 27.1309 for the application of new technology and new application of standard technology.
To comply with the provisions of the special conditions, we require that Hoh provide the FAA with a systems safety assessment (SSA) for the final AP/SAS installation configuration that will adequately address the safety objectives established by the functional hazard assessment (FHA) and the preliminary system safety assessment (PSSA), including the fault tree analysis (FTA). This must ensure that all failure conditions and their resulting effects are adequately addressed for the installed AP/SAS. The SSA process, FHA, PSSA, and FTA are all parts of the overall safety assessment (SA) process discussed in FAA Advisory Circular (AC) 27-1B (Certification of Normal Category Rotorcraft) and Society of Automotive Engineers (SAE) document Aerospace Recommended Practice (ARP) 4761 (Guidelines and Methods for Conducting the Safety Assessment Process on civil airborne Systems and Equipment).
These special conditions require that the AP/SAS installed on a Bell model 206B or 206L series helicopter meet the requirements to adequately address the failure effects identified by the FHA, and subsequently verified by the SSA, within the defined design integrity requirements.
These special conditions are applicable to the Hoh AP/SAS installed as an STC approval, in Bell model 206B, 206L, 206L-1, 206L-3, and 206L-4 helicopters, Type Certificate Number H2SW.
This action affects only certain novel or unusual design features for a Hoh AP/SAS STC installed on one model series of helicopters. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the model helicopters listed in the “Applicability” section.
Aircraft, Aviation safety.
The authority citation for these special conditions is as follows:
42 U.S.C. 7572, 49 U.S.C. 106(g), 40105, 40113, 44701-44702, 44704, 44709, 44711, 44713, 44715, 45303.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the Hoh Aeronautics, Inc. (Hoh) supplemental type certificate basis for the installation of an autopilot/stabilization augmentation system (AP/SAS) on the Bell Helicopter Textron Canada Limited (Bell) model 206B, 206L, 206L-1, 206L-3, and 206L-4 (206L series) helicopters, Type Certificate Number H2SW.
The AP/SAS must be designed and installed so that the failure conditions identified in the Functional Hazard Assessment and verified by the System Safety Assessment, after design completion, are adequately addressed in accordance with the “failure condition categories” and “requirements” sections (including the system design integrity, design environmental, and test and analysis requirements) of these special conditions.
Failure conditions are classified, according to the severity of their effects on the rotorcraft, into one of the following categories:
1.
2.
3.
4.
• A large reduction in safety margins or functional capabilities;
• Physical distress or excessive workload that would impair the flight crew's ability to the extent that they could not be relied on to perform their tasks accurately or completely; or,
• Possible serious or fatal injury to a passenger or a cabin crewmember, excluding the flight crew.
“Hazardous/severe-major” failure conditions can include events that are manageable by the crew by the use of proper procedures, which, if not implemented correctly or in a timely manner, may result in a catastrophic event.
5.
The present §§ 27.1309(b) and (c) regulations do not adequately address the safety requirements for systems whose failures could result in “catastrophic” or “hazardous/severe-major” failure conditions, or for complex systems whose failures could result in “major” failure conditions. The current regulations are inadequate because when §§ 27.1309(b) and (c) were promulgated, it was not envisioned that this type of rotorcraft would use systems that are complex or whose failure could result in “catastrophic” or “hazardous/severe-major” effects on the rotorcraft. This is particularly true with the application of new technology, new application of standard technology, or other applications not envisioned by the rule that affect safety.
Hoh must provide the FAA with a systems safety assessment (SSA) for the final AP/SAS installation configuration that will adequately address the safety objectives established by the functional hazard assessment (FHA) and the preliminary system safety assessment (PSSA), including the fault tree analysis (FTA). This will show that all failure conditions and their resulting effects are adequately addressed for the installed AP/SAS.
The SSA process, FHA, PSSA, and FTA are all parts of the overall safety assessment (SA) process discussed in FAA Advisory Circular (AC) 27-1B (Certification of Normal Category Rotorcraft) and Society of Automotive Engineers (SAE) document Aerospace Recommended Practice (ARP) 4761 (Guidelines and Methods for Conducting the Safety Assessment Process on Civil Airborne Systems and Equipment).
Hoh must comply with the existing requirements of § 27.1309 for all applicable design and operational
Each of the failure condition categories defined in these special conditions relate to the corresponding aircraft system integrity requirements. The system design integrity requirements, for the Hoh AP/SAS, as they relate to the allowed probability of occurrence for each failure condition category, and the proposed software design assurance level, are as follows:
• “Major”—For systems with “major” failure conditions, failures resulting in these major effects must be shown to be remote, a probability of occurrence on the order of between 1 × 10
• “Hazardous/Severe-Major”—For systems with “hazardous/severe-major” failure conditions, failures resulting in these hazardous/severe-major effects must be shown to be extremely remote, a probability of occurrence on the order of between 1 × 10
• “Catastrophic”—For systems with “catastrophic” failure conditions, failures resulting in these catastrophic effects must be shown to be extremely improbable, a probability of occurrence on the order of 1 × 10
The AP/SAS system equipment must be qualified to the appropriate environmental level per RTCA document DO-160F (Environmental Conditions and Test Procedures for Airborne Equipment), for all relevant aspects. This is to show that the AP/SAS system performs its intended function under any foreseeable operating condition, which includes the expected environment in which the AP/SAS is intended to operate. Some of the main considerations for environmental concerns are installation locations and the resulting exposure to environmental conditions for the AP/SAS system equipment, including considerations for other equipment that may be affected environmentally by the AP/SAS equipment installation. The level of environmental qualification must be related to the severity of the considered failure conditions and effects on the rotorcraft.
Compliance with the requirements of these special conditions may be shown by a variety of methods, which typically consist of analysis, flight tests, ground tests, and simulation, as a minimum. Compliance methodology is related to the associated failure condition category. If the AP/SAS is a complex system, compliance with the requirements for failure conditions classified as “major” may be shown by analysis, in combination with appropriate testing to validate the analysis. Compliance with the requirements for failure conditions classified as “hazardous/severe-major” may be shown by flight-testing in combination with analysis and simulation, and the appropriate testing to validate the analysis. Flight tests may be limited for “hazardous/severe-major” failure conditions and effects due to safety considerations. Compliance with the requirements for failure conditions classified as “catastrophic” may be shown by analysis, and appropriate testing in combination with simulation to validate the analysis. Very limited flight tests in combination with simulation are used as a part of a showing of compliance for “catastrophic” failure conditions. Flight tests are performed only in circumstances that use operational variations, or extrapolations from other flight performance aspects to address flight safety.
These special conditions require that the Hoh AP/SAS system installed on a Bell model 206B, 206L, 206L-1, 206L-3, or 206L-4 helicopter, Type Certificate Number H2SW, meet these requirements to adequately address the failure effects identified by the FHA, and subsequently verified by the SSA, within the defined design system integrity requirements.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are rescinding an existing airworthiness directive (AD) for the products listed above. The existing AD, AD 98-09-27, resulted from aircraft certification testing which revealed that stresses on the thrust reverser hinge were higher than had been anticipated during engine certification, and the United Kingdom Civil Aviation Authority, issuing AD 008-03-97. Since we issued AD 98-09-27, we discovered that its requirements were duplicated in airplane-level AD 2001-09-14, issued by the FAA Transport Airplane Directorate. We proposed to rescind the engine-level AD.
This AD becomes effective April 11, 2011.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
On April 23, 1998, the FAA Engine & Propeller Directorate issued engine AD 98-09-27 (63 FR 24911, May 6, 1998). On April 30, 2001, the FAA Transport Airplane Directorate issued airplane AD 2001-09-14 (66 FR 23838, May 10, 2001). Those ADs both require the same initial and repetitive visual inspections of Rolls-Royce plc RB211-Trent 768 and 772 series turbofan engine thrust reverser hinge lugs and attachment ribs for cracks, and, if necessary, removal from service and replacement with serviceable parts.
Since we issued engine AD 98-09-27 and airplane AD 2001-09-14, we determined that duplicate ADs to address the same unsafe condition were unnecessary. We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
You may examine the AD docket on the Internet at
We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) 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 summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective April 11, 2011.
(b) This AD rescinds AD 98-09-27.
(c) This AD applies to Rolls-Royce plc RB211-Trent 768, 772, and 772B turbofan engines. These engines are installed on, but not limited to, Airbus A330-341 and A330-342 series airplanes.
Federal Aviation Administration (FAA), DOT.
Final rule, technical amendment.
This action amends and removes, several Hawaiian Reporting Points. Specifically, the FAA is revising the description of EELIC, and TOADS to address recent technical adjustments to their actual locations. Additionally, the FAA is renaming the SILVA reporting point to SYVAD, and has determined that the LULUS, NIEMO, and PADDI reporting points are no longer needed. This action ensures the safe and efficient management of aircraft within the National Airspace System (NAS).
Effective date 0901 UTC, May 5, 2011. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Ken McElroy, Airspace Regulation and ATC Procedures Group, Office of Mission Support Services, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
The Honolulu Control Center conducted a review of their airspace and
Hawaiian Reporting Points are listed in paragraph 7006 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Reporting Points listed in this document will be published subsequently in the Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending two Reporting Points (EELIC and TOADS) to reflect their actual locations. Additionally, the SILVA reporting point will be renamed SYVAD, and adjusted to reflect its actual location. The LULUS, NIEMO, and PADDI Reporting Points will be removed.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Reporting Points in Hawaii.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Polices and Procedures, paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Bureau of Industry and Security, Commerce.
Final rule.
In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by clarifying the Application Processing, Issuance, and Denial provisions concerning BIS's authority to revise, suspend or revoke licenses.
This rule is effective March 2, 2011.
Sheila Quarterman, Bureau of Industry and Security, Regulatory Policy Division, by phone at 202-482-2440, or by e-mail at
Part 750 of the EAR provides for the revision, suspension or revocation of licenses whenever it is known that the EAR have been violated or that a violation is about to occur. In this final rule, BIS revises the first sentence in paragraph (a) of Section 750.8 (Revocation or suspension of licenses) by removing the phrase “whenever it is known that the EAR have been violated or that a violation is about to occur.” Harmonization is an objective for agencies under Executive Order 13563, which states: “In developing regulatory actions and identifying appropriate approaches, each agency shall attempt
Since August 21, 2001, the Export Administration Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 16, 2010 (75 FR 50681, August 16, 2010), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.
1. This final rule has been determined to be significant for the purposes of Executive Order 12866.
2. Notwithstanding any other provisions of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. The Department finds that the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring prior notice, the opportunity for public participation, and a delay in effective date are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)) or, in the alternative, the Department for good cause finds that prior notice and opportunity for public comment are contrary to the public interest (5 U.S.C. 553(b)(B)). It is contrary to the public interest to delay clarifying the Department's authority to revise, suspend or revoke licenses because this delay may allow for the occurrence of certain export transactions that the United States has an interest, including a foreign policy interest, in preventing. Therefore, this regulation is issued in final form. In addition, the Department finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the reasons provided above. Accordingly, this regulation is made effective immediately upon publication.
No other law requires that a notice of proposed rulemaking and an opportunity for public comments be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Accordingly, part 750 of the Export Administration Regulations (15 CFR Parts 730-774) is amended as follows:
50 U.S.C. app. 2401
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Imperial County Air Pollution Control District (ICAPCD), Kern County Air Pollution Control District (KCAPCD), and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), we are approving local rules that define terms used in other air pollution regulations in these areas.
This rule is effective on May 6, 2011 without further notice, unless EPA receives adverse comments by April 6, 2011. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA-R09-OAR-2010-0813, by one of the following methods:
1.
2.
3.
Cynthia Allen, EPA Region IX, (415) 947-4120,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).
On August 25, 2010, EPA determined that the submittal for ICAPCD Rule 101, KCAPCD Rule 102, and VCAPCD Rule 2 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
We approved an earlier version of these rules into the SIP on the dates listed: ICAPCD Rule 101 on November 15, 2007, KCAPCD Rule 102 on February 3, 2000, and VCAPCD Rule 2 on November 19, 2004.
Section 110(a) of the CAA requires States to submit regulations that control volatile organic compounds, oxides of nitrogen, particulate matter, and other air pollutants which harm human health and the environment. These rules were developed as part of the local agency's program to control these pollutants.
Imperial County Rule 101, Definitions, is being amended by adding new definitions associated with recently adopted as amended Rule 400.1, Stationary Gas Turbines (Reasonably Available Control Technology), Rule 400.2, Boilers, Process Heaters and Steam Generators, Rule 424, Architectural Coatings, Rule 425, Aerospace Coating Operations and Rule 427, Automotive Refinishing Operations. In addition, definitions that became obsolete because of the newly adopted or amended rules were removed.
Kern County Rule 102, Definitions, is being amended to update the Exempt Compounds list to conform to the Exempt Compounds list of the EPA. Four definitions have also been added to the Rule along with modifications to Standard Conditions and minor formatting.
Ventura County Rule 2, Definitions, is being amended by adding four new “exempt organic compounds” to the list of low reactive compounds.
EPA's technical support documents (TSD) have more information about these rules.
These rules describe administrative provisions and definitions that support emission controls found in other local agency requirements. In combination with the other requirements, these rules must be enforceable (
We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP anti-backsliding. The TSDs have more information on our evaluation.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not anticipate objections to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
The Office of Management and Budget (OMB) has exempted this regulatory
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.
Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or Tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or Tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or Tribal governments, or to the private sector, result from this action.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This final rule does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a State rule implementing a Federal standard.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States. The Executive Order has informed the development and implementation of EPA's environmental justice program and policies. Consistent with the Executive Order and the associated Presidential Memorandum, the Agency's environmental justice policies promote environmental protection by focusing attention and Agency efforts on addressing the types of environmental harms and risks that are prevalent among minority, low-income and Tribal populations.
This action will not have disproportionately high and adverse human health or environmental effects on minority, low-income or Tribal populations because it increases the level of environmental protection for all affected populations.
Specifically, EPA's action would have the affect of standardizing environmental requirements throughout the area, and would not relax environmental requirements in any subsection of the area.
The Congressional Review Act, 5 U.S.C. section 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 May 6, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(381) New and amended regulations were submitted on July 20, 2010, by the Governor's designee.
(i) Incorporation by reference.
(A) Imperial County Air Pollution Control District.
(
(B) Kern County Air Pollution Control District.
(
(C) Ventura County Air Pollution Control District.
(
Environmental Protection Agency (EPA).
Direct final rule.
During a review of Texas' regulations, the EPA identified a variety of State-initiated changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). We have determined that these changes are minor and satisfy all requirements needed to qualify for Final authorization and are authorizing the State-initiated changes through this Direct Final action.
The Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency (EPA) to authorize States to operate their hazardous waste management programs in lieu of the Federal program. The EPA uses the regulations entitled “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of State programs and to incorporate by reference those provisions of the State statutes and regulations that will be subject to the EPA's inspection and enforcement. The rule codifies in the regulations the prior approval of Texas' hazardous waste management program and incorporates by reference authorized provisions of the State's statutes and regulations.
This regulation is effective May 6, 2011, unless the EPA receives adverse written comment on the codification of the Texas authorized RCRA program by the close of business April 6, 2011. If the EPA receives such comments, it will publish a timely withdrawal of this direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R06-RCRA-2010-0587 by one of the following methods:
1.
2
3.
4.
Alima Patterson, Region 6 Regional Authorization Coordinator, and Julia Banks Codification Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, Phone numbers: (214) 665-8533, and (214) 665-8178, E-mail address:
States which have received Final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. As the Federal program changes, the States must change their programs and ask the EPA to authorize the changes. Changes to State hazardous waste programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. States can also initiate their own changes to their hazardous waste program and these changes must then be authorized.
We conclude that Texas' revisions to its authorized program meet all of the statutory and regulatory requirements established by RCRA. We found that the State-initiated changes make Texas' rules more clear or conform more closely to the Federal equivalents and are so minor in nature that a formal application is unnecessary. Therefore, we grant Texas final authorization to operate its hazardous waste program with the changes described in the table at Section G below. Texas has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out all authorized aspects of the RCRA program, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Texas, including issuing permits, until the State is granted authorization to do so.
The effect of this decision is that a facility in Texas subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Texas has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Do inspections, and require monitoring, tests, analyses, or reports;
• Enforce RCRA requirements and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.
This action does not impose additional requirements on the regulated community because the statutes and regulations for which Texas is being authorized by this direct action are already effective and are not changed by this action.
The EPA did not publish a proposal before this rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the Proposed Rules section of this
If the EPA receives comments that oppose this authorization or the incorporation-by-reference of the State program, we will withdraw this rule by publishing a timely document in the
The State of Texas initially received final authorization on December 26, 1984 (49 FR 48300), to implement its Base Hazardous Waste Management Program. This authorization was clarified in a notice published March 26, 1985 (50 FR 11858). Texas received authorization for revisions to its program, effective October 4, 1985 (51 FR 3952), February 17, 1987 (51 FR 45320), March 15, 1990 (55 FR 7318), July 23, 1990 (55 FR 21383), October 21, 1991 (56 FR 41626), December 4, 1992 (57 FR 45719), June 27, 1994 (59 FR 16987), June 27, 1994 (59 FR 17273), November 26, 1997 (62 FR 47947), December 3, 1997 (62 FR 49163), October 18, 1999 (64 FR 44836), November 15, 1999 (64 FR 49673), September 11, 2000 (65 FR 43246), June 14, 2005 (70 FR 34371), December 29, 2008, (73 FR 64252), and July 13, 2009 (74 FR 22469).
The State has made amendments to the provisions listed in the table which follows. These amendments clarify the State's regulations and make the State's regulations more internally consistent. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes satisfy the requirements of 40 CFR 271.21(a). We are granting Texas final authorization to carry out the following provisions of the State's program in lieu of the Federal program. These provisions are analogous to the indicated RCRA statutory provisions or RCRA regulations found at 40 CFR as of July 1, 2005. The Texas provisions are from the Texas Administrative Code (TAC), Title 30, effective December 31, 2007.
This authorization does not affect the status of State permits and those permits issued by the EPA because no new substantive requirements are a part of these revisions.
Texas is not authorized to carry out its Hazardous Waste Program in Indian Country within the State. This authority remains with EPA. Therefore, this action has no effect in Indian Country.
Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA and any other applicable statutory provisions.
The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be Federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.
The EPA incorporated by reference Texas' then authorized hazardous waste program effective December 3, 1997 (62 FR 49163), November 15, 1999 (64 FR 49673), and December 29, 2008 (73 FR 64252). In this action, EPA is revising Subpart SS of 40 CFR part 272 to include the recent authorization revision actions effective July 13, 2009 (74 FR 22469).
The purpose of this
This document incorporates by reference Texas' hazardous waste statutes and regulations and clarifies which of these provisions are included in the authorized and Federally enforceable program. By codifying Texas' authorized program and by amending the Code of Federal Regulations, the public will be more easily able to discern the status of Federally approved requirements of the Texas hazardous waste management program.
The EPA is incorporating by reference the Texas authorized hazardous waste program in subpart SS of 40 CFR part 272. Section 272.2201 incorporates by reference Texas' authorized hazardous waste statutes and regulations. Section 272.2201 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.
The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Texas procedural and enforcement authorities. Section 272.2201(c)(2) of 40 CFR lists the statutory and regulatory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.
The public needs to be aware that some provisions of Texas' hazardous waste management program are not part of the Federally authorized State program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (
(2) Federal rules for which Texas is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference;
(3) Unauthorized amendments to authorized State provisions; and
(4) New unauthorized State requirements.
State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and the EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.2201(c)(3) lists the Texas regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by the EPA; the State, however, may enforce such provisions under State law.
Texas has adopted but is not authorized for the following Federal rules published in the
Additionally, Texas' hazardous waste regulations include amendments which have not been authorized by the EPA. Since the EPA cannot enforce a State's requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by the EPA include amendments to previously authorized State regulations as well as new State requirements.
In those instances where Texas has made unauthorized amendments to previously authorized sections of State code, the EPA is identifying in 40 CFR 272.2201(c)(4) any regulations which, while adopted by the State and incorporated by reference, include language not authorized by the EPA. Those unauthorized portions of the State regulations are not Federally enforceable. Thus, notwithstanding the language in Texas hazardous waste regulations incorporated by reference at 40 CFR 272.2201(c)(1), the EPA will only enforce those portions of the State regulations that are actually authorized by the EPA. For the convenience of the regulated community, the actual State regulatory text authorized by the EPA for the citations listed at 272.2201(c)(4) (
State regulations that are not incorporated by reference in this rule at 40 CFR 272.2201(c)(1), or that are not listed in 40 CFR 272.2201(c)(3) (“broader in scope”) or 40 CFR 272.2201(c)(4) (“unauthorized amendments to authorized State provisions”), are considered new unauthorized State requirements. These requirements are not Federally enforceable.
With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, the EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.
The EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and not authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985). The EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to
Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), the EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.
Some existing State requirements may be similar to the HSWA requirement implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA can only enforce the HSWA requirements and not the State analogs. The EPA will not codify those State requirements until the State receives authorization for those requirements.
The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore, this action is not subject to review by OMB. This rule incorporated by reference Texas' authorized hazardous waste management regulations, and imposes no additional requirements beyond those imposed by State law. This final rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely incorporates by reference existing State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000).
This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply Distribution or Use” (66 FR 28344, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Under RCRA 3006(b), the EPA grants a State's application for incorporation by reference as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State incorporation by reference application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. The final rule does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994). The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This rule is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).
For the reasons set forth in the preamble, 40 CFR parts 271 and 272 are amended as follows:
EPA is granting final authorization under part 271 to the State of Texas for revisions to its hazardous waste program under the Resource Conservation and Recovery Act.
Sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), the EPA granted Texas final authorization for the following elements as submitted to EPA in Texas' Base program application for final authorization which was approved by EPA effective on December 26, 1984. Subsequent program revision applications were approved effective on October 4, 1985, February 17, 1987, March 15, 1990, July 23, 1990, October 21, 1991, December 4, 1992, June 27,
(b) The State of Texas has primary responsibility for enforcing its hazardous waste management program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.
(c)
(1) The Texas statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under Subtitle C of RCRA, 42 U.S.C. 6921
(i) The Binder entitled “EPA Approved Texas Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program,” dated July 2009.
(ii) [Reserved]
(2) The following provisions provide the legal basis for the State's implementation of the hazardous waste management program, but they are not being incorporated by reference and do not replace Federal authorities:
(i) Texas Health and Safety Code (THSC) Annotated, (Vernon, 2001); Chapter 361, The Texas Solid Waste Disposal Act, sections 361.002, 361.016, 361.017, 361.018, 361.023, 361.024, 361.029, 361.032, 361.033, 361.035, 361.036, 361.037(a), 361.061, 361.063, 361.0635, 361.064, 361.0641, 361.066(b) and (c), 361.067, 361.068, 361.069, 361.079, 361.080(a) and (b), 361.081, 361.083, 361.833, 361.0861(c), 361.0885, 361.090, 361.095(b)-(f), 361.096, 361.097, 361.098, 361.099(a), 361.100, 361.101, 361.102 through 361.109, 361.113, 361.116, 361.272 through 361.275, 361.278, 361.301, 361.321(a) and (b), 361.321(c) (except the phrase “Except as provided by Section 361.322(a)”), 361.321(d), 361.321(e) (except the phrase “Except as provided by Section 361.322(e)”), 361.451, 361.501 through 361.506, and 361.509(a) introductory paragraph, (a)(11), (b), (c) introductory paragraph, and (c)(2); Chapter 371, Texas Oil Collection, Management, and Recycling Act, sections 371.0025(b) and (c), 371.024(a), 371.024(c) and (d), 371.026(a) and (b), 371.028, and 371.043(b).
(ii) Texas Health and Safety Code (THSC) Annotated, (Vernon, 2007 Supplement), effective September 1, 2007: Chapter 361, The Texas Solid Waste Disposal Act, sections 361.0215(b)(2) and (b)(3), 361.0666, 361.078, 361.0791, 361.082 (except 361.082(a) and (f)), 361.084, 361.085, 361.0871(b), 361.088, 361.089, 361.114, and 361.271.
(iii) Texas Water Code (TWC), Texas Codes Annotated (Vernon, 2000), effective September 1, 1999, as amended: Chapter 5, sections 5.102 through 5.105, 5.112, and 5.351; Chapter 7, sections 7.032, 7.051(a), 7.052(c) and (d), 7.053 through 7.062, 7.064 through 7.069, 7.075, 7.101, 7.104, 7.105, 7.107, 7.110, 7.162, 7.163, 7.189, 7.190, 7.252(1), 7.351, 7.353; Chapter 26, section 26.011; and Chapter 27, sections 27.018 and 27.019.
(iv) Texas Water Code (TWC), Texas Codes Annotated (Vernon, 2002), effective September 1, 2001, as amended: Chapter 5, section 5.177; Chapter 7, sections 7.067 and 7.102.
(v) Texas Water Code (TWC), Texas Codes Annotated (Vernon, 2007), effective September 1, 2007, as amended: Chapter 5, sections 5.501 through 5.505, 5.509 through 5.512, 5.515, 5.551 through 5.557; Chapter 7, sections 7.031, 7.052(a),7.052(c) and (d), 7.102, 7.176, and 7.187; Chapter 26, sections 26.001(13), 26.039, 26.341 through 26.367; and Chapter 27, section 27.003.
(vi) Texas Government Code (Vernon, 1998), section 311.027, effective May 11, 1993.
(vii) Texas Administrative Code (TAC), Title 30, Environmental Quality, 1994, as amended, effective through January 1, 1994: Chapter 305, sections 305.91 through 305.93, 305.98, and 305.99.
(viii) Texas Administrative Code (TAC), Title 30, Environmental Quality, 1997, as amended, effective through January 1, 1997: Chapter 281, sections 281.17(f); Chapter 305, sections 305.29(b) through (d), 305.94 and 305.95, 305.97, 305.100, 305.101 (except 305.101(c)), 305.102, 305.103, and 305.105.
(ix) Texas Administrative Code (TAC), Title 30, Environmental Quality, 2008, as amended, effective through December 31, 2007: Chapter 39, sections 39.13 (except (10)), 39.105, 39.107, 39.109, 39.413 (except (10)); Chapter 50, sections 50.13, 50.19, 50.39, 50.113 (except (d)), 50.119, and 50.139; Chapter 55, sections 55.27 (except (b)), 55.201 (except as applicable to contested case hearings), and 55.211 (except as applicable to contested case hearings); Chapter 70, section 70.10; Chapter 281, sections 281.1 (except the clause “except as provided by * * * Prioritization Process)”), 281.2 introductory paragraph, 281.2(4), 281.3(a) and (b), 281.5 (except the clause “Except as provided by * * * Discharge Permits)”, the phrase “radioactive material”, and the phrase “subsurface area drip dispersal systems”), 281.17(d) (except the references to radioactive material licenses), 281.17(e), 281.18(a) (except for the sentence “For applications for radioactive * * * within 30 days.”, 281.19(a) (except the last sentence), 281.19(b) (except the phrase “Except as provided in subsection (c) of this section,”), 281.20, 281.21(a) (except the phrase “and the Texas Radiation Control Act * * * Chapter 401.”, the acronym “TRCA”, and the phrase “subsurface area drip dispersal systems”), 281.21(b), 281.21(c) (except the phrase “radioactive materials,” in 281.21(c)(2)), 281.21(d), 281.22(a) (except the phrase “For applications for radioactive * * * to deny the license.”), 281.22(b) (except the phrase “or an injection well,” in the first sentence and the phrase “For underground injection wells * * * the same facility or activity.”), 281.23(a), and 281.24; Chapter 305, sections 305.64(d) and (f), 305.66(c), 305.66(e) (except for the last sentence), 305.66(f) through (l), 305.123 (except the phrases “and 401 * * * regulation)” and “and 32”), 305.125(1) and (3), 305.125(20), 305.127(1)(B)(i), 305.127(4)(A) and (C), 305.127(6), 305.401(a), 305.401(b) (except the text “§ 39.3 of this title (relating to Purpose) * * * § 55.21 of this title (relating to Requests for Contested Case Hearings, Public Comment”), 305.401(d) through (h); and Chapter 335, sections 335.2(b), 335.43(b), 335.206, 335.391 through 335.393.
(3) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the authorized program, and are not incorporated by reference:
(i) Texas Health and Safety Code (THSC) Annotated, (Vernon 2001): Chapter 361, The Texas Solid Waste Disposal Act, sections 361.131 through 140; Chapter 371, Texas Oil Collection, Management, and Recycling Act, sections 371.021, 371.022, 371.024(e), 371.0245, 371.0246, 371.025, and 371.026(c).
(ii) Texas Administrative Code (TAC), Title 30, Environmental Quality, 2008, as amended, effective through December 31, 2007: Chapter 305, sections 305.53 and 305.64(b)(4); Chapter 335, sections 335.321 through 335.332, Appendices I and II, and 335.401 through 412.
(4)
(ii) Additionally Texas has partially or fully adopted, but is not authorized to implement, the Federal rules that are listed in the following table. The EPA will continue to implement the Federal HSWA requirements for which Texas is not authorized until the State receives specific authorization for those requirements. The EPA will not enforce the non-HSWA Federal rules although they may be enforceable under State law. For those Federal rules that contain both HSWA and non-HSWA requirements, the EPA will enforce only the HSWA portions of the rules.
(iii) Texas has chosen not to adopt, and is not authorized to implement, the following optional Federal rules:
(5)
(6)
(7)
The statutory provisions include:
Texas Health and Safety Code (THSC) Annotated, (Vernon 2001): Chapter 361, The Texas Solid Waste Disposal Act, sections 361.003 (except (3), (4), (19), (27), (35), and (39)), 361.019(a), 361.0235, 361.066(a), 361.087, 361.093, 361.094, 361.095(a), 361.099(b), and 361.110; Chapter 371, The Texas Oil Collection, Management, and Recycling Act, sections 371.003, 371.024(b), 371.026(d), and 371.041.
Texas Health and Safety Code (THSC) Annotated, (Vernon 2007 Supplement): Chapter 361, The Texas Solid Waste Disposal Act, sections 361.082(a) and (f), 361.086, and 361.0871(a).
Copies of the Texas statutes that are incorporated by reference are available from West Group, 610 Opperman Drive, Eagan, 55123, Attention: Order Entry; Phone: 1-800-328-9352; Web site:
The regulatory provisions include:
Texas Administrative Code, (TAC), Title 30, Environmental Quality, 2008, as amended, effective through December 31, 2007. Please note that the 2008 TAC, Title 30 is the most recent version of the Texas authorized hazardous waste regulations. For a few provisions, the authorized version is found in the TAC, Title 30, Environmental Quality dated January 1, 1994, January 1, 1997, December 31, 1999, or December 31, 2001. Texas made subsequent changes to these provisions but these changes have not been authorized by EPA. The provisions from earlier sets of regulations are noted in the table below.
Chapter 3, Section 3.2(25) “Person”; Chapter 20, Section 20.15; Chapter 35, Section 35.402(e); Chapter 39, Sections 39.5(g), 39.11, 39.103(a)(2), (b), (d)(4), and (g), 39.405(f)(1), 39.411 (except (b)(4)(B), (b)(10), (11), and (13)), 39.503(d) (except the reference to 39.405(h) in 39.503(d) introductory paragraph); Chapter 55, Sections 55.25(b)(1) through (3), 55.152(a)(3), 55.152(b), 55.154, and 55.156(b)(1); Chapter 281, Section 281.3(c);
Chapter 305, Subchapter A—General Provisions, Sections 305.1(a) (except the reference to Chapter 401, relative to Radioactive Materials); 305.2 introductory paragraph (except the references to Chapter 401, relative to Radioactive Materials and the reference to TWC 32.002); 305.2(1) (except the phrase “or a post-closure order”); 305.2(6), (11), (12), (14), (15), (19), (20), (24), (26), (27), (31) and (40)-(42); 305.3;
Chapter 305, Subchapter B—Emergency Orders, Temporary Orders, and Executive Director Authorizations, Sections 305.29(a) (January 1, 1997); 305.30;
Chapter 305, Subchapter C—Application for Permit, Sections 305.41 (except the reference to Chapter 401, relative to Radioactive Materials, the reference to TWC Chapter 32, and the last sentence addressing post-closure orders); 305.42(a) (except the phrase “or who requests a post-closure order * * * to obtain a post-closure order”); 305.42(b) and (d); 305.43(b) (except the two phrases “or post-closure orders”); 305.44 (except (d), the phrase “or post-closure orders” in (a)(1), and the phrase “or a post-closure order” in (c)); 305.45(a) (except (a)(7)(I) and (J), and the phrase “§ 305.54 of this title * * * Content of Applications),” in 305.45(a)(8)(C)); 305.45(b); 305.47 (except the phrases “or a recipient of a post-closure order” and “or order”); 305.50(a) introductory paragraph-(a)(3) (except the last two sentences in 305.50(a)(2)); 305.50(a)(4) introductory paragraph and (a)(4)(A); 305.50(4)(B)-(D) (January 1, 1994); 305.50(a)(4)(G); 305.50(a)(5)(8), (13) and (14); 305.51;
Chapter 305, Subchapter D—Amendments, Modifications, Renewals, Transfers, Corrections, Revocations, and Suspension of Permits, Sections 305.61; 305.62(a) (except the phrase in the first sentence “§ 305.70 of this title * * * Solid Waste Class I Modifications” and the phrase in the fifth sentence “If the permittee requests a modification of a municipal solid waste permit * * * § 305.70 of this title.”); 305.62(b); 305.62(c) (January 1, 1997); 305.62(d) (except (d)(6)); 305.62(e)-(h); 305.63(a) introductory paragraph (except first sentence); 305.63(a)(1) and (2); 305.63(a)(3) (except last sentence); 305.63(a)(4)-(6); 305.64(a); 305.64(b) (except (b)(4) and (b)(5)); 305.64(c); 305.64(e); 305.64(g) (December 31, 1999); 305.66(a) (except (a)(7)-(a)(9)); 305.66(d); 305.67(a) and (b); 305.69(a)-(h) (January 1, 1997); 305.69(i)-(k) (except (k) A.8-A.10);
Chapter 305, Subchapter F—Permit Characteristics and Conditions, Sections 305.121 (except the phrases “radioactive material disposal” and “subsurface area drip dispersal systems”); 305.122(a)-(c); 305.124; 305.125 introductory paragraph; 305.125(2) and (4); 305.125(5) (except the last two sentences); 305.125(6) (January 1, 1997); 305.125 (7) and (8); 305.125(9) (except (9)(C)); 305.125(10) (except the phrase “and 32”); 305.125(11) (except the phrase “as otherwise required by Chapter 336 of this title” relative to Radioactive Substances in (11)(B)); 305.125(12); 305.125(13) (December 31, 2001); 305.125(14)—(19), and (21); 305.127 introductory paragraph; 305.127(1)(B)(iii); 305.127(1)(E) and (F); 305.127(2); 305.127(3)(A) (except the last two sentences); 305.127(3)(B) and (C); 305.127(4)(B); 305.127(5)(C); 305.128;
Chapter 305, Subchapter G—Additional Conditions for Hazardous and Industrial Solid Waste Storage, Processing, or Disposal Permits, Sections 305.141 through 305.145; 305.146 introductory paragraph and (1) (January 1, 1997); 305.150;
Chapter 305, Subchapter I—Hazardous Waste Incinerator Permits, Sections 305.171 through 305.175;
Chapter 305, Subchapter J—Permits for Land Treatment Demonstrations Using Field Tests or Laboratory Analyses, Sections 305.181 through 305.184;
Chapter 305, Subchapter K—Research, Development and Demonstration Permits, Sections 305.191 through 305.194;
Chapter 305, Subchapter L—Groundwater Compliance Plan, Section 305.401(c);
Chapter 305, Subchapter Q—Permits for Boilers and Industrial Furnaces Burning Hazardous Waste, Sections 305.571; 305.572 (except (a)(6)); 305.573;
Chapter 324—Used Oil, Sections 324.1 through 324.2(6); 324.2 “Secondary containment” (January 1, 1997); 324.2(8) and (9); 324.3 (except 324.3(5)); 324.4; 324.6; 324.7; 324.11 through 324.14; 324.15 (January 1, 1997); 324.16; 324.21;
Chapter 335, Subchapter A—Industrial Solid Waste and Municipal Hazardous Waste in General, Sections 335.1 introductory paragraph (December 31, 2001); 335.1(1)-(4), (6)-(8), (10)-(12), (16), (17), (21), (22), (24)-(28), (31); 335.1(32) “Designated facility” (December 31, 2001); 335.1(33), (36)-(42), (43) (except for the phrase “or is used for neutralizing the pH of non-hazardous industrial solid waste”), (44)-(46), (48)-(53), (55)-(61), (64)-(73), (75)-(82), (83)-(86) (except the phrase “solid waste or” in each subsection), (87), (88)-(89) (except the phrase “solid waste or” in both subsections); 335.1(86) “Manifest” and (87) “Manifest document number” (December 31, 2001); 335.1(92), (93), (94) (except the phrase “solid waste or”), (95)-(108); 335.1(110) (except the phrase “solid waste or”), (111), (116), (117) (except the phrase “solid waste or”), (118)-(121), (123), (125)-(129), (131), (132), (133)(A)-(G) (except the phrase “Except for materials described in subparagraph (H) of this paragraph.” at (133)(D) and (G) introductory paragraphs), (133)(I) and (J), (134), (136)-(145) (except the phrase “solid waste or” at (138), (141) and (143)), (146) (except the phrase “or industrial solid”), (147), (148), (149) and (150) (except the phrase “or industrial solid” in both subsections), (152)-(154), (155) (except the phrase “solid waste or”), (156)-(161), (162) (except the phrase “or industrial solid”), (163), (164) and (165) (except the phrase “solid waste or”); 335.2(a) and (c); 335.2(e)-(g); 335.2(i) (except the phrases “or decontamination” and “or obtain an order in lieu of a post-closure permit * * * of this section”); 335.2(j) and (l); 335.4; 335.5 (except (d)); 335.6(a); 335.6(b) (January 1, 1997); 335.6(c); 335.6(d) (except the last sentence) (January 1, 1994); 335.6(e) (January 1, 1994); 335.6(f)-(j); 335.7 (December 31, 1999); 335.8(a)(1) and (2); 335.9(a) (except (a)(2) and (3)); 335.9(a)(2) and (3) (January 1, 1997); 335.9(b) (January 1, 1994); 335.10(a) introductory paragraph and (a)(1) (except references to “class 1 wastes”) (January 1, 1994); 335.10(a)(3) (except the phrase “, unless the generator is identified in paragraph (2) of this section”) (December 31, 2001); 335.10(a)(4) (December 31, 2001); 335.10(a)(6); 335.10(b) (except 335.10(b)(5), (8), and (18)) (December 31, 2001); 335.10(b)(5), (8), and (18) (January 1, 1994); 335.10(c) (except the phrase “the United States customs official,”) (December 31, 2001); 335.10(d) and (e) (December 31, 2001); 335.10(f); 335.11 (except 11(d)) (December 31, 2001); 335.12 (except 335.12(a)(5) and (d)); 335.13(a) (January 1, 1997); 335.13(c) and (d) (January 1, 1994); 335.13(e) and (f) (January 1, 1997); 335.13(g) (January 1, 1994); 335.14; 335.15 introductory paragraph (January 1, 1994); 335.15(1); 335.17(a); 335.18(a); 335.19 (except 335.19(d)); 335.20 through 335.22; 335.23 (except (2)); 335.23(2) (January 1, 1994); 335.24(a)-(f); 335.24(m) and (n); 335.29; 335.29(2) and (3) (December 31, 2001); 335.30; 335.31;
Chapter 335, Subchapter B—Hazardous Waste Management General Provisions, Sections 335.41(a)-(c); 335.41(d) (except (d)(1) and (d)(5)-(8)); 335.41(d)(1) (December 31, 2001); 335.41(e); 335.41(f) (except (f)(2)(A)(iii)); 335.41(f)(2)(A)(iii) (December 31, 2001); 335.41(g) and (h); 335.41(j); 335.43 and 335.44 (December 31, 1999); 335.45; 335.47 (except 335.47(b) and the second sentence in (c)(3)); 335.47(b) (December 31, 1999);
Chapter 335, Subchapter C—Standards Applicable to Generators of Hazardous Waste, Sections 335.61 (except (f)); 335.62; 335.63; 335.65; 335.66; 335.67 and 335.68 (December 31, 2001); 335.69 (except (i) and (m)); 335.70; 335.71 (January 1, 1994); 335.73 through 335.75; 335.76 (except 335.76(d) and (h)); 335.76(d) (December 31, 2001); 335.77; 335.78 (except (b), (d)(2), (e) introductory paragraph, (f)(2), and (g)(2)); 335.78(b), (e) introductory paragraph, (f)(2), and (g)(2) (January 1, 1997);
Chapter 335, Subchapter D—Standards Applicable to Transporters of Hazardous Waste, Sections 335.91 (except (e)); 335.92; 335.93 (except (e)); 335.93(e) (December 31, 1999); 335.94 (except the phrase “owned or operated by a registered transporter” in (a) introductory paragraph);
Chapter 335, Subchapter E—Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities, Sections 335.111(a)-(c); 335.112(a) (except (a)(4)-(7) and (a)(17)); 335.112(a)(4)-(6) (December 31, 2001); 335.112(a)(7) (January 1, 1997); 335.112(b) (except (b)(4)(I) and (J), and (b)(7)); 335.112(c); 335.113; 335.114 (January 1, 1997); 335.115 introductory paragraph (January 1, 1997); 335.115(1)-(4); 335.116 (except (g) and the phrase “and (g)” at (b)); 335.117 (except (a)(2)(B), (a)(2)(C), and (b)(2)); 335.117(a)(2)(B), (a)(2)(C), and (b)(2) (January 1, 1997); 335.118(a); 335.118(b) (December 31, 2001); 335.119(a) and (b) (December 31, 2001); 335.120 through 335.127;
Chapter 335, Subchapter F—Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities, Sections 335.151(a)-(c); 335.152 (except (a)(4)-(6)); 335.152(a)(4) (January 1, 1997); 335.152(a)(5) (December 31, 2001); 335.152(a)(6) (January 1, 1997); 335.152(b); 335.152(c) (except (c)(5)-(7)); 335.153; 335.154 (January 1, 1997); 335.155 introductory paragraph (January 1, 1997); 335.155(1)-(3); 335.156(a) introductory paragraph through (2) (except the phrase “or (3)” at (a)(1) and the phrase “Except as provided * * * subsection,” at (a)(2)); 335.156(b) and (c); 335.157 through 335.166; 335.167(a) (except the phrase “or post-closure order”); 335.167(b) and (c) (December 31, 1999); 335.168 through 335.178;
Chapter 335, Subchapter G—Location Standards for Hazardous Waste Storage, Processing, or Disposal, Sections 335.201(a) (except (a)(3)); 335.201(c); 335.202 introductory paragraph; 335.202(2), (4), (9)-(11), (13), (15)-(18); 335.203; 335.204(a) introductory paragraph—(a)(5); 335.204(b)(1)-(6); 335.204(c)(1)-(5); 335.204(d)(1)-(5); 335.204(e) introductory paragraph; 335.204(e)(1) introductory paragraph (except the phrase “Except as * * * (B) of this paragraph,” and the word “event” at the end of the paragraph); 335.204(e)(2)-(7); 335.204(f); 335.205(a) introductory paragraph-(a)(2) and (e);
Chapter 335, Subchapter H—Standards for the Management of Specific Wastes and Specific Types of Facilities, Sections 335.211; 335.212; 335.213 (January 1, 1997); 335.214; 335.221; 335.222 through 335.225; 335.241(except (b)(4) and (d)); 335.241(d) (January 1, 1997); 335.251; 335.261 (except (e)) (December 31, 2001); 335.271; 335.272;
Chapter 335, Subchapter O—Land Disposal Restrictions, Section 335.431;
Chapter 335, Subchapter R—Waste Classification, Sections 335.504 introductory paragraph—(3); 335.504(4) (December 31, 1999).
Copies of the Texas regulations that are incorporated by reference are available from West Group, 610 Opperman Drive, Eagan, 55123, ATTENTION: Order Entry; Phone: 1-800-328-9352; Web site:
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Kemp Communications, Inc., allots FM Channel 296C2 at Kualapuu, Hawaii. Channel 296C2 can be allotted at Kualapuu, consistent with the minimum distance separation requirements of the Commission's rules, at coordinates 21-10-57 NL and 157-13-26 WL, with a site restriction of 19.4 km (12 miles) west of the community.
Effective April 4, 2011.
Deborah Dupont, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correcting amendment.
We, NMFS, announce a correcting amendment to the Code of Federal Regulations to clarify that take prohibitions under section 4(d) of the Endangered Species Act of 1973 (ESA) apply to the Upper Columbia River steelhead distinct population segment (DPS).
Effective March 7, 2011.
For further information regarding this notice contact Eric Murray, NMFS, Northwest Region, 503-231-2378; or Marta Nammack, NMFS, Office of Protected Resources, 301-713-1401.
We first listed the Upper Columbia River steelhead DPS under the ESA in 1997 as an endangered species (62 FR 43937; August 18, 1997). In January 2006, we conducted a status review and downgraded the DPS's status to threatened (71 FR 834; January 5, 2006). We published proposed and final rules applying ESA section 4(d) protections to the DPS on June 14, 2004 and February 1, 2006, respectively (69 FR 33102; 71 FR 5178). In 2007, a Federal district court set aside the downgraded listing; however, in 2009, the Ninth Circuit Court of Appeals reversed the district court's decision, thereby reinstating the January 2006 threatened listing and February 2006 protective regulations. On August 24, 2009, we published a
In our August 2009
The Assistant Administrator finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment, because it is impracticable, unnecessary, and contrary to the public interest. NMFS fully intended the Upper Columbia River steelhead DPS to be subject to the ESA section 4(d) protections and expressly stated this intent in the February 2006 final rule. NMFS also previously provided public notice in the
For the same reasons above, the Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness and makes this rule effective immediately upon publication.
Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
It has been determined that this rule is not significant for purposes of Executive Order 12866.
Copies of previous
Endangered and threatened species, Exports, Imports, Transportation.
For the reasons set forth in the preamble, 50 CFR part 223 is corrected by making the following correcting amendment:
16 U.S.C. 1531-1543.
(a)
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is reallocating the projected unused amount of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet (18.3 meters) length overall using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the A season apportionment of the 2011 total allowable catch of Pacific cod to be harvested.
Effective March 1, 2011, through 2400 hrs, Alaska local time (A.l.t.), December 31, 2011.
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the 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 part 600 and 50 CFR part 679.
The A season apportionment of the 2011 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the Bering Sea and Aleutian Islands management area (BSAI) is 1,710 metric tons (mt) for the period 1200 hrs, A.l.t., January 1, 2011, through 1200 hrs, A.l.t., April 30, 2011, as established by the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011).
The Administrator, Alaska Region, NMFS, has determined that jig vessels will not be able to harvest 1,500 mt of the A season apportionment of the 2011 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(
The harvest specifications for Pacific cod included in the final 2011 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011) are revised as follows: 810 mt to the A season apportionment for vessels using jig gear and 5,555 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment
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
Nuclear Regulatory Commission.
Petition for rulemaking; denial.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is denying a petition for rulemaking (PRM) submitted by James Luehman (the petitioner). The petitioner requests that the NRC amend the NRC's standard for sustaining a whistleblower retaliation violation of the Employee Protection Rule. The NRC is denying PRM-50-92 for the reasons stated in this document.
Publicly available documents related to this petition for rulemaking may be accessed using the following methods:
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Kimberly Sexton, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-1151; e-mail:
Title 10 of the
The legal standard by which the NRC determines whether a violation of Section 50.7 has occurred was decided by the Commission in the
1. Did the NRC Staff show, by a preponderance of the evidence, that protected activity was a “contributing factor” in an unfavorable personnel action?
2. Did the employer show, by “clear and convincing evidence,” that it would have taken the same personnel action regardless of the protected activity?
These two questions were adapted by the Commission from Section 211 of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. 5851. Section 211 offers protection, through the U.S. Department of Labor (DOL), to employees who have been fired or otherwise discriminated against as a result of engaging in protected activities. S. Rep. No. 95-848, at 29 (1978). Under Section 211, to prove a violation, employees must demonstrate by a preponderance of the evidence that the protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” Relief to the employee, however, may not be granted if the employer can demonstrate “by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.” Public Law 102-486, Section 2902(d), 106 Stat. 2776, 3123-24 (amending 42 U.S.C. 5851(b)).
The petitioner's proposed new regulatory standard would allow the NRC, in evaluating the evidence, to conclude that a whistleblower retaliation violation has occurred without regard to whether the licensee has demonstrated by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of protected activity. Thus, the petitioner's proposed approach would apply the clear and convincing evidentiary standard not to the question of whether a violation has occurred but to the determination of the sanction to be imposed for the violation.
The petitioner requests that the NRC amend its standard for sustaining a whistleblower retaliation violation of the Employee Protection Rule based on two asserted changes in circumstance reflecting that a departure from
In support of this request, the petitioner provides eight arguments for changing the Commission ruling in
The petitioner first argues that the addition of the clear and convincing test in effect raises the standard for concluding a violation exists from a preponderance of the evidence (meaning that it is more likely than not that a violation occurred) to a higher standard of “somewhere between preponderance [of the evidence] and clear and convincing [evidence].” Accordingly, the petitioner views
Second, the petitioner states that the additional clear and convincing test identified in
The petitioner's third, fourth, and fifth arguments essentially state that the clear and convincing test does not exist in Section 211 of the ERA for the determination of a violation and thus should not be used by the NRC for that purpose. The petitioner cites the decision of an NRC Atomic Safety and Licensing Board (Licensing Board) in
Sixth, the petitioner states that there is a possibility of an inconsistent regulatory message if the DOL finds a violation of Section 211 of the ERA but the NRC does not find a violation of the Employee Protection Rule of Section 50.7 for the same set of underlying facts.
Seventh, the petitioner states that the Commission's decision in
Finally, the petitioner states that the test established in
The NRC reviewed the request for rulemaking and determined that the request met the minimum sufficiency requirements of 10 CFR 2.802 and therefore was considered as a petition for rulemaking. Accordingly, the NRC docketed the request as PRM-50-92 on July 9, 2008. The NRC notified the petitioner of this decision by letter dated July 15, 2008. Due to this PRM's primary focus on the continued viability of a Commission adjudicatory decision, it was deemed a legal matter and thus, the NRC did not prepare a notice of receipt and request for comment, and instead began consideration of the request.
In
The Tennessee Valley Authority appealed the Licensing Board's ruling to the Commission. The Commission agreed to review the decision, and also raised its own question of whether the Licensing Board applied the correct legal evidentiary standard when determining whether to mitigate a civil penalty arising from a violation of the Employee Protection Rule.
The Commission disagreed with the NRC staff and decided that it was appropriate for Licensing Boards in
1. Did the NRC Staff show, by a preponderance of the evidence, that protected activity was a “contributing factor” in an unfavorable personnel action?
2. Did the employer show, by “clear and convincing evidence,” that it would have taken the same personnel action regardless of the protected activity?
The Commission also defined what constitutes a “contributing factor” in an adverse employment action. Although both parties in
An employee may not simply engage in protected activities and expect immunity from future unfavorable personnel actions. Mere employer (or supervisor) knowledge of the protected activity does not suffice as a “contributing factor;” nor does “the equivalent of adding `a drop of water into the ocean.' ” The evidence, direct or indirect, must allow a reasonable person to infer that protected activities influenced the unfavorable personnel action to some degree. In cases where the evidence is weak, employers should be able to avoid liability by providing “clear and convincing evidence” that they would have taken the same personnel action anyway, based on non-discriminatory grounds.
Within the context of the Commission's
Contrary to the petitioner's understanding,
Further,
The Commission recognized in establishing the two-part test that although the NRC staff may demonstrate by a preponderance of evidence that the contributing factor test is met “where the evidence is weak,”
In deciding
Further, contrary to the petitioner's assertion, the discrimination data from 1999-2009 do not appear to evidence any meaningful trends because the data fluctuates up and down during the years prior to and following
Finally,
Due to this PRM's primary focus on the continued viability of a Commission adjudicatory decision, it was deemed a legal matter and thus, the NRC did not prepare a notice of receipt and request for comment, and instead began consideration of the request. Accordingly, there are no public comments on this petition.
For reasons cited above, the NRC is denying PRM-50-92.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E Airspace at Orangeburg, SC, to accommodate the additional airspace needed for the Standard Instrument Approach Procedures (SIAPs) developed for Orangeburg Municipal Airport. This action shall
0901 UTC. Comments must be received on or before April 21, 2011.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA- 2010-1325; Airspace Docket No. 10-ASO-40, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2010-1325; Airspace Docket No. 10-ASO-40) and be submitted in triplicate to the Docket Management System (
Comments wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-1325; Airspace Docket No. 10-ASO-40.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace at Orangeburg, SC to provide controlled airspace required to support the SIAPs for Orangeburg Municipal Airport. The existing Class E airspace extending upward from 700 feet above the surface would be modified for the safety and management of IFR operations.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in subtitle VII, part, A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Orangeburg Municipal Airport, Orangeburg, SC.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 7.4-mile radius of the Orangeburg Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Second extension of comment period and notice of procedures for submission of clarifying questions.
The FAA published a proposed rule on October 7, 2010, to require each certificate holder to establish a safety management system (SMS) for its entire airfield environment (including movement and non-movement areas) to improve safety at airports hosting air carrier operations. The American Association of Airport Executives and Airports Council International—North America have requested that the FAA provide additional information supporting the proposed rule and extend the comment period to allow adequate time for the public to analyze and comment on that information and the NPRM. This action extends the comment period until July 5, 2011, and establishes a procedure for handling clarifying questions to the proposed rule.
The comment period for the NPRM published on October 7, 2010, closing on March 7, 2011 is extended until July 5, 2011. You must submit your clarifying questions in writing using the procedures outlined in this notice by April 6, 2011. The FAA anticipates responding to these submissions and providing a summary report of the pilot studies by May 21, 2011.
See the “Procedures for Filing Clarifying Questions” section of this document.
On October 7, 2010, the FAA published Notice No. 10-14, entitled “Safety Management System for Certificated Airports” (75 FR 62008). Comments to that document were to be received on or before January 5, 2011. On December 10, 2010, in response to several requests for extension of the comment period, the FAA granted an additional 60 days for commenters to analyze the NPRM and provide meaningful comment (75 FR 76928).
By comments posted to the docket on February 17, 2011, Airport Council International—North America (ACI-NA) and the American Association of Airport Executives (AAAE) requested the FAA extend the comment period for a second time. ACI-NA and AAAE also requested the FAA provide additional information to allow for meaningful comment on the proposed rule. Specifically, ACI-NA made the following requests:
(1) Additional information is needed regarding the FAA's proposed SMS implementation strategy, most notably what will be expected in the required SMS Implementation Plans.
(2) Data, findings, and conclusion—both positive and negative—from the three SMS pilot studies need to be made available in the docket so these findings and conclusions can inform the industry's review of the costs, benefits, and potential issues arising from the implementation of the proposed rule.
(3) The proposed rule needs to be reviewed in conjunction with key guidance documents, especially the revised version of FAA Advisory Circular 150/5200-37. These documents, which are mentioned explicitly in the FAA's discussion of the proposed rule will describe the standard means of compliance with the proposed rule and are needed to understand the scope and scale of airport SMS requirements.
(4) Additional time will be needed for technical analysis by commenters, including analyses of the costs and benefits of phased SMS implementation, an implementation approach on which the FAA has specifically requested comments.
AAAE made the following requests:
(1) We request that the FAA make results and recommendations from all three phases of the pilot studies available before closing the comment period.
(2) The FAA is under a statutory deadline to implement the part 121 SMS rule and has proposed a short time schedule for issuing its part 139 training requirements. We request that the comment period remain open until the other regulatory documents have been issued in their final form.
(3) The agency also has committed to issuing an advisory circular on implementation of SMS requirements. We request that the agency leave the comment period open on the proposed SMS rule until at least a draft of the advisory circular is issued. That way, respondents can comment on both documents simultaneously.
The FAA has carefully considered the requests for extension of the comment period. The FAA believes that the narrative and analysis in the NPRM and Initial Regulatory Evaluation, which was made available in the docket concurrently with NPRM publication, contain sufficient detail and supporting data to permit meaningful comment by the public. The FAA also notes that it has received thoughtful comments from several airports, indicating that sufficient information currently exists in the docket to permit meaningful comment. However, the FAA acknowledges there is a belief among some members of the public that additional information may result in better comments. From the request submitted, it appears the bulk of this concern involves the FAA's implementation strategy for SMS and the results of the pilot study.
To address this concern about insufficient information, the FAA has determined to pursue a combination of strategies. First, the FAA will accept and respond to specific clarifying questions submitted by the public. This strategy will allow the public to identify specific areas of the NPRM or Initial Regulatory Evaluation that are unclear or for which more information may be desired. The intent is that the public would be able to obtain specific information from the FAA, provided that information exists. The specific procedure is discussed in the
In the NPRM, the FAA stated that it would develop and make available an AC on SMS prior to issuance of the final rule. The FAA currently is developing that document. The FAA also is conducting a third pilot study on the implementation of SMS, which began after the NPRM was published. The purpose of the pilot study and AC is to facilitate implementation of the proposed rule and to provide additional examples of how an airport could develop and implement its SMS. The AC likely will provide multiple means to comply with the regulation, some of which are outlined in the NPRM preamble, but the AC is not a substitute for the regulation nor does it provide the only means of compliance. Additionally, the FAA does not anticipate the AC will expand the “scope and scale” of SMS from what is discussed in the NPRM and Initial Regulatory Evaluation. The FAA also does not anticipate the third pilot study or AC would result in significant changes to the proposed rule. Of course, the FAA may change the rule after careful consideration of comments to the proposal.
The FAA does not believe a draft AC is essential to understanding the proposed rule, especially in light of the opportunities for additional information discussed earlier. Consequently, the FAA has determined that holding the comment period open until publication of a draft AC does not add value to the rulemaking process. Nevertheless, the FAA intends, as it routinely does, to publish a draft AC in advance of publication of any final rule. There will be opportunity for the public to comment on that draft AC, for the FAA to carefully consider those comments, and for the FAA to respond to those comments either before or simultaneously with publication of a final rule. The FAA believes this answers ACI's request (3) and AAAE's request (3).
The FAA acknowledges there are a variety of rulemaking initiatives currently in process, among them an NPRM for SMS for part 121 operators and an NPRM for part 139 safety enhancements. Although these rulemakings have some relationship to the airport SMS NPRM, they are separate rulemakings involving different issues and separate schedules. The FAA finds no merit, other than to delay FAA rulemaking efforts, to holding open the comment period on this rulemaking initiative until final rules are issued with respect to the other initiatives. The FAA believes this answers AAAE's request (2).
In accordance with § 11.47(c) of title 14, Code of Federal Regulations, the FAA has reviewed the petitions made by ACI-NA and AAAE for a second extension of the comment period to Notice No. 10-14.
The FAA finds no merit to extending the comment period seven or more months, as requested by ACI-NA and AAAE. However, to accomplish the strategies for providing additional information to the public, the FAA has determined that an extension of 120 days is appropriate and sufficient. The FAA has determined the extension is consistent with the public interest, and that good cause exists for this action. Absent exceptional circumstances, the FAA does not anticipate any further extension of the comment period for this rulemaking.
Accordingly, the comment period for Notice No. 10-14 is extended until July 5, 2011.
The following procedures are not a substitute for filing substantive questions and comments to the NPRM. The procedures for submitting those types of comments are discussed in the NPRM and repeated in the “Additional Information” section of this notice. Commenters should follow those procedures to file substantive comments by July 5, 2011.
To submit a request to the FAA for clarification of the NPRM (Docket Number FAA-2010-0997), you must send your request using the following method by April 6, 2011. The FAA requests any clarifying questions address specific issues raised by the NPRM or Initial Regulatory Evaluation to permit meaningful FAA response.
1. Post your request on the Federal eRulemaking Portal. To access this electronic docket, go to
2. In addition to sending your request to the electronic docket, send a copy of the request via e-mail to the appropriate subject matter expert:
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The FAA will respond to all clarifying questions submitted by April 6, 2011. The responses will be provided directly to you and posted in the rulemaking docket. The FAA expects to provide responses by May 21, 2011.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposed rule. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
You may send comments identified by docket number FAA-2010-0997 using any of the following methods:
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The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
Under 14 CFR 11.35(b), when the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from 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
Copies may also be obtained 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. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to determine that the Saint Louis PM
EPA's determination that this area has attained the 1997 annual PM
Comments must be received on or before April 6, 2011.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2010-0034, by one of the following methods:
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3.
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Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
The EPA is proposing to determine that the Saint Louis PM
On July 18, 1997 (62 FR 36852), EPA established a health-based PM
EPA established the standards based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to particulate matter. The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA, 42 U.S.C. 7406(d)(1). EPA and State air quality agencies generally initiated the monitoring process for the 1997 PM
On January 5, 2005, in the
In 2006, after thorough review of the 1997 PM standards, EPA retained the 1997 PM
In response to legal challenges of the annual standard promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded this standard to EPA for further consideration. See
On April 25, 2007 (72 FR 20664), the EPA promulgated its PM
Today's rulemaking assesses whether the Saint Louis area is attaining the 1997 annual PM
The EPA has reviewed the ambient air quality monitoring data in the Saint Louis area for PM
Table 1 shows the 2007 to 2009 design values (
As Table 1 shows, there were eight monitoring sites with complete data for 2007 to 2009. Data are considered to be sufficient for comparison to the NAAQS if three consecutive complete years of data exist. A complete year of air quality data comprises four calendar quarters, with each quarter containing data from at least 75% of the scheduled sampling days. These eight monitoring sites with complete data provide an adequate basis for EPA to determine whether the area has attained the NAAQS. See 40 CFR part 58, Appendix D for network design criteria.
The EPA concludes that the Saint Louis area has attained the 1997 annual PM
Incomplete data from additional monitoring sites in the area also support EPA's determination that area attains the 1997 annual PM
Data handling conventions and computations necessary for determining whether areas have met the PM
The EPA also has considered additional monitoring data for 2010 that have been submitted by the states and are in EPA's AQS. Data for the entire 2010 calendar year are not yet certified, so EPA cannot consider these data yet as it evaluates the annual average concentrations. Nevertheless, EPA examined 2010 data available to date as an indication of whether the area continues to attain the standard. EPA believes that these data support the determination that the Saint Louis area continues to attain the PM
The EPA's review of these data (monitoring data from the 2007-2009 monitoring period and preliminary 2010 data available to date) supports EPA's determination that the Saint Louis PM
If this proposed determination is made final, under the provisions of the PM
As discussed further, the proposed determination of attainment for the Saint Louis PM
If this rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the
This proposed approval is limited to a determination that the air quality data show that the Saint Louis PM
This action proposes to make a determination based on air quality data and would, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. For that reason, this proposed 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 .S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act 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.
Environmental protection, Air pollution control, Particulate matter.
Environmental Protection Agency (EPA).
Proposed rule; extension of comment period.
On January 5, 2011, EPA published in the
Comments must be submitted no later than April 4, 2011.
Submit your comments, identified by Docket No. EPA-R06-OAR-2010-0846, by one of the following methods:
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• Follow the online instructions for submitting comments.
• EPA Region 6 “Contact Us”
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Joe Kordzi Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7186, fax number (214) 665-7263; e-mail address
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. On January 5, 2011, we published in the
We are extending the comment period for our proposed rule until April 4, 2011. This extension will provide an opportunity for submission of rebuttal and supplementary information 30 days after the public hearing.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Imperial County Air Pollution Control District (ICAPCD), Kern County Air Pollution Control District (KCAPCD), and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). We are proposing to approve revisions to local rules that define terms used in other air pollution regulations in these areas under the Clean Air Act as amended in 1990 (CAA or the Act).
Any comments on this proposal must arrive by April 6, 2011.
Submit comments, identified by docket number EPA-R09-OAR-2010-0813, by one of the following methods:
1.
2.
3.
Cynthia Allen, EPA Region IX, (415) 947-4120,
This proposal addresses the following local rules: ICAPCD Rule 101, KCAPCD Rule 102, and VCAPCD Rule 2. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Proposed rule.
During a review of Texas' regulations, the EPA identified a variety of State-initiated changes to Texas' hazardous waste program under the Resource Conservation and Recovery Act, as amended (RCRA), for which the State had not previously sought authorization. The EPA proposes to authorize the State for the program changes. In addition, the EPA proposes to codify in the regulations entitled “Approved State Hazardous Waste Management Programs”, Texas' authorized hazardous waste program. The EPA will incorporate by reference into the Code of Federal Regulations (CFR) those provisions of the State regulations that are authorized and that the EPA will enforce under RCRA.
Send written comments by April 6, 2011.
Send written comments to Alima Patterson, Region 6, Regional Authorization Coordinator, or Julia Banks, Codification Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia Planning and Permitting Division at the address shown below. You can examine copies of the materials that form the basis for this authorization and incorporation by reference during normal business hours at the following location: EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, phone number (214) 665-8533 or (214) 665-8178. Comments may also be submitted electronically or through hand delivery/courier; please follow the detailed instructions in the
Alima Patterson, (214) 665-8533 and Julia Banks (214) 665-8178.
In the “Rules and Regulations” section of this
This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Health Resources and Services Administration, HHS.
Negotiated Rulemaking Committee meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting of the Negotiated Rulemaking Committee on Designation of Medically Underserved Populations and Health Professional Shortage Areas.
Meetings will be held on April 13, 2011, 9:30 a.m. to 6 p.m.; April 14, 2011, 9 a.m. to 6 p.m.; and April 15, 2011, 9 a.m. to 4 p.m.
Meetings will be held at the Legacy Hotel and Meeting Centre, 1775 Rockville Pike, Rockville, Maryland 20852, (301) 881-2300.
For more information, please contact Nicole Patterson, Office of Shortage Designation, Bureau of Health Professions, Health Resources and Services Administration, Room 9A-18, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 443-9027, E-mail:
Requests from the public to make oral comments or to provide written comments to the Committee should be sent to Nicole Patterson at the contact address above at least 10 days prior to the first day of the meeting, Wednesday, April 13. The meetings will be open to the public as indicated above, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the contact person listed above at least 10 days prior to the meeting.
In proposed rule document 2011-2281 beginning on page 5769 in the issue of Wednesday, February 2, 2011 make the following correction:
On page 5772, in § 67.4, preceding the last table, add the heading “Doniphan County, Kansas, and Incorporated Areas”.
Federal Communications Commission.
Notice of proposed rulemaking; correction.
The Federal Communications Commission published in the
Effective on March 7, 2011.
Jeremy Miller, 202-418-1507.
The Federal Communications Commission published a document (FR Doc. 2011-4393) in the
In FR Doc. 2011-4393, published on February 28, 2011 (76 FR 10827), make the following correction: on page 10842, in the third column, paragraph 118, replace reference to WC Docket No.10-191 with the correct docket number in this proceeding, WC Docket No. 11-10.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of 90-day petition finding, request for information, and initiation of status review.
We, NMFS, announce a 90-day finding on a petition to list six species of sawfish:
Information and comments on the subject action must be received by May 6, 2011.
You may submit comments, identified by the code 0648-XZ50, addressed to: Shelley Norton, Natural Resource Specialist, by any of the following methods:
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Shelley Norton, NMFS, Southeast Region, (727) 824-5312; or Dwayne Meadows, NMFS, Office of Protected Resources, (301) 713-1401.
On September 9, 2010, we NMFS, received a petition from WildEarth Guardians requesting that the Secretary of Commerce (Secretary) list six species of sawfish (range-wide):
On November 30, 1999, we received a petition from the Center for Marine Conservation (now the Ocean Conservancy) requesting that we list the North American population of smalltooth sawfish (
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered because of any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
Court decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination that a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
We evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioner's assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by other organizations or agencies, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but the classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide.” (
In the following sections we compile information from the petition and our files to describe the best available information and knowledge regarding the petitioned species biology.
All sawfishes belong to one of two genera (
Sawfishes are elasmobranches that historically were once widespread in tropical to warm temperate, shallow, nearshore marine habitats, estuaries, large rivers, and some lakes. Their distribution was presumably once continuous in suitable habitat, but is now severely fragmented with many populations extirpated from large parts of their former range and remaining populations seriously depleted.
Sawfish distributions are still widespread.
Sawfishes are generally benthic in nature frequenting shallow coastal, brackish, and freshwater habitats. Sawfishes usually occur in shallow water depths less than 32 ft (10 m), but occasionally adults have been recorded up to 164 ft (50 m) (Simpfendorfer and Wiley, 2005). Observations of sawfishes tend to indicate a preference for areas with lower salinities especially river mouths. For the U.S. DPS of smalltooth sawfish, Simpfendorfer and Wiley (2005) reported closer associations between encounters and mangroves, seagrasses, and the shoreline than expected if distribution were random. Their encounter data also demonstrated that juvenile smalltooth sawfish occur in shallower water, and larger sawfish occur regularly at depths greater than 32 ft (10 m).
Studies on the biological characteristics of any of the sawfishes are rare, but those studies that have examined parameters such as age, growth, and reproduction suggest a group with very low productivity. In the following discussion, we describe what is known about the life history of any of the species for which information exists. Where necessary we make determinations as to the best-available evidence for the biology of the petitioned species. There have been no formal studies examining the age and growth of the largetooth sawfishes, though Thorson's (1982a) study of the Lake Nicaragua population of
As in all elasmobranches, fertilization in sawfishes is internal. Development is believed to be ovoviviparous. The embryos of
Simpfendorfer (2000), using age based demographic models, estimated an intrinsic rate of increase of 0.08 to 0.13 per year, and population doubling time of 5.4 and 8.5 for
Bigelow and Schroeder (1953) reported that sawfishes in general subsist chiefly on small schooling fishes, such as mullets and clupeids. They also reported that they feed to some extent on crustaceans and other bottom dwelling inhabitants. Breder (1952), in summarizing the literature on observations of sawfish feeding behavior, noted that they attack fish by slashing sideways through schools, and often impale the fish on their rostral teeth. Prey are subsequently scraped off the teeth by rubbing them on the bottom and then ingested whole. The oral teeth of sawfish are ray-like, having flattened cusps that are better suited to crushing or gripping.
All modern sawfishes appear in some respects to be more shark-like than ray-like, with only the trunk and especially the head ventrally flattened. All sawfish snouts are extended as a long, narrow, flattened, rostral blade with a series of transverse teeth along either edge. The rostrum has a saw-like appearance and hence the name sawfish. The presence of this rostrum separates sawfishes from all other skates and rays.
The smalltooth sawfish
We evaluated the information provided in the petition and all other information readily available in our files to determine if it presented substantial scientific or commercial information indicating that the petitioned actions may be warranted for the five valid species of sawfish (
Data are not available to determine the actual number or size of most remaining populations of sawfish, but all known populations of sawfishes have severely declined based on publication and museum records, negative scientific survey records, anecdotal fisher observations, and limited catch per unit effort information. Many populations have been extirpated or are near extirpation from large areas of their former range, with no or only very few observations since the 1960s. Interviews with fishers (structured and unstructured) have been undertaken in several countries in recent years to obtain information on recent and historic catches (
We summarize our analysis and conclusions regarding the specific ESA section 4(a)(1) factors affecting the species' risk of extinction below.
The information presented in the petition on the species states coastal development has caused substantial losses in coastal zone habitats through agricultural and urban development, commercial activities, dredge-and-fill activities, boating erosion, and diversions of freshwater. The petitioner also refers to information on habitat degradation and loss listed in the 2007 proposal by the U.S. to list all species of sawfish under the Conventions on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Additionally, information in our files indicates that the distribution and range of all species of sawfish has become severely fragmented and significant range contractions have occurred.
Information from the petition and in our files suggests that the primary threat to all sawfish species is from fisheries. Sawfishes are caught as bycatch in various fishing gears (rod and reel, shrimp nets, trawls, and gill nets). Sawfish species are highly susceptible to entanglement in fishing gears because their toothed-rostrum makes it difficult to avoid entanglement in almost all types of mesh nets. The saw becomes entangled in the net and fishers often harm the animal (remove their saw or kill them) when removing them from their nets. In some locations where they are or were abundant enough, sawfishes have been directly targeted because of their value.
Sawfishes are utilized for a wide variety of products. Among the most common products is the sawfish rostrum. Rostrums have long been a favorite marine curio (Migdalski, 1981) with large rostra commanding impressive prices (McDavitt, 1996). Rostra are sometimes decorated with elaborate designs or grotesque faces. These folk art rostra are sometimes fashioned into elaborate sheaths for knives. Sawfish rostra are also utilized as ceremonial weapons in the folk religion of Taiwan. McDavitt (1996) reported that sawfish rostra are also used in traditional medicine in Asia and in Mexico City. Rostra are dried and powdered, and then infused into a medicinal tea, which is used to treat “whooping cough, bronchitis, laryngitis and diseases of the respiratory tract in general” (Watson, 2004).
Sawfish rostral teeth have been the preferred material used to manufacture artificial “spurs” for use as weapons in Peruvian cockfighting (Cogorno Ventura, 2001). The rostral teeth are mostly obtained from Brazil, Ecuador, Panama, and various Caribbean countries. Charvet-Almeida (2002) and McDavitt and Charvet-Almeida (2004) determined that rostra find their way into the international cockfighting market from Brazil. Sawfish rostral teeth have been favored over other natural spur materials (such as deer antler, sea turtle shell, sea-lion teeth, mammal bones, and stingray spines), as systematic testing revealed that sawfish teeth were more durable, and have a sufficiently porous surface to cause greater body damage to the opponent (McDavitt and Charvet-Almeida, 2004).
Sawfish products are also utilized for medicinal purposes. Four sawfish products are listed as materia medica in traditional Chinese medicine: liver, ova, and bile (Han and Xu, 1992) as well as the sawfish rostra (McDavitt, 1996). The bile of sawfishes is thought to remove phlegm and diminish inflammation from such conditions as fall injuries, rheumatoid arthritis, and cholecystitis (inflammation of the gall bladder) (McDavitt, 1996).
Sawfishes are highly prized as exhibit animals in public aquaria because of their charismatic nature (McDavitt, 1996). They command high prices in the aquarium trade. Because of their large fins with high fin needle content (a tasteless gelatinous product used to make shark fin soup), sawfish fins are valued for shark fin soup in Asia. Although few fin dealers advertise the type of fins they trade, one Hong Kong vendor designates two trade names used for sawfish fins: huang jiao (described in English as “saw shark,”) and mian qun (labeled as “yellow shovel nose” in English).
The petition states that disease from parasitic infections and natural predation from sharks and crocodiles
As stated in the petition and in the U.S.' CITES proposal to list all sawfishes (2007), very few countries have enacted legislation specifically to protect sawfishes or manage their fisheries. Consequently, protective measures covering trade of
Both information in the petition and information in our files indicate that the future abundance of all sawfish species is limited by their life history characteristics. Sawfish have slow growth rates, late maturity, a long life span, and low fecundity rates. K-selected animals are usually successful at maintaining relatively small, persistent population sizes in relatively constant environments. Conversely, they are not able to respond rapidly to additional sources of mortality, such as overexploitation and habitat degradation.
In summary, the petition and information in our files present substantial information that four of the five of section 4(a)(1) factors are likely affecting the continued existence of the five petitioned sawfish species. Interactions between and among these various threats may further exacerbate the impacts of each of the threats, such that there may be an extinction risk of concern for each of the five species.
After reviewing the information contained in the petition and in our files, we conclude there is not substantial scientific or commercial information indicating that
To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on whether
A complete list of references is available upon request from the Protected Resources Division on NMFS Southeast Regional Office (
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Notice of public meetings.
Notice is hereby given of public meetings of five committees of the Assembly of the Administrative Conference of the United States (ACUS). Each committee will consider a research report and will prepare recommendations on the subject of the report for consideration by the full Conference. Complete details regarding each committee's meeting, related research reports, how to attend (including information about remote access and obtaining special accommodations for persons with disabilities), and how to submit comments to the committee can be found in the “Research” section of the ACUS Web site,
Comments may be submitted by e-mail to
The meetings will be held at 1120 20th Street, NW., Suite 706 South, Washington, DC 20036.
Designated Federal Officer for the individual committee, ACUS, Suite 706 South, 1120 20th Street, NW., Washington, DC 20036; Telephone 202-480-2080.
The Committee on Collaborative Governance will meet to consider a report by Professor James T. O'Reilly of the University of Cincinnati College of Law concerning the “Federal Advisory Committee Act in the 21st Century.” The objective of this study is to consider possible recommendations for improvements of the Act, particularly in light of technological and social developments since its passage.
The Committee on Regulation will consider a report dealing with the timing, availability, confidentiality, and impact of comments submitted during agency rulemakings, as well as agencies' duty to reply to such comments. The consultant for this study is Professor Steven J. Balla of The George Washington University.
The Committee on Rulemaking will consider a report on the legal issues agencies face in e-Rulemaking. The report was prepared by ACUS staff member Bridget C.E. Dooling.
The Committee on Judicial Review will consider a report dealing with possible solutions to the procedural trap posed by 28 U.S.C. 1500, a statute that regulates the Court of Federal Claims' jurisdiction over claims pending in other courts. The report was prepared by ACUS staff members Emily F. Schleicher and Jonathan R. Siegel.
The Committee on Adjudication will consider a report by ACUS staff member Funmi E. Olorunnipa regarding the use of video hearings by Federal agencies, which examines the costs and benefits of video hearings as they are currently being used and the possibilities for expansion of use by Federal agencies.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice of meeting.
The Madera County Resource Advisory Committee will be meeting in North Fork, California on March 9th and March 16th, 2011. The purpose of these meetings will be to discuss and approve submitted proposals for funding as authorized under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 110-343) for expenditure of Payments to States Madera County Title II funds.
The meetings will be held on March 9th, and March 16th, 2011 from 6:30 p.m. to 8:30 p.m. in North Fork, CA.
The meetings will be held at the Bass Lake Ranger District, 57003 Road 225, North Fork, California, 93643. Send written comments to Julie Roberts, Madera County Resource Advisory Committee Coordinator, c/o Sierra National Forest, Bass Lake Ranger District, at the above address, or electronically to
Julie Roberts, Madera County Resource Advisory Committee Coordinator, (559) 877-2218 ext. 3159.
The meetings are open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring Payments to States Madera County Title II project matters to the attention of the Committee may file written statements with the Committee staff before or after the meetings.
Forest Service, USDA.
Notice of meeting.
The El Dorado County Resource Advisory Committee will meet in Placerville, California. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The RAC will deliberate and recommend projects for the Forest Supervisor's approval.
The meeting will be held on March 21, 2011 beginning at 6 p.m.
The meeting will be held at the El Dorado Center of Folsom Lake College, Community Room, 6699 Campus Drive, Placerville, CA 95667.
Written comments should be sent to Frank Mosbacher; Forest Supervisor's Office; 100 Forni Road; Placerville, CA 95667. Comments may also be sent via email to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at 100 Forni Road; Placerville, CA 95667. Visitors are encouraged to call ahead to 530-622-5061 to facilitate entry into the building.
Frank Mosbacher, Public Affairs Officer, Eldorado National Forest Supervisors Office, (530) 621-5268. 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. The following business will be conducted: The RAC will deliberate and recommend projects for the Forest Supervisor's approval. More information will be posted on the
Forest Service, USDA.
Notice of meeting.
The Shoshone Resource Advisory Committee (Committee) will meet in Thermopolis, Wyoming. The Committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is to elect a new Chairperson and review Title II project proposals.
The meeting will be held March 22, 2011, 9 a.m.
The meeting will be held at Big Horn Federal Savings, 643 Broadway, Thermopolis, Wyoming.
Olga Troxel, Resource Advisory Committee Coordinator, Shoshone National Forest Supervisor's Office, (307) 578-5164. 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. The following business will be conducted: (1) Elect a new Resource Advisory Committee Chairperson (2) Preliminary review of Title II project proposals (3) Refine the process for prioritizing and recommnending projects. Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided.
Forest Service, USDA.
Notice of meeting.
The Tehama County Resource Advisory Committee (RAC) will meet in Red Bluff, California. Agenda items to be covered include: (1) Introductions, (2) Approval of Minutes, (3) Public Comment, (4) Chairman's Perspective, (5) Project Presentations, (6) Next Agenda.
The meeting will be held on March 24, 2011 from 9 a.m. and end at approximately 12 p.m.
The meeting will be held at the Lincoln Street School, Pine Room, 1135 Lincoln Street, Red Bluff, CA. Individuals wishing to speak or propose agenda items must send their names and proposals to Randy Jero, Committee Coordinator, 825 N. Humboldt Ave., Willows, CA 95988.
Randy Jero, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, 825 N. Humboldt Ave, Willows, CA 95988. (530) 934-1269; e-mail
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by March 21, 2011 will have the opportunity to address the committee at those sessions.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Arkansas Advisory Committee to the Commission will convene by conference call at 2 p.m. and adjourn at approximately 3 p.m. on Tuesday, March 29, 2011. The purpose of this meeting is to continue planning the Committee's civil rights project “A Second Look at Who Is Enforcing Civil Rights in Arkansas * * * Is There a Need for a Civil Rights Agency?”
This meeting is available to the public through the following toll-free call-in number: (866) 364-7584, conference call access code number 47594138. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and contact name Farella E. Robinson.
To ensure that the Commission secures an appropriate number of lines for the public, persons are asked to register by contacting Corrine Sanders of the Central Regional Office and TTY/TDD telephone number, by 4 p.m. on March 22, 2011.
Members of the public are entitled to submit written comments. The comments must be received in the regional office by April 8, 2011. The address is U.S. Commission on Civil Rights, 400 State Avenue, Suite 908, Kansas City, Kansas 66101. Comments may be e-mailed to
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission and FACA.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
• Congressional reapportionment,
• Redistricting congressional boundaries;
• Community planning; and
• Distribution of public funds and program development.
To facilitate the data collection effort for the 2010 Census, the Census Bureau developed an Integrated Communications Plan (ICP). The role of the ICP was to increase public awareness and to motivate people to respond to the census promptly, saving millions of taxpayer dollars. The specific objectives of the ICP were to:
• Increase mail response;
• Improve cooperation with enumerators; and
• Improve overall accuracy and reduce differential undercount.
The Census Bureau conducted the Census Barriers, Attitudes, and Motivators Survey (CBAMS) in 2008 to gain an in-depth understanding of the public's opinions about the 2010 Census. The results of that survey revealed that there were distinct mindsets toward the Census, and customizing outreach to these attitudinal mindsets is an important part of the Census Bureau's communications strategy for 2020 and beyond. In CBAMS II, the Census Bureau will extend that research to further specify the segments and to learn about their stability and structure. The results of CBAMS II will inform the market research program and communications for Census 2020.
The primary purpose of CBAMS II is to understand Census mindsets. The data collected will not be used to produce official Census Bureau statistics. The purpose of the data collection is to shape the research and communications program for Census 2020. Findings from this survey will determine how often and what kind of market research is conducted over the next decade to support communications for Census 2020. Findings will also be used to shape messages directly. The analytic goals of CBAMS II are to:
• Determine the best method for identifying Census mindsets by evaluating the reliability of mindset creation algorithms from CBAMS I and CBAMS II.
• Understand more about the profiles of the mindsets, especially addressing the following questions:
• Is there a qualitative distinction between people who are unaware of the Census and those who lack extensive knowledge of the Census?
• What are the characteristics and belief profiles of people whose attitude toward the Census is negative?
• What sub-segments exist within the large positive segments?
• Measure attitudes toward the possible use of administrative records to supplement or replace the Census and relate those attitudes to Census mindsets
One of the outcomes from CBAMS II will be a survey tool to identify the likely segment of respondents to future Census market research surveys.
When possible, respondents to CBAMS II will be matched to the Census Planning Database (PDB) by tract number to link to Census 2000 census participation and hard-to-count data. In cases where a link to tract can be made, we will further roll cases back up into an eight-cluster segmentation scheme based on the PDB. The sample source for in person interviews will be the Delivery Sequence File from the United States Postal Service, so for these records, we will have addresses and be able to determine Census tract. For the telephone respondents, we will collect zip codes to facilitate this linkage, but we will not collect address information. In fact, we will not collect any personally identifiable information from any respondent.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202-395-7245) or e-mail (
Pursuant to Section 766.24 of the Export Administration Regulations, 15 CFR Parts 730-774 (2010) (“EAR” or the “Regulations”), I hereby grant the request of the Bureau of Industry and Security (“BIS”) to renew for 180 days the September 3, 2010 Order Temporarily Denying the Export Privileges of Mahan Airways and Gatewick LLC (“TDO”), as I find that renewal of the TDO is necessary in the public interest to prevent an imminent violation of the EAR.
On March 17, 2008, Darryl W. Jackson, the then-Assistant Secretary of Commerce for Export Enforcement (“Assistant Secretary”), signed a TDO denying Mahan Airways' export privileges for a period of 180 days on the grounds that its issuance was necessary in the public interest to prevent an imminent violation of the Regulations. The TDO also named as denied persons Blue Airways, of Yerevan, Armenia (“Blue Airways of Armenia”), as well as the “Balli Group Respondents,” namely, Balli Group PLC, Balli Aviation, Balli Holdings, Vahid Alaghband, Hassan Alaghband, Blue Sky One Ltd., Blue Sky Two Ltd., Blue Sky Three Ltd., Blue Sky Four Ltd., Blue Sky Five Ltd., and Blue Sky Six Ltd., all of the United Kingdom. The TDO was issued
On July 18, 2008, in accordance with Section 766.23 of the Regulations, Assistant Secretary Jackson issued an Order adding to the TDO both Blue Airways FZE, of Dubai, United Arab Emirates (“the UAE”), and Blue Airways, also of Dubai, United Arab Emirates (“Blue Airways UAE”), as persons related to Blue Airways of Armenia. (Blue Airways of Armenia, Blue Airways FZE, and Blue Airways UAE are hereinafter collectively referred to as the “Blue Airways Respondents”).
On September 17, 2008, Assistant Secretary Jackson renewed the TDO for an additional 180 days in accordance with Section 766.24 of the Regulations, via an order effective upon issuance, and on March 16, 2009, the TDO was similarly renewed by then-Acting Assistant Secretary Kevin Delli-Colli.
On March 9, 2010,
On February 7, 2011, BIS, through its Office of Export Enforcement (“OEE”), filed a written request for renewal of the TDO against Mahan Airways and Gatewick. Notice of the renewal request was provided to Mahan Airways and Gatewick by delivery of a copy of the request in accordance with Sections 766.5 and 766.24(d) of the Regulations. No opposition to any aspect of renewal of the TDO has been received from Mahan Airways, while Gatewick has not at any time appealed the related person determination I made as part of the September 3, 2010 Renewal Order.
Additionally, BIS has requested that I add both Pejman Mahmood Kosarayanifard a/k/a Kosarian Fard (“Kosarian Fard”) and Mahmoud Amini as related persons in accordance with Section 766.23. Both Kosarian Fard and Mahmoud Amini were provided notice of BIS's intent to add them to the TDO pursuant to Section 766.23(b) of the Regulations. No opposition was received from Kosarian Fard, while Mahmoud Amini submitted a short e-mail response received on October 17, 2010, opposing his addition to the TDO.
Pursuant to Section 766.24(d)(3) of the EAR, the sole issue to be considered in determining whether to continue a TDO is whether the TDO should be renewed to prevent an “imminent” violation of the EAR as defined in Section 766.24. “A violation may be `imminent' either in time or in degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
OEE's request for renewal is based upon the facts underlying the issuance of the initial TDO and the TDO renewals in this matter and the evidence developed over the course of this investigation indicating Mahan Airways' clear willingness to continue to disregard U.S. export controls and the TDO. The initial TDO was issued as a result of evidence that showed that Mahan Airways and other parties engaged in conduct prohibited by the
As discussed in the September 17, 2008 TDO Renewal Order, evidence presented by BIS indicated that Aircraft 1-3 continued to be flown on Mahan Airways' routes after issuance of the TDO, in violation of the Regulations and the TDO itself.
Moreover, as discussed in the September 11, 2009 and March 9, 2010 Renewal Orders, Mahan Airways continued to operate at least two of Aircraft 1-3 in violation of the Regulations and the TDO,
The March 9, 2010 Renewal Order also noted that a court in the United Kingdom (“U.K.”) had found Mahan Airways in contempt of court on February 1, 2010, for failing to comply with that court's December 21, 2009 and January 12, 2010 orders compelling Mahan Airways to remove the Boeing 747s from Iran and ground them in the Netherlands. Mahan Airways and the Balli Group Respondents have been litigating before the U.K. court concerning ownership and control of Aircraft 1-3. Blue Airways LLC also has been a party to that litigation. In a letter to the U.K. court dated January 12, 2010, Mahan Airways' Chairman indicated, inter alia, that Mahan Airways opposes U.S. Government actions against Iran, that it continued to operate the aircraft on its routes in and out of Tehran (and had 158,000 “forward bookings” for these aircraft), and that it wished to continue to do so and would pay damages if required by that court, rather than ground the aircraft.
The September 3, 2010 Renewal Order pointed out that Mahan Airways' violations of the TDO extended beyond operating U.S.-origin aircraft in violation of the TDO and attempting to acquire additional U.S.-origin aircraft. In February 2009, while subject to the TDO, Mahan Airways participated in the export of computer motherboards, items subject to the Regulations and designated as EAR99, from the United States to Iran, via the UAE, in violation of both the TDO and the Regulations, by transporting and/or forwarding the computer motherboards from the UAE to Iran. Mahan Airways' violations were facilitated by Gatewick, which not only participated in the transaction, but also has stated to BIS that it is Mahan Airways' sole booking agent for cargo and freight forwarding services in the UAE.
Additional evidence obtained by OEE indicates that Aircraft 1-3 remain in Mahan Airways' possession, control, and livery in Tehran, Iran. In a recent January 24, 2011 filing in the U.K. Court, Mahan Airways asserted that Aircraft 1-3 are not being used, but stated in pertinent part that the aircraft are being maintained especially “in an airworthy condition” and that, depending on the outcome of its U.K. Court appeal, the aircraft “could immediately go back into service * * * on international routes into and out of Iran.” Mahan Airways' January 24, 2011 submission to U.K. Court of Appeal, at p. 25, paragraphs 108,110. This clearly stated intent, both on its own and in conjunction with Mahan Airways' prior misconduct and statements, demonstrates the need to renew the TDO in order to prevent imminent future violations.
Under the applicable standard set forth in Section 766.24 of the Regulations and my review of the record here, I find that the evidence presented by BIS convincingly demonstrates that Mahan Airways has repeatedly violated the EAR and the TDO, that such knowing violations have been significant, deliberate and covert, and that there is a likelihood of future violations. I find that, as alleged by OEE, the violations have involved both U.S.-origin aircraft and computer motherboards that are subject to the Regulations. A renewal of the TDO is needed to give notice to persons and companies in the United States and abroad that they should continue to cease dealing with Mahan Airways in export transactions involving items subject to the EAR. Such a
TDO is consistent with the public interest to prevent imminent violation of the EAR.
Accordingly, I find pursuant to Section 766.24 that renewal of the TDO for 180 days against Mahan Airways is necessary in the public interest to prevent an imminent violation of the EAR.
Section 766.23 of the Regulations provides that “[i]n order to prevent evasion, certain types of orders under this part may be made applicable not only to the respondent, but also to other persons then or thereafter related to the respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business. Orders that may be made applicable to related persons include those that deny or affect export privileges, including temporary denial orders * * * ” 15 CFR 766.23(a).
OEE has requested that Kosarian Fard and Mahmoud Amini be added as related persons in order to prevent evasion of the TDO. As noted above, both individuals were provided written notice of OEE's intent to add them as a related person to the TDO. Kosarian Fard did not respond, while Mahmoud Amini sent only a short e-mail to OEE received on October 17, 2010. As discussed in the September 3, 2010 Order, a significant business relationship or connection exists between Gatewick and Mahan Airways. Gatewick had previously told BIS during a 2009 post shipment verification that Gatewick acts as Mahan Airways' sole booking agent for cargo and freight forwarding services in the UAE, a major transshipment hub. In its
Gatewick's corporate registration documents revealed other connections or relationships between Gatewick, Kosarian Fard, and Mahan Airways, as well as the Blue Airways Respondents. Moreover, as discussed infra, Kosarian Fard's extensive connections to Mahan extend well beyond his ownership interests and active participation at Gatewick.
As previously discussed in the September 3, 2010 Renewal Order, Kosarian Fard played a prominent role in Mahan Airways' acquisition of Aircraft 1-3 discussed above, as indicated by evidence obtained by BIS during its investigation and as acknowledged by Kosarian Fard in his testimony in the U.K. litigation referenced above. Kosarian Fard was a founder, the majority shareholder, and the Commercial Director of Blue Airways of Armenia. In that capacity, he signed the Boeing 747 lease agreements with the Balli Group that ultimately led to Mahan Airways' acquisition of Aircraft 1-3 in violation of the Regulations. As previously cited in the September 3, 2010 Renewal Order, Kosarian Fard's written testimony in the U.K. litigation included the following concerning his “close relationship” with Mahan Airways and some of the acts he took at its direction:
As I have said, I was majority shareholder of Blue [Airways] but in the summer of 2007, I agreed to sell a 51% stake in Blue to Skyco (UK) Ltd. I did this at the request of Mahan. Given my close relationship with Mahan, I did not ask questions but, again, acted on the basis of the trust I had in Mr. Arabnejad and Mr. Mahmoudi [two Mahan Airways' directors].
Kosarian Fard's ties to Mahan not only established the connection between Mahan and Gatewick, but clearly demonstrate his own long standing and wide reaching business relationship with Mahan. In addition, Kosarian Fard has not contested BIS's related person's notice. In accordance with all of the foregoing, I find that Kosarian Fard is a related person under Section 766.23 and should be added to the TDO to prevent evasion of the Order.
As indicated above, Mahmoud Amini did make a short response to the related person's notice via an e-mail received on October 17, 2010. In that e-mail, Amini asserted that his “position in Gatewick aviation services is only domestic, General Manager,” and that he is “not “official manager of the company[.]” This effort by Amini to limit or discount his role at Gatewick is undermined, however, by the fact that less than two months earlier, he signed Gatewick's August 26, 2010 submission to BIS as its “General Manager” and in doing so made no assertion that his duties were “only domestic.” In addition, given the nature and significance of a General Manager, Amini is positioned to significantly determine Gatewick's conduct and activities, as also evidenced by the central role he played in Gatewick's August 26, 2010 submission to BIS, hardly what one would expect of an employee with duties that are “only domestic” and unrelated to the significant Gatewick-Mahan Airways relationship.
Amini also asserted in his e-mail that the “only division of Gatewick” in “contact with Mahan” is “Gatewick freight and cargo[.]” Amini provides no supporting evidence for this assertion. In addition, he never made such a distinction in his submission on Gatewick's behalf on August 26, 2010, and no such distinction is made in the GSA between Mahan Airways and Gatewick.
Accordingly, I find that based on his position of authority and responsibility at Gatewick and Gatewick's significant business or trade ties with Mahan Airways, Mahmoud Amini is related not only to Gatewick, but also in the conduct of trade or business to Mahan Airways. Like Kosarian Fard, Mahmoud Amini should be added to the TDO as a related person under Section 766.23 in order to prevent evasion of that order.
First, that Mahan Airways, Mahan Tower, No. 21, Azadegan St., M.A. Jenah Exp. Way, Tehran, Iran; Gatewick LLC, A/K/A Gatewick Freight & Cargo Services, A/K/A Gatewick Aviation Service, G#22 Dubai Airport Free Zone, P.O. Box 393754, Dubai, United Arab Emirates, and P.O. Box 52404, Dubai, United Arab Emirates, and Mohamed Abdulla Alqaz Building, Al Maktoum Street, Al Rigga, Dubai, United Arab Emirates; Pejman Mahmood Kosarayanifard A/K/A Kosarian Fard, P.O. Box 52404, Dubai, United Arab Emirates; and Mahmoud Amini, G#22 Dubai Airport Free Zone, P.O. Box 393754, Dubai, United Arab Emirates, and P.O. Box 52404, Dubai, United Arab Emirates, and Mohamed Abdulla Alqaz Building, Al Maktoum Street, Al Rigga, Dubai, United Arab Emirates; and when acting for or on their behalf, any successors or assigns, agents, or employees (each a “Denied Person” and collectively the “Denied Persons”) may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Export Administration Regulations (“EAR”), or in any other activity subject to the EAR including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
Second, that no person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of a Denied Person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Third, that, after notice and opportunity for comment as provided in section 766.23 of the EAR, any other person, firm, corporation, or business organization related to a Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order.
Fourth, that this Order does not prohibit any export, reexport, or other transaction subject to the EAR where the only items involved that are subject to the EAR are the foreign-produced direct product of U.S.-origin technology.
In accordance with the provisions of Sections 766.24(e) and 766.23(c)(2) of the EAR, Mahan Airways, Gatewick LLC, Mahmoud Amini and/or Kosarian Fard may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022.
In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. A renewal request may be opposed by Mahan Airways as provided in Section 766.24(d), by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be provided to Mahan Airways and each related person and shall be published in the
Import Administration, International Trade Administration, Department of Commerce.
On December 1, 2010, the Department of Commerce (the Department) initiated the second sunset reviews of the antidumping duty orders on certain cut-to-length carbon-quality steel plate (CTL Plate) from India, Indonesia, Italy, Japan, and the Republic of Korea, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). The Department has conducted expedited (120-day) sunset reviews for these orders pursuant to 19 CFR 351.218(e)(1)(ii)(C)(2). As a result of these sunset reviews, the Department finds that revocation of the antidumping duty orders would be likely to lead to continuation or recurrence of dumping.
David Goldberger or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
On December 1, 2010, the Department published the notice of initiation of the second sunset reviews of the antidumping duty orders on CTL Plate from India, Indonesia, Italy, Japan, and the Republic of Korea, pursuant to section 751(c) of the Act.
The Department received notices of intent to participate from the following domestic parties within the deadline specified in 19 CFR 351.218(d)(1)(i): ArcelorMittal Steel USA Inc., Evraz Claymont Steel, Evraz Oregon Steel Mills, Nucor Corporation, and SSAB N.A.D (collectively “the domestic interested parties”). These parties claimed interested party status under section 771(9)(C) of the Act and 19 CFR 351.102(b), as domestic manufacturers and producers of the domestic like product.
The Department received complete (collective) substantive responses to the notice of initiation from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). We received no substantive responses from respondent interested parties with respect to any of the orders covered by these sunset reviews. As a result, pursuant to 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted expedited (120-day) sunset reviews of the antidumping duty orders on CTL Plate from India, Indonesia, Italy, Japan, and the Republic of Korea.
The products covered under the CTL Plate antidumping duty orders are certain hot-rolled carbon-quality steel: (1) Universal mill plates (
Steel products to be included in the scope, regardless of Harmonized Tariff Schedule of the United States (HTSUS) definitions, are products in which: (1) Iron predominates, by weight, over each of the other contained elements, (2) the
Regarding the scope of the order for Japan, the following additional exclusions apply with respect to abrasion-resistant steels: NK-EH-360 (NK Everhard 360) and NK-EH-500 (NK Everhard 500). NK-EH-360 has the following specifications: (a) Physical Properties: Thickness ranging from 6-50 mm, Brinell Hardness: 361 min.; (b) Heat Treatment: controlled heat treatment; and (c) Chemical Composition (percent weight): C: 0.20 max., Si: 0.55 max., Mn: 1.60 max., P: 0.030 max., S: 0.030 max., Cr: 0.40 max., Ti: 0.005-0.020, B: 0.004 max. NK-EH-500 has the following specifications: (a) Physical Properties: Thickness ranging from 6-50 mm, Brinell Hardness: 477 min.; (b) Heat Treatment: Controlled heat treatment; and (c) Chemical Composition (percent weight): C: 0.35 max., Si: 0.55 max., Mn: 1.60 max., P: 0.030 max., S: 0.030 max., Cr: 0.80 max., Ti: 0.005-0.020, B: 0.004 max.
The merchandise subject to the orders is currently classifiable in the HTSUS under subheadings: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7225.40.3050, 7225.40.7000, 7225.50.6000, 7225.99.0090, 7226.91.5000, 7226.91.7000, 7226.91.8000, 7226.99.0000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by the orders is dispositive.
All issues raised in these reviews are addressed in the “Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders on Certain Cut-To-Length Carbon-Quality Steel Plate from India, Indonesia, Italy, Japan, and the Republic of Korea” from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration (Decision Memo), which is hereby adopted by, and issued concurrently with, this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the orders were revoked. Parties can find a complete discussion of all issues raised in these reviews and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room 7046 of the main Department building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
We determine that revocation of the antidumping duty orders on CTL Plate from India, Indonesia, Italy, Japan, and the Republic of Korea would be likely to lead to continuation or recurrence of dumping at the rates listed below:
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On November 1, 2010, the Department of Commerce (“Department”) published in the
Seth Isenberg or Yasmin Nair, AD/CVD Operations, Office 1, 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) 482-3813, respectively.
The antidumping duty order that covers pencils from the PRC was published in the
On December 1, 2010, the Department received a substantive response from Petitioners. In addition to meeting the other requirements of 19 CFR 351.218(d)(3), Petitioners provided information on the volume and value of exports of pencils from the PRC. The Department did not receive a substantive response from Dixon. The Department did not receive adequate substantive responses, or any response at all, from any respondent interested parties to this proceeding. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited (120-day) sunset review of the antidumping duty order on pencils from the PRC.
Imports covered by the order are shipments of certain cased pencils of any shape or dimension (except as described below) which are writing and/or drawing instruments that feature cores of graphite or other materials, encased in wood and/or man-made materials, whether or not decorated and whether or not tipped (
In addition, pencils with all of the following physical characteristics are excluded from the scope of the order: Novelty jumbo pencils that are octagonal in shape, approximately ten inches long, one inch in diameter before sharpening, and three-and-one eighth inches in circumference, composed of turned wood encasing one-and-one half inches of sharpened lead on one end and a rubber eraser on the other end.
Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
All issues raised in this review are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, dated March 1, 2011, which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit in room 7046 of the main Commerce building.
In addition, a complete version of the Decision Memorandum can be accessed directly on the Internet at
Pursuant to sections 752(c)(1) and (3) of the Act, we determine that revocation of the antidumping duty order on pencils from the PRC would be likely to lead to continuation or recurrence of dumping at the following weighted-average percentage margins:
This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce. (“Department”) is conducting the first administrative review of the antidumping duty order on small diameter graphite electrodes (“SDGE”) from the People's Republic of China (“PRC”), covering the period August 21, 2008, through January 31, 2010. The Department has preliminarily determined that during the period of review (“POR”) respondents in this proceeding have made sales of subject merchandise at less than normal value (“NV”). If these preliminary results are adopted in our final results of review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries of subject merchandise during the POR. The Department is also rescinding this review for those exporters for which requests for review were timely withdrawn.
Lindsey Novom or Frances Veith, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230;
On February 26, 2009, the Department published in the
On March 26, 2010, Petitioners submitted pre-initiation comments regarding respondent selection. On March 30, 2010, the Department released to interested parties CBP data covering POR imports of SDGE from the PRC, and invited these parties to comment on the Department's respondent selection process.
On March 30, 2010, the Department initiated an administrative review of the antidumping duty order on SDGE from the PRC for 112 individually named firms.
On May 26, 2010, the Department sent the antidumping duty questionnaires to the Fangda Group and Fushun Jinly. On June 28, 2010, we received from Petitioners a timely request for rescission of review for 100 of the 112 companies for which the Department initiated a review.
On October 19, 2010, the Department published a notice in the
Between January 10 and January 21, 2011, the Department conducted verifications of two of the Fangda Group entities (Beijing Fangda and Fushun Carbon), as well as, Fushun Jinly and one of its tollers, Fushun Hexie Carbon Product Co., Ltd (“Hexie”).
The POR is August 21, 2008, through January 31, 2010.
The merchandise covered by this order includes all small diameter graphite electrodes of any length, whether or not finished, of a kind used in furnaces, with a nominal or actual diameter of 400 millimeters (16 inches) or less, and whether or not attached to a graphite pin joining system or any other type of joining system or hardware. The merchandise covered by this order also includes graphite pin joining systems for small diameter graphite electrodes, of any length, whether or not finished, of a kind used in furnaces, and whether or not the graphite pin joining system is attached to, sold with, or sold separately from, the small diameter graphite electrode. Small diameter graphite electrodes and graphite pin joining systems for small diameter graphite electrodes are most commonly used in primary melting, ladle metallurgy, and specialty furnace applications in industries including foundries, smelters, and steel refining operations. Small diameter graphite electrodes and graphite pin joining systems for small diameter graphite electrodes that are subject to this order are currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 8545.11.0000. The HTSUS number is provided for convenience and customs purposes, but the written description of the scope is dispositive.
On August 13, 2010, the Department determined that all connecting pins for SDGE, whether or not they are attached to, sold with, or sold separately from the SDGE are covered by the scope of this proceeding. We invited parties to submit comments regarding the appropriate methodology for reporting normal value for sales where connecting pins are sold with SDGEs at one price per metric ton. On August 19, 2010, both Petitioners and the Fangda Group submitted comments on reporting and model match methodology where connecting pins are sold with SDGEs as one finished product.
We have previously determined that graphite connecting pins produced by respondents are covered by the description in the “Scope of the Order” section, above, and are subject merchandise for purposes of determining appropriate fair value comparisons to U.S. sales.
As provided in section 782(i) of the Act, we verified the information submitted by the Fangda Group for Beijing Fangda and Fushun Carbon, and information submitted by Fushun Jinly for itself and its toller Hexie for use in our preliminary results.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of the initiation notice of the requested review. Further, pursuant to 19 CFR 351.213(d)(1), the Department is permitted to extend this time if it is reasonable to do so.
For all but seven of the 112 companies for which the Department initiated an administrative review, Petitioners were the only party that requested the review. On June 28, 2010, Petitioners timely withdrew their review requests for 100 of the 105 companies in which the Petitioners were the only party that had requested an administrative review. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding this administrative review with respect to the companies named as follows in the
Petitioners' timely request for administrative reviews included a request to conduct an administrative review of UKCG. After initiating an administrative review of UKCG,
We made inquiries with CBP as to whether there were any entries of subject merchandise from the PRC exported by UKCG during the POR.
Interested parties may submit comments on the Department's intent to rescind this review with respect to UKCG no later than 30 days after the date of publication of these preliminary results of review. The Department will issue the final rescission (if appropriate), which will include the results of its analysis of issues raised in any comments received, in the final results of review.
In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country.
When the Department conducts an antidumping duty administrative review of imports from an NME country, section 773(c)(1) of the Act directs the Department to base NV, in most cases, on the NME producer's factors of production (“FOP”), valued in a surrogate market-economy (“ME”) country or countries considered appropriate by the Department. In accordance with section 773(c)(4) of the Act, the Department will value FOPs using “to the extent possible, the prices or costs of the FOPs in one or more market-economy countries that are: (A) At a level of economic development comparable to that of the NME country, and (B) significant producers of comparable merchandise.”
With respect to the Department's selection of surrogate country, Petitioners argue that the Ukraine is the most appropriate surrogate country from which to derive surrogate factor values for the PRC because Ukraine's per capita gross national income (“GNI”) is economically comparable to the PRC and is also a significant producer of SDGE.
On November 8, 2010, respondents Fangda Group and Fushun Jinly submitted rebuttal comments to Petitioners' surrogate country submission, in which respondents argue that India is both economically comparable to the PRC and a significant producer of identical merchandise (
In the instant review, the Department has identified India, Indonesia, the Philippines, Ukraine, Thailand, and Peru as a non-exhaustive list of countries that are at a level of economic development comparable to the PRC and for which good quality data are most likely available.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of an administrative review, interested parties may submit publicly available information to value the FOPs within 20 days after the date of publication of these preliminary results.
In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and thus should be assigned a single antidumping duty rate.
In order to demonstrate separate-rate status eligibility, the Department normally requires entities, for whom a review was requested, and who were assigned a separate rate in a previous segment of this proceeding, to submit a separate-rate certification stating that they continue to meet the criteria for obtaining a separate rate.
In this administrative review, of the five entities not selected for individual review (
The two mandatory respondents (
The Department considers the following
The evidence provided by the Fangda Group, Fushun Jinly, and Muzi Carbon supports a preliminary finding of
Typically the Department considers four factors in evaluating whether each respondent is subject to
The Department has determined that an analysis of
The evidence placed on the record of this review by the Fangda Group, Fushun Jinly, and Muzi Carbon demonstrates an absence of
The statute and the Department's regulations do not address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents we did not examine in an administrative review. For the exporters subject to a review that were determined to be eligible for separate rate status, but were not selected as mandatory respondents, the Department generally weight-averages the rates calculated for the mandatory respondents, excluding any rates that are zero,
As discussed above, the Department received a timely and complete separate rate certification from Muzi Carbon, who is an exporter of SDGE from the PRC during the POR and who was not selected as a mandatory respondent in this review. In this segment, this company has demonstrated its eligibility for a separate rate, as discussed above. Consistent with the Department's practice, as the separate rate, we have established a margin for Muzi Carbon based on the weighted-average of the rates we calculated for the mandatory respondents, the Fangda Group and Fushun Jinly, excluding, where appropriate, any rates that were zero,
Sections 776(a)(1) and (2) of the Act provide that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits, subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot serve as a reliable basis, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as adverse facts available (“AFA”) information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
For the reasons discussed below, we determine that, in accordance with sections 776(a)(2) and 776(b) of the Act, the use of AFA is warranted for the preliminary results for the PRC-wide entity, including Huanan Carbon,
In the
Because Huanan Carbon, Sinosteel Jilin, Jilin Carbon, and Jilin Carbon I&E did not submit any information to establish their eligibility for separate-rate status, we find they are deemed to be part of the PRC-wide entity.
Because we have determined that Huanan Carbon, Sinosteel Jilin, Jilin Carbon, and Jilin Carbon I&E are not entitled to separate rates and are now part of the PRC-wide entity, the PRC-wide entity (including Huanan Carbon, Sinosteel Jilin, Jilin Carbon, and Jilin Carbon I&E) is now under review. The PRC-wide entity did not respond to our requests for information. Because the PRC-wide entity did not respond to our requests for information, we find it necessary under section 776(a)(2) of the Act to use facts available as the basis for these preliminary results. Because the PRC-wide entity provided no information, we determine that sections 782(d) and (e) of the Act are not relevant to our analysis. We further find that the PRC-wide entity (including Huanan Carbon, Sinosteel Jilin, Jilin Carbon, and Jilin Carbon I&E) failed to respond to the Department's requests for information and, therefore, did not cooperate to the best of its ability. Therefore, because the PRC-wide entity did not cooperate to the best of its ability in the proceeding, the Department finds it necessary to use an adverse inference in making its determination, pursuant to section 776(b) of the Act.
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any other information placed on the record. It is the Department's practice to select, as AFA, the highest calculated rate in any segment of the proceeding.
The Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit (“Federal Circuit”) have consistently upheld the Department's practice.
Because of Huanan Carbon's, Sinosteel Jilin's, Jilin Carbon's, and Jilin Carbon I&E's failure to cooperate in this administrative review, we have preliminarily assigned the PRC-wide entity, of which they are deemed to be a part, an AFA rate of 159.64 percent, which is the PRC-wide rate determined in the investigation and the rate currently applicable to the PRC-wide entity.
The Department preliminarily determines that this information is the most appropriate from the available sources to effectuate the purposes of AFA. The Department's reliance on the PRC-wide rate from the original investigation to determine an AFA rate is subject to the requirement to corroborate secondary information.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall to the extent practicable, corroborate that information from independent sources that are reasonably at the Department's disposal. Secondary information is described in the SAA as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
As stated above, we are applying as AFA the highest rate from any segment of this administrative proceeding, which is the PRC-wide rate of 159.64 percent. The 159.64 percent is the highest rate on the record of any segment of this antidumping duty order. In the investigation, the Department relied upon our pre-initiation analysis of the adequacy and accuracy of the information in the Petition.
Because these are the preliminary results of review, the Department will consider all margins on the record at the time of the final results of review for the purpose of determining the most appropriate final margin for the PRC-wide entity.
To determine whether the Fangda Group's and Fushun Jinly's sales of subject merchandise were made at less than NV, we compared the NV to individual EP transactions in accordance with section 777A(d)(2) of the Act.
In accordance with section 772(a) of the Act, EP is “the price at which subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States,” as adjusted under section 772(c) of the Act. For each respondent, we used EP methodology, in accordance with section 772(a) of the Act, for sales in which the subject merchandise was first sold prior to importation by the exporter outside the United States directly to an unaffiliated purchaser in the United States and for sales in which constructed export price was not otherwise indicated.
We based EP on the price to unaffiliated purchasers in the United States. In accordance with section 772(c)(2)(A) of the Act, where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight and foreign brokerage and handling. We valued brokerage and handling using a price list of export procedures necessary to export a standardized cargo of goods in India. The price list is compiled based on a survey case study of the procedural requirements for trading a standard shipment of goods by ocean transport in India as reported in “Doing Business 2010: India” published by the World Bank.
We compared NV to individual EP transactions in accordance with section 777A(d)(2) of the Act, as appropriate. Section 773(c)(1) of the Act provides that the Department shall determine NV using an FOP methodology if: (1) The merchandise is exported from an NME country; and (2) the information does not permit the calculation of NV using home market prices, third country prices, or constructed value under section 773(a) of the Act. When determining NV in an NME context, the Department will base NV on FOPs because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under our normal methodologies. Under section 773(c)(3) of the Act, FOPs include but are not limited to: (1) Hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs. The Department used FOPs reported by the respondents for materials, energy, labor, packing and by-products.
In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by respondents for the POR. In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to find an appropriate surrogate value (“SV”) to value FOPs, but when a producer sources an input from a market economy and pays for it in market economy currency, the Department normally will value the factor using the actual price paid for the input if the quantities were meaningful and where the prices have not been distorted by dumping or subsidies.
On September 29, 2010, the Department invited all interested parties to submit publicly available information to value FOPs for consideration in the Department's preliminary results of review.
For the preliminary results, in accordance with the Department's practice, except where noted below, we used data from the Indian import Statistics in the Global Trade Atlas (“GTA”) and other publicly available Indian sources in order to calculate SVs for the Fangda Group's and Fushun Jinly's FOPs (
As explained in the legislative history of the Omnibus Trade and Competitiveness Act of 1988, the Department continues to apply its long-standing practice of disregarding SVs if it has a reason to believe or suspect the source data may be subsidized.
The Fangda Group and Fushun Jinly claim that certain of their reported raw material inputs were sourced from an ME country and paid for in ME currencies. When a respondent sources inputs from an ME supplier in meaningful quantities, we use the actual price paid by respondent for those inputs, except when prices may have been distorted by dumping or subsidies.
Accordingly, we valued certain of respondents' inputs using the ME prices paid for in ME currencies for the inputs where the total volume of the input purchased from all ME sources during the POR exceeds or is equal to 33 percent of the total volume of the input purchased from all sources during the period. Where the quantity of the reported input purchased from ME suppliers was below 33 percent of the total volume of the input purchased from all sources during the POR, and were otherwise valid, we weight-averaged the ME input's purchase price with the appropriate surrogate value for the input according to their respective shares of the reported total volume of purchases.
We valued truck freight expenses using a per-unit average rate calculated from data on the infobanc Web site:
We valued electricity using the updated electricity price data for small, medium, and large industries, as published by the Central Electricity Authority, an administrative body of the Government of India, in its publication titled “Electricity Tariff & Duty and Average Rates of Electricity Supply in India,” dated March 2008. These electricity rates represent actual country-wide, publicly-available information on tax-exclusive electricity rates charged to small, medium, and large industries in India.
We valued steam coal using data obtained for grade C long flame and non-long flame non-coking coal reported on the 2007 Coal India Data website (“Coal India”).
We valued water using the revised Maharashtra Industrial Development Corporation water rates available at
On May 14, 2010, the Federal Circuit in
For the preliminary results of this administrative review, the Department is valuing labor using a simple average industry-specific wage rate using earnings and/or wage data reported under Chapter 5B by the International Labor Organization (“ILO”). To achieve an industry-specific labor value, we relied on industry-specific labor data from the countries we determined to be both economically comparable to the PRC and significant producers of comparable merchandise. A full description of the industry-specific wage rate calculation methodology is provided in the Factor Valuation Memorandum. The Department calculated a simple average industry-specific wage rate of $1.47 for these preliminary results. Specifically, for this review, the Department has calculated the wage rate using a simple average of the data provided to the ILO under Sub-Classification 31 of the ISIC-Revision 3 standard by countries determined to be both economically comparable to the PRC and significant producers of comparable merchandise. The Department finds the two-digit description under ISIC-Revision 3 (“Manufacture of Electrical Machinery and Apparatus NEC”) to be the best available wage rate surrogate value on the record because it is specific and derived from industries that produce merchandise comparable to the subject merchandise. Consequently, we averaged the ILO industry-specific wage rate data or earnings data available from the following countries found to be economically comparable to the PRC and are significant producers of comparable merchandise: Ecuador, Egypt, Indonesia, Jordan, Peru, the Philippines, Thailand, and the Ukraine.
To value factory overhead, selling, general and administrative expenses and profit, the Department used the average of the ratios derived from the financial statements of two Indian producers: Graphite India Limited and HEG Limited (for the year ending on March 31, 2010).
The Fangda Group and Fushun Jinly reported that they have recovered by-products in their production of subject merchandise and successfully demonstrated that all of them have commercial value, therefore, we have granted a by-product offset for the quantities of each respondent's reported by-products, valued using Indian GTA data.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as AFA information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
At verification, we were unable to verify the supplier distances for a significant percentage of Fushun Carbon's suppliers. As a result, pursuant to section 776(a)(2)(A), (B), and (D) of the Act, we find that the use of facts available (“FA”) is appropriate to determine Fushun Carbon's supplier distances, as discussed below.
Fushun Carbon at verification initially provided four maps from the Chinese internet search engine “Baidu maps” as support for its reported suppliers distance (
In addition, we requested that Fushun Carbon provide maps from the same source for the remaining suppliers. However, Fushun Carbon was unable to provide the requested maps during the remaining time at verification. We were, therefore, unable to verify the supplier distance for a significant percent of Fushun Carbon's suppliers, and for the preliminary results, we determine that Fushun Carbon did not cooperate to the best of its ability by not providing the supporting documentation needed to verify its reported supplier distances.
We provided Fushun Jinly with two opportunities during the administrative review to accurately report its tollers' consumption data.
Additionally, Fushun Jinly confirmed that one of its tollers' consumption of electricity was understated because of the toller's affiliation with an electric company.
Where appropriate, we made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
The Department has determined that the following preliminary dumping margins exist for the period August 21, 2008, through January 31, 2010:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
The Department will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The
For Muzi Carbon, a company receiving a separate rate that was not selected for individual review, we will calculate an assessment rate based on the weighted average of the cash deposit rates calculated for the companies selected for individual review consistent with section 735(c)(5)(B) of the Act. Where the weighted average ad valorem rate is zero or
The following cash-deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For the Fangda Group, Fushun Jinly, and Muzi Carbon the cash deposit rate will be their respective rates established in the final results of this review, except if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and this notice are in accordance with sections 751(a)(1) and 777(i) of the Act, and sections 351.213 and 351.221(b)(4) of the Department's regulations.
International Trade Administration, Department of Commerce.
Notice.
In March 2007, the Governments of the United States and Brazil established the U.S.-Brazil CEO Forum. This notice announces membership opportunities for appointment as American representatives to the U.S. Section of the Forum. The current U.S. Section term will expire on June 11, 2011.
Applications should be received no later than April 29, 2011.
Please send requests for consideration to Ashley Rosen, Office of South America, U.S. Department of Commerce, either by e-mail at
Ashley Rosen, Office of South America, U.S. Department of Commerce, telephone: (202) 482-6311.
The Secretary of Commerce and the Deputy Assistant to the President and Deputy National Security Advisor for International Economic Affairs, together with the Planalto Casa Civil Minister (Presidential Chief of Staff) and the Brazilian Minister of Development, Industry and Foreign Trade, co-chair the U.S.-Brazil CEO Forum, pursuant to the Terms of Reference signed in March 2007 by the U.S. and Brazilian governments, which set forth the objectives and structure of the Forum. The Terms of Reference may be viewed at:
Candidates are currently sought for membership on the U.S. Section of the Committee. Each candidate must be the Chief Executive Officer or President (or have a comparable level of
Evaluation of applications for membership in the U.S. Section by eligible individuals will be based on the following criteria:
Members will be selected on the basis of who will best carry out the objectives of the Forum as stated in the Terms of Reference establishing the U.S.-Brazil CEO Forum. The U.S. Section of the Forum should also include members that represent a diversity of business sectors and geographic locations. To the extent possible, U.S. Section members also should represent a cross-section of small, medium, and large firms.
U.S. members will receive no compensation for their participation in Forum-related activities. Individual members will be responsible for all travel and related expenses associated with their participation in the Forum, including attendance at Committee and Section meetings. Only appointed members may participate in official Forum meetings; substitutes and alternates will not be designated. U.S. members will normally serve for two-year terms, but may be reappointed.
To be considered for membership, please submit the following information as instructed in the
Import Administration, International Trade Administration, Department of Commerce.
Magd Zalok or Howard Smith, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230,
On June 1, 2010, the Department of Commerce (the “Department”) published a notice of opportunity to request an administrative review for the period of review covering June 1, 2009, through May 31, 2010 (“POR”).
On August 18, 2010, Gangyuan and Shanghai Jinneng notified the Department that they had no entries, exports, or sales of the subject merchandise to the United States during the POR. On September 20, 2010, the Department issued a no shipments e-mail to U.S. Customs and Border Protection (“CBP”) requesting notification within 10 days of receipt of the e-mail if CBP had information contrary to the no shipments claims of Gangyuan and Shanghai Jinneng. Also, the Department conducted a CBP data query to ascertain whether there were entries of subject merchandise from Gangyuan or Shanghai Jinneng.
On January 11, 2011, Globe withdrew its request for review of Zhejiang. On February 15, 2011, the Department
The Department may rescind an administrative review with respect to an exporter or producer if the Department concludes that there were no entries, exports, or sales of the subject merchandise to the United States during the POR.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the date of publication of the notice of initiation of the requested review. The Department may extend this time limit if it decides that it is reasonable to do so. As noted above, Globe withdrew its request for review of Zhejiang on January 11, 2011. While Globe withdrew its request for an administrative review after the 90-day deadline, the Department has determined that it is reasonable to extend the time for Globe to file a withdrawal of its request for a review of Zhejiang because the review is not at an advanced stage such that significant resources have been expended in conducting the review. Accordingly, in accordance with 19 CFR 351.213(d)(1), we are also rescinding this review of the antidumping duty order with respect to Zhejiang.
The Department intends to issue assessment instructions to CBP 15 days after publication of this rescission notice. The Department will instruct CBP to assess antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i).
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, as amended.
Written comments must be submitted on or before May 6, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Craig Heberer, (760) 431-9440 or
This request is for a renewal of a current information collection.
Regulations at 50 CFR 660.704 require that all vessels with permits issued under authority of the National Marine Fishery Service's (NMFS) Fishery Management Plan for United States (U.S.) West Coast Highly Migratory Species Fisheries display the vessel's official number. The numbers must be of a specific size and format and located at specified locations. The display of the identifying number aids in fishery law enforcement.
The vessels' official numbers are displayed on the vessels. No information is submitted.
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 (including hours and cost) 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
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before May 6, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Dr. Ronald J. Salz, (301) 713-2328 or
The Large Pelagic Fishing Survey consists of dockside and telephone surveys of recreational anglers for large pelagic fish (tunas, sharks, and billfish) in the Atlantic Ocean. The survey provides the National Marine Fisheries Service (NMFS) with information to monitor catch of bluefin tuna, marlin and other federally-managed species. Catch monitoring in these fisheries and collection of catch and effort statistics for all pelagic fish is required under the Atlantic Tunas Convention Act and the Magnuson-Stevens Fishery Conservation and Management Act. The information collected is essential for the United States (U.S.) to meet its reporting obligations to the International Commission for the Conservation of Atlantic Tuna.
Dockside and telephone interviews are used. In lieu of telephone interviews, respondents may also provide information via faxed logsheets or online via a Web tool.
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 (including hours and cost) 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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council will convene scoping meetings on a proposed amendment addressing crew size limits and earned income requirements.
The scoping meetings will be held on March 22, 2011 through April 5, 2011 at eight locations throughout the Gulf of Mexico. The scoping meetings will begin at 6 p.m. and will conclude no later than 9 p.m. For specific dates
The scoping meetings will be held in the following locations: St. Petersburg, Key West and Panama City, FL; Kenner, LA; Gulfport, MS; Mobile, AL; Corpus Christi and Galveston, TX.
Dr. Assane Diagne, Economist; Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630 x233.
The Gulf of Mexico Fishery Management Council has scheduled scoping meetings on a proposed amendment addressing crew size and earned income requirements. The amendment will address crew size regulations for dually permitted vessels,
The eight scoping meetings will begin at 6 p.m. and conclude at the end of
• Tuesday, March 22, 2011, Hilton St. Petersburg Carillon Parkway, 950 Lake Carillon Drive, St. Petersburg, FL, telephone: (727) 540-0050;
• Wednesday, March 23, 2011, Harvey Government Center, 1200 Truman Ave., Key West, FL, telephone: (305) 295-5000;
• Monday, March 28, 2011, Hilton Garden Inn, 4535 Williams Blvd., Kenner, LA, telephone: (504) 712-0504
• Tuesday, March 29, 2011, Hilton Garden Inn, 14108 Airport Rd, Gulfport, MS 39503, telephone: (228) 863-4996;
• Wednesday, March 30, 2011, Renaissance Riverview Plaza, 64 S. Water St., Mobile, AL 36602, telephone: (251) 438-4000;
• Thursday, March 31, 2011, Royal American Beach Getaways, 9400 S. Thomas Drive, Panama City Beach, FL 32408, telephone: (850) 230-4681;
• Monday, April 4, 2011, Holiday Inn Emerald Beach, 1002 S. Shoreline Blvd., Corpus Christi, TX, telephone: (361) 883-5731;
• Tuesday, April 5, 2011, Hilton, 5400 Seawall Blvd., Galveston, TX 77551, telephone: (409) 744-1757.
Copies of the scoping document can be obtained by calling (813) 348-1630.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Western Pacific Fishery Management Council (Council) will hold a meeting of its Sea Turtle Advisory Committee (STAC) in Honolulu, HI.
The STAC meeting will be held on Wednesday, March 23, 2011, from 8:30 a.m. to 5:30 p.m. and Thursday, March 24, 2011, from 8:30 a.m. to 12:30 p.m.
The meeting will be held at the Council Office Conference Room, 1164 Bishop Street, Suite 1400, Honolulu, HI; telephone: (808) 522-8220.
Kitty M. Simonds, Executive Director; telephone: (808) 522-8220.
The STAC will review the Council's 2010 sea turtle conservation projects and other relevant activities and may produce recommendations for future program direction.
1. Introduction.
2. Approval of the Agenda.
3. Review of Recommendations from the 6th STAC Meeting.
4. Overview of 2010-11 Council Sea Turtle Program.
5. Update of Sea Turtle Interactions in Hawaii-based Fisheries.
6. Review of 2010 Sea Turtle Projects.
7. Review of 2010 Sea Turtle Projects (Continued).
8. Overview of Agency Activities.
9. Other Projects and Issues of Interest.
10. Recommendations from the STAC.
11. Next Meeting and Meeting Wrap-up.
The order in which agenda items are addressed may change. The Committee will meet as late as necessary to complete scheduled business.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council will convene a meeting of the Standing, Special Mackerel and Special Reef Fish Scientific and Statistical Committees.
The meeting will convene at 1 pm on Tuesday, March 22, 2011 and conclude by noon on Friday, March 25, 2011.
The meeting will be held at the Astor Crowne Plaza Hotel, 739 Canal Street, New Orleans, LA 70130; telephone: (504) 962-0500.
Steven Atran, Population Dynamics Statistician; Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The Standing and Special Mackerel SSC will meet jointly on Tuesday, March 22, 2011 to review the Council's preferred alternative for an acceptable biological catch (ABC) control rule, and then to review available biological information and recommend an overfishing limit (OFL) and ABC for Gulf group king mackerel, Gulf group Spanish mackerel and cobia based on the ABC control rule. The remainder of the meeting will be a joint meeting of the Standing and Special Reef Fish SSC. The Standing and Special Reef Fish SSC will review an update assessment for greater amberjack and recommend an OFL and ABC based on the assessment and the ABC control rule. The SSC will also reconsider its previous recommendation for an ABC for red grouper in light of new analyses that was reviewed by the SSC in January.
The SSC will also recommend OFL and ABC for several data-poor stocks using the ABC control rule, including scamp, yellowedge grouper, yellowtail snapper, hogfish, golden tilefish, mid-water snapper complex (blackfin snapper, silk snapper, Queen snapper, and Wenchman), deep-water grouper
Copies of the agenda and other related materials can be obtained by calling (813) 348-1630 or can be downloaded from the Council's ftp site,
Although other non-emergency issues not on the agenda may come before the Scientific and Statistical Committees for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Scientific and Statistical Committees will be restricted to those issues specifically identified in the agenda 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 action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (
The next meeting of the U.S. Commission of Fine Arts is scheduled for 17 March 2011, at 10 a.m. in the Commission offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street, NW., Washington DC 20001-2728. Items of discussion may include buildings, parks and memorials.
Draft agendas and additional information regarding the Commission are available on our Web site:
Department of the Navy, DoD.
Notice.
The Department of the Navy (Navy), after carefully weighing the operational and environmental consequences of the proposed action, announces its decision to conduct Navy Atlantic Fleet training; research, development, testing, and evaluation (RDT&E) activities; and associated range capabilities enhancements in the Corpus Christi, New Orleans, Pensacola, and Panama City Operating Areas (OPAREAs) and associated airspace, land and overland components, hereafter referred to as the Gulf of Mexico (GOMEX) Range Complex. Title 10, United States Code (U.S.C.) Part 5062 directs the Chief of Naval Operations (CNO) to train all naval forces for combat. The CNO meets that direction, in part, by conducting at-sea training exercises and ensuring naval forces have access to ranges, OPAREAs and airspace where the Navy can develop and maintain skills for wartime missions and conduct RDT&E of naval weapons systems. The proposed action will be accomplished as set forth in Alternative 2, described in the Final Environmental Impact Statement (EIS)/Overseas Environmental Impact Statement (OEIS) as the Preferred Alternative. The purpose for the proposed action is to: (1) Achieve and maintain Fleet readiness using the GOMEX Range Complex to support and conduct current, emerging, and future training and RDT&E; (2) Expand warfare missions supported by the GOMEX Range Complex; and (3) Upgrade and modernize existing range capabilities to enhance and sustain Navy training and RDT&E. The need for the proposed action is to provide range capabilities for training and equipping combat-capable naval forces ready to deploy worldwide.
The Record of Decision (ROD) has been distributed to all individuals who requested a copy of the Final EIS/OEIS and to agencies and organizations that received a copy of the Final EIS/OEIS. The complete text of the ROD is available for public viewing on the project Web site at
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps
Interested persons are invited to submit comments on or before May 6, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
This notice includes one absolute priority with two phases, and funding information for each phase of the competition, and two competitive preference priorities within the absolute priority.
This priority is:
To be considered for funding under the Steppingstones of Technology Innovation for Children with Disabilities absolute priority, applicants must meet the application requirements contained in the priority. All projects funded under the absolute priority also must meet the programmatic and administrative requirements specified in the priority. The application, programmatic, and administrative requirements are as follows:
(a) In the application, an applicant must—
(1) Describe a technology-based approach for use in (a) early intervention programs, (b) response-to-intervention (RTI) assessment techniques, or (c) preschool, elementary school, middle school, or high school educational programs that is designed to improve results for children with disabilities. The technology-based approach must be an innovative combination of new technology and additional materials and methodologies that enable the technology to improve results for children with disabilities;
(2) Present a justification, based on scientifically rigorous research or theory, that demonstrates the potential effectiveness of the technology-based approach described pursuant to paragraph (a)(1) of this priority for improving results for children with disabilities. The approach must have the potential to improve child outcomes, not just parent or provider outcomes. Child outcomes may include improved academic or pre-academic skills, improved behavioral or social functioning, and improved functional performance, provided that valid and reliable measurement instruments are employed to assess the outcomes. Technology-based approaches intended for use by providers or parents may not be funded under this priority unless child-level benefits are clearly demonstrated. Technology-based approaches for professional development will not be funded under this priority;
(3) Provide a detailed plan for conducting work in one of the following two phases:
(i)
(ii)
Projects funded under Phase 2 of this priority must conduct research that poses a causal question and must seek to answer that question through randomized assignment to treatment and comparison conditions, unless a strong justification is made for why a randomized trial is not possible. If a randomized trial is not possible, the applicant must employ alternatives that substantially minimize selection bias or allow the selection bias to be modeled. These alternatives include appropriately structured regression-discontinuity designs and natural experiments in which naturally occurring circumstances or institutions (perhaps unintentionally) divide people into treatment and comparison groups in a manner akin to purposeful random assignment. In their applications, applicants proposing to use an alternative system must (1) make a compelling case that randomization is not possible, and (2) describe in detail how the procedures will result in substantially minimizing the effects of selection bias on estimates of effect size. Choice of randomizing unit or units (
Projects funded under Phase 2 of this priority must conduct comprehensive research in order to provide convincing evidence of the effectiveness or ineffectiveness of the technology-based approach under study, at least within a defined range of settings. Applicants must provide documentation that available sample sizes, methodologies, and treatment effects are likely to result in conclusive findings regarding the effectiveness of the technology-based approach;
(4) Provide a plan for forming collaborative relationships with vendors, other dissemination or marketing resources, or both to ensure that the technology-based approach can be made widely available if sufficient evidence of effectiveness is obtained. Applicants should document the availability and willingness of dissemination or marketing resources to participate. Applicants are encouraged to plan these collaborative relationships early in their projects, even in Phase 1 (if applicable), but should refrain from widespread dissemination of the technology-based approach to practitioners until evidence of its effectiveness is obtained in Phase 2; and
(5) Budget for the project director to attend an annual three-day Project Directors' meeting in Washington, DC, and another annual two-day trip to
(b) The project also must conduct the following activities:
(1) If the project maintains a Web site, include relevant information and documents in a format that meets a government or industry-recognized standard for accessibility.
(2) If the project produces instructional materials for dissemination, produce them in accessible formats (
This priority is:
Applicants with projects that are designed to improve school readiness and success by using technology-based approaches for children with disabilities from birth through third grade and focus on one or more of the following priority areas: (a) Physical well-being and motor development; (b) social-emotional development; (c) language and literacy development; (d) cognition and general knowledge, including early numeracy and early scientific development; and (e) approaches toward learning.
This priority is:
Applicants with projects that are designed to focus on technology-based approaches for instruction in science, mathematics, or both for children with disabilities.
Three is the maximum amount of points an applicant can receive for meeting one or both of the competitive preference priorities. Thus, even if an applicant meets both priorities, it will only earn a total of 3 points. Applicants must include in the project abstract a statement indicating which competitive preference priorities they have addressed.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The Department is not bound by any estimates in this notice.
1.
2.
3.
(b) Applicants and grant recipients funded under this competition must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the projects (see section 682(a)(1)(A) of IDEA).
1.
To obtain a copy via the Internet, use the following address:
To obtain a copy from ED Pubs, write, fax, or call the following: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.327A.
To obtain a copy from the program office, contact the person listed under
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, the references, or the letters of support. However, you must include all of the application narrative in Part III.
We will reject your application if you exceed the page limit; or if you apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (
7.
a.
We are participating as a partner in the Governmentwide Grants.gov Apply site. The Steppingstones of Technology Innovation for Children with
If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at
You may access the electronic grant application for the Steppingstones of Technology Innovation for Children with Disabilities competition, CFDA number 84.327A at
Please note the following:
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• If you submit your application electronically, you must attach any narrative sections of your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center,
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center,
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this grant notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
In the past, the Department has had difficulty finding peer reviewers for certain competitions, because so many individuals who are eligible to serve as peer reviewers have conflicts of interest. The Standing Panel requirements under IDEA also have placed additional constraints on the availability of reviewers. Therefore, the Department has determined that, for some discretionary grant competitions, applications may be separated into two or more groups and ranked and selected for funding within specific groups. This procedure will make it easier for the Department to find peer reviewers, by ensuring that greater numbers of individuals who are eligible to serve as reviewers for any particular group of applicants will not have conflicts of interest. It also will increase the quality, independence, and fairness of the review process, while permitting panel members to review applications under discretionary grant competitions for which they also have submitted applications. However, if the Department decides to select an equal number of applications in each group for funding, this may result in different cut-off points for fundable applications in each group.
4.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Grantees also will be required to report information on their projects' performance in annual reports to the Department (34 CFR 75.590).
5.
If you use a TDD, call the Federal Relay Service, toll free, at 1-800-877-8339.
The official version of this document is the document published in the
Department of Energy.
Notice of open meeting: Correction
On February 24, 2011, the Department of Energy (DOE) published a notice announcing a meeting of the Environmental Management Site-Specific Advisory Board, Nevada to be held on March 9, 2011 (76 FR 10343). This document makes several corrections to that notice.
Denise Rupp, Board Administrator, 232 Energy Way, M/S 505, North Las Vegas, Nevada 89030. Phone: (702) 657-9088; Fax (702) 295-5300 or E-mail:
In the
Under
Under
Under
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following qualifying facility filings:
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Southeastern Power Administration, DOE.
Notice of proposed rates, public forum, and opportunities for public review and comment.
Southeastern Power Administration (Southeastern) proposes to revise existing schedules of rates and charges applicable to the sale of power from the Cumberland System of Projects effective for a 2-year period, October 1, 2011, through September 30, 2013. Interested persons may review the rates and supporting studies and submit written comments. Southeastern will evaluate all comments received in this process.
Written comments are due on or before June 6, 2011. A public information and comment forum will be held at 10 a.m., May 3, 2011. Persons desiring to attend the forum should notify Southeastern at least seven (7) days before the forum is scheduled. Persons desiring to speak at the forum should notify Southeastern at least three (3) days before the forum is scheduled, so that a list of forum participants can be prepared. Others may speak if time permits. If Southeastern has not been notified by close of business on April 26, 2011, that at least one person intends to be present at the forum, the forum will be canceled with no further notice.
The forum will be held at the Embassy Suites Nashville—at Vanderbilt, 1811 Broadway, Nashville, Tennessee 37203 Phone (615) 320-8899. Written comments should be submitted to: Administrator, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, GA 30635-6711.
J. W. Smith, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, Georgia 30635-6711, (706) 213-3800.
On May 6, 2009, the Federal Energy Regulatory Commission (FERC) confirmed and approved on a final basis, Wholesale Power Rate Schedules CBR-1-G, CSI-1-G, CEK-1-G, CM-1-G, CC-1-H, CK-1-G, and CTV-1-G applicable to Cumberland System of Projects power for a period ending September 30, 2013 (127 FERC 62,115). On May 17, 2010 Rate Schedule CTVI-1 was approved by the Administrator, Southeastern Power Administration, for a period ending September 30, 2013.
The Corps of Engineers has provided Southeastern with a plan of replacements for the Cumberland System. With escalation, the total cost of these planned replacements is $843,000,000.
Existing rate schedules are predicated upon a July 2008 repayment study and other supporting data contained in FERC docket number EF08-3022-000. The revenue requirement in this study is $50,400,000. An updated repayment study, dated January 2011, shows that rates are not adequate to meet repayment criteria. Energy delivered in the Cumberland System in Fiscal Years 2008, 2009, and 2010 was 73 percent of forecast. As a result, total revenues were about 19 percent less than forecast. In addition, Corps' Operation & Maintenance Expense was about 33 percent higher than forecast.
A revised repayment study demonstrates that a revenue increase to $64,600,000 per year will meet repayment criteria. The increase in the annual revenue requirement is $14,200,000 per year, or about 28 percent.
Southeastern is proposing three rate scenarios per rate schedule. All of the rate alternatives have a revenue requirement of $64,600,000.
The first rate scenario includes the rates necessary to recover costs under the Interim Operating Plan. These rates are based on energy. The rate would be 20.87 mills per kilowatt-hour for all Cumberland energy. The customers would pay a ratable share of the
The second rate scenario would recover cost from capacity and energy. The revenue requirement under this alternative would be $64,600,000 per year. This scenario would be in effect once the Corps raises the lake level at the Wolf Creek and Center Hill Projects. When the lake level rises and capacity is available, the capacity would be allocated to the customers.
The third rate scenario is based on the original Cumberland Marketing Policy. All costs are recovered from capacity and excess energy. The rates under this alternative would be as follows:
These rates would go into effect once the Corps lifts the restrictions on the operation of the Wolf Creek and Center Hill Projects and the Interim Operating Plan becomes unnecessary.
The referenced repayment studies are available for examination at 1166 Athens Tech Road, Elberton, Georgia 30635-6711. The Proposed Rate Schedules CBR-1-H, CSI-1-H, CEK-1-H, CM-1-H, CC-1-I, CK-1-H, CTV-1-H, and CTVI-1-A are also available.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments may be submitted on or before April 6, 2011.
Submit your comments, referencing Docket ID No. EPA-R09-UST-2010-0538, to (1) EPA online using
LaDonna Thomas, Waste Management Division, WST-8, Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105-3901; telephone number: (415) 972-3375; fax number: (415) 947-3530; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On September 24, 2010 (75 FR 58374), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-R09-UST-2010-0538, which is available for online viewing at
Use EPA's electronic docket and comment system at
EPA Region 9's Underground Storage Tanks Program Office (R9 USTPO) is planning to undertake an effort to increase the rate of compliance in Region 9. R9 USTPO has direct implementation responsibilities in Indian country and our data has shown a low rate of compliance. While Indian country is our highest priority because of our direct implementation responsibility, we have also reviewed data that suggest facilities outside Indian country are also of concern. In FY 08, the rate of compliance in Region 9 Indian country was 36% and outside of Indian country the average was 68%. An information request pursuant to RCRA section 9005 directed to UST facility owners and operators in order to determine compliance will help to increase the rate of compliance.
As a result, R9 USTPO would like to send an information request letter in accordance with RCRA Section 9005 and 40 CFR 280.34 annually to approximately 500 UST facilities. This letter will request that the facility owner or operator send to the R9 USTPO the compliance records that they are already required to keep, but have not previously been asked to submit to the Agency. The information request letter authority was codified in 40 CFR 280.34 of the UST regulations and this regulation and other provisions of the UST regulations also contain specific ongoing facility reporting and record keeping obligations. In accordance with 40 CFR 280.34(c), these records should be kept either on-site or must be readily available at an alternative site and, thus, should be easy to locate. The information is routinely reviewed during inspections, but we believe there is suspected non-compliance that warrants additional collection and believe that these requests will encourage owners and operators to maintain regulatory compliance and will allow the R9 USTPO to better ensure compliance with regulatory requirements for those facilities. The R9 USTPO seeks to continue this request for records from facilities indefinitely and would monitor whether our efforts to increase compliance are successful.
Environmental Protection Agency (EPA).
Notice of cancellation of peer-review panel workshop.
The U.S. Environmental Protection Agency (EPA) is announcing the cancellation of a March 11, 2011 external peer review meeting of the draft document titled, “A Method to Assess Climate-Relevant Decisions: Application in the Chesapeake Bay” (EPA/600/R-10/096a), announced earlier (76 FR 4345, January 25, 2011). EPA has received the written reviews from the external peer review members as well as public comments received during the public comment period from August 31 to November 1, 2010 (announced in 75 FR 168, August 31, 2010). EPA has concluded that a public peer review meeting is not warranted as the comments from the peer reviewers and the public are not controversial or conflicting and can be readily accommodated. Consistent with EPA practices, we will post all of the peer reviewer's comments and those of the public along with EPA's responses when the final report is released publicly, within the next 120 days.
March 11, 2011. The peer review panel workshop scheduled to begin at 8:30 a.m. and end at 4 p.m. at the Navy League Building, 2300 Wilson Boulevard, Arlington, VA 22201, has been cancelled.
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on March 10, 2011,
Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
This meeting of the Board will be open to the public (limited space available). In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
• February 10, 2011.
• Frequently Asked Questions on Borrowers Rights—Part II.
• Update on Dodd-Frank Rulemaking Projects.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 22, 2011.
A. Federal Reserve Bank of San Francisco (Kenneth Binning, Vice President, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), the Regulatory Secretariat (MVCB) will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning acquisition of helium.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before May 6, 2011.
Submit comments identified by Information Collection 9000-0113 by any of the following methods:
• Regulations.gov:
Submit comments via the Federal eRulemaking portal by inputting “Information Collection 9000-0113” under the heading “Enter Keyword or ID” and selecting “Search”. Select the link “Submit a Comment” that corresponds with “Information Collection 9000-0113”. Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “Information Collection 9000-0113” on your attached document.
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (MVCB), 1275 First Street, NE., Washington, DC 20417. ATTN: Hada Flowers/IC 9000-0113.
Ms. Debbie Lague, Procurement Analyst, Contract Policy Branch, GSA (202) 694-8149 or
The Helium Act (Pub. L. 86-777) (50 U.S.C. 167a,
The FAR requires offerors responding to contract solicitations to provide information as to their forecast of helium required for performance of the contract. Such information will facilitate enforcement of the requirements of the Helium Act and the contractual provisions requiring the use of Government helium by agency contractors, in that it will permit corrective action to be taken if the Bureau of Land Management, after comparing helium sales data against
The information is used in administration of certain Federal contracts to ensure contractor compliance with contract clauses. Without the information, the required use of Government helium cannot be monitored and enforced effectively.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of availability—new Common Format.
The Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. 299b-21 to b-26, (Patient Safety Act) provides for the formation of Patient Safety Organizations (PSOs), which collect, aggregate, and analyze confidential information regarding the quality and safety of healthcare delivery. The Patient Safety Act (at 42 U.S.C. 299b-23) authorizes the collection of this information in a standardized manner, as explained in the related Patient Safety and Quality Improvement Final Rule, 42 CFR part 3 (Patient Safety Rule), published in the
Ongoing public input.
The new beta version of the Ski/led Nursing Facilities format (version dated February 2011) and the remaining Common Formats, can be accessed electronically at the following HHS Web site:
Deborah Perfetto, Center for Quality Improvement and Patient Safety, AHRQ, 540 Gaither Road, Rockville, MD 20850; Telephone (toll free): (866) 403-3697; Telephone (local): (301) 427-1111; TTY (toll free): (866) 438-7231; ITY (local): (301) 427-1130; E-mail:
The Patient Safety Act and Patient Safety Rule establish a framework by which doctors, hospitals, skilled nursing facilities, and other healthcare providers may voluntarily report information regarding patient safety events and quality of care. Information that is assembled and developed by providers for reporting to PSOs and the information received and analyzed by PSOs—called “patient safety work product”—is privileged and confidential. Patient safety work product is used to identify events, patterns of care, and unsafe conditions that increase risks and hazards to patients. Definitions and other details about PSOs and patient safety work product are included in the Patient Safety Rule.
The Patient Safety Act and Patient Safety Rule require PSOs, to the extent practical and appropriate, to collect patient safety work product from providers in a standardized manner in order to permit valid comparisons of similar cases among similar providers. The collection of patient safety work product allows the aggregation of sufficient data to identify and address underlying causal factors of patient safety problems. Both the Patient Safety Act and Patient Safety Rule, including any relevant guidance, can be accessed electronically at:
In order to facilitate standardized data collection, the Secretary of HHS authorized AHRQ to develop and maintain the Common Formats to improve the safety and quality of healthcare delivery. In August 2008, AHRQ issued the initial release of the formats, Version 0.1 Beta, developed for acute care hospitals. The second release of the Common Formats, Version 1.0, was announced in the
The term “Common Formats” refers to the common definitions and reporting formats, specified by AHRQ, that allow health care providers to collect and submit standardized information regarding patient safety events. The Common Formats are not intended to replace any current mandatory reporting system, collaborative/voluntary reporting system, research-related reporting system, or other reporting/recording system; rather the formats are intended to enhance the ability of health care providers to report information that is standardized both clinically and electronically.
The scope of Common Formats applies to all patient safety concerns including:
• Incidents—patient safety events that reached the patient, whether or not there was harm,
• Near misses or close calls—patient safety events that did not reach the patient, and
• Unsafe conditions—circumstances that increase the probability of a patient safety event.
The Common Formats include two general types of formats, generic and event-specific. The generic Common Formats pertain to all patient safety concerns. The three generic formats are: Healthcare Event Reporting Form, Patient Information Form, and Summary of Initial Report. The event-specific Common Formats pertain to frequently-
This new format includes a description of patient safety events and unsafe conditions to be reported (event description) and a sample patient safety aggregate report and individual event summary in skilled nursing facilities. The Skilled Nursing Facilities Common Format is available at the PSO Privacy Protection Center (PPC) Web site:
To allow for greater participation by the private sector in the subsequent development of the Common Formats, AHRQ engaged the National Quality Forum (NQF), a non-profit organization focused on health care quality, to solicit comments and advice to guide the further refinement of the Common Formats. The NQF began this process with feedback on AHRQ's 0.1 Beta release of the Common Formats. Based upon the expert panel's feedback, AHRQ, in conjunction with the PSWG, further revised and refined the Common Formats and released Version 1.0.
The review process above was repeated again from September 2009 through February 2010 to further refine Common Formats Version 1.0 and incorporate public comments prior to finalization of the technical specifications for electronic implementation. The latest version of the formats is Version 1.1.
The Agency is specifically interested in obtaining feedback from both the private and public sectors on this new format for skilled nursing facilities to guide their improvement. Information on how to comment and provide feedback on the Common Formats, the Skilled Nursing Facilities beta version, is available at the National Quality Forum (NQF) Web site for Common Formats:
In anticipation of the need for Common Formats, AHRQ began their development in 2005 by creating an inventory of functioning private and public sector patient safety reporting systems. This inventory provides an evidence base that informs construction of the Common Formats. The inventory now numbers 69 and includes many systems from the private sector, including prominent academic settings, hospital systems, and international reporting systems (
Since February 2005, AHRQ has coordinated an interagency Federal Patient Safety Work Group (PSWG) to assist AHRQ with developing and maintaining the Common Formats. The PSWG includes major health agencies within the HHS—CDC, Centers for Medicare & Medicaid Services, FDA, Health Resources and Services Administration, the Indian Health Service, the National Institutes of Health, the National Library of Medicine, Office of the National Coordinator for Health Information Technology (ONC), the Office of Public Health and Science, the Substance Abuse and Mental Health Services Administration—as well as the DoD and the VA.
The PSWG assists AHRQ with assuring the consistency of definitions/formats with those of relevant government agencies as refinement of the Common Formats continues. When developing Common Formats, AHRQ first reviews existing patient safety event reporting systems from a variety of health care organizations. Working with the PSWG and Federal subject matter experts, AHRQ drafts and releases beta versions of the Common Formats for public review and comment. To the extent practicable, the Common Formats are also aligned with World Health Organization (WHO) concepts, framework, and definitions contained in their draft International Classification for Patient Safety (ICPS).
The process for updating and refining the formats will continue to be an iterative one. Future versions of the Common Formats will be developed for ambulatory settings, such as ambulatory surgery centers and physician and practitioner offices. More information on the Common Formats can be obtained through AHRQ's PSO Web site:
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
National HIV Behavioral Surveillance System (NHBS)—0920-0770 exp. 03/31/2011)—Revision-National Center for HIV, Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The purpose of this data collection is to monitor behaviors related to human immunodeficiency virus (HIV) infection among persons at high risk for infection in the United States. The primary objectives of NHBS are to obtain data from samples of persons at risk to: (a) Describe the prevalence and trends in risk behaviors; (b) describe the prevalence of and trends in HIV testing and HIV infection; (c) describe the prevalence of and trends in use of HIV prevention services; (d) identify met and unmet needs for HIV prevention services in order to inform health departments, community-based organizations, community planning groups and other stakeholders. This project addresses the goals of CDC's HIV prevention strategic plan, specifically the goal of strengthening the national capacity to monitor the HIV epidemic to better direct and evaluate prevention efforts.
For the proposed data collection, CDC has revised the interview data collection instruments. A few questions were added (related to health care access and utilization, use of pre-exposure prophylaxis, homophobia, HIV stigma, and discrimination), some were removed, and others were revised from the previously approved instrument to make them easier for respondents to
Data are collected through anonymous, in-person interviews conducted with persons systematically selected from 25 Metropolitan Statistical Areas (MSAs) throughout the United States; these 25 MSAs were chosen based on having high AIDS prevalence. Persons at risk for HIV infection to be interviewed for NHBS include men who have sex with men (MSM), injecting drug users (IDUs), and heterosexuals at increased risk of HIV (HET). A brief screening interview will be used to determine eligibility for participation in the behavioral assessment. The data from the behavioral assessment will provide estimates of behavior related to the risk of HIV and other sexually transmitted diseases, prior testing for HIV, and use of HIV prevention services. All persons interviewed will also be offered an HIV test and will participate in a pre-test counseling session. No other federal agency systematically collects this type of information from persons at risk for HIV infection. These data have substantial impact on prevention program development and monitoring at the local, state, and national levels.
CDC estimates that NHBS will involve, per year in each of the 25 MSAs, eligibility screening for 50 to 200 persons and eligibility screening plus the survey with 500 eligible respondents, resulting in a total of 37,500 eligible survey respondents and 7,500 ineligible screened persons during a 3-year period. Data collection will rotate such that interviews will be conducted among one group per year: MSM in year 1, IDU in year 2, and HET in year 3. The type of data collected for each group will vary slightly due to different sampling methods and risk characteristics of the group.
This request is for a revision and an approval for an additional 3 years of data collection. Participation of respondents is voluntary and there is no cost to the respondents other than their time. The total estimated annualized burden hours are 9,931.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of public comment period.
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) requests comments from the public on implementing the provisions of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347). A copy of the Act is posted on the Internet at
Written comments may be submitted to the NIOSH Docket Office, identified by Docket number NIOSH-226, by any of the following methods:
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•
•
All information received in response to this notice will be available for public examination and copying at the NIOSH Docket Office, Room 111, 4676 Columbia Parkway, Cincinnati, Ohio 45226.
A complete electronic docket containing a copy of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347) and all comments submitted will be available on the NIOSH Web site at
Roy Fleming, Sc.D., CDC/NIOSH, 1600 Clifton Road, NE., MS-E20, Atlanta, Georgia 30333, Toll free 1-866-426-3673,
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of public comment period.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) seeks comment on the types of hazard identification and risk management research that should be considered for updating the NIOSH 2009 nanotechnology strategic plan.
Written comments, identified by docket number NIOSH 134-A, may be submitted by any of the following ways:
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•
•
All information received in response to this notice will be available for public examination and copying at the NIOSH Docket Office, 4676 Columbia Parkway, Room 109, Cincinnati, Ohio 45226. A complete electronic docket containing all comments submitted will be available thirty days after the public comment period on the NIOSH Web page at
NIOSH would like to build on the accomplishments of ongoing research [
NIOSH is considering focusing the overarching strategic research goals for these critical areas on 5 key goals: (1) Provide guidance to protect workers, (2) alert workers, employers, governments, and the public about possible new hazards, (3) assess the hazards of nanomaterials and the risks to workers, (4) help workers by assessing and implementing exposure registries, and (5) assess the level of protection practiced in US workplaces.
NIOSH requests comment on how research in these 10 critical areas and the 5 overarching goals can be enhanced. Examples of requested information include, but are not limited to:
(1) The need for toxicity evaluation and/or workplace exposure characterization of engineered nanoparticles not currently being studied*.
(2) Development of technical and educational guidance materials*.
(3) Development of additional partnerships and collaborations*.
(4) Research in the development of risk management strategies (
* provide rationale for recommendations.
Charles L. Geraci, NIOSH, Robert A. Taft Laboratories, MS-C32, 4676 Columbia Parkway, Cincinnati, Ohio 45226, telephone (513) 533-8339.
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 meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New York (FEMA-1957-DR), dated February 18, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated February 18, 2011, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of New York resulting from a severe winter storm and snowstorm during the period of December 26-27, 2010, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. You are further authorized to provide emergency protective measures, including snow assistance, under the Public Assistance program for any continuous 48-hour period during or proximate to the incident period. You may extend the period of assistance, as warranted. This assistance excludes regular time costs for the sub-grantees' regular employees. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, John Long, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of New York have been designated as adversely affected by this major disaster:
Nassau and Suffolk Counties for Public Assistance.
Nassau, Rensselaer, and Richmond Counties for emergency protective measures (Category B), including snow assistance, under the Public Assistance for any continuous 48-hour period during or proximate to the incident period.
All counties within the State of New York are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Oregon (FEMA-1956-DR), dated February 17, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated February 17, 2011, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Oregon resulting from a severe winter storm, flooding, mudslides, landslides, and debris flows during the period of January 13-21, 2011, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Dolphin A. Diemont, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Oregon have been designated as adversely affected by this major disaster:
30-Day Notice of Information Collection Under Review: Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Pub. L. 105-100, NACARA); OMB Control No. 1615-0072.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until April 6, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Office of the Executive Secretariat, Clearance Officer, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to 202-272-0997 or via e-mail at
(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 agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
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If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020; Telephone 202-272-8377.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day Notice and request for comments; Extension of an existing collection of information: 1651-0041.
As part of its continuing effort to reduce paperwork and respondent burden, CBP invites the general public and other Federal agencies to comment on an information collection requirement concerning the Bonded Warehouse Regulations. This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Written comments should be received on or before May 6, 2011, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to 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.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The comments should address: (a) Whether the 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 estimates of the burden of the collection of information; (c) ways to
Office of the Secretary, Interior.
Notice.
The Office of Small and Disadvantaged Business Utilization of the Department of the Interior is hosting a Vendor Outreach Workshop for small IT businesses in the National Capitol region of the United States that are interested in doing business with the Department. This outreach workshop will review market contracting opportunities for the attendees. Business owners will be able to share their individual perspectives with Contracting Officers, Program Managers and Small Business Specialists from the Department.
The workshop will be held on April 1, 2010 from 7 p.m. to 9 p.m.
The workshop will be held at the U.S. Department of the Interior Main Auditorium, 1849 C Street, NW., Washington, DC 20240. Register online at:
Mark Oliver, Director, Office of Small and Disadvantaged Business Utilization, 1951 Constitution Ave., NW., MS-320 SIB, Washington, DC 20240, telephone 1-877-375-9927 (Toll-Free).
In accordance with the Small Business Act, as amended by Public Law 95-507, the Department has the responsibility to promote the use of small and small disadvantaged business for its acquisition of goods and services. The Department is proud of its accomplishments in meeting its business goals for small, small disadvantaged, 8(a), woman-owned, HUBZone, and service-disabled veteran-owned businesses. In Fiscal Year 2009, the Department awarded 56 percent of its $2.6 billion in contracts to small businesses.
This fiscal year, the Office of Small and Disadvantaged Business Utilization is reaching out to our internal stakeholders and the Department's small business community by conducting several vendor outreach workshops. The Department's presenters will focus on contracting and subcontracting opportunities and how small IT businesses can better market services and products. Over 3,000 small IT businesses have been targeted for this event. If you are a small IT business interested in working with the Department, we urge you to register online at:
These outreach events are a new and exciting opportunity for the Department's bureaus and offices to improve their support for small business. Additional scheduled events are posted on the Office of Small and Disadvantaged Business Utilization Web site at
Fish and Wildlife Service, Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the final comprehensive conservation plan (CCP) and finding of no significant impact (FONSI) for the environmental assessment (EA) for Canaan Valley National Wildlife Refuge (NWR). In this final CCP, we describe how we will manage this refuge for the next 15 years.
You may view or obtain copies of the final CCP and FONSI by any of the following methods. You may request a hard copy or a CD-ROM.
Agency Web site: Download a copy of the document(s) at
Ken Sturm, Acting Refuge Manager, Canaan Valley NWR, 6263 Appalachian Highway, Davis, WV 26260-8061; phone: 304-866-3858; electronic mail:
With this notice, we finalize the CCP process for Canaan Valley NWR. We started this plan's development through a notice in the
The 16,193-acre Canaan Valley NWR was established in 1994 to conserve and protect fish and wildlife resources and the unique wetland and upland habitats of this high-elevation valley. The refuge is located in Tucker County, WV, and has an approved acquisition boundary of 24,000 acres. It includes the largest wetland complex in the State, and encompasses the headwaters of the Blackwater and Little Blackwater Rivers. The refuge supports species of concern at both the Federal and State levels, including the West Virginia northern flying squirrel, bald eagle, and the Federally listed Cheat Mountain salamander and Indiana bat. Its dominant habitats include wet meadows, peatlands, shrub and forested swamps, beaver ponds and streams, northern hardwood forest, old fields and shrubland, and managed grassland.
Refuge visitors engage in wildlife observation and photography, environmental education, interpretation, hunting, and fishing. Management activities include maintaining and perpetuating the ecological integrity of the Canaan Valley wetland complex, perpetuating the ecological integrity of upland northern hardwood and northern hardwood-conifer forests to sustain wildlife and plant communities, providing a diversity of successional habitats in upland and wetland-edge shrublands, grasslands, old fields, and hardwood communities, and supporting wildlife-dependent recreation and education.
We announce our decision and the availability of the FONSI for the final CCP for Canaan Valley NWR in accordance with National Environmental Policy Act (NEPA) (40 CFR 1506.6(b)) requirements. We completed a thorough analysis of impacts on the human environment, which we included in the draft CCP/EA.
The CCP will guide us in managing and administering Canaan Valley NWR for the next 15 years. Alternative B, as we described in the draft CCP/EA, is the foundation for the final CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
Our draft CCP/EA (75 FR 30423) addressed several key issues, including the improvement of early successional habitat, the creation of trail connections on- and off-refuge, and the need for better hunter access.
To address these issues and develop a plan based on the purposes for establishing the refuge, and the vision and goals we identified, four alternatives were evaluated in the EA. The alternatives have some actions in common, such as protecting cultural resources, controlling invasive plant species, encouraging research that benefits our resource decisions, continuing to acquire land from willing sellers within our approved refuge boundary, and distributing refuge revenue-sharing payments to counties.
Other actions distinguish the alternatives. Alternative A, or the “No Action Alternative,” is defined by our current management activities. It serves as the baseline against which to compare the other three alternatives. Our habitat management and visitor services programs would not change under this alternative. We would continue to use the same tools and techniques, and not expand existing facilities.
Alternative B, the “Service-Preferred Alternative,” is designed to balance the conservation of a mixed-forest matrix landscape with the management of early successional habitats and the protection of wetlands. The habitat-type objectives in the plan identify focal species whose life and growth requirements would guide management activities in each respective habitat. We would facilitate the removal of more deer from the refuge by increasing access and opening more lands to rifle hunting, and we would officially open the refuge to fishing. We would create more trail connections, expand visitor center hours, build a new environmental education pavilion, and increase the number of environmental education and interpretation programs.
In Alternative C, we would increase access and infrastructure to support more priority public uses than any of the other alternatives. We would create a cross-valley trail that would run east-west through the northern part of the valley, and we would allow limited off-trail use in a designated area. With an increase in public access and infrastructure development, we anticipate a greater need for monitoring and control of invasive plants. We would also encourage additional research that would assess whether increased public use affects wildlife behavior, including nesting, feeding, and resting. Within the biological objectives, differences between this alternative and the others are more subtle, but generally emphasize early successional habitat management over forest stand improvement.
Alternative D strives to establish and maintain the ecological integrity of natural communities within the refuge. Management would range from passive, or “letting nature take its course,” to actively manipulating vegetation to create or hasten the development of mature forest structural conditions shaped by natural disturbances such as infrequent fires, ice storms, and small patch blow-downs. Under this alternative, no particular wildlife species would be a management focus. We would promote research and development of applied management practices to sustain and enhance the natural composition, patterns, and processes within their natural range in the Central Appalachian Forest. We would limit new visitor services infrastructure to already disturbed areas. We would enhance hunting and fishing opportunities in ways similar to Alternatives B and C.
We solicited comments on the draft CCP/EA for Canaan Valley NWR from June 1, 2010, to July 16, 2010 (75 FR 30423). During the comment period, we received 312 responses, both oral and written. All comments we received were evaluated. A summary of those comments and our responses to them is included as Appendix J in the CCP.
After considering the comments we received on our draft CCP/EA, we have selected Alternative B for implementation, for several reasons. Alternative B comprises the mix of actions that, in our professional judgment, works best towards achieving refuge purposes, our vision and goals, and the goals of other State and regional conservation plans. We also believe it most effectively addresses the key issues raised during the planning process. The basis of our decision is detailed in the FONSI, located in Appendix K of the CCP.
You can view or obtain documents as indicated under
National Park Service, U.S. Department of the Interior.
Notice; request for comments.
We (National Park Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Public comments must be submitted on or before May 6, 2011.
Direct all written comments on this IC to Dr. Bruce Peacock, Chief, Social Science Division, Natural Resource Program Center, National Park Service, 1201 Oakridge Drive, Fort Collins, CO 80525-5596 (mail);
Susan Johnson, Air Resources Division, National Park Service, 12795 W. Alameda Parkway, P.O. Box 25287, Denver, Colorado 80225 (mail);
The Clean Air Act (Sections 169A, 169B, and 110(a)(2)(j)) charges the NPS with an “affirmative responsibility to protect air quality related values (including visibility).” The NPS believes the value of visibility changes should be represented in cost-benefit analyses regarding state and Federal efforts that may affect visibility (including the Regional Haze Rule, Title 40, Part 51 of the Code of Federal Regulations). Updated estimates of visibility benefits are required because the studies conducted in the 1970s and 1980s do not reflect current baseline visibility conditions in national parks and wilderness areas.
The NPS plans to conduct a nationwide stated preference survey to estimate the value of visibility changes in national parks and wilderness areas. Survey development and pre-testing have already been conducted under a previous IC (OMB Control Number 1024-0255). The purpose of this IC is to conduct a pilot study to test the survey instrument and implementation procedures prior to the full survey. After the pilot is completed, the NPS will submit a revised IC request to OMB for the full survey.
Comments are invited on: (1) The practical utility of the information being gathered; (2) the accuracy of the burden hour estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden to respondents, including use of automated information techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. While you can ask us in your comment to withhold personal identifying information from public review, we cannot guarantee that we will be able to do so.
Notice of meeting for the Denali National Park and Preserve Aircraft Overflights Advisory Council within the Alaska Region.
The National Park Service (NPS) announces a meeting of the Denali National Park and Preserve Aircraft Overflights Advisory Council. The purpose of this meeting is to discuss mitigation of impacts from aircraft overflights at Denali National Park and Preserve. The Aircraft Overflights Advisory Council is authorized to operate in accordance with the provisions of the Federal Advisory Committee Act.
The Denali National Park and Preserve Aircraft Overflights Advisory Council meeting will be held on Thursday, March 24, 2011, from 9 a.m. to 5 p.m., Alaska Standard Time. The
Miriam Valentine, Denali Planning. E-mail:
Meeting location and dates may need to be changed based on weather or local circumstances. If the meeting dates and location are changed, notice of the new meeting will be announced on local radio stations and published in local newspapers.
The agenda for the meeting will include the following, subject to minor adjustments:
1. Call to order
2. Roll Call and Confirmation of Quorum
3. Chair's Welcome and Introductions
4. Review and Approve Agenda
5. Member Reports
6. Agency and Public Comments
7. Superintendent and NPS Staff Reports
8. Agency and Public Comments
9. Other New Business
10. Agency and Public Comments
11. Set time and place of next Advisory Council meeting
12. Adjournment
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on February 1, 2011, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Graco Children's Products Inc. of Atlanta, Georgia. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain strollers and playards by reason of infringement of certain claims of U.S. Patent No. 6,669,225 (“the `225 patent”); U.S. Patent No. 7,044,497 (“the `497 patent”); U.S. Patent No. 7,188,858 (“the `858 patent”); U.S. Patent No. 7,404,569 (“the `569 patent”); and U.S. Patent No. 6,510,570 (“the `570 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant request that the Commission institute an investigation and, after the investigation, issue an exclusion order and a cease and desist order.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained 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 at
Mareesa A. Frederick, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2574.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2010).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain strollers and playards that infringe one or more of claims 1, 8, and 15 of the `225 patent; claim 10 of the `497 patent; claim 1 of the `858 patent; claim 1 of the `569 patent; and claims 1 and 23 of the `570 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Graco Children's Products Inc., 3 Glenlake Parkway, Atlanta, Georgia 30328.
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served: Baby Trend, Inc., 1607 S. Campus Ave., Ontario, CA 91761.
(c) The Commission investigative attorney, party to this investigation, is Mareesa A. Frederick, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern, Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondent in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On the basis of the record
The Commission instituted this review on October 1, 2010 (75 FR 62144) and determined on January 4, 2011 that it would conduct an expedited review (76 FR 2920, January 18, 2011).
The Commission transmitted its determination in this review to the Secretary of Commerce on February 28, 2011. The views of the Commission are contained in USITC Publication 4216 (February 2011), entitled
By order of the Commission.
In accordance with Section 8 of the Voting Rights Act, 42 U.S.C. 1973f, I hereby certify that in my judgment the appointment of Federal observers is necessary to enforce the guarantees of the Fourteenth and Fifteenth Amendments of the Constitution of the United States in Maricopa County, Arizona. This county is included within the scope of the determinations of the Attorney General and the Director of the Census made under Section 4(b) of the Voting Rights Act, 42 U.S.C. 1973b(b), and published in the
Notice is hereby given that on March 2, 2011, a proposed Consent Decree (“Decree”) in
The Decree resolves claims of the United States against the Defendants under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9607 for the recovery of response costs incurred in connection with responding to the release or threat of release of hazardous substances at the Burnt Fly Bog Superfund Site, located in Monmouth and Middlesex Counties in New Jersey. The Decree also resolves the claims of the State of New Jersey for response costs and recovery of natural resource damages, and it resolves Defendants' counterclaims and third party action. Settlement in the amount of $19.025 million will be paid by Defendants and includes payments made by Defendants' insurance carriers.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, and either e-mailed to
The Decree may be examined at U.S. EPA Region 2, 290 Broadway, New York, NY 10007-1866. During the public comment period, the Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on March 1, 2011, a proposed consent decree in
The proposed Consent Decree will resolve claims alleged in this action by the United States, the State of West Virginia, and the Commonwealth of Kentucky against Arch Coal, Inc. and four of its subsidiaries (collectively, “Arch”) for the discharge of pollutants into waters of the United States in violation of Section 301 of the Act, 33 U.S.C. 1311, and in violation of the conditions and limitations of National Pollutant Discharge Elimination System (“NPDES”) permits issued by the States pursuant to Section 402 of the Act, 33 U.S.C. 1342, W. Va. Code § 22-11-8, and Ky. Rev. Stat. Ann. § 224.70-120. Under the proposed Consent Decree, Defendants will perform injunctive relief including: hiring a third-party consultant to develop and implement a compliance management system, creating a database to track information relevant to compliance efforts, conducting regular internal and third-party environmental compliance audits, implementing a system of tiered
The Department of Justice will accept comments relating to the proposed consent decree for a period of thirty (30) days from the date of publication of this notice. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and mailed either electronically to
The proposed consent decree may be examined at: (1) The Office of the United States Attorney for the Southern District of West Virginia, P.O. Box 1713, Charleston, WV 25326; and (2) United States Environmental Protection Agency (Region 3), 1650 Arch Street, Philadelphia, PA 19103. During the comment period, the proposed consent decree may also be examined on the following Department of Justice Web site:
A copy of the proposed consent decree may also be obtained by mail from the Department of Justice Consent Decree Library, P.O. Box 7611, Washington, DC. 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood (
Notice is hereby given that, on February 4, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 15, 2004, ASTM filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 6, 2010. A notice was published in the
Notice is hereby given that, on January 26, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the name and principal place of business of the standards development organization is: Green Seal, Inc., Washington, DC. The nature and scope of Green Seal's standards development activities are: Green Seal's standards focus on significant opportunities to reduce a product, service, or organization's life cycle impact. The categories Green Seal covers with its standards includes building and construction products, cleaning products and services, companies, hotels and lodging, lighting products, paints and coatings, paper products, personal care products and service, restaurants and food services, and vehicles and vehicle maintenance.
Notice is hereby given that, on February 02, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and PCA intends to file additional written notifications disclosing all changes in membership.
On January 7, 1985, PCA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 14, 2009. A notice was published in the
Notice is hereby given that, on January 21, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and OSCI intends to file additional written notifications disclosing all changes in membership.
On October 9, 2001, OSCI filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
60-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted until May 6, 2011. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Cathy A. Gallagher, Acting Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152; 202-307-7297.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are received is to e-mail them to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to
(6) An estimate of the total public burden (in hours) associated with the collection:
3,043.3 annual burden hours.
If additional information is required contact: Lynn Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street, NE., Suite 2E-502, Washington, DC 20530.
60-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted until May 6, 2011. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Cathy A. Gallagher, Acting Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152; (202) 307-7297.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are received is to e-mail them to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice.
(4)
(5)
(6)
The National Council on Disability published a notice in the
Anne Sommers, NCD, 1331 F Street, NW., Suite 850, Washington, DC 20004; 202-272-2004 (V), 202-272-2074 (TTY).
In the
The board meeting will be held on Thursday, March 10, 2011, 10:30 a.m.-5 p.m., ET, and Friday, March 11, 2011, 9 a.m.-10:30 a.m. ET, and from 2-3:30 p.m. ET, if necessary.
In the same
The tentative agenda for the board meeting includes annual ethics training, a demonstration of the agency's website redesign, a possible speaker from the U.S. Department of Health and Human Services, the “Living” regional forum, a review of the agency's budget and strategic plan implementation, and other items, to be determined. A portion of the meeting from 2 p.m.-3:30 p.m. ET on Friday, March 11, 2011 may be closed to discuss internal personnel rules and practices, pursuant to paragraph (c)(2) of the Sunshine Act, and in accordance with a determination made by the NCD Chairman.
Nuclear Regulatory Commission.
Notice of availability.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC) has published a Final Supplement to the Environmental Assessment (EA) for the irradiator proposed by Pa'ina Hawaii, LLC (Pa'ina). On June 23, 2005, Pa'ina submitted an application to NRC requesting a license to possess and use byproduct material in connection with a proposed underwater irradiator. NRC completed the Final EA and Finding of No Significant Impact for this action on August 10, 2007, and subsequently issued a license to Pa'ina on August 17, 2007. The license authorizes Pa'ina to possess and use byproduct material (sealed sources) in a commercial underwater irradiator to be located adjacent to Honolulu International Airport on Palekona Street near Lagoon Drive. NRC is issuing this Final Supplement to the EA in response to a decision of the Atomic Safety and Licensing Board (Board) from the NRC's Atomic Safety and Licensing Board Panel. As directed by the Board, this Final Supplement addresses the following three areas: (1) Environmental impacts of accidents that might occur during the transport of cobalt-60 sources to and from Pa'ina's irradiator, (2) electron-beam technology as an alternative to cobalt-60 irradiation, and (3) alternative sites for Pa'ina's irradiator.
In the first area identified by the Board, the staff finds that accidents occurring during the transport of cobalt-60 to or from Pa'ina's proposed irradiator will not cause a significant impact to the environment. This is due primarily to the very low likelihood cobalt-60 will be released from a shipping package. The low likelihood of release is due to several factors, including the small number of cobalt-60 shipments to Pa'ina's irradiator and the stringent safety requirements for the design of cobalt-60 shipping packages. In the second area identified by the Board, the staff finds that the environmental impacts of an electron-beam irradiator will be small for each resource area. The staff also finds that the impacts will not be significantly different than those associated with construction and operation of a cobalt-60 irradiator. In the third area identified by the Board, the staff finds that impacts associated with construction and operation of a cobalt-60 irradiator at alternative sites will be small and will not be significantly different than those at the proposed site. In particular, the staff finds that aircraft crashes involving the alternative sites will have no significant environmental impacts. The staff also finds that environmental impacts from earthquakes, tsunamis, and hurricanes at the alternative locations will be small.
Publicly available documents created or received at the NRC, including the Final Supplement to the EA, the August 10, 2007 EA, and the Pa'ina license and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to
The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Room O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. In addition, documents relating to the administrative litigation associated with Pa'ina's application may be found in the Electronic Hearing Docket maintained by the NRC's Office of the Secretary at
Johari Moore, Project Manager,
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
Eaton Vance Management (“EVM”), Eaton Vance ETF Trust (the “Trust”) and Foreside Fund Services, LLC.
Applicants request an order that permits: (a) Series of certain actively managed open-end management investment companies to issue shares (“Shares”) redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Shares to occur at negotiated market prices; (c) certain series to pay redemption proceeds, under certain circumstances, more than seven days from the tender of Shares for redemption; (d) certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of Creation Units; and (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the series to acquire Shares.
The application was filed on March 5, 2010, and amended on August 10, 2010 and February 25, 2011.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on March 28, 2011, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants: EVM and the Trust, Two International Place, Boston, MA 02110; Foreside Fund Services, LLC, Three Canal Plaza, Suite 100, Portland, ME 04101.
Barbara T. Heussler, Senior Counsel, at (202) 551-6990 or Jennifer L. Sawin, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Trust will be registered as an open-end management investment company under the Act and is a statutory trust organized under the laws of Delaware. The Trust will initially offer five actively-managed investment series: Eaton Vance Enhanced Short Maturity ETF, Eaton Vance Government Limited Maturity ETF, Eaton Vance Intermediate Municipal Bond ETF, Eaton Vance Prime Limited Maturity ETF and Eaton Vance Short Term Municipal Bond ETF (together, the “Initial Funds”). The investment objectives of Eaton Vance Enhanced Short Maturity ETF, Eaton Vance Government Limited Maturity ETF and Eaton Vance Prime Limited Maturity ETF will be to seek maximum current income, consistent with preservation of capital and daily liquidity. The investment objectives of Eaton Vance Intermediate Municipal Bond ETF and Eaton Vance Short Term Municipal Bond ETF will be to seek attractive tax-exempt income, consistent with preservation of capital.
2. Applicants request that the order apply to the Initial Funds and any future series of the Trust or of other open-end management companies that may utilize active management investment strategies (“Future Funds”). Any Future Fund will (a) advised by EVM or an entity controlling, controlled by, or under common control with EVM (together with EVM, an “Advisor”), and (b) comply with the terms and conditions of the application.
3. EVM, a Massachusetts corporation, will be the investment advisor to the Initial Funds. Each Advisor is or will be registered as an “investment adviser” under the Investment Advisers Act of 1940 (the “Advisers Act”). The Advisor may retain investment advisers as sub-advisers in connection with the Funds
4. Applicants anticipate that a Creation Unit will consist of at least 50,000 Shares and that the price of a Share will range from $20 to $200. All orders to purchase Creation Units must be placed with the Distributor by or through a party that has entered into a participant agreement with the Distributor and the transfer agent of the Trust (“Authorized Participant”) with respect to the creation and redemption of Creation Units. An Authorized Participant is either: (a) A broker or dealer registered under the Exchange Act (“Broker”) or other participant in the Continuous Net Settlement System of the National Securities Clearing Corporation, a clearing agency registered with the Commission and affiliated with the Depository Trust Company (“DTC”), or (b) a participant in the DTC (such participant, “DTC Participant”). The Initial Funds and certain Future Funds will generally be purchased entirely for cash and will generally be redeemed in-kind for specified Portfolio Instruments (“Redemption Instruments”). However, the Trust reserves the right to accept and deliver Creation Units of the Initial Funds and any Future Fund by means of an in-kind tender of specified instruments (“Deposit Instruments”) and to permit cash redemptions.
5. An investor purchasing or redeeming a Creation Unit from a Fund may be charged a fee (“Transaction Fee”) to protect existing shareholders of the Funds from the dilutive costs associated with the purchase and redemption of Creation Units.
6. Shares will be listed and traded at negotiated prices on a national securities exchange as defined in section 2(a)(26) of the Act (the “Stock Exchange”) and traded in the secondary market. Applicants expect that Stock Exchange specialists (“Specialists”) or market makers (“Market Makers”) will be assigned to Shares. The price of Shares trading on the Stock Exchange will be based on a current bid/offer market. Transactions involving the purchases and sales of Shares on the Stock Exchange will be subject to customary brokerage commissions and charges.
7. Applicants expect that purchasers of Creation Units will include arbitrageurs. Specialists or Market Makers, acting in their unique role to provide a fair and orderly secondary market for Shares, also may purchase Creation Units for use in their own market making activities.
8. Shares may be redeemed only if tendered in Creation Units. Redemption requests must be placed by or through an Authorized Participant. Applicants currently contemplate that Creation Units of the Initial Funds will be redeemed principally in-kind (together with a Cash Amount).
9. Applicants state that in accepting Deposit Instruments and satisfying redemptions with Redemption Instruments, the Funds must comply with the federal securities laws, including that the Deposit Instruments and Redemption Instruments are sold in transactions that would be exempt from registration under the Securities Act.
10. Neither the Trust nor any Fund will be marketed or otherwise held out as a “mutual fund”. Instead, each Fund will be marketed as an “actively-managed exchange-traded fund.” Any advertising material where features of obtaining, buying or selling Creation Units are described or where there is reference to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire Shares from a Fund and tender those Shares for redemption to a Fund in Creation Units only.
11. The Funds' Web site, which will be publicly available prior to the public offering of Shares, will include the Prospectus and additional quantitative information updated on a daily basis, including, on a per Share basis for each Fund, the prior Business Day's NAV and the market closing price or mid-point of the bid/ask spread at the time of the calculation of such NAV (“Bid/Ask Price”), and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV. On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its Web site the identities and quantities of the Portfolio Instruments and other assets held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the Business Day.
1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provisions of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately a proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit the Trust to register as an open-end management investment company and redeem Shares in Creation Units only. Applicants state that investors may purchase Shares in Creation Units from each Fund and redeem Creation Units from each Fund. Applicants further state that because the market price of Creation Units will be disciplined by arbitrage opportunities, investors should be able to sell Shares in the secondary market at prices that do not vary substantially from their NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is currently being offered to the public by or through a principal underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in the Prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c-1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c-1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and (c) assure an orderly distribution system of investment company shares by eliminating price competition from Brokers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Shares does not involve the Funds as parties and cannot result in dilution of an investment in Shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the proposed distribution system will be orderly because arbitrage activity should ensure that the
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants observe that settlement of redemptions of Creation Units of Funds holding non-U.S. investments (“Global Funds”) is contingent not only on the settlement cycle of the U.S. securities markets but also on the delivery cycles present in foreign markets in which those Funds invest. Applicants have been advised that, under certain circumstances, the delivery cycles for transferring Portfolio Instruments to redeeming investors, coupled with local market holiday schedules, will require a delivery process of up to 12 calendar days. Applicants therefore request relief from section 22(e) in order to provide payment or satisfaction of redemptions within the maximum number of calendar days required for such payment or satisfaction in the principal local markets where transactions in the Portfolio Instruments of each Global Fund customarily clear and settle, but in all cases no later than 12 calendar days following the tender of a Creation Unit. With respect to Future Funds that are Global Funds, applicants seek the same relief from section 22(e) only to the extent that circumstances exist similar to those described in the application. Except as disclosed in the SAI for a Fund, deliveries of redemption proceeds for Global Funds are expected to be made within seven days.
8. Applicants submit that Congress adopted section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds. Applicants state that allowing redemption payments for Creation Units of a Fund to be made within a maximum of 12 calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants state the SAI will disclose those local holidays (over the period of at least one year following the date of the SAI), if any, that are expected to prevent the delivery of redemption proceeds in seven calendar days and the maximum number of days needed to deliver the proceeds for each affected Global Fund.
9. Applicants are not seeking relief from section 22(e) with respect to Global Funds that do not effect creations or redemptions in-kind.
10. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, or any other broker or dealer from selling its shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
11. Applicants request relief to permit Investing Funds (as defined below) to acquire Shares in excess of the limits in section 12(d)(l)(A) of the Act and to permit the Funds, their principal underwriters and any Brokers to sell Shares to Investing Funds in excess of the limits in section 12(d)(l)(B) of the Act. Applicants request that these exemptions apply to: (a) Any Fund that is currently or subsequently part of the same “group of investment companies” as the Initial Funds within the meaning of section 12(d)(1)(G)(ii) of the Act as well as any principal underwriter for the Funds and any Brokers selling Shares of a Fund to an Investing Fund; and (b) each management investment company or unit investment trust registered under the Act that is not part of the same “group of investment companies” as the Funds and that enters into a FOF Participation Agreement (as defined below) with a Fund (such management investment companies are referred to herein as “Investing Management Companies,” such unit investment trusts are referred to herein as “Investing Trusts,” and Investing Management Companies and Investing Trusts together are referred to herein as “Investing Funds”).
12. Applicants submit that the proposed conditions to the requested relief are designed to address the concerns underlying the limits in section 12(d)(1), which include concerns about undue influence, excessive layering of fees and overly complex structures.
13. Applicants propose a condition to prohibit an Investing Fund or Investing Fund Affiliate
14. Applicants propose other conditions to limit the potential for an Investing Fund and certain affiliates of an Investing Fund (including Underwriting Affiliates) to exercise undue influence over a Fund and certain of its affiliates, including that no Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate (“Affiliated Underwriting”). An “Underwriting Affiliate” is a principal underwriter in any underwriting or selling syndicate that is an officer, director, member of an advisory board, Investing Fund Advisor, Investing Fund Sub-Advisor, employee or Sponsor of the Investing Fund, or a person of which any such officer, director, member of an advisory board, Investing Fund Advisor or Investing Fund Sub-Advisor, employee or Sponsor is an affiliated person. An Underwriting Affiliate does not include any person whose relationship to the Fund is covered by section 10(f) of the Act.
15. Applicants propose several conditions to address the concerns regarding layering of fees and expenses. Applicants note that the board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“disinterested directors or trustees”), will be required to find that the advisory fees charged under the contract are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract of any Fund in which the Investing Management Company may invest. In addition, an Investing Fund Advisor, trustee of an Investing Trust (“Trustee”) or Sponsor, as applicable, will waive fees otherwise payable to it by the Investing Fund in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Investing Fund Advisor, Trustee or Sponsor or an affiliated person of the Investing Fund Advisor, Trustee or Sponsor, other than any advisory fees paid to the Investing Fund Advisor, Trustee or Sponsor or its affiliated person by a Fund, in connection with the investment by the Investing Fund in the Fund. Applicants also propose a condition to prevent any sales charges or service fees on shares of an Investing Fund from exceeding the limits applicable to a fund of funds set forth in NASD Conduct Rule 2830.
16. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that a Fund will be prohibited from acquiring securities of any investment company or company relying on sections 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes.
17. To ensure that the Investing Funds understand and comply with the terms and conditions of the requested order, any Investing Fund that intends to invest in a Fund in reliance on the requested order will be required to enter into a participation agreement (“FOF Participation Agreement”) with the Fund. The FOF Participation Agreement will include an acknowledgment from the Investing Fund that it may rely on the order only to invest in the Funds and not in any other investment company.
18. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such a person (“second tier affiliate”), from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” to include any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person and any person directly or indirectly controlling, controlled by, or under common control with, the other person. Section 2(a)(9) of the Act defines “control” as the power to exercise a controlling influence over the management or policies of a company and provides that a control relationship will be presumed where one person owns more than 25% of another person's voting securities. Each Fund may be deemed to be controlled by an Advisor and hence affiliated persons of each other. In addition, the Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by an Advisor (an “Affiliated Fund”).
19. Applicants request an exemption under sections 6(c) and 17(b) of the Act from sections 17(a)(1) and 17(a)(2) of the Act to permit in-kind purchases and redemptions of Creation Units by persons that are affiliated persons or second tier affiliates of the Funds solely by virtue of one or more of the following: (a) Holding 5% or more, or in excess of 25% of the outstanding Shares of one or more Funds; (b) having an affiliation with a person with an ownership interest described in (a); or (c) holding 5% or more, or more than 25% of the Shares of one or more Affiliated Funds.
20. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making in-kind purchases or in-kind redemptions of Shares of a Fund in Creation Units. Absent the unusual circumstances discussed in the application, the Deposit Instruments and Redemption Instruments available for a Fund will be the same for all purchases and redeemers, respectively, and will correspond
21. Applicants also submit that the sale of Shares to and redemption of Shares from an Investing Fund meets the standards for relief under sections 17(b) and 6(c) of the Act. Applicants note that any consideration paid for the purchase or redemption of Shares directly from a Fund will be based on the NAV of the Fund in accordance with policies and procedures set forth in the Fund's registration statement.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. As long as a Fund operates in reliance on the requested order, the Shares of the Fund will be listed on a Stock Exchange.
2. Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that the Shares are not individually redeemable and that owners of the Shares may acquire those Shares from the Fund and tender those Shares for redemption to the Fund in Creation Units only.
3. The Web site for the Funds, which is and will be publicly accessible at no charge, will contain, on a per Share basis, for each Fund the prior Business Day's NAV and the market closing price or Bid/Ask Price, and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV.
4. On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its Web site the identities and quantities of the Portfolio Instruments and other assets held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the Business Day.
5. The Advisor or any Subadvisor, directly or indirectly, will not cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Fund) to acquire any Deposit Instrument for the Fund through a transaction in which the Fund could not engage directly.
6. The requested relief to permit ETF operations will expire on the effective date of any Commission rule under the Act that provides relief permitting the operation of actively-managed exchange-traded funds.
1. The members of the Investing Fund's Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of the Investing Fund's Sub-Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Investing Fund's Advisory Group or the Investing Fund's Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its Shares of the Fund in the same proportion as the vote of all other holders of the Fund's Shares. This condition does not apply to the Investing Fund's Sub-Advisory Group with respect to a Fund for which the Investing Fund Sub-Advisor or a person controlling, controlled by or under common control with the Investing Fund Sub-Advisor acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Investing Fund or Investing Fund Affiliate will cause any existing or potential investment by the Investing Fund in a Fund to influence the terms of any services or transactions between the Investing Fund or an Investing Fund Affiliate and the Fund or a Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to assure that the Investing Fund Advisor and any Investing Fund Sub-Advisor are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or an Investing Fund Affiliate from a Fund or a Fund Affiliate in connection with any services or transactions.
4. Once an investment by an Investing Fund in Shares of a Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Board of a Fund, including a majority of the disinterested Board members, will determine that any consideration paid by the Fund to the Investing Fund or an Investing Fund Affiliate in connection with any services or transactions: (i) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund; (ii) is within the range of consideration that the Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (iii) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between a Fund and its investment adviser(s), or any person controlling, controlled by or under common control with such investment adviser(s).
5. The Investing Fund Advisor, or Trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Investing Fund in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Investing Fund Advisor, or Trustee or Sponsor, or an affiliated person of the Investing Fund Advisor, or Trustee or Sponsor, other than any advisory fees paid to the Investing Fund Advisor, or Trustee, or Sponsor, or its affiliated person by the Fund, in connection with the investment by the Investing Fund in the Fund. Any Investing Fund Sub-Advisor will waive fees otherwise payable to the Investing Fund Sub-Advisor, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Investing Fund Sub-Advisor, or an affiliated person of the Investing Fund Sub-Advisor, other than any advisory fees paid to the Investing Fund Sub-Advisor or its affiliated person by the Fund, in connection with the investment by the Investing Management Company in the Fund made at the direction of the Investing Fund Sub-Advisor. In the event that the
6. No Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an Affiliated Underwriting.
7. The Board of the Fund, including a majority of the disinterested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by an Investing Fund in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Investing Fund in the Fund. The Board will consider, among other things: (i) Whether the purchases were consistent with the investment objectives and policies of the Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders.
8. Each Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by an Investing Fund in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made.
9. Before investing in a Fund in excess of the limits in section 12(d)(1)(A), an Investing Fund will execute a FOF Participation Agreement with the Fund stating that their respective boards of directors or trustees and their investment advisers, or Trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of the investment. At such time, the Investing Fund will also transmit to the Fund a list of the names of each Investing Fund Affiliate and Underwriting Affiliate. The Investing Fund will notify the Fund of any changes to the list as soon as reasonably practicable after a change occurs. The Fund and the Investing Fund will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
10. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company, including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Investing Management Company.
11. Any sales charges and/or service fees charged with respect to shares of an Investing Fund will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Fund relying on this section 12(d)(1) relief will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
On November 12, 2010, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
As part of the process of developing a new consolidated rulebook (“Consolidated FINRA Rulebook”),
The proposed rules would, in combination with other consolidated financial responsibility rules approved by the SEC,
In Amendment No. 1, FINRA proposes new Supplementary Material .04 to Rule 4311. This Supplementary Material is technical in nature. It is intended to remind members that, for purposes of paragraphs (c)(1)(F) and (c)(2) of Rule 4311, the receipt and delivery of customers' funds and securities and the safeguarding of such funds and securities must comply with the requirements of the SEC's financial responsibility rules, in particular Exchange Act Rule 15c3-3 and applicable SEC guidance. Amendment No. 1 would redesignate the original Supplementary Material .04 as .05.
FINRA proposes the following amendments to its rules.
As stated in the Notice, Proposed Rule 4150(a) is based in large part on NYSE Rule 322.
Proposed FINRA Rule 4311 is based on NASD Rule 3230 and NYSE Rule 382.
As discussed in the Notice, Proposed FINRA Rule 4311(a)(1) prohibits a member, unless otherwise permitted by FINRA, from entering into an agreement for the carrying on an omnibus or fully disclosed basis, of any customer account in which securities transactions can be effected, unless the agreement is with a carrying firm that is a FINRA member.
Proposed FINRA Rule 4311(b)(1) requires that the carrying firm must submit to FINRA for prior approval any agreement for the carrying of accounts, whether on an omnibus or fully disclosed basis, before such agreement may become effective.
FINRA Rule 4311(b)(3) codifies the current practice under NYSE Rule 382 of requiring that as early as possible, but
Proposed FINRA Rule 4311(c) requires that each carrying agreement in which accounts are to be carried on a fully disclosed basis must specify the responsibilities of each party to the agreement.
FINRA Proposed Rule 4311(d) requires that each customer whose account is introduced on a fully disclosed basis must be notified in writing upon the opening of the account of the existence of the carrying agreement and the responsibilities allocated to each respective party.
Proposed FINRA Rule 4311(e) requires that each carrying agreement must expressly state that to the extent that a particular responsibility is allocated to one party, the other party or parties will supply to the responsible organization all appropriate data in their possession pertinent to the proper performance and supervision of that responsibility.
Proposed FINRA Rule 4311(f) provides that a carrying agreement may authorize an introducing firm to issue negotiable instruments directly to its customers on the carrying firm's behalf, using instruments for which the carrying firm is the maker or drawer, provided that the parties comply with Exchange Act Rule 15c3-3 and further that the introducing firm represents to the carrying firm in writing that the introducing firm maintains, and will enforce, supervisory policies and procedures with respect to such negotiable instruments that are satisfactory to the carrying firm.
Proposed FINRA Rules 4311(g) and 4311(h) generally address obligations of parties to provide referenced information, such as any written customer complaints and exception reports, to each other and/or to FINRA and are based upon existing NASD and NYSE rule provisions.
Proposed FINRA Rule 4311(i) provides that all carrying agreements must require each introducing firm to maintain its proprietary and customer accounts, and the proprietary and customer accounts of any introducing firm for which it is acting as an intermediary in obtaining clearing services from the carrying firm, in such a manner as to enable the carrying firm and FINRA to specifically identify the proprietary and customer accounts belonging to each introducing firm.
Proposed FINRA Rule 4522(a) requires each member firm that is subject to the requirements of Exchange Act Rule 17a-13 to make the counts, examinations, verifications, comparisons, and entries set forth in that rule.
Proposed FINRA Rule 4523 is intended to help assure the accuracy of each member's books and records.
Proposed FINRA Rule 4523(b) requires that each carrying or clearing member must maintain a record of the name of each individual assigned primary and supervisory responsibility for each account as required by paragraph (a) of the rule.
Proposed FINRA Rule 4523(c) provides that each member must record, in an account that must be clearly identifiable as a suspense account, money charges or credits and receipts or deliveries of securities whose ultimate disposition is pending determination.
FINRA will announce the implementation date of these proposed rule changes in a
The proposed rule change was published for comment in the
The Arnold & Porter letter also raised concerns as to whether proposed FINRA Rule 4311 impacts the status of DVP/RVP clearance and settlement arrangements across international borders that may be structured as omnibus accounts where U.S.-registered broker-dealers seek to designate these accounts at a foreign affiliate as approved foreign control locations under Exchange Act Rule 15c3-3. As FINRA stated in its response, the proposed rule applies to arrangements to carry customer accounts and is “not meant to address the substantive requirements of SEA Rule 15c3-3(c) as it applies to good control locations nor to apply to cross-border clearance and settlement arrangements that are structured on a basis that is permissible under and consistent with SEC rules.”
Finally, FINRA noted that the propriety of structuring cross-border clearance and settlement arrangements in the manner described by the commenter, and the propriety of a U.S.-registered broker-dealer's reliance on Exchange Act Rule 15c3-3(k)(2)(i) for various business activities, were outside the scope of the proposed rule change.
The Commission has carefully considered the proposed rule change, as modified by Amendment No. 1, the comment letter received, and FINRA's response, and finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder that are applicable to a national securities association.
The Commission believes that FINRA adequately addressed the concerns raised by the commenter in its response. Further, the rule language in Amendment No. 1 reminds FINRA members that, for purposes of paragraphs (c)(1)(F) and (c)(2) of Rule 4311, the receipt and delivery of customers' funds and securities and the safeguarding of such funds and securities must comply with the requirements of the SEC's financial responsibility rules, in particular Exchange Act Rule 15c3-3 and applicable SEC guidance. The Commission believes the proposed rule change, as modified by Amendment No. 1, will further the purposes of the Exchange Act by, among other things, clarifying and streamlining the requirements surrounding carrying agreements, as well as the rules governing guarantees, security counts, and supervision of general ledger accounts.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Exchange Act,
Accordingly, the Commission finds that good cause exists to approve the proposal, as modified by Amendment No. 1, on an accelerated basis.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 to 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. All submissions should refer to File Number SR-FINRA-2010-061. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
This proposal submitted by Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) is to codify a fee schedule for the sale by Market Data Express, LLC (“MDX”), an affiliate of CBOE, of a data product that includes CBOE Stock Exchange (“CBSX”) best bid and offer and trade data and certain related market data. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CBOE has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish fees that MDX will charge for the sale of certain market data with respect to the trading of securities on CBSX. CBSX is CBOE's stock trading facility.
CBOE currently collects and processes market data with respect to quotes and orders and the prices of trades for all securities that are traded on CBSX. This market data includes the “best bid and offer,” or “BBO”, consisting of all outstanding quotes and standing orders at the best available price level on each side of the market, with aggregate size (“BBO data,” sometimes referred to as “top of book data”). Data with respect to executed trades is referred to as “last sale” data. CBOE reports CBSX BBO data under the Consolidated Quotation Plan (“CQ Plan”) and CBSX last sale data under the Consolidated Tape Association Plan (“CTA Plan”) with respect to NYSE-listed securities and securities listed on exchanges other than NYSE and Nasdaq for inclusion in those Plans' consolidated data streams. CBOE reports CBSX BBO data and CBSX last sale data under the Nasdaq Unlisted Trading Privileges Plan (“Nasdaq/UTP Plan”) with respect to Nasdaq-listed securities for inclusion in that Plan's consolidated data stream.
MDX provides to “Customers”
MDX would charge Customers a “direct connect fee” of $500 per connection per month. MDX would also charge Customers a “per user fee” of $25 per month per “Authorized User” or “Device” for receipt of the BBO Data Feed by Subscribers. An “Authorized User” is defined as an individual user (an individual human being) who is uniquely identified (by user ID and confidential password or other unambiguous method reasonably acceptable to MDX) and authorized by a Customer to access the BBO Data Feed supplied by the Customer. A “Device” is defined as any computer, workstation or other item of equipment, fixed or portable, that receives, accesses and/or displays data in visual, audible or other form. Either a CBSX Trading Permit Holder or a non-CBSX Trading Permit Holder may be a Customer. All Customers would be assessed the same fees.
The proposed fees would be implemented on March 1, 2011.
The Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (“Act”)
The Exchange believes that the proposed market data fees are consistent with the requirements of the Act for several reasons. First, they compare favorably to fees that other markets charge for similar products. For example, the proposed direct connect fee of $500 per connection per month and per user fee of $25 per month compares favorably to the fees Nasdaq and NYSE charge for similar market data products. Nasdaq charges distributors of its “Nasdaq Basic” data feed a monthly fee of $1,500 per firm and charges each professional subscriber a per subscriber monthly charge of $10 for Nasdaq-listed stocks, $5 for NYSE-listed stocks, and $5 for Amex-listed stocks.
The Exchange also believes that the proposed fees for the BBO Data Feed are consistent with the requirements of the Act because competition provides an effective constraint on the market data fees that the Exchange, through MDX, has the ability and the incentive to charge. CBSX has a compelling need to attract order flow from market participants in order to maintain its share of trading volume. This compelling need to attract order flow imposes significant pressure on CBOE to act reasonably in setting its fees for market data, particularly given that the market participants that will pay such fees often will be the same market participants from whom CBSX must attract order flow. These market participants include broker-dealers that control the handling of a large volume of customer and proprietary order flow. Given the portability of order flow from one exchange to another, any exchange that sought to charge unreasonably high data fees would risk alienating many of the same customers on whose orders it depends for competitive survival. CBSX competes for order flow with the other national securities exchanges that currently trade equities, with electronic communication networks (“ECNs”) and with other trading platforms.
CBOE is constrained in pricing the BBO Data Feed by the availability to market participants of alternatives to purchasing the BBO Data Feed. CBOE must consider the extent to which market participants would choose one or more alternatives instead of purchasing the exchange's data. For example, the BBO data and last sale data available in the BBO Data Feed is included in the CQ, CTA and Nasdaq/UTP data feeds. The CQ, CTA and Nasdaq/UTP data feeds are widely distributed and relatively inexpensive, thus constraining CBOE's ability to price the BBO Data Feed. In this respect, the CQ, CTA and Nasdaq/UTP data feeds, which include CBSX's transaction information, are significant alternatives to the BBO Data Feed product.
Further, the various self-regulatory organizations, ECNs and the several Trade Reporting Facilities of FINRA that produce proprietary data are sources of competition for MDX. As noted above, Nasdaq and NYSE offer market data products that compete with the BBO Data Feed. In addition, the Exchange believes other exchanges may currently offer top-of-book market data products for a fee or for free.
For the reasons cited above, the Exchange believes that the BBO Data Feed offering, including the proposed fees, is equitable, fair, reasonable and not unreasonably discriminatory. In addition, the Exchange believes that no substantial countervailing basis exists to support a finding that the proposed terms and fees for the BBO Data Feed fails to meet the requirements of the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of purposes of the Act. The Exchange believes that the BBO Data Feed offered by MDX will help attract new users and new order flow to CBSX, thereby improving CBSX's ability to compete in the market for order flow and executions.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
This proposal submitted by C2 Options Exchange, Incorporated (“C2” or “Exchange”) is to codify a fee schedule for the sale by Market Data Express, LLC (“MDX”), an affiliate of C2, of a data product that includes C2 best bid and offer and trade data and certain related market data. The text of the proposed rule change is available on the Exchange's website. (
In its filing with the Commission, C2 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. C2 has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish fees that MDX will charge for the sale of certain market data with respect to the trading of options on C2's market.
C2 currently collects and processes market data with respect to options quotes and orders and the prices of trades that are executed on the Exchange. This market data includes the “best bid and offer,” or “BBO”, consisting of all outstanding quotes and standing orders at the best available price level on each side of the market, with aggregate size (“BBO data,” sometimes referred to as “top of book data”). Data with respect to executed trades is referred to as “last sale” data. C2 formats its BBO data and last sale data according to Options Price Reporting Authority (“OPRA”) specifications and sends the data to OPRA for redistribution to the public.
MDX provides to “Customers”
MDX would charge Customers a “direct connect fee” of $1,000 per connection per month. MDX would also charge Customers a “per user fee” of $25 per month per “Authorized User” or “Device” for receipt of the BBO Data Feed by Subscribers. An “Authorized User” is defined as an individual user (an individual human being) who is uniquely identified (by user ID and confidential password or other unambiguous method reasonably acceptable to MDX) and authorized by a Customer to access the BBO Data Feed supplied by the Customer. A “Device” is defined as any computer, workstation or other item of equipment, fixed or portable, that receives, accesses and/or displays data in visual, audible or other form. Either a C2 Trading Permit Holder or a non-C2 Trading Permit Holder may be a Customer. All Customers would be assessed the same fees.
The proposed fees would be implemented on March 1, 2011.
The Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (“Act”)
The Exchange believes that the proposed market data fees are consistent with the requirements of the Act for several reasons. First, they compare favorably to fees that other markets charge for similar products. The proposed direct connect fee of $1,000 per connection per month and per user fee of $25 per month compares favorably to the fees NASDAQ OMX PHLX and ISE charge for similar market data products. NASDAQ OMX PHLX charges Internal Distributors a monthly fee of $4,000 per organization, External Distributors a monthly fee of $5,000 per organization and monthly subscriber fees of $20 per Professional Subscriber and $1 per Non-Professional Subscriber for its “TOPO Plus Orders” data feed, which like the BBO Data Feed includes top-of-book data (including orders, quotes and trades) and other market data.
The Exchange also believes that the proposed fees for the BBO Data Feed are consistent with the requirements of the Act because competition provides an effective constraint on the market data fees that the Exchange, through MDX, has the ability and the incentive to charge. C2 has a compelling need to attract order flow from market participants in order to maintain its share of trading volume. This compelling need to attract order flow imposes significant pressure on C2 to act reasonably in setting its fees for market data, particularly given that the market participants that will pay such fees often will be the same market participants from whom C2 must attract order flow. These market participants include broker-dealers that control the handling of a large volume of customer and proprietary order flow. Given the portability of order flow from one exchange to another, any exchange that sought to charge unreasonably high data fees would risk alienating many of the same customers on whose orders it depends for competitive survival. C2 currently competes with eight options exchanges (including C2's affiliate, Chicago Board Options Exchange) for order flow.
C2 is constrained in pricing the BBO Data Feed by the availability to market participants of alternatives to purchasing the BBO Data Feed. C2 must consider the extent to which market participants would choose one or more alternatives instead of purchasing the exchange's data. For example, the BBO data and last sale data available in the BBO Data Feed is included in the OPRA data feed. The OPRA data is widely distributed and relatively inexpensive, thus constraining C2's ability to price the BBO Data Feed. In this respect, the OPRA data feed, which includes the exchange's transaction information, is a significant alternative to the BBO Data Feed product.
Further, other options exchanges can and have produced their own top-of-book products, and thus are sources of potential competition for MDX. As noted above, NASDAQ OMX PHLX and ISE offer market data products that compete with the BBO Data Feed. In addition, the Exchange believes other options exchanges may currently offer top-of-book market data products for a fee or for free.
For the reasons cited above, the Exchange believes that the BBO Data Feed offering, including the proposed fees, is equitable, fair, reasonable and not unreasonably discriminatory. In addition, the Exchange believes that no substantial countervailing basis exists to support a finding that the proposed terms and fees for the BBO Data Feed fails to meet the requirements of the Act.
C2 does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of purposes of the Act. The Exchange believes that the BBO Data Feed offered by MDX will help attract new users and new order flow to the Exchange, thereby improving the Exchange's ability to compete in the market for options order flow and executions.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
This proposal submitted by Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) is to codify a fee schedule for the sale by Market Data Express, LLC (“MDX”), an affiliate of CBOE, of a data product that includes CBOE best bid and offer and trade data and certain related market data. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CBOE has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish fees that MDX will charge for the sale of certain market data with respect to the trading of options on CBOE's market.
CBOE currently collects and processes market data with respect to options quotes and orders and the prices of trades that are executed on the Exchange. This market data includes the “best bid and offer,” or “BBO”, consisting of all outstanding quotes and standing orders at the best available price level on each side of the market, with aggregate size (“BBO data,” sometimes referred to as “top of book data”). Data with respect to executed trades is referred to as “last sale” data. CBOE formats its BBO data and last sale data according to Options Price Reporting Authority (“OPRA”) specifications and sends the data to OPRA for redistribution to the public.
MDX provides to “Customers”
MDX would charge Customers a “direct connect fee” of $3,500 per connection per month. MDX would also charge Customers a “per user fee” of $25 per month per “Authorized User” or “Device” for receipt of the BBO Data Feed by Subscribers. An “Authorized User” is defined as an individual user (an individual human being) who is uniquely identified (by user ID and confidential password or other unambiguous method reasonably acceptable to MDX) and authorized by a Customer to access the BBO Data Feed supplied by the Customer. A “Device” is defined as any computer, workstation or other item of equipment, fixed or portable, that receives, accesses and/or displays data in visual, audible or other form. Either a CBOE Trading Permit Holder or a non-CBOE Trading Permit Holder may be a Customer. All Customers would be assessed the same fees.
The proposed fees would be implemented on March 1, 2011.
The Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (“Act”)
The Exchange believes that the proposed market data fees are consistent with the requirements of the Act for several reasons. First, they compare favorably to fees that other markets charge for similar products. The proposed direct connect fee of $3,500 per connection per month and per user fee of $25 per month compares favorably to the fees NASDAQ OMX PHLX and ISE charge for similar market data products. NASDAQ OMX PHLX charges Internal Distributors a monthly fee of $4,000 per organization, External Distributors a monthly fee of $5,000 per organization and monthly subscriber fees of $20 per Professional Subscriber and $1 per Non-Professional Subscriber for its “TOPO Plus Orders” data feed, which like the BBO Data Feed includes top-of-book data (including orders, quotes and trades) and other market data.
The Exchange also believes that the proposed fees for the BBO Data Feed are consistent with the requirements of the Act because competition provides an effective constraint on the market data fees that the Exchange, through MDX, has the ability and the incentive to charge. CBOE has a compelling need to attract order flow from market participants in order to maintain its share of trading volume. This compelling need to attract order flow imposes significant pressure on CBOE to act reasonably in setting its fees for market data, particularly given that the market participants that will pay such fees often will be the same market participants from whom CBOE must attract order flow. These market participants include broker-dealers that control the handling of a large volume of customer and proprietary order flow. Given the portability of order flow from one exchange to another, any exchange that sought to charge unreasonably high data fees would risk alienating many of the same customers on whose orders it depends for competitive survival. CBOE currently competes with eight options exchanges (including CBOE's affiliate, C2 Options Exchange) for order flow.
CBOE is constrained in pricing the BBO Data Feed by the availability to market participants of alternatives to purchasing the BBO Data Feed. CBOE must consider the extent to which market participants would choose one or more alternatives instead of purchasing the exchange's data. For example, the BBO data and last sale data available in the BBO Data Feed are included in the OPRA data feed. The OPRA data is widely distributed and relatively inexpensive, thus constraining CBOE's ability to price the BBO Data Feed. In this respect, the OPRA data feed, which includes the exchange's transaction information, is a significant alternative to the BBO Data Feed product.
Further, other options exchanges can and have produced their own top-of-book products, and thus are sources of potential competition for MDX. As noted above, NASDAQ OMX PHLX and ISE offer market data products that compete with the BBO Data Feed. In addition, the Exchange believes other options exchanges may currently offer top-of-book market data products for a fee or for free.
For the reasons cited above, the Exchange believes that the BBO Data Feed offering, including the proposed fees, is equitable, fair, reasonable and not unreasonably discriminatory. In addition, the Exchange believes that no substantial countervailing basis exists to support a finding that the proposed terms and fees for the BBO Data Feed fail to meet the requirements of the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of purposes of the Act. The Exchange believes that the BBO Data Feed offered by MDX will help attract new users and new order flow to the Exchange, thereby improving the Exchange's ability to compete in the market for options order flow and executions.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend the By-Laws of FINRA's regulatory subsidiary (“FINRA Regulation”) with regard to District Committee structure and governance to, among other things, adjust the size and composition of District Committees to align more closely with the industry representation on the FINRA Board and replace District Nominating Committees with a process of direct nomination and election based on firm size, as discussed in more detail below.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On July 30, 2007, NASD and the New York Stock Exchange consolidated their member firm regulation operations into a combined organization, FINRA. As part of the consolidation, the SEC approved amendments to the NASD By-Laws to implement governance and related changes.
FINRA Regulation (formerly known as NASD Regulation) is a subsidiary of FINRA that operates according to the Plan of Allocation and Delegation of Functions by NASD to Subsidiaries, as amended, which was first adopted at NASD Regulation's formation in 1996.
The proposed rule change would modify the FINRA Regulation By-Laws (or “By-Laws”) with regard to District Committees in several respects. It would:
• Adjust the size and composition of District Committees over a three-year transition period to align more closely with the industry representation on the FINRA Board;
• Replace District Nominating Committees with a process of direct nomination and election based on firm size;
• Codify current practice that District Committees meet on a regional basis;
• Eliminate the Advisory Council;
• Amend the qualification requirements and prescribe further term limits for District Committee members;
• Revise procedures for qualification and accounting of ballots to be administered solely by an Independent Agent; and
• Make other procedural and administrative changes.
The By-Laws establish the procedures for setting the size and electing the members to FINRA District Committees and District Nominating Committees.
The role of the District Committees was significantly narrowed as a result of undertakings in the 1996 SEC Settlement Order.
The By-Laws task the FINRA Regulation Board of Directors with determining the boundaries of the districts and the size of the District Committees.
• West Region—Districts 1 (San Francisco), 2 (Los Angeles), and 3 (Denver and Seattle);
• Midwest Region—Districts 4 (Kansas City) and 8 (Chicago);
• South Region—Districts 5 (New Orleans), 6 (Dallas) and 7 (Atlanta and Boca Raton);
• North Region—Districts 9 (Philadelphia and Woodbridge) and 11 (Boston); and
• New York Region—District 10 (New York City and Long Island).
Today, as provided in the By-Laws, FINRA District Committee members contribute to the regulatory process by, among other things, serving as panelists in disciplinary proceedings in accordance with FINRA Rules; considering and recommending policies and rule changes; and endeavoring to educate FINRA members and others as to the objects, purposes and work of FINRA and FINRA Regulation.
As part of the election process, the By-Laws require the Corporate Secretary to provide each District Nominating Committee and District Director annual notice, due on or before June 1 of each year, identifying the members of the District Committees and District Nominating Committees whose terms are expiring within the next calendar year.
Completed candidate profile forms received before the prescribed cutoff date are shared with the District Nominating Committees for review, a process that usually involves candidate interviews.
The By-Laws also provide a process whereby a registered person meeting the vacancy requirements may be considered for nomination as an additional (“petition”) candidate in a contested election. To be considered for nomination as a petition candidate, such individual must deliver a written notice to the District Director within 14 calendar days of the issuance of the Election Notice of nominated candidates.
In recent years, FINRA has witnessed a decline in eligible individuals willing to serve on the District or District Nominating Committees or undergo the nomination process. Potential candidates have expressed several reasons for their lack of interest,
Based on the concerns described above, FINRA proposes to eliminate the current nomination and petition process, including eliminating District Nominating Committees in their entirety,
The current By-Laws task District Nominating Committees with endeavoring to secure appropriate and fair representation of the various sections of the district and classes and types of FINRA members within the district.
To reflect the District Committees' current composition, as well as the representation classifications employed by the FINRA Board of Governors (
The FINRA Regulation By-Laws currently require that a District Committee member be registered with a FINRA member eligible to vote in the applicable district and work primarily from such member's principal office or a branch office that is located within the district where the member serves on a District Committee.
The FINRA Regulation By-Laws currently limit District Committee members to serving no more than two full three-year terms consecutively. The proposed rule change would limit this provision further, to prohibit consecutive full terms.
The proposed rule change would codify that District Committees would meet on a regional level, as has been their practice for several years;
The FINRA Regulation By-Laws provide that a District Committee shall consist of between five and 20 members, unless otherwise provided by resolution of the Board, and that the authorized number of members shall be determined from time to time by the Board, with the caveat that any reduction in the authorized number of such members shall not shorten any existing member's term.
The proposed reduction in the size of most District Committees would address the membership's generally reduced interest in serving on District Committees, as described above, and accommodate the larger number of participants in current regional combined District Committee meetings as compared with former individual District Committee meetings. Both current and former District Committee members and FINRA staff have stated that while the meetings should be held on a regional basis, the number of participants can inhibit productive discussion by all committee members. Under the current structure, the West and South Regions, each composed of three districts, have up to 27 District Committee members attend regional meetings. The Midwest and North Regions, each composed of two districts, have up to 18 District Committee members attend regional meetings. The proposed structure would reduce attendees to 21 in the West and South Regions and 14 in the Midwest and North Regions. This size recalibration would allow each District Committee to meet the proposed 3-1-3 ratio of Small Firm, Mid-Size Firm and Large Firm representation.
In contrast, the proposed increased District Committee size for the New York District would assure a larger pool of District Committee members is available to serve on hearing panels in the district; recognize the fact that, unlike any other district, it comprises its own region entirely; and allow it to meet the proposed 3-1-3 ratio of Small Firm, Mid-Size Firm and Large Firm representation.
The proposed decrease in the authorized number of members from nine to seven on each District Committee (except New York, which would increase from 12 to 14) would not shorten the term of office of any existing District Committee member. The change in District Committee size would be effected over three years, concurrent with the expiration of current District Committee members' terms, so that all current District Committee members would serve out their full terms.
FINRA proposes that, if no individual seeks to be a candidate for a particular District Committee vacancy, the FINRA CEO, or his or her designee, will appoint an individual meeting the qualification requirements of Section 8.2(a), including representing the applicable firm size classification, to the full term of that vacancy.
The proposed rule change would eliminate the Advisory Council. The Advisory Council is composed of the chairs of each of the District Committees, and is charged to provide input to the Committees and the Board on policy issues, including evaluation of the hearing process and industry practices, and to work closely with the District Committees to develop policy recommendations.
The proposed rule change would make several other procedural and administrative changes. It would replace references to “Executive Vice President, Regulatory Policy and Programs” and the “Executive Vice President, Member Regulation” with the “Chief Executive Officer or his or her designee” to recognize organizational changes and provide for flexibility for future organizational changes without the need to amend the By-Laws in the future.
The proposed rule change would simplify the tabulation of ballots by the Independent Agent by centralizing it under the Corporate Secretary.
As noted in Item 2 of this filing, the effective date of the proposed rule change will be the date of Commission approval.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Cathy H. Ahn, Deputy 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.
Selective Service System.
Notice.
The following form has been submitted to the Office of Management and Budget (OMB) for extension of
Copies of the above identified form can be obtained upon written request to the Selective Service System, Reports Clearance Officer, 1515 Wilson Boulevard, Arlington, Virginia 22209-2425.
Written comments and recommendations for the proposed extension of clearance of the form should be sent within 30 days of the publication of this notice to the Selective Service System, Reports Clearance Officer, 1515 Wilson Boulevard, Arlington, Virginia 22209-2425.
A copy of the comments should be sent to the Office of Information and Regulatory Affairs, Attention: Desk Officer, Selective Service System, Office of Management and Budget, New Executive Office Building, Room 3235, Washington, DC 20503.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before May 6, 2011.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Barbara Brannan, Management Analyst, Office of Surety Guarantees, Small Business Administration, 409 3rd Street, 8th Floor, Washington, DC 20416.
Barbara Brannan, Office of Surety Guarantees, 202-205-6545,
SBA's Surety Bond Guarantee (SBG) Program was established to encourage Surety Companies to provide bonding for small contractors. The information collected on these forms is used to evaluate the eligibility of small contractors for the SBG Program.
U.S. Small Business Administration.
Notice of public meetings.
The U.S. Small Business Administration (SBA) announces it is holding a series of public meetings on its implementation of the Small Business Jobs Act. These public meetings will be held in selected cities across the country to broaden the opportunity for public participation with SBA's development and implementation of the procurement, finance, grant, international trade and other program enhancements enacted in the Small Business Jobs Act.
The meetings will be held on the dates and times specified in the Event Information section of the Supplementary Information below. It is recommended that all attendees register at least one week prior to the scheduled meeting date.
The meetings will be held at the locations specified in the Event Information section of the
Andrew D. Cutillo, Office of Government Contracting and Business Development, at (202)-205-6280, or
On Sept. 27, 2010, President Obama signed into law the Small Business Jobs Act (SBJA). The new law provides critical resources to help small businesses continue to drive economic recovery and create jobs including extension of SBA enhanced loan provisions, offering billions more in lending support and tax cuts, and expanding other opportunities, including provisions affecting government contracting programs for small business owners.
SBA will be hosting this Small Business Jobs Act Tour that will cover 13 cities to provide information and receive input on SBJA provisions.
While the agenda may vary from city to city, a typical agenda is below. Please visit
Please note that the SBA will also include a discussion of Size Standards during the 3 p.m. breakout session at events in San Antonio, TX, San Diego, CA, Chicago, IL, and Washington, DC.
SBA loans continue to be a critical tool for helping small businesses get the capital they need to grow and create jobs. The Small Business Jobs Act made permanent enhancements to SBA loan programs, such as raising the maximum loan sizes of the 7(a) and 504 programs. In addition, temporary provisions in the new law include a Dealer Floor Plan financing pilot as well as a program that allows some owner-occupied businesses to refinance their commercial real estate mortgages using an SBA loan. Beyond the SBJA, SBA is taking several steps to better serve its lending partners and borrowers, to simplify and streamline loan programs, and to improve oversight of SBA lending. Small business owners, prospective and current SBA lenders are especially encouraged to attend, share their ideas with the SBA, and learn more about new tools being offered.
The Federal government awards hundreds of billions of dollars each year in federal contracts, nearly one-fourth of which goes to small firms. The Small Business Jobs Act contained 19 provisions that will help small businesses compete more effectively for federal contracts and subcontracts. SBA is rolling out these provisions that will help ensure more fairness, more opportunities, and more tools to help match federal agencies with small businesses that provide high-quality products and services. SBA wants to hear from interested parties about how it can effectively roll out new provisions, such as those relating to Multiple Award Contract set asides, subcontracting, Mentor Protégé Programs, and, at select events, its size process. Small business contractors are encouraged to attend, learn more about these new tools, and share their thoughts on improving the environment for small business contracting.
SBA has at least one District Office in each state, as well as about 14,000 affiliated counselors at Small Business Development Centers, Women's Business Centers and SCORE chapters. The Small Business Jobs Act is helping support these groups in a number of ways. For example, $50 million more is being provided to support the network of about 900 Small Business Development Centers throughout the country. Also, SBA is working with a broad group of counselors to equip them with more tools and information to help small firms start or increase exporting. All small business owners are encouraged to attend and learn more about the knowledge, tools, and contacts that SBA affiliated counselors can help provide.
Small businesses looking for new opportunities to increase sales and profit, and take advantage of increased demand for high-quality U.S. goods and services, should consider exporting. The Small Business Jobs Act includes exporting resources to help small businesses by making the SBA Export Express pilot loan program permanent, increasing maximum sizes for SBA's three export loan programs, and creating a new State Trade and Export Promotion (STEP) grants pilot program which will provide funds to states to assist small business interested in exporting. See Notice of Grant Opportunities to States: STEP Grant Program, 76 FR 10082 (Feb. 23, 2011). These expanded opportunities also help build upon the goal of doubling exports in the next five years via the National Export Initiative. Small business owners with a current or prospective interest in exporting are especially encouraged to attend.
Any individual interested in attending and making an oral presentation shall pre-register in advance with SBA. Oral presentations may consist of comments on existing rules and procedures, general questions, or new ideas for the SBA to consider. Presentations will be made in the breakout sessions, pursuant to the format of each session. Based on the number of registrants it may be necessary to impose time limits to ensure that everyone who wishes to speak has the opportunity to do so. Please refer to
Reasonable accommodations will be provided to those who request assistance at least one week in advance of the meeting for which assistance is being requested. For a complete list of meeting dates, locations and points of contact please visit
Pub. L. 111-240.
Social Security Administration (SSA).
Notice of a renewal of an existing computer matching program that will expire on June 25, 2011.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a renewal of an existing computer matching program that we are currently conducting with BPD.
We will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives, and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 966-0869 or writing to the Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Executive Director, Office of Privacy and Disclosure, Office of the General Counsel as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Public Law (Pub. L.) 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for persons applying for, and receiving, Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such persons.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments.
We have taken action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and BPD.
The purpose of this matching program is to establish the conditions, terms, and safeguards for the disclosure of savings security data by BPD to us. We will use the data to determine continued eligibility for and/or the correct benefit amount for Supplemental Security Income applicants and recipients who did not report or incorrectly reported ownership of savings securities.
The legal authority for us to conduct this matching activity is contained in sections 1631(e)(1)(B), and 1631(f) of the Social Security Act (Act), (42 U.S.C. 1383(e)(1)(B), and 1383(f)).
Our relevant system of records (SOR) is the Supplemental Security Income Record and Special Veterans' Benefits System (SSA System No. 60-0103). The full text was last published in the
(a) The file provided by us to BPD will contain approximately 9 million records of individuals for whom we request data for the administration of the SSI program.
(b) BPD will use files that contain approximately 185 million social security numbers (SSNs), with registration indexes, to match our records.
(c) The reply file providing match results to us will contain approximately 886,000 records.
(d) We will furnish BPD with an electronic file containing SSNs extracted from the Supplemental Security Record database. Exchanges for this computer matching program will occur twice a year, in approximately February and August.
a. We will furnish BPD with the SSN and name for each individual when requesting savings-securities registration information.
b. When a match occurs on an SSN, BPD will disclose the following: the denomination of the security, the serial number, the series, the issue date of the security, the current redemption value, and the return date of the finder file.
a. We will furnish BPD with the SSN and name for each individual when requesting savings-securities registration information. The finder file will contain the SSN associated with the account and report account holdings.
b. When a match occurs on an SSN, BPD will disclose the following: The purchase amount, the account number and confirmation number, the series, the issue date of the security, the current redemption value, and the return date of the finder file.
The effective date of this matching program is June 26, 2011, provided that the following notice periods have lapsed: 30 days after publication of this notice in the
Social Security Administration (SSA) .
Notice of a renewal of an existing computer matching program that will expire on March 31, 2011.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a renewal of an existing computer matching program that we are currently conducting with BPD.
We will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives, and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 966-0869 or writing to the Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Executive Director, Office of Privacy and Disclosure, Office of the General Counsel as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Public Law (Pub. L.) 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for persons applying for, and receiving, Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such persons.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State, or local government records. It requires Federal agencies
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments.
We have taken action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and BPD.
The purpose of this matching program is to set forth the conditions, terms, and safeguards under which BPD will disclose ownership of Savings Securities to us. This disclosure will provide us with information necessary to verify an individual's self-certification of his/her financial status to determine eligibility for low income subsidy assistance in the Medicare Part D prescription drug benefit program established under the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. 108-173).
Section 1860D-14 of the Social Security Act (42 U.S.C. 1395w-114) requires the Commissioner of SSA to verify the eligibility of an individual who seeks to be considered as a low-income subsidy eligible individual under the Medicare Part D prescription drug benefit program and who self-certifies his/her income, resources, and family size.
We will provide BPD with a finder file containing social security numbers (SSNs) extracted from the Medicare database. BPD will match the SSNs in the finder file with the SSNs in its Savings Securities registration systems. These records are included under the systems of records Treasury/BPD.002, United States Savings-Type Securities, and Treasury/BPD.008, Retail Treasury Securities Access Application, last published on June 10, 2005 at 70 FR 33942 and 33952, respectively.
We will then match the BPD data with a comparison file compiled of records from our expanded Medicare Database (MDB) File system of records in order to support our administration of the prescription drug subsidy program. The MDB File system of records notice (No.60-0321) was published at 69 FR 77816 on December 28, 2004 and 71 FR 42159-42164 on July 25, 2006. The MDB File is a repository of Medicare applicant and beneficiary information, which collects and maintains information related to Medicare Parts A and B, Medicare Advantage Part C, and Medicare Part D.
The number of records matched each year is determined in part by the number of people who file for subsidy for Part D. BPD will perform the automated matching with its computer systems and provide the response file to us as soon as possible. This agreement covers the following matches:
This screening will involve an ongoing weekly match with file sizes varying from 13,000 to 140,000 records containing potential applicants and those recipients who notify us of a change.
To confirm eligibility of individuals receiving Medicare Part D subsidies, an ongoing yearly match of approximately two million recipients each year will be performed.
a. We will furnish BPD with the SSN for each individual for whom Savings Securities registration information is being requested.
b. When a match occurs on an SSN, BPD will disclose the following: The denomination of the security, the serial number, the series, the issue date of the security, the current redemption value, and the return date of the finder file.
a. We will furnish BPD with the SSN for each individual for whom Savings Securities registration information is being requested.
b. When a match occurs on an SSN, BPD will disclose the following: the purchase amount, the account number and confirmation number, the series, the issue date of the security, the current redemption value, and the return date of the finder file.
The effective date of this matching program is April 1, 2011; provided that the following notice periods have lapsed: 30 days after publication of this notice in the FR and 40 days after notice of the matching program is sent to Congress and OMB. The matching program will continue for 18 months from the effective date and may be extended for an additional 12 months thereafter, if certain conditions are met.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that on February 11, 2011, the United States requested the establishment of a dispute settlement panel under the
Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before May 2, 2011, to be assured of timely consideration by USTR.
Public comments should be submitted electronically to
Joseph Laroski, Associate General Counsel, Office of the United States Trade Representative; or Joseph Rieras, Assistant General Counsel, Office of the United States Trade Representative. Contact information is: 600 17th Street, NW., Washington, DC 20508, (202) 395-3150.
Section 127(b)(1) of the Uruguay Round Agreements Act (“URAA”) (19 U.S.C. 3527(b)(1)) requires that notice and opportunity for comment be provided after the United States submits or receives a request for establishment of a WTO dispute settlement panel. Consistent with this obligation, USTR is providing notice that the United States has requested a panel pursuant to the WTO
The United States considers that certain measures imposing countervailing duties and anti-dumping duties on GOES from the United States are inconsistent with China's commitments and obligations under the WTO Agreement. The measures are set forth in the Ministry of Commerce of the People's Republic of China (“MOFCOM”) Notice No. 21 [2010], including its annexes. These measures appear to be inconsistent with Articles 1, 3.1, 3.2, 3.5, 6.4, 6.5.1, 6.8, 6.9, 12.2, 12.2.2, and Paragraph 1 of Annex II of the Anti Dumping Agreement; Articles 10, 11.2, 11.3, 12.3, 12.4.1, 12.7, 12.8, 15.1, 15.2, 15.5, 22.3, and 22.5 of the Subsidies and Countervailing Measures Agreement; and Article VI of the GATT 1994. On September 15, 2010, the United States requested consultations with China. That request may be found at
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons may submit public comments electronically to
To submit comments via
The
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page. Any comment containing business confidential information must be submitted by fax to Sandy McKinzy at (202) 395-3640. A non-confidential summary of the confidential information must be submitted to
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and
(3) Must provide a non-confidential summary of the information or advice.
Any comment containing confidential information must be submitted by fax. A non-confidential summary of the confidential information must be submitted to
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding accessible to the public. The public file will include non-confidential comments received by USTR from the public with respect to the dispute. If a dispute settlement panel is convened or in the event of an appeal from such a panel, the U.S. submissions, any non-confidential submissions, or non-confidential summaries of submissions, received from other participants in the dispute, will be made available to the public on USTR's Web site at
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that on February 11, 2011, the United States requested establishment of a dispute settlement panel under the
Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before May 2, 2011, to be assured of timely consideration by USTR.
Public comments should be submitted electronically to
Frank J. Schweitzer, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, (202) 395-3150.
Section 127(b)(1) of the Uruguay Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires that notice and opportunity for comment be provided after the United States submits or receives a request for establishment of a WTO dispute settlement panel. Consistent with this obligation, USTR is providing notice that it has requested a panel pursuant to the WTO
On September 15, 2010, the United States requested consultations with China concerning issues relating to certain restrictions and requirements maintained by China affecting electronic payment services for payment card transactions and the suppliers of those services. Electronic payment services involve the services through which transactions involving credit card, debit card, charge card, check card, automated teller machine (“ATM”) card, prepaid card, or other similar card or money transmission product, are processed and through which transfers of funds between institutions participating in the transactions are managed and facilitated. In the financial services sector, as set out in China's Schedule of Specific Commitments on Services annexed to the
Despite its GATS commitments, China imposes market access restrictions and requirements on service suppliers of other Members seeking to supply electronic payment services in China. China UnionPay (“CUP”), a Chinese entity, is the only entity that China permits to supply electronic payment services for payment card transactions denominated and paid in renminbi (“RMB”) in China. China also requires the handling by CUP of all RMB transactions in Macao or Hong Kong using payment cards issued in Mainland China, as well as any RMB transactions in Mainland China using RMB payment cards issued in Hong Kong, China or Macao, China.
In addition, China requires all payment card processing devices at merchant locations, all ATMs, and all point-of-sale (“POS”) terminals in China to be compatible with CUP's system and capable of accepting CUP payment cards. China also requires that all acquiring institutions post the CUP logo and be capable of accepting all payment cards bearing the CUP logo. China further requires that all payment cards, including “dual currency” cards, issued in China capable of being used for transactions denominated and paid in RMB bear the CUP logo. These measures do not impose similar requirements regarding non-CUP payment cards or to transactions using non-CUP payment cards. China also requires that all inter-bank transactions involving payment cards be handled through CUP. China prohibits the use of non-CUP payment cards for cross-region or inter-bank transactions.
The United States considers that these measures are inconsistent with China's obligations under GATS Article XVI:1 to accord services and services suppliers of any other Member treatment no less favorable than that provided for in
In its request for the establishment of a panel, the United States identified the following instruments through which the United States understands that China maintains these measures:
• Measures for the Administration of Bank Card Business by the People's Bank of China (Yinfa [1999] 17), issued on 27 January 1999;
• Circular of the People's Bank of China on Promulgation of Opinions on Implementation of Joint Work in Bank Card Interoperability in 2001 (Yinfa [2001] 37) issued on 19 February 2001;
• Circular on Uniform Use of CUP Logo and its Holographic Label for Anti-counterfeiting by the People's Bank of China (Yinfa, [2001] 57), issued on 13 March 2001;
• Notice of Circulating the Bank Card Connection Business Standard by the People's Bank of China (Yinfa [2001] 76), issued 29 March 2001, including but not limited to the Appendix, Business Practices for the Interoperable Service of Bank Cards
• Opinions on Bank Card Interoperability Related Work in 2002 by the People's Bank of China (Yinfa [2002] 94), issued on 5 April 2002;
• Circular regarding Issues concerning Bank Card Interoperability Related Work by the People's Bank of China (Yinfa [2002] 272), issued on 29 August 2002;
• Circular on Further Improving Bank Card Interoperability Related Work by the People's Bank of China (Yinfa [2003] 129), issued on 2 July 2003;
• Announcement of Clearing Arrangements Provided by Banks in relation to Individuals' Deposits, Exchanges, Bank Card and Remittance in RMB in Hong Kong (PBOC Announcement [2003] 16), issued on 19 November 2003;
• Circular on Regulating the Administration of Foreign Currency Bank Cards by the State Administration of Foreign Exchange Circular (Huifa [2004] 66), issued on 30 June 2004;
• Announcement of Clearing Arrangements Provided by Banks in relation to Individuals' Deposits, Exchanges, Bank Cards and Remittance in RMB in Macao (PBOC Announcement [2004] 8), issued on 3 August 2004;
• Notice of the People's Bank of China concerning Relevant Issues on Accepting and Using Renminbi Bank Cards in Border Areas (Yinfa [2004] 219), issued on 21 September 2004;
• Circular regarding Issues concerning Individual RMB Business Handled by Banks in Mainland China and Banks in Hong Kong and Macao by the People's Bank of China (Yinfa [2004] 254), issued on 28 October 2004;
• Some Opinions of the People's Bank of China, the National Reform and Development Commission, the Ministry of Public Security, the Ministry of Finance, the Ministry of Information Industry, the Ministry of Commerce, the Station Administration of Taxation, China Banking Regulatory Commission and the State Administration of Foreign Exchange on Promoting the Development of Bank Card Industry Some Opinions of the People's Bank of China, the National Reform and Development Commission, the Ministry of Public Security, the Ministry of Finance, the Ministry of Information Industry, the Ministry of Commerce, the Station Administration of Taxation, China Banking Regulatory Commission and the State Administration of Foreign Exchange on Promoting the Development of Bank Card Industry (Yinfa [2005] 103), issued 24 April 2005;
• Guiding Opinions of the People's Bank of China on Regulating and Promoting the Development of Bank Card Acceptance Market (Yinfa [2005] 153), issued on 16 June 2005;
• Notice of the People's Bank of China on the Relevant Issues concerning Strengthening the Administration of Oversea Business Acceptance of Bank Cards (Yinfa [2007] 273), issued on 6 August 2007;
• Notice of the China Banking Regulatory Commission on the Issues Concerning Wholly Foreign-funded and Chinese-foreign Equity Joint Banks in Conducting the Bank Card Business (Yin Jian Fa [2007] 49), issued 6 June 2007;
• Notice of the People's Bank of China, the China Banking Regulatory Commission, the Ministry of Public Security and the State Administration for Industry and Commerce on Strengthening the Safety Management of Bank Cards and Preventing and Combating Bank Card Crimes (Yinfa [2009] 142), issued 27 April 2009;
• The Opinions of the Standing Office of the People's Bank of China on the Circular on Strengthening the Safety Management of Bankcards and Preventing and Fighting Crimes in Bank Cards by the People's Bank of China, the China Banking Regulatory Commission, the Ministry of Public Security and the State Administration for Industry and Commerce (Yinfa [2009] 149), issued 1 August 2009;
• Notice of the State Administration of Foreign Exchange on the Management of Foreign Currency Bank Cards [2010] 53, issued 11 October 2010; and
• The “business specifications” and “technical standards” that are identified in the instruments above, including in Document No. 17, Document No. 57, Document No. 129, and Document No. 49;
• As well as any amendments, or any related implementing measures, as of the date of the panel request.
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons may submit public comments electronically to
To submit comments via
The
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and
(3) Must provide a non-confidential summary of the information or advice.
Any comment containing confidential information must be submitted by fax to Sandy McKinzy at (202) 395-3640. A non-confidential summary of the confidential information must be submitted to
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding accessible to the public. The public file will include non-confidential comments received by USTR from the public with respect to the dispute. If a dispute settlement panel is convened or in the event of an appeal from such a panel, the U.S. submissions, any non-confidential submissions, or non-confidential summaries of submissions, received from other participants in the dispute, will be made available to the public on USTR's Web site at
Federal Aviation Administration (FAA), Department of Transportation.
Notice of availability of the FONSI.
In accordance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347 (as amended), Council on Environmental Quality NEPA implementing regulations (40 Code of Federal Regulations [CFR] Parts 1500 to 1508), and FAA Order 1050.1E, Change 1, the FAA is announcing the availability of a FONSI, based on the analysis and findings of the May 1988 United States Air Force (USAF)
In accordance with the requirements of FAA Order 1050.1E, Change 1, paragraph 410, the FAA has independently evaluated the information contained in the 1988 EA and has verified the continued validity of the analysis contained in the EA. The FAA has determined that the 1988 EA sufficiently addresses the concerns of the FAA and complies with FAA requirements for implementing NEPA as stated in FAA Order 1050.1E, Change 1. The FAA has determined that there is no new information or analysis that would require preparation of a new or supplemental EA or EIS according to the CEQ Regulations (40 CFR 1502.9(c)(1)). Therefore, the FAA issues the FONSI concurring with the analysis of impacts and findings in the 1988 EA and formally adopts the EA in compliance with the requirements of 40 CFR 1506.3 to support renewing a Launch Operator License to Boeing for the continued operation of Delta II expendable launch vehicles at CCAFS. The 1988 EA is incorporated by reference and is summarized as necessary in the FONSI.
The FAA has posted the FONSI on the Internet at
Mr. Daniel Czelusniak, Environmental Program Lead, Office of Commercial Space Transportation, Federal Aviation Administration, 800 Independence Avenue, SW., Room 325, Washington, DC 20591, telephone (202) 267-5924; E-mail
Federal Aviation Administration (FAA), Department of Transportation.
Notice of Availability of the FONSI.
In accordance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347 (as amended), Council on Environmental Quality NEPA implementing regulations (40 Code of Federal Regulations [CFR] parts 1500 to 1508), and FAA Order 1050.1E, Change 1, the FAA is announcing the availability of a FONSI, based on the analysis and findings of the January 2005 National Aeronautics and Space Administration (NASA)
In accordance with the requirements of FAA Order 1050.1E, Change 1, paragraph 410, the FAA has independently evaluated the information contained in the 2005 EA and has verified the continued validity of the analysis contained in the EA. The FAA has determined that the 2005 EA sufficiently addresses the concerns of the FAA and complies with FAA requirements for implementing NEPA as stated in FAA Order 1050.1E, Change 1. The FAA has determined that there is no new information or analysis that would require preparation of a new or supplemental EA or Environmental Impact Statement according to the CEQ Regulations (40 CFR 1502.9(c)(1)). Therefore, the FAA issues the FONSI concurring with the analysis of impacts and findings in the 2005 EA and formally adopts the EA in compliance with the requirements 40 CFR 1506.3 to support renewing a Launch Operator License to Orbital Sciences Corporation for the continued operation of Pegasus expendable launch vehicles at WFF. The 2005 EA is incorporated by reference and is summarized as necessary in the FONSI. NASA has posted the 2005 EA on the internet at
The FAA has posted the FONSI on the internet at
Mr. Daniel Czelusniak, Environmental Program Lead, Office of Commercial Space Transportation, Federal Aviation Administration, 800 Independence Avenue SW., Room 325, Washington, DC 20591, telephone (202) 267-5924; E-mail
Pursuant to section 10(A)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. 2), notice is hereby given of a meeting of the FAA Research, Engineering and Development (R,E&D) Advisory Committee.
Federal Aviation Administration.
Notice of meeting.
Members of the public may present a written statement to the Committee at any time.
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) announces its determination that the noise exposure maps submitted by the Jackson Municipal Airport Authority for Jackson-Evers International Airport under the provisions of 49 U.S.C. 47501
Jonathan Linquist, Federal Aviation Administration, Jackson Airports District Office, 100 West Cross Street, Suite B, Jackson, Mississippi 39208-2307, (601) 664-9893.
This notice announces that the FAA finds that the noise exposure maps submitted for Jackson-Evers International Airport are in compliance with applicable requirements of Part 150, effective February 18, 2011. Under 49 U.S.C. 47503 of the Aviation Safety and Noise Abatement Act (hereinafter referred to as “the Act”), an airport operator may submit to the FAA noise exposure maps which meet applicable regulations and which depict non-compatible land uses as of the date of submission of such maps, a description of projected aircraft operations, and the ways in which such operations will affect such maps. The Act requires such maps to be developed in consultation with interested and affected parties in the local community, government agencies, and persons using the airport. An airport operator who has submitted noise exposure maps that are found by FAA to be in compliance with the requirements of Federal Aviation Regulations (FAR) Part 150, promulgated pursuant to the Act, may submit a noise compatibility program for FAA approval which sets forth the measures the operator has taken or proposes to take to reduce existing non-compatible uses and prevent the introduction of additional non-compatible uses.
The FAA has completed its review of the noise exposure maps and accompanying documentation
FAA's determination on an airport operator's noise exposure maps is limited to a finding that the maps were developed in accordance with the procedures contained in appendix A of FAR Part 150. Such determination does not constitute approval of the applicant's data, information or plans, or a commitment to approve a noise compatibility program or to fund the implementation of that program. If questions arise concerning the precise relationship of specific properties to noise exposure contours depicted on a noise exposure map submitted under section 47503 of the Act, it should be noted that the FAA is not involved in any way in determining the relative locations of specific properties with regard to the depicted noise contours, or in interpreting the noise exposure maps to resolve questions concerning, for example, which properties should be covered by the provisions of section 47506 of the Act. These functions are inseparable from the ultimate land use control and planning responsibilities of local government. These local responsibilities are not changed in any way under Part 150 or through FAA's review of noise exposure maps. Therefore, the responsibility for the detailed overlaying of noise exposure contours onto the map depicting properties on the surface rests exclusively with the airport operator that submitted those maps, or with those public agencies and planning agencies with which consultation is required under section 47503 of the Act. The FAA has relied on the certification by the airport operator, under section 150.21 of FAR Part 150, that the statutorily required consultation has been accomplished.
Copies of the full noise exposure map documentation and of the FAA's evaluation of the maps are available for examination at the following locations: Federal Aviation Administration, Jackson Airports District Office, 100 West Cross Street, Suite B, Jackson, MS 39208-2307.
Questions may be directed to the individual named above under the heading
Federal Aviation Administration (FAA), DOT.
Monthly Notice of PFC Approvals and Disapprovals. In January 2011, there were nine applications approved. Additionally, four approved amendments to previously approved applications are listed.
The FAA publishes a monthly notice, as appropriate, of PFC approvals and disapprovals under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158). This notice is published pursuant to paragraph d of § 158.29.
Gary Wilson, Chicago Airports District Office, (847) 291-7631.
Tina Young, Great Lakes Region Airports Division, (612) 713-4352.
Land acquisition (Sing Sing Road).
Andrew Brooks, New York Airports District office, (516) 227-3816.
Darlene Williams, Los Angeles Airports District Office, (310) 725-3625.
Darlene Williams, Los Angeles Airports District Office, (310) 725-3625.
Andrew Brooks, New York Airports District Office, (516) 227-3816.
Priscilla Scott, New England Region Airports Division, (781) 238-7614.
Gordon Nelson, Minneapolis Airports District Office, (612) 713-4358.
Gordon Nelson, Minneapolis Airports District Office, (612) 713-4358.
Federal Aviation Administration (FAA), DOT.
Notice of request to release airport property.
The FAA proposes to rule and invite public comment on the release of land at Ellington Field Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21).
Comments must be received on or before April 4, 2011.
Comments on this application may be mailed or delivered to the FAA at the following address:
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Mario C. Diaz, Aviation Director, at the following address:
Mr. Ben Guttery, Senior Program Manager, Federal Aviation Administration, Texas Airports Development Office, ASW-652, 2601 Meacham Boulevard, Fort Worth, Texas 76137-0650, Telephone: (817) 222-5614, E-mail:
The request to release property may be reviewed in person at this same location.
The FAA invites public comment on the request to release property at the Ellington Field Airport under the provisions of the AIR 21.
On February 7, 2011, the FAA determined that the request to release property at Ellington Field Airport, submitted by the Airport, met the procedural requirements of the Federal Aviation Regulations, Part 155. The FAA may approve the request, in whole or in part, no later than April 4, 2011.
The following is a brief overview of the request:
Ellington Field Airport requests the release of 16.019 acres of non-aeronautical airport property. The land was acquired by the City of Houston via an Indenture dated July 1, 1984, and Deed without Warranty and Bill of Sale dated August 21, 1984. The funds generated by the release will be used to improve the Ellington Field Airport.
Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents relevant to the application in person at the FAA Office listed above or the Houston Airport System Offices at Ellington Field Airport.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 16 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision standard. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to, or greater than, the level of safety maintained without the exemptions for these CMV drivers.
The exemptions are effective March 7, 2011. The exemptions expire on March 7, 2013.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On January 10, 2011, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (76 FR 1493). That notice listed 16 applicants' case histories. The 16 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 16 applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision standard, but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 16 exemption applicants listed in this notice are in this category. They are unable to meet the vision standard in one eye for various reasons, including amblyopia, complete loss of vision, macular drusen, central serous retinopathy, optic atrophy, retinal detachment, histoplasmosis, nuclear sclerosis cataract, and prosthesis. In most cases, their eye conditions were not recently developed. Eleven of the applicants were either born with their vision impairments or have had them since childhood. The 5 individuals who sustained their vision conditions as adults have had them for periods ranging from 7 to 27 years.
Although each applicant has one eye which does not meet the vision standard in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing standards for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a commercial vehicle, with their limited vision, to the satisfaction of the State. While possessing a valid CDL or non-CDL, these 16 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision for careers ranging from 2 to 44 years. In the past 3 years, 2 of the drivers were involved in crashes or convicted of moving violations in a CMV.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the January 10, 2011 notice (76 FR 1493).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision standard in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered not only the medical reports about the applicants' vision, but also their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision standard, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA-1998-3637.
We believe we can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (
Applying principles from these studies to the past 3-year record of the 16 applicants, two of the applicants were convicted for a moving violation and none of the applicants were involved in a crash. All the applicants achieved a record of safety while
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision standard in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 16 applicants listed in the notice of January 10, 2011 (76 FR 1493).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 16 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received one comment in this proceeding. The comment was considered and discussed below.
Ms. Tanya Lyons of the Delaware DMV medical section was in favor of granting a Federal vision exemption to Thomas S. Roth, she indicated that he has had a clear safety driving record since he became a CDL license holder in the State of Delaware.
Based upon its evaluation of the 16 exemption applications, FMCSA exempts Michael L. Ballantyne, Terry Brown, Delbert M. Carson, Wingson Chang, Richard C. Dickinson, Richard A. Guthrie, Kennth L. Handy, Thomas J. Ivins, Bryon K. Lavender, Victor M. McCants, William K. Otwell, Donald R. Pointer, Steve A. Reece, Thomas S. Roth, Mark A. Steckmyer, and James M. Tennyson from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)).
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
BMW of North America, LLC (BMW)
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (
This notice of receipt of BMW's, petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
BMW estimates that approximately 54,200 vehicles equipped with “run flat” tires are affected. The affected vehicle models are certain: Model Year 2008-2011 BMW X5 SAV multipurpose passenger vehicles, manufactured from February 2, 2008 through October 26, 2010; Model Year 2008-2011 BMW X6 SAC multipurpose passenger vehicles, manufactured from September 19, 2008 through October 26, 2010; and 2011 BMW 5-Series, BMW 5-Series Gran Turismo, and BMW 7-Series passenger cars, manufactured from September 1, 2010 through October 26, 2010.
The National Highway Traffic Safety Administration (NHTSA) notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners,
Paragraph S4.3 of FMVSS No. 110 requires in pertinent part:
S4.3 Placard. Each vehicle, except for a trailer or incomplete vehicle, shall show the information specified in S4.3 (a) through (g), and may show, at the manufacturer's option, the information specified in S4.3 (h) and (i), on a placard permanently affixed to the driver's side B-pillar. In each vehicle without a driver's side B-pillar and with two doors on the driver's side of the vehicle opening in opposite directions, the placard shall be affixed on the forward edge of the rear side door. If the above locations do not permit the affixing of a placard that is legible, visible and prominent, the placard shall be permanently affixed to the rear edge of the driver's side door. If this location does not permit the affixing of a placard that is legible, visible and prominent, the placard shall be affixed to the inward facing surface of the vehicle next to the driver's seating position. This information shall be in the English language and conform in color and format, not including the border surrounding the entire placard, as shown in the example set forth in Figure 1 in this standard. At the manufacturer's option, the information specified in S4.3 (c), (d), and, as appropriate, (h) and (i) may be shown, alternatively to being shown on the placard, on a tire inflation pressure label which must conform in color and format, not including the border surrounding the entire label, as shown in the example set forth in Figure 2 in this standard. The label shall be permanently affixed and proximate to the placard required by this paragraph. The information specified in S4.3 (e) shall be shown on both the vehicle placard and on the tire inflation pressure label (if such a label is affixed to provide the information specified in S4.3 (c), (d), and, as appropriate, (h) and (i)) may be shown in the format and color scheme set forth in Figures 1 and 2. * * *
(c) Vehicle manufacturer's recommended cold tire inflation pressure for front, rear and spare tires, subject to the limitations of S4.3.4. For full size spare tires, the statement “see above” may, at the manufacturer's option replace manufacturer's recommended cold tire inflation pressure. If no spare tire is provided, the word “none” must replace the manufacturer's recommended cold tire inflation pressure* * *
(d) Tire size designation, indicated by the headings “size” or “original tire size” or “original size,” and “spare tire” or “spare,” for the tires installed at the time of the first purchase for purposes other than resale. For full size spare tires, the statement “see above” may, at the manufacturer's option replace the tire size designation. If no spare tire is provided, the word “none” must replace the tire size designation;* * *
BMW explains that the noncompliance is that the tire and loading information placards on the affected vehicles incorrectly include a recommended cold tire inflation pressure and size designation for a spare tire. Because the vehicles are equipped with “run-flat” tires and have no spare tire, the word “none,” as required by paragraphs S4.3(c) and S4.3(d) is required in place of the spare tire size and the associated recommended cold tire inflation pressure.
BMW argues that this noncompliance is inconsequential to motor vehicle safety for the following reasons:
1. Vehicle owners are informed via the vehicle Owner's Manual that if “RSC” is stamped on the sidewall of the tire, then the tire is a “run-flat” tire.
2. BMW vehicle owners can contact BMW Roadside Assistance
3. For vehicles equipped with BMW Assist,
BMW reported that the noncompliance was brought to their attention during inspections of vehicles equipped with “run-flat” tires. On October 26, 2010, BMW realized that the affected vehicles do not conform to FMVSS No. 110.
BMW has additionally informed NHTSA that it has corrected the noncompliance so that all future production vehicles will have compliant labels.
In summation, BMW believes that the described noncompliance of its vehicles to meet the requirements of FMVSS No. 110 is inconsequential to motor vehicle safety, and that its petition, to exempt from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120, and should be granted.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods:
a. By mail addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
b. By hand delivery to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays.
c. Electronically: By logging onto the Federal Docket Management System (FDMS) Web site at
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). DOT's complete Privacy Act Statement is in the
You may view documents submitted to a docket at the address and times given above. You may also view the documents on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
(49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and 501.8).
The Surface Transportation Board has received a request from Davis LLP on behalf of Imperial Oil in connection with a regulatory proceeding regarding the shipment of petroleum diluents (Diluent) in the Enbridge Southern Lights Pipeline (ESL) pending before the National Energy Board of Canada, captioned NEB File OF-Tolls-Group2-E242-TFGen 01 01 (WB11-021), for permission to use certain data from the Board's 2008 and 2009 Carload Waybill Samples. A copy of this request may be obtained from the Office of Economics.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
Alcohol and Tobacco Tax and Trade Bureau; Treasury.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, we invite comments on the proposed or continuing information collections listed below in this notice.
We must receive your written comments on or before May 6, 2011.
You may send comments to Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, at any of these addresses:
• P.O. Box 14412, Washington, DC 20044-4412;
• 202-453-2686 (facsimile); or
•
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form or recordkeeping requirement number, and OMB number (if any) in your comment. If you submit your comment via facsimile, send no more than five 8.5 x 11 inch pages in order to ensure electronic access to our equipment.
To obtain additional information, copies of the information collection and its instructions, or copies of any comments received, contact Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412; or telephone 202-453-2265.
The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau (TTB), as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please not do include any confidential or inappropriate material in your comments.
We invite comments on: (a) Whether this information collection is necessary for the proper performance of the agency's functions, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the information collection's burden; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the information collection's burden on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide the requested information.
Currently, we are seeking comments on the following forms and recordkeeping requirements:
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of 1 newly-designated entity whose property and interests in property are blocked pursuant to Executive Order 13382 of June 28, 2005, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters.”
The designation by the Director of OFAC of the 1 entity identified in this notice pursuant to Executive Order 13382 is effective on February 17, 2011.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in the Annex to the Order; (2) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Attorney General, and other relevant agencies, to have engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by any person or foreign country of proliferation concern; (3) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to have provided, or attempted to provide, financial, material, technological or other support for, or goods or services in support of, any activity or transaction described in clause (2) above or any person whose property and interests in property are blocked pursuant to the Order; and (4) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to be owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the Order.
On February 17, 2011, the Director of OFAC, in consultation with the Departments of State, Justice, and other relevant agencies, designated 1 entity whose property and interests in property are blocked pursuant to Executive Order 13382.
The additional designee is as follows:
BANK REFAH KARGARAN (a.k.a. BANK REFAH; a.k.a. WORKERS' WELFARE BANK (OF IRAN)), No. 40 North Shiraz Street, Mollasadra Ave, Vanak Sq, Tehran, Iran; all offices worldwide [IRAN] [NPWMD] [IFSR]
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notice 2007-100, Transition Relief and Guidance on Corrections of Certain Failures of a Nonqualified Deferred Compensation Plan to Comply with section 409(a) in Operation.
Written comments should be received on or before April 8, 2008 to be assured of consideration.
Direct all written comments to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of notice should be directed to Ralph Terry, at (202) 622-8144, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning existing final regulations, REG-142299-01 and REG-209135-88, Certain Transfers of Property to Regulated Investment Companies (RICs) and Real Estate Investment Trusts (REITs).
Written comments should be received on or before May 6, 2011 to be assured of consideration.
Direct all written comments to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Ralph Terry at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202)622-8144, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8834, Qualified Electric Vehicle Credit.
Written comments should be received on or before May 6, 2011 to be assured of consideration.
Direct all written comments to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Ralph Terry at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-8144, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8939, Allocation of Increase in Basis for Property Acquired From a Decedent.
Written comments should be received on or before May 6, 2011 to be assured of consideration.
Direct all written comments to Allan Hopkins, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Ralph Terry, (202) 622-8144, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8925, Report of Employer-Owned Life Insurance Contracts.
Written comments should be received on or before May 6, 2011 to be assured of consideration.
Direct all written comments to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Ralph Terry, (202) 622-8144, at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS) Treasury.
Notice.
Notice of Open Season for Recruitment of IRS Taxpayer Advocacy Panel (TAP) Members.
March 14, 2011 through April 29, 2011.
Shawn Collins at 202-622-1245.
Notice is hereby given that the Department of the Treasury and the Internal Revenue Service (IRS) are inviting individuals to help improve the nation's tax agency by applying to be members of the Taxpayer Advocacy Panel (TAP). The mission of the TAP is to listen to taxpayers, identify issues that affect taxpayers, and make suggestions for improving IRS service and customer satisfaction. The TAP serves as an advisory body to the Secretary of the Treasury, the Commissioner of Internal Revenue, and the National Taxpayer Advocate. TAP members will participate in subcommittees that channel their feedback to the IRS through the Panel's parent committee.
The IRS is seeking applicants who have an interest in good government, a personal commitment to volunteer approximately 300 to 500 hours a year, and a desire to help improve IRS customer service. To the extent possible, the TAP Director will ensure that TAP membership is balanced and represents a cross-section of the taxpaying public with at least one member from each state, the District of Columbia, and Puerto Rico. Potential candidates must be U.S. citizens and must pass an IRS tax compliance check and a Federal Bureau of Investigation (FBI) background investigation. Federally-registered lobbyists cannot be members of the TAP.
TAP members are a diverse group of citizens who represent the interests of taxpayers from their respective geographic locations by providing input from a taxpayer's perspective on ways to improve IRS customer service and administration of the Federal tax system, and by identifying grassroots taxpayer issues. Members should have good communications skills and be able to speak to taxpayers about the TAP and TAP activities, while clearly distinguishing between TAP positions and their personal viewpoints.
Interested applicants should visit the TAP Web site at
Questions regarding the selection of TAP members may be directed to Shawn Collins, Director, Taxpayer Advocacy Panel, Internal Revenue Service, 1111 Constitution Avenue, NW., Room 1314, Washington, DC 20224, or 202-622-1245.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The proposed information collection request (ICR) described below has been submitted to the Office of Management and Budget (OMB) for review and approval, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. OTS is soliciting public comments on the proposal.
Submit written comments on or before April 6, 2011. A copy of this ICR, with applicable supporting documentation, can be obtained from RegInfo.gov at
Send comments, referring to the collection by title of the proposal or by OMB approval number, to OMB and OTS at these addresses: Office of Information and Regulatory Affairs, Attention: Desk Officer for OTS, U.S. Office of Management and Budget, 725 17th Street, NW., Room 10235, Washington, DC 20503, or by fax to (202) 393-6974; and Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, by fax to (202) 906-6518, or by e-mail to
For further information or to obtain a copy of the submission to OMB, please contact Ira L. Mills at,
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
The U.S. Department of Energy (DOE or the “Department”) is adopting revisions to its existing certification, compliance, and enforcement regulations for certain consumer products and commercial and industrial equipment covered under the Energy Policy and Conservation Act of 1975, as amended (EPCA or the “Act”). These regulations provide for sampling plans used in determining compliance with existing standards, manufacturer submission of compliance statements and certification reports to DOE, maintenance of compliance records by manufacturers, and the availability of enforcement actions for improper certification or noncompliance with an applicable standard. Ultimately, the provisions being adopted in this final rule will allow DOE to enforce systematically the applicable energy and water conservation standards for covered products and covered equipment and provide for more accurate, comprehensive information about the energy and water use characteristics of products sold in the United States.
The amendments to §§ 429.12 through 429.54 are effective July 5, 2011.
The amendments to Appendix A to Subpart B of Part 430 and Appendix B to Subpart B of Part 430 are effective November 28, 2011.
The incorporation by reference of the standards listed in this rule is approved by the Director of the Federal Register as of April 6, 2011.
This rulemaking can be identified by docket number EERE-2010-BT-CE-0014 and/or Regulatory Identification Number (RIN) 1904-AC23.
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: 202-586-6590. E-mail:
This final rule incorporates by reference into Part 429 the following industry standards:
• ANSI/AHAM DW-1-1992, American National Standard, Household Electric Dishwashers, approved February 6, 1992, IBR approved for § 429.19.
Copies of ANSI/AHAM DW-1-1992 is available from the Association of Home Appliance Manufacturers, 1111 19th Street, NW., Suite 402, Washington, DC 20036, 202-872-5955, or go to
• International Organization for Standardization (ISO)/International Electrotechnical Commission, (“ISO/IEC 17025:2005(E)”), “General requirements for the competence of testing and calibration laboratories”, Second edition, May 15, 2005, IBR approved for § 429.104.
Copies of ISO/IEC 17025:2005(E) are available from the International Standards Organziation1, ch. de la Voie-Creuse CP 56 CH-1211 Geneva 20 Switzerland, telephone +41 22 749 01 11, or go to
Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or, in context, “the Act”) sets forth a variety of provisions designed to improve energy efficiency. Part A of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products Other Than Automobiles. The National Energy Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA to add Part A-1 of Title III, which established an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317)
Sections 6299-6305, and 6316 of EPCA authorize DOE to enforce compliance with the energy and water conservation standards (all non-product specific references herein referring to energy use and consumption include water use and consumption; all references to energy efficiency include water efficiency) established for certain consumer products and commercial equipment. (42 U.S.C. 6299-6305 (consumer products), 6316 (commercial equipment)) DOE has promulgated enforcement regulations that include specific certification and compliance requirements.
On September 16, 2010, the Department published in the
The September 2010 NOPR proposed to revise, consolidate and streamline the Department's existing certification, compliance, and enforcement regulations for certain consumer products and commercial and industrial equipment covered under EPCA.
Today's rule revises the Department's current certification regulations to ensure that the Department has the information it needs to ensure that regulated products sold in the United States comply with the law. Currently, manufacturers of covered consumer products and commercial and industrial equipment must certify, by means of a compliance statement and a certification report, that each basic model meets the applicable energy conservation, water conservation, and/or design standard before distributing it in commerce within the United States.
DOE believes it is also appropriate to provide more transparency in the certification report itself. In the September 2010 NOPR, DOE proposed to expand the information submitted by manufacturers, including general requirements applicable to all products and product-specific requirements. DOE also proposed to make clear that all non-proprietary certification information will be considered public information. As a result of stakeholder comments, DOE made some modifications to the product-specific information it is collecting and the public disclosure of such information in the final rule. These changes are discussed in more detail below. By requiring additional relevant data that affects the energy or water efficiency of a product to be supplied in the certification report, DOE will be able to more effectively enforce compliance with the conservation standards.
To provide manufacturers with sufficient time to transition to these new certification provisions, the effective date of the certification requirements is 120 days from the publication of the final rule in the
The Department is modifying its regulations for enforcement testing to allow the Department to enforce the Federal efficiency standards proactively and fairly based on the circumstances of each case. In particular, today's rule makes three revisions to DOE's approach to enforcement testing that, although relatively minor, will significantly improve the effectiveness of DOE's enforcement program. First, the Department is removing the current regulatory provision that requires DOE to receive a written complaint alleging a violation of the standard before it can perform enforcement testing to determine a model's compliance. EPCA affords DOE with broad enforcement discretion, and DOE must be able to exercise that discretion proactively to ensure compliance and deter violations effectively. Second, today's rule allows the Department to select units for enforcement testing from retail, distribution, or manufacturer sources, depending on the circumstances, to ensure enforcement test results that are as unbiased, accurate, and representative as possible. Finally, the Department recognizes that the current regulatory approach to enforcement testing—involving DOE selected units and third party testing—may be impracticable for low-volume, custom-built products or where adequate laboratory facilities are unavailable. Thus, today's rule adopts an alternative approach to enforcement testing in such exceptional cases—allowing DOE-witnessed testing at the manufacturer's lab and/or reduced sample sizes—to permit effective enforcement testing without imposing unreasonable burdens on manufacturers.
With the exception of electric motors, in the September 2010 NOPR, DOE proposed to move all of the existing certification, compliance, and enforcement regulations currently scattered throughout parts 430 and 431 to a new Part 429. DOE additionally proposed to consolidate similar provisions for both consumer products and commercial and industrial equipment.
In response to DOE's proposed new structure, DOE received several comments from interested parties on its September 2010 NOPR, some of which were organizational in nature. For example, a comment submitted by the National Electrical Manufacturers Association (NEMA) suggested grouping all the regulations that were relevant to a single product in a discrete portion of Part 429. (NEMA, No. 85.1 at p. 2) In response to these comments, and to provide additional clarity to Part 429 requirements, DOE has made the following changes to Part 429 in today's final rule:
• Consolidated general requirements into Subpart A.
• Consolidated all certification requirements into Subpart B, with the creation of product-specific sections for sampling plans and certification requirements. This is intended to simplify the presentation for manufacturers and others who need information on a single product. Also, each of the product-specific sections now specifies the relevant sampling equations to ensure certification requirements are clear;
• Added Appendix D to Subpart B which includes Student's t-distribution values for one-tailed confidence level calculations for product certification;
• Reorganized Subpart C to distinguish between enforcement measures and verification measures; and
• Incorporated a variety of editorial changes addressing certification, sampling plans, and enforcement.
DOE is adopting Part 429 in its entirety today and expects to integrate electric motors into this Part in a subsequent rulemaking.
Existing certification requirements direct most manufacturers of covered consumer products and commercial and industrial equipment to certify, by means of a compliance statement and a certification report, that each basic model meets the applicable energy conservation, water conservation, and/or design standard before distributing it in commerce within the United States.
Today's rule adopts a mandatory annual certification filing requirement (as opposed to an annual testing requirement) and sets out a reporting schedule aligned as closely as possible with the current FTC schedule for consumer products. Under DOE's self-certification enforcement framework, only products that have been certified to DOE by manufacturers as compliant with the applicable standards can be distributed in commerce in the United States. Annual filings will provide the Department with up-to-date and comprehensive efficiency information about regulated products sold in the United States—a necessary predicate to an effective enforcement program. Recognizing this, many commenters, including the Alliance for Water Efficiency (AWE), Underwriters Laboratories, Inc. (UL), Alliance Laundry Systems LLC (ALS), Northwest Energy Efficiency Alliance (NEEA), Earthjustice, and the Association of Home Appliance Manufacturers (AHAM), supported an annual filing requirement. (AWE, No. 38.1 at p. 3; UL, No. 60.1 at p. 1; ALS, No. 66.1 at p. 1; NEEA, No. 67.1 at p. 2; Earthjustice, Public Meeting Transcript, No. 103 at pp. 42-43; AHAM, No. 98.1 at p. 4) As one commenter put it: “Knowledge of what products are being distributed in commerce at any given time is the foundation of an effective certification and enforcement program. A one-time initial certification of compliance does not provide the needed level of knowledge.” (NEEA, No. 67.1 at p. 2)
A few commenters objected to the proposal, arguing that annual filing was not needed and would increase reporting burdens. The International Association of Plumbing and Mechanical Officials (IAPMO) and IAPMO R&T, for example, commented that the Department's existing certification requirements already provide sufficient assurance of compliance. (IAPMO, No. 36.1 at p. 1) Similarly, AO Smith opposed an annual certification requirement, commenting that such a requirement would unduly increase the level of reporting required by manufacturers. (AO Smith, No. 81.1 at p. 2) Although DOE recognizes that annual filing will increase the frequency with which manufactures must file reports, the record reflects that the increase in cost burden will be minimal. As NAMA explained, “annual certification does not cause an extreme economic burden and harm.” (NAMA, No. 72.1 at p. 2;
Several commenters suggested that DOE should impose annual testing requirements in addition to the proposed annual filing requirement. In particular, UL, ALS, the Natural Resources Defense Council (NRDC) and Earthjustice commented that while they are in support of establishing an annual certification requirement, such a requirement should include mandatory re-testing to validate the annual certification submissions, rather than merely re-submission of the original test data. (UL, No. 60.1 at p. 1; ALS, No. 66.1 at p. 2; NRDC, Public Meeting Transcript, No. 103 at p. 39; Earthjustice, Public Meeting Transcript, No. 103 at pp. 43-44) NRDC proposed regular recertification of basic models that would require new laboratory testing of currently produced models and not simply resubmission of old test data from the initial certification. NRDC stated that the frequency of such recertification should depend on product-specific factors as well as a production cycle, and whether there is any change in energy usage above a de minimus threshold. (NRDC, No. 39.1 at p. 2) Earthjustice further contended that since determining when a model has been modified can be very difficult, a re-testing, as opposed to a re-submission, requirement would help to alleviate this problem. (Earthjustice, Public Meeting Transcript, No. 103 at pp. 43-44)
While DOE recognizes these commenters' call for additional testing
With regard to DOE's proposal in the September 2010 NOPR to align the annual certification reporting deadlines with the FTC's schedule, ALS, NEEA, IAMPO, the American Lighting Association (ALA), and AHAM submitted comments supporting harmonization with the FTC's reporting requirements. (ALS, No. 66.1 at p. 1; NEEA, No. 67.1 at p. 2; IAMPO, Public Meeting Transcript, No. 103 at p. 42; ALA, No. 97.1 at p. 1; AHAM, No. 98.1 at p. 4) Specifically, ALA commented that such consolidation of reporting requirements would improve the efficiency and reduce the cost of compliance. (ALA, No. 97.1 at p. 1) Delta Faucet submitted comments requesting that efforts be made to reduce the reporting burden and cost on manufacturers by combining the DOE and FTC reports into one template. (Delta Faucet, No. 94.1 at p. 2) Today's final rule consolidates the Department's certification reporting requirements with FTC's schedule only. DOE will continue to consider consolidating filings with the FTC or other government agencies in a future certification, compliance, and enforcement rulemaking.
In the September 2010 NOPR, DOE proposed to revise what information must be submitted as a part of a certification filing for DOE to better enforce its conservation standards. Specifically, DOE proposed to standardize to the extent possible the basic information required for certification of all covered products and covered equipment, setting out the basic requirements for every certification filing, followed by product-specific information requirements. DOE also proposed to require manufacturers to submit information related to waivers, exemptions, and approved alternative rating methodologies along with their certification submissions as appropriate. Lastly, DOE proposed to expand the product-specific information it was collecting with respect to each of the covered products and covered equipment to help DOE better understand the underlying attributes of the basic model's efficiency that impact the testing and certification data.
DOE generally received comments on the following issues related to its proposed revisions to the certification reporting requirements: (1) Reporting sample size and total number of tests performed; (2) reporting of testing data; (3) reporting use of an Alternate Rating Method (ARM)/Alternative Efficiency Determination Method (AEDM) or other alternative method of rating; (4) defining “distribute in commerce”; (5) product-specific revisions to reporting requirements. With the exception of the requirement for reporting the total number of tests performed, DOE is adopting all of the revisions to its reporting requirements proposed in the September 2010 NOPR. A discussion of specific stakeholder comments on these issues is presented below.
Under the rule adopted today, manufacturers must report the size of the sample tested, but need not report the number of tests performed. With regard to DOE's proposal to require annual reporting of sample size, DOE received comments in opposition from AHAM and NEEA. (AHAM, No. 98.1 at p. 4; NEEA, No. 67.1 at p. 6) NEEA argued that there are no compelling reasons to require submission of sampling plan information or data as part of certification. (NEEA, No. 67.1 at p. 6) The Department disagrees.
For purposes of certification testing, the determination that a basic model complies with the applicable conservation standard must be based on the sampling procedures, which are now found, by product, in 10 CFR Part 429. The sampling procedures provide that “a sample of sufficient size shall be tested to insure [compliance].” Unless the product-specific regulations specify otherwise, a minimum of two units must be tested to certify a basic model as compliant. This minimum is implicit in the requirement to calculate a mean—an average—which requires at least two values. Under no circumstances is a sample size of one (1) authorized. Manufacturers may need to test more than two samples depending on the variability of their sample. Therefore, the sample size can be an important element when evaluating the compliance of a basic model.
Consequently, the Department believes it is still important to request information regarding the sample size used in calculating the certification values submitted to DOE. As DOE has previously found,
The September 2010 NOPR also proposed to require that manufacturers report the total number of tests per sample. AHAM, the Air-Conditioning, Heating and Refrigeration Institute (AHRI) and ALS objected to reporting the total number of tests performed in the annual certification report. (AHAM, No. 98.1 at p. 4; AHRI, No. 91.1 at pp. 9-10; ALS, No. 66.1 at p. 2) Specifically, AHAM commented that it failed to see how this information is necessary or useful to DOE. As the commenters suggest, this information may not be as helpful to understanding the certified values since the number of tests performed by unit can vary widely based upon a number of factors, including manufacturing practices and production lots. Therefore, DOE will not require the manufacturer to report the
A number of commenters urged DOE to require that manufacturers report all test data for all covered products and equipment in support of the certified value reported to DOE. (
The Department did not propose in the September 2010 NOPR to require submission of test data in the certification report, and such a requirement is not part of this final rule. While the Department believes that test data is a key factor in helping the Department understand the certified rating, DOE does not believe it is necessary to collect test data from all manufacturers at this time. Instead, DOE is hoping that by expanding the certification data that the Department is collecting and providing additional clarity in the regulations as to the processes manufacturers must follow to determine the certified ratings DOE will be in a better position to understand the data underlying compliance. Although DOE is not mandating that manufacturers submit test data along with each certification report at this time, the Department's regulations continue to require manufacturers to retain test data records in an easily accessible format and provide them to the Department upon request.
From the comments, it appears there is general support for requiring manufacturers to submit information related to waivers, exemptions, and approved alternative rating methodologies along with their certification submissions. (
DOE also believes that manufacturers need the ability to specify that they have not performed actual testing but have modeled or simulated testing through the use of an ARM or AEDM or have used an alternative testing method authorized through a test procedure waiver, as the certification report itself requires the manufacturer to certify that it has tested the model. Providing alternative rating or alternative testing information in the certification report allows the manufacturer to make a more accurate certification statement to the Department. Similarly, in order to make an accurate certification statement to the Department, a manufacturer needs to identify any basic model that is being certified in accordance with an exception to the applicable standard. Accordingly, DOE adopts this requirement in today's final rule to provide an accurate reflection of the test procedures or exceptions used as a basis for the certification.
EPCA's standards and DOE's certification and compliance requirements apply to covered products and equipment that are “distribute[d] in commerce.” A number of commenters requested that the Department adopt a definition of “distribution in commerce” in its regulations. Mitsubishi Electric & Electronics USA, Inc. (MEUS) stated its concern that the definition of “introduction into commerce” is so broad it requires manufacturers to certify before providing information to the distribution base. As a solution, MEUS recommended that DOE de-link certification with “introduce into commerce.” (MEUS, No. 86.1 at p. 5) Additionally, NEEA expressed its concern that the definition of “distribute in commerce” would require certification prior to a decision to actually market the product. (NEEA, Public Meeting Transcript No. 67.1 at p. 336) Traulsen commented that DOE should define “distribution in commerce” as a published price. (Traulsen, No. 52.1 at p. 4)
EPCA defines “distribute in commerce” as “to sell in commerce, to import, to introduce or deliver for introduction into commerce, or to hold for sale or distribution after introduction into commerce.” (
• Whether units of the model have been sold or offered for sale in exchange for monetary compensation;
• Whether units have been included in marketing material made available to the public (
• Whether the manufacturer has distributed marketing material that includes a claim or statements regarding the product's efficiency;
• Whether a unit has been shown at trade show; and
• The number of units produced, distributed, imported, and/or sold.
A model must be certified to DOE as compliant with the applicable standard prior to distribution in commerce, but the exact point at which any particular model has, in fact, been distributed in commerce may vary considerably across product types and manufacturers.
In the September 2010 NOPR, the Department proposed including reporting requirements for products that did not previously have to submit information, including those added to DOE's programs by the Energy Independence and Security Act of 2007. In addition, the Department sought comment on expanding its sampling plans for certification to “features” other than the regulatory metrics. As an example, DOE suggested that the actual storage volume of a residential water heater may be a metric that should be subject to sampling requirements.
Today's rule extends the reporting requirements to all products regulated under EPCA, but does not impose sampling plans for features other than the regulatory metric. The Department's certification requirements are the foundation of DOE's compliance and enforcement framework and will be mandatory for all products regulated by EPCA.
Commenters generally disagreed, however, with the approach of extending the sampling plans beyond the regulatory metrics. For example, AO Smith commented that DOE should only test products for values that are covered in the current regulations, such as energy efficiency. (AO Smith, No. 81.1 at p. 3) Similarly, Bradford White Corporation commented that adding sampling plans and tolerances for other features of products is redundant and burdensome. (BWC, No. 45.1 at p. 2) While DOE is not adopting sampling plans for features other than the regulatory metrics at this time, DOE is expanding its product-specific certification requirements to require this type of information in the certification report.
DOE believes information about features that affect the energy-efficiency of the product is essential for DOE to audit compliance and for consumers to make informed decisions about product purchases. In addition, DOE notes that manufacturers have this information on hand and typically provide it in their marketing materials, on their Web site, or to product retailers. DOE's current regulations already request this type of information for certain products and equipment and requiring this information in the certification report is consistent with DOE's adoption of a more uniform approach to certification. In some instances, product or equipment feature information is necessary to determine how to apply DOE's test procedures. Thus, DOE believes this type of information is essential to any verification testing and enforcement testing that may be conducted by the Department. To help interested parties identify the new product-specific information to be submitted in certification reports, DOE has included this on a product-by-product basis throughout Part 429.
Current certification regulations allow either the manufacturer or private labeler to submit certification reports and compliance statements for each basic model. DOE proposed, in the September 2010 NOPR, to require that manufacturers be solely responsible for submitting the certification reports to DOE. Under this proposal, the certification burden would be placed on the manufacturer, and not the private labeler, although the manufacturer would still have the option of electing to have its private labeler act as a third-party filer and submit the certification report on the manufacturer's behalf. With regard to third-party filers, DOE proposed in the September 2010 NOPR to make clear in its regulations that it may refuse to accept certification reports from a third party with a history of poor performance. A discussion of comments on this issue is below.
In today's rule, DOE is adopting its proposed requirement that manufacturers be solely responsible for submitting certification reports, which would include manufacturer information, as well as private labeler information and/or brand information, where appropriate. AWE and BWC submitted comments supporting DOE's proposal to hold the manufacturer solely responsible for submitting certification reports to DOE. (AWE, No. 38.1 at p. 2; BWC, No. 45.1 at p. 2) The Department considered NEEA's suggestion that the party responsible for introducing the product into commerce in the U.S. should be responsible for certification, whether that is a manufacturer, third-party private labeler, or an importer. (NEEA, No. 67.1 at p. 3) The Department notes that, pursuant to EPCA, an importer is a manufacturer and is included in DOE's proposal. While NEEA's suggestion has some conceptual appeal, the Department believes that such an approach would create confusion and be difficult to administer as it may be unclear who is the party responsible for introducing the product into commerce in a particular case. (
Commenters generally supported DOE's proposal to continue to allow third parties to submit certification reports to DOE on behalf of the manufacturer, as long as the third party does not have a history of poor performance. (
In the September 2010 NOPR, DOE proposed to remove the certified mail and e-mail options for filing certification data that are currently allowed in DOE's regulations and make electronic submission of certification reports through the Compliance and Certification Management System (CCMS) found at
The Department received few comments on this issue, with the majority of commenters supporting the move to exclusive use of the CCMS for certification. Specifically, NEEA commented that the proposed move to electronic filing for certification will reduce manufacturer compliance burdens and should allow for consistency of filed data from one Federal agency to another (NEEA, No. 67.1 at p. 3). Similarly, GE Prolec supported the CCMS approach, but also noted that there is currently no CCMS template for distribution transformers. (GE Prolec, No. 95.1 at p. 11; Public Meeting Transcript, No. 103 at p. 143) GE Prolec requested that it be able to review and comment on a proposed template for distribution transformers before it is finalized. DOE received one comment from First Co. opposing the use of CCMS as the sole method of certification because it would take time and a significant amount of work for manufacturers. First Co. suggested that the new CCMS only filing requirement should not become effective prior to July 1, 2011, to allow a reasonable period of time before converting to an electronic-only filing system. (First Co., No. 76.1 at p. 2)
DOE believes the availability of electronic filing through the CCMS system should reduce compliance burdens, streamline the process, and provide the Department with needed information in a standardized, more accessible form. This electronic filing system will also ensure that records are recorded in a permanent, systematic way and enable the Department to move towards a public, searchable database. Thus, in this final rule DOE removes the certified mail and e-mail options for filing certification data that are currently allowed in DOE's regulations. DOE notes that the CCMS requires users to apply to use the system by filling out a registration form, signing a compliance statement, and receiving a personal password. Due to the number of user requests the Department expects to receive by the compliance date of the certification requirements being adopted in today's final rule, DOE strongly encourages users to set-up their accounts well in advance of the deadline. In addition, the CCMS templates with the new requirements for all covered products and covered equipment should be online shortly after the publication of today's final rule. The Department also encourages manufacturers, to the extent possible, to fill out these templates in advance of the compliance date in case questions arise.
In addition to the new annual certification requirement discussed above, DOE's September 2010 NOPR retained the existing regulatory requirement that any new basic model be certified before distribution in commerce. The Department explained that this requirement would apply to newly manufactured and produced basic models, as well as models that have been modified in a way that decreases a model's efficiency or increases its consumption and thus constitutes a new basic model. In connection with this requirement, the Department solicited comments on whether, and if so how, the Department should clarify the basic model concept to better identify whether and how energy or water use characteristics of a product may vary across different models in a basic model group. The Department's current regulations provide product-specific basic model definitions, which typically state that models within the same basic model group have “essentially identical” energy or water use characteristics. 10 CFR 430.2; 431.62, 431.172, 431.192, 431.202, 431.222, and 431.292. In the September 2010 NOPR, DOE asked how manufacturers determine that a particular model constitutes a new basic model, the difference in the energy use characteristics a typical change may have on a per product basis, and whether DOE should adopt a regulation requiring that a model be recertified as a new basic model if modifications impact the energy or water characteristics by a given
In response to DOE's questions, several manufacturers provided detailed product and manufacturer-specific information as to how they determine and make changes to basic model groupings. (
More generally, commenters recognized the importance of the basic model concept and sought additional clarification on the matter. (
A number of manufacturers and trade associations urged DOE to allow manufacturers to rate their products conservatively, so long as the ratings are supported by the test results and comply with the applicable standard. As Rheem explained, conservative ratings ensure performance for consumers that is the same or better than the rating, while giving manufacturers “the flexibility to address fluctuations in component pricing or availability without the added burden of re-rating an appliance for every change.” (Rheem, No. 79.1 at p. 3) Whirlpool similarly noted that manufacturers may rate products conservatively “to allow for natural fluctuation in component
Although all of these commenters expressed varying approaches to the basic model concept, there was general agreement that a modification to a model that would increase energy or water consumption—such that testing would no longer support the rated value—should constitute a new basic model that must be certified to DOE. (
DOE agrees with the comments that the `basic model' concept is fundamental to the conservation standards regulatory framework. It allows manufacturers to group like models for purposes of fulfilling the Department's certification requirements, thereby reducing the burden placed on manufacturers by streamlining the amount of testing they must do to rate the efficiencies of their products. At the same time, the basic model provides the relevant basis for Departmental enforcement actions, including determinations of non-compliance.
Accordingly, to clarify the basic model concept, today's rule centralizes and aligns the existing product-specific basic model definitions in a general definition, which provides (with some exceptions noted in the regulatory text) that a basic model means “all units of a given type of product (or class thereof) manufactured by one manufacturer, having the same primary energy source, and which have essentially identical electrical, physical, and functional (or hydraulic) characteristics that affect energy consumption, energy efficiency, water consumption, or water efficiency.” Although in some cases, the language of this general definition differs slightly from the precise language of the product-specific definitions, DOE emphasizes that this clarification reflects DOE's intent to maintain the status quo until a future rulemaking. This change is intended to provide a single, uniform definition of the basic model using language that permits what the Department understands to be the current practice—the grouping together of individual models with essentially (but not necessarily exactly) identical energy or water efficiency characteristics.
The Department is not, at this time, adopting threshold de minimus changes that would trigger the creation of a new basic model or otherwise establishing set criteria for what is meant by “essentially identical” characteristics. The record suggests that identifying specific percentages is a complicated matter, particularly given that there may be significant variations among manufacturers and products with respect to basic model groupings. Thus, the Department continues to review the bases for more precise, product-specific limitations on which models can be grouped together as a basic model. DOE hopes to address this in the next phase of the certification, compliance, and enforcement rulemaking and will take all of the comments in the record into account at that time. DOE understands that, in the meantime, today's rule will permit flexibility in determining how manufacturers choose to group individual models with essentially, but not exactly, identical energy or water efficiency characteristics. DOE encourages manufacturers to adopt a reasonable approach to basic model groupings and to certify as a single basic model individual models with only superficial differences, such as product finishes. Furthermore, the Department provides the following guidance on DOE's basic model certification and compliance obligations.
First, all models identified in a certification report as being the same basic model must have the same certified efficiency rating. With this rulemaking, manufacturers may elect to group individual models into basic models at their discretion to the extent the models have essentially identical electrical, physical, and functional (or hydraulic) characteristics that affect energy efficiency, energy consumption, water consumption, or water efficiency. However, the rated efficiency certification and representations of all of the individual models represented by a given basic model must be the same. Additionally, if a manufacturer wishes to change the certified rating of a particular model, this change constitutes the creation of a new basic model that must be certified to the Department.
Second, any individual model that is modified resulting in performance that is less efficient than the rated level when tested in accordance with the DOE test procedures in Parts 430 and 431 and the applicable sampling plans in Part 429 must be re-rated as a new basic model and certified to DOE. Certified ratings must be supported by tested values that are at least as efficient as the rating when the applicable sampling plans in Part 429 are applied.
Third, manufacturers may rate models conservatively, meaning the tested performance of the model(s) must be at least as good as the certified rating, after applying the appropriate sampling plan. The sampling plans are designed to create conservative ratings, which ensures that consumers get—at a minimum—the efficiency indicated by the certified rating. In this final rule, DOE allows manufacturers to use conservative ratings beyond those provided by the sampling plans. If DOE determines that any individual model within a basic model does not meet an applicable conservation standard, however, all models within the basic model group will be deemed non-compliant. Thus, as NEEA explained “the larger the basic model group, the larger the risk associated with a compliance failure.” (NEEA, No. 67.1 at p. 5)
Finally, under the certification requirements adopted today, unless otherwise specified, manufacturers must identify in their certification reports the individual models that are included in each basic model. The Department's approach to certification, compliance, and enforcement depends on DOE having information about which individual models are covered by a given basic model.
In the September 2010 NOPR, DOE proposed that manufacturers must designate a new basic model number when an existing model is modified such that a new basic model is created to permit transparency and improve consumer awareness. Several commenters, including AHAM, NEEA, Whirlpool, and ALS, expressed support for DOE's proposal to require a new number for a new basic model so long as a new basic model is created only when test results no longer support the rated value. (
In light of these comments, the Department will not require a new basic model number when a manufacturer creates a new basic model unless DOE has determined that the basic model is non-compliant with the standard. If manufacturers—on their own—seek to certify a new basic model, DOE will not require that they designate new model numbers to avoid unnecessary advertising, marketing, and consumer related costs. But, should DOE determine that a basic model does not comply with the applicable standard, manufacturers cannot certify any of the model numbers included in that basic model using the same model numbers certified in the basic model determined noncompliant. If, for example, a manufacturer wishes to make changes to a noncompliant basic model to bring it into compliance, that modified model(s) must be recertified as a new basic model, with a new model number(s).
We note that designating new model numbers for a new basic model may be prudent in some circumstances even when it is not required by today's rule. DOE enforcement efforts will be based on the basic model number. A manufacturer that increases the efficiency of a model may elect not to recertify it using a new basic model number. If, however, DOE tests an earlier-manufactured unit and determines the basic model to be non-compliant with the standard, the manufacturer will be required to cease distribution of all units of all models listed under that basic model number, even if modifications to the model may have made it compliant over time. Furthermore, we note, as Whirlpool's comment points out, that the FTC has issued a staff opinion stating that the failure to change model numbers when changing the efficiency rating of a product may be considered an unfair and deceptive practice in violation of Federal law. (Whirlpool, No. 78.1, at p. 2 (attaching FTC staff opinion letter))
In the September 2010 NOPR, the Department proposed to require that manufacturers report a model as discontinued as a part of their annual filing following the date on which production of a model has ceased and it is no longer being sold or offered for sale by the manufacturer or private labeler. Several commenters sought additional clarity with respect to when a model has been discontinued. AHRI members, such as Daikin AC, urged DOE to adopt AHRI's approach, whereby models are discontinued when production has stopped, yet stock remains, and such models remain listed in AHRI's directory for 6 months. (
Today's rule retains the requirement that manufacturers or certifying parties (
The Department's view of when a model is discontinued stems from EPCA's statutory framework. Although DOE understands that it may be easier for manufacturers to track production dates, the relevant information for DOE's compliance and enforcement efforts, and manufacturer or private labeler liability, does not stem from production, but from the distribution of a model in commerce by the regulated entity. Thus, the Department will consider a model to be discontinued when production has ceased and when the manufacturer (including importer) or private labeler is no longer offering the product for sale. To reduce the burden on manufacturers, today's rule no longer requires notification at the time of discontinuance, but rather requires that a model's discontinuance be reported to DOE as a part of the annual filing.
The Department emphasizes, moreover, that whether a model is discontinued depends on whether the manufacturer, importer, or private labeler has ceased production and stopped offering the model for sale. It does not depend upon distributor or retail sales and offerings. EPCA's standards and the Department's reporting obligations regulate manufacturers, importers, and private labelers. The certifying entity will know when it stops offering a model for sale, but would have no way of knowing when distributor or retail stock has been depleted. Thus, in the annual filing, the manufacturer or certifying entity should report basic models which are no longer being produced and that the manufacturer or private labeler is no longer offering for sale.
Under existing regulations, the sampling procedures for certain consumer products and certain commercial and industrial equipment to be used for certification testing are set forth in sections 430.24, 431.65, 431.135, 431.174, 431.175, 431.197, 431.205, 431.225, 431.265, 431.295, and 431.328. In the September 2010 NOPR, DOE proposed to consolidate existing sampling provisions in Part 429 and establish sampling provisions for the types of consumer products and commercial equipment that do not currently have them. Further, DOE proposed the use of a statistically meaningful sampling procedure for selecting test specimens of consumer products and commercial and industrial equipment, which would require the manufacturer to select a sample at random from a production line and, after each unit or group of units is tested, either accept the sample or continue sampling and testing additional units until a rating determination can be made. DOE did not propose a specific sample size for each product because the sample size is determined by the validity of the sample
While DOE has moved the sampling plans for all covered products and covered equipment, except electric motors, to Part 429, DOE is not adopting any changes to the existing tolerances at this time. In this final rule, DOE restructured the presentation of the sampling plan and statistical information and included the Student's t-distribution values to help manufacturers in understanding the process behind calculating the certification values for each product. DOE hopes these changes, which are editorial in nature, provide the additional clarity that interested parties have been seeking regarding DOE's sampling procedures. Table III.1 demonstrates a mapping between the existing location in parts 430 and 431 and the future location in part 429 of the sampling plans that manufacturers apply to the test data in order to generate their certified ratings.
DOE sought comment on a variety of issues relating to sampling plans in the September 2010 NOPR. DOE is continuing to consider further changes to the sampling plans for certification testing of all consumer products, including: (1) Changes to the product-specific coefficients and the rationale for such changes; (2) whether DOE should continue to have different sampling plans for certification testing and enforcement testing; and (3) whether DOE should expand the submission of data requirements in the certification section to include test data and the details of the sampling procedures used for making representations of and certifying compliance with the energy and water use or efficiency. DOE will consider all of the comments submitted as part of this record as it continues any potential revisions in the next certification, compliance, and enforcement rulemaking.
In the September 2010 NOPR, DOE proposed that one set of sampling procedures be used for certification testing of all types of commercial air-conditioning and water heating equipment (HVAC and WH) and for verification of the AEDM, regardless of participation in a voluntary industry certification program (VICP). DOE further proposed to allow all manufacturers of commercial HVAC and WH equipment, irrespective of participation in a VICP, to use both in-house testing facilities and independent laboratories at the manufacturer's discretion for certification testing.
In response to DOE's proposals, AHRI objected to the application of the more stringent non-VICP regulations to VICP participants. Specifically, AHRI stated that the certification testing requirements for VICPs should remain unchanged because changing them would actually be an advantage to those manufacturers that do not participate in a VICP. (AHRI, No. 91.1 at p. 8)
DOE does not agree with AHRI and is adopting its approach as proposed in the September 2010 NOPR. DOE believes that fair and equal treatment of all manufacturers of commercial HVAC and WH equipment is important regardless of participation in certification programs. While DOE recognizes that participation in industry programs can provide invaluable benefits to manufacturers, DOE does not believe the regulations for certification testing should be differentiated based on this factor. Certification sampling plans, which are applied to the certification testing results, have been established to capture the variances in manufacturing processes, testing methods, and materials. DOE does not believe these factors are influenced by participation in a VICP. As such, DOE is adopting identical provisions, which use certain provisions from the existing regulations, for both non-VICP and VICP participants.
In the September 2010 NOPR, DOE proposed to establish a record retention requirement for certification reports that would require the reports to be retained by the manufacturer as long as the model is being distributed in commerce and, for discontinued models, for two years from the date that production of a basic model has ceased and is no longer being distributed by the manufacturer. This requirement would be in addition to the records retention requirement for underlying certification test data, which existing regulations require manufacturers to maintain for two years. Records must be maintained such that they are readily accessible for review by DOE upon request.
In response to this proposal, BSH recommended that DOE strike the language proposed in the September 2010 NOPR requiring manufacturers to retain certification records for as long as the model is being distributed in commerce. Instead, BSH suggested that DOE simply state that records should be retained for two years from the date production ceased. (BSH, No. 89.1 at p. 4)
Although we recognize the date on which production ceases may be readily available to manufacturers, the Department's regulatory regime centers on the distribution of covered products in commerce, rather than manufacturers' production schedules. Thus, the Department is adopting in this final rule the requirement that certification records be retained for two years from the date that the manufacturer or certifying entity notified DOE that the basic model is no longer being distributed in commerce. As discussed above, the Department views a model as discontinued when the entity that certified the basic model (or the party represented by a third-party certifier) is no longer offering the model for sale. Accordingly, under today's rule, records must be retained for two years from the date of that submission. This approach creates a specific date known to both manufacturers and the Department and requires manufacturers to retain records for models in the distribution chain for a reasonable period of time after they are discontinued.
DOE also clarifies that, under its maintenance of records requirement, a manufacturer must retain the certification records, including test reports, which underlie the
In the September 2010 NOPR, DOE proposed to clarify in its regulations that the following information submitted pursuant to the certification requirements is considered public record: The manufacturer's name, brand name, model number(s), and all of the product-specific information submitted on the certification report. In addition, the Department retained the current approach whereby certifying entities seeking to withhold other information submitted to the Department from public disclosure must provide redacted copies at the time of submission.
In response, a number of commenters expressed strong support for public access to certification data. (
As for the specific information to be considered as a matter of public record, several parties objected to making public the business relationship between a manufacturer and private labeler of a covered product. Delta Faucet, for example, commented that certification information related to private labelers should be segregated and kept confidential due to concerns for contracting with potential customers and release of such information to competitors. (Delta, No. 94.1 at p. 1) Similarly, AHAM recognized that who manufactures a privately labeled product “may be valid and valuable information to DOE as a regulator,” but that this information “is not publicly known and, in many cases, would harm companies' competitive postures if * * * such arrangements were disclosed.” (AHAM, No. 98.1 at p. 6) First Company suggested that, to avoid consumer confusion, only the following information should be made public for central air conditioners and heat pumps: “manufacturer name, private labeler name, brand name, basic model number, individual model numbers covered by that basic model, capacity, SEER and HSPF (if applicable) of the model.” (First Co., No. 76.1 at p. 3)
AHAM further opposed making CT(l), CT(m) and standard temperature sensor location information for refrigerators, refrigerator-freezers, and freezers available to the public because they would reveal confidential information. (AHAM, No. 98.1 at p. 6) AHAM also asserted that certification information should only be made public once the product is released into commerce. AHAM believes that releasing such information prior to the product's release will deflate product launches and release information to competitors before it is otherwise known. (AHAM, No. 98.1 at pp. 6-7)
The Department believes that making data accessible to the public provides increased transparency and accountability to the Department's regulatory regime. At the same time, the Department recognizes that certain information may be confidential in nature and exempt by law from public disclosure. To balance these interests, the final rule adopts the following framework for addressing the public disclosure of information submitted to DOE under Part 429, while protecting valid claims of confidential business information.
First, certain categories of certification information will be considered a matter of public record that DOE intends to make available to the public on its Web site. The Department is developing a public, searchable database that will allow the public ready access to certain certification information for covered products. This certification database is still being developed, and the Department hopes to make it available to interested parties in the coming year. While this will be a DOE database, we are continuing to work with FTC and EPA on establishing a consolidated Federal database of energy and water efficiency information.
Using this database, the Department intends to publicize the following certification information for covered products: The brand name, model number(s), and product-specific certification information for which no confidentiality concerns have been raised. With respect to manufacturer and private labeler information, we understand from the comments that there may be heightened competitive sensitivity attached to the identity of manufacturers and private labelers of certain products. We also note that the FTC has chosen not to publicize this information on its Web site. In recognition of this, the Department will follow the FTC's approach and publicize brand information in lieu of information that reveals business relationships between manufacturers and private labelers. Although DOE has decided not to include the manufacturer and brand relationship on the public database, the Department still requires this information be submitted as part of the certification report to the Department and it will be subject to the confidentiality provisions outlined below.
DOE also intends to publish in the public database product-specific information that is already available or is readily available, such as the energy or water ratings and volume measurements. Though some of this information is technical, no party has deemed it proprietary and it will increase the accountability of manufacturers' self-certification and DOE's compliance and enforcement activities. DOE will not publicize the CT(l), CT(m) and standard temperature sensor location for refrigerators and freezers in light of the concerns that this information would reveal design details of the control mechanisms of a product that manufacturers treat as confidential. All other product-specific certification information will be made publicly available.
Once the database is available, these public categories of certification information will be posted promptly upon receipt and remain available until DOE receives a notice of discontinuance. With respect to AHAM's concerns about the posting of information prior to product launch, we note that manufacturers can wait to file a certification report until a model is about to be distributed in commerce. Furthermore, DOE believes that instances in which the entirety of a certification filing must be kept confidential will be exceedingly rare. Should such instances occur, manufacturers should contact DOE, in advance, and provide a full explanation of the extenuating circumstances justifying such confidential treatment.
Second, for all other information submitted pursuant to Part 429, today's rule provides a mechanism for submitting parties to claim confidentiality on a case-by-case basis at the time of submission. Any person submitting information or data pursuant to Part 429 that the person believes to be confidential and exempt by law from public disclosure should submit via an attachment to CCMS: (1) A request for confidential treatment; (2) one complete copy, and (3) one copy from which the information believed to be confidential has been deleted or redacted. The request for confidential treatment must contain a comprehensive statement of the reasons for withholding the information from disclosure, including: (1) A description of the specific items for which confidential treatment is sought, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person that would result from public disclosure, (6) a date upon which such information might lose its confidential nature due to the passage of time, (7) why disclosure of the information would be contrary to the public interest; and (8) any other information that the party seeking confidential treatment believes may be useful in assessing whether its request for confidentiality should be granted.
DOE may defer acting on any requests for confidentiality until DOE receives a request for the disclosure of the information covered by the request. The information will be treated as confidential until DOE acts on the request and all subsequent appeal proceedings have been exhausted. In response to a request for the disclosure of information, DOE will review the submitter's views, but will make its own determination with regard to any claim that information submitted be exempt from public disclosure. If the
This approach provides submitters with an opportunity to express claims of confidentiality with particularity at the time the information is submitted, including a request for information to remain confidential for a set period of time, such as prior to a public product launch. Furthermore, it will allow the Department to determine whether a particular piece of information is exempt from public disclosure by law on a case-by-case, fact specific basis. In this way DOE can both consider confidentiality claims effectively and respond to disclosure requests promptly, while protecting against unlawful disclosure of information.
The current regulations provide for enforcement testing only upon DOE's receipt of written information that a covered product or covered equipment may be violating a standard. 10 CFR 430.70(a); 10 CFR 431.373(a). In the September 2010 NOPR, DOE proposed to revise its procedures to make clear that, pursuant to section 6296 of EPCA, the Department retains the discretion to request data, test, or examine the standard compliance of any covered product or covered equipment at any time, and to initiate enforcement investigations and actions based on a belief that a covered product or covered equipment is not compliant with an applicable standard. 75 FR 56803; 56825.
Today's rule removes the requirement that DOE must receive a written complaint alleging a violation of the standard before it can perform enforcement testing to determine a model's compliance. The Department's need to exercise its discretion under the statute and enforce regulations proactively was recognized by a number of comments in the record. Consumer's Union and the Appliance Standards Awareness Project, for example, submitted comments in support of the Department's revision to its regulations to make clear that DOE, on its own, can initiate enforcement actions. (Consumer's Union, No. 74.1 at p. 3; Appliance Standards Awareness Project, Public Meeting Transcript, No. 103 at p. 21) Additionally, IAPMO R&T encouraged DOE to continue to seek companies that are not complying with the testing and reporting requirements so as to ensure a level, competitive playing field. (IAPMO R&T, No. 36.1 and 66.1 at p. 1)
Some commenters urged DOE to retain the existing limit on its discretion and require that it receive written information of a standards violation before testing to determine whether a product is compliant. Specifically, ABB requested that DOE retain the original requirement that a formal complaint must exist prior to the initiation of formal testing. (ABB, No. 53.1 at p. 11) AHRI also commented that the proposed change was unwarranted because DOE should have some reason for initiating an investigation of compliance or at least give preference to written information. (AHRI, No. 91.1 at p. 10)
The Department continues to believe that it is essential to align its regulations with its broad statutory authority under EPCA to initiate enforcement investigations and actions to determine if a covered product or covered equipment is compliant. This will ensure that the Department can enforce its regulations in a timely, effective manner as Congress intended. The enforcement program simply cannot be as effective if the Department can only initiate enforcement testing upon the receipt of an external complaint—DOE must be able to monitor compliance and test products at its own discretion.
Today's final rule reflects the Department's authority to monitor compliance by requesting data and testing products, at any time, and to initiate enforcement investigations and actions based on a belief that a covered product or covered equipment may not be compliant with an applicable standard. This authority comes directly from the statute,
Other commenters requested clarification regarding the criteria under which DOE will initiate an enforcement action. (
In practice, the Department's enforcement actions and how it chooses to exercise its enforcement authority will be dictated by the facts on a case-by-case basis. However, the Department understands commenters' desire for a greater understanding of the factors that DOE will use to guide the exercise of its enforcement discretion. We also recognize the importance of providing notice to regulated entities and making the Department's practices as transparent as possible. To provide further clarity, notice, and accountability, the Department plans to issue a policy statement on enforcement, which will address the types of factors and circumstances it will consider in deciding whether to initiate an enforcement action. The Department will make this policy statement available on its Web site in the near future.
Under the current regulations, DOE initially reviews the underlying test data supporting the certification and provides the manufacturer with an opportunity to come in and meet with the Department upon receipt of information regarding a potential standards violation. 10 CFR 430.70(a); 10 CFR 431.373(a). In the September 2010 NOPR, DOE proposed to allow DOE, at any time, to request any information relevant to determining compliance, including the certification and test data. 75 FR 56825. In addition, DOE removed the provision requiring DOE to offer to meet with the manufacturer prior to initiating testing.
Several commenters expressed concerns that removing these provisions would deprive manufacturers of the ability to respond in a timely and informed way to allegations of noncompliance. AHRI, for example,
The Department will continue to afford manufacturers due process and an opportunity to respond to allegations in the course of an enforcement investigation. The Department's forthcoming enforcement policy statement will provide additional guidance and detail on the enforcement process. However, in light of the comments, we address a few issues here as well. With respect to the manufacturer's certification test data, the Department agrees with interested parties that reviewing the data underlying the certifications prior to initiating enforcement testing is in an important step in the investigative process because it can reveal additional details that are not apparent in the certification data. Thus, the Department typically reviews the underlying certification data and test reports supporting the certification report prior to proceeding to enforcement testing. However, because there may be rare circumstances where expedited testing is necessary, DOE believes it is important to maintain flexibility by providing DOE with authority to request records and initiate testing at any time. DOE also agrees that manufacturers should have access to enforcement test data. DOE expects to provide the manufacturer with the test data reports after the enforcement testing has been completed. The Department will also return any test units provided by the manufacturer (or at the manufacturer's expense) once the case is officially closed.
DOE's current regulations require manufacturers to ship units for enforcement testing within five working days once they have been identified by DOE. 10 CFR 430.70(a)(v); 10 CFR 431.373(a)(v). In the September 2010 NOPR, DOE proposed to reduce the time period by which a manufacturer must ship test units of a basic model to the testing laboratory pursuant to a test notice from 5 to 2 days. 75 FR 56826.
In today's rule, the Department (1) retains the current regulation's five working day shipping rule for high volume, off-the-shelf products and (2) adopts a flexible window for low volume, custom built products. As discussed below, many of the commenters suggested that DOE separate built-to-order from pre-manufactured, off-the-shelf products, giving built-to-order products a longer time period to ship the basic model. The Department agrees and adopts this approach. To ensure that manufacturers have an adequate amount of time to ship test units for such low volume, built-to-order products, the Department is establishing separate shipping time periods by which a manufacturer must ship test units of a basic model for different groups of products.
For off-the-shelf products, which can be acquired at the retail level, DOE is retaining the current five-day window to ship a basic model to a test laboratory in the event a manufacturer receives a notice for enforcement testing from DOE. The record reflects that reducing the time frame from five to two days would impose a significant burden. In particular, JVC, Royal Vendors Inc., ALS, NEEA, Hill Phoenix, Ingersoll Rand, Delta Faucet, AHAM, AHRI, Manitowoc Ice, Craig Industries, Traulsen, GE Prolec, Kysor Panel Systems, and the Appliance Standards Awareness Project generally commented that two days is too short and would work an undue hardship on the manufacturer, distributor or dealer from whom the test samples are being acquired. (JVC, No. 56.1 at p. 1; Royal Vendors Inc., No. 64.1 at p. 2; ALS, No. 66.1 at p. 3, NEEA, No. 67.1 at p. 7; Hill Phoenix, No. 70.1 at p. 2, Ingersoll Rand, No. 6.1 at p. 4; Delta Faucet, No. 94.1at p. 2; AHAM, No. 98.1 at p. 9, AHRI, No. 92.1 at p. 10; Manitowoc Ice, Public Meeting Transcript, No. 103 at pp. 174-175; Craig Industries, Public Meeting Transcript, No. 103 at pp. 179-180; Traulsen, No. 52.1 at p. 6; GE Prolec, No. 95.1 at p. 6; Kysor Panel Systems, Public Meeting Transcript, No. 103 at p. 182; ASAP, Public Meeting Transcript, No. 103 at pp. 183-184)
For products like low-volume or built-to-order models that are unavailable upon receipt of the test notice at the manufacturer's facility, warehouse, distribution chain, or retailer, DOE will work with the manufacturer to obtain units as quickly as possible for a pending enforcement case. The comments in the record support a longer timeframe and a more flexible approach for these types of products. In particular, BWC, American Panel, AO Smith, NEMA, MEUS, NAMA, and ABB generally noted that the existing 5 days is too short, especially for custom, built-to-order products, which require a longer lead time to manufacture. (BWC, No. 45.1 at p. 3; American Panel, No. 59.1 at p. 3; AO Smith, No. 81.1 at p. 4; NEMA, No. 85.1 at p. 5, MEUS, Public Meeting Transcript, No. 103 at p. 183; NAMA, No. 25.2 at p. 5; ABB, No. 53.1 at p. 10) Some of these commenters also suggested a one-size-fits-all approach is impractical for a number of products. For example, American Panel asserted that 3 to 15 days are required to manufacture custom Walk-In Coolers or Freezers (WICFs). (American Panel, No. 59.1 at p. 3) Further, BWC asserted that 30 days is a more appropriate time period for shipping water heater test units, especially niche products, which are almost entirely built-to-order. (BWC, No. 45.1 at p. 3) Today's rule adopts a flexible approach in response to commenters' concern that it may not be feasible for low volume or built-to-order products to comply with a few days lead time for shipping test units for enforcement testing purposes.
The existing sampling procedures to be used for enforcement testing are set forth in Appendix B to Subpart F of Part 430 (consumer products), Appendix B to Subpart K of Part 431 (distribution transformers), Appendix C to Subpart S of Part 431 (metal halide lamp ballast), and Appendix D to Subpart T of Part 431 (certain commercial equipment).The sampling plan for enforcement testing of consumer products requires testing an initial sample of four products. Then, depending on the variation in the testing results of the initial sample, a second sample size of up to 16 additional units may need to be tested to make a determination of compliance or non-compliance per the current regulations. (Appendix B to Subpart F of Part 430)
For commercial products, DOE's existing regulations are similar to those of consumer products except there are provisions for testing a sample of less
In the September 2010 NOPR, DOE proposed to increase the maximum sample size for enforcement testing of all products to 21 units. 75 FR 56826. DOE proposed this increase in the maximum number of units to account for the test sample needed for certain types of consumer lighting products. 75 FR 56804.
In addition, DOE recognized that a sample size of 20 total units under the existing regulations may not always be available for basic models that are low-volume or built-to-order. To accommodate these circumstances and reduce burden on manufacturers, DOE proposed to modify the existing sampling procedures to account for low-volume and built-to-order basic models. 75 FR 56803-804; 56826. Further, DOE proposed to retain the discretion to determine whether the basic model qualifies as low-volume or built-to-order. DOE proposed to make such determination by evaluating the number of units of a given basic model available at the manufacturer's site and all distributors.
Today's rule makes two general changes to the current enforcement sampling regulations. First, it increases the maximum number of units that may be tested to 21. Second, it adopts new, flexible sampling provisions for low volume or custom-built products. Together, these provisions permit the Department to identify units for enforcement testing effectively, depending on the circumstances of a particular case.
First, for high-volume, consumer products and commercial equipment, DOE retains its sampling plan proposal, under which DOE tests an initial sample size of four units per basic model and, depending on the variability of the test results, may test up to 17 additional units, as required, for enforcement testing. DOE believes this is the best approach to provide robust test results and ensure that products are not incorrectly found out of compliance. DOE notes that with the exception of increasing the maximum sample size for off-the-shelf products from 20 to 21—which reflects the test sample needed for certain types of consumer lighting products—the sampling provisions for enforcement testing are nearly identical to the current provisions found in DOE's regulations and those currently being used for enforcement testing.
Second, DOE agrees with many of the comments on the importance of flexibility where units are not available for testing, especially in the case of low-volume or built-to-order basic models. American Panel Corporation stated its belief that DOE should allow for additional sampling based on analysis of the first sample(s) since the initial testing of products could be impacted by testing queues of as much as six months. (American Panel Corporation, No. 59.1 at p. 3) Ingersoll Rand recommended that DOE consider the nature and the cost of the product under test. (Ingersoll Rand, Public Meeting Transcript, No. 103 at p. 319 and No. 6.1 at p. 3) General Electric Lighting encouraged DOE to do computer simulation of enforcement testing to ensure that DOE has a high degree of confidence that DOE will not produce a false signal of non-compliance. (General Electric Lighting, Public Meeting Transcript, No. 103 at p. 229) IAPMO R&T stated its support for DOE's current proposal for enforcement testing. (IAPMO R&T, No. 36.1 at p. 2) Royal Vendors misunderstood DOE's proposal and commented that an initial sample size of four units and an additional sample size of up to 21 units is troublesome because of the unit cost, which could be burdensome and the availability of those units could be difficult to obtain. (Royal Vendors, No. 64.1 at p. 2) NAMA opposed the enforcement sampling size procedures as they related to beverage vending machines because the manufacturers do not have the economic capacity to warehouse up to 20 beverage vending machines of each basic model. NAMA urged DOE to use its discretion when fewer than two beverage vending machines of a given model are available for testing within 30 days of the test notice. (NAMA, No. 25.1 at pp. 4-5) Hoshizaki America, Inc. stated its belief that test samples should be minimized for commercial equipment, generally, because these units can be costly to make and house if limited machines are sold each year. (Hoshizaki America, Inc. No. 75.1 at p. 1)
Recognizing these concerns, DOE has decided to adopt several enforcement sampling provisions that take account of low-volume or built-to-order consumer products and commercial equipment. First, DOE specifies provisions for certain covered products and equipment where there is a lower volume market and manufacturing tends to be more customized. These include automatic commercial ice makers, commercial refrigeration equipment, refrigerated bottled or canned vending machines, commercial HVAC and WH equipment, and distribution transformers. The initial sample size of these units matches that of high-volume consumer and commercial equipment, which is four units.
Second, DOE is including a provision that provides for testing of fewer than four units if they are unavailable at the time the test notice is received. While these provisions were proposed in the September 2010 NOPR, DOE has attempted to clarify them to aid manufacturers in determining the exact sample size required for enforcement testing depending on product or equipment type.
Finally, DOE has also included a general provision applicable to all covered products and covered equipment, which allows DOE to use its discretion in determining the sample size when covered products and covered equipment are generally unavailable. DOE will use many of the considerations that interested parties noted above in their comments, including the availability of units and the availability of third-party testing facilities to run the DOE test procedure.
DOE proposed to allow units tested using the applicable DOE test procedure by DOE or another Federal agency, pursuant to other provisions or programs, to count toward units in the test sample for enforcement testing, so long as the testing is done in accordance with the DOE test procedures and certification testing provisions. 75 FR 56804. The record does not reflect any specific comments on this issue and DOE continues to believe the Department should not have to duplicate efforts taken by itself or by other agencies to re-test units that have already been tested by the Federal government using DOE's test procedure. Thus, DOE is adopting this provision, as proposed, in the final rule.
Currently, DOE must obtain units for testing directly from the manufacturer's facility or another location specified by the manufacturer. In the September 2010 NOPR, DOE proposed to revise its test unit selection provisions for enforcement testing to allow DOE to select the units of a basic model to be tested from the manufacturer, a distributor, or directly from a retailer. 75 FR 56826. For low-volume or built-to-order products, DOE proposed that it would determine the most reliable method of selecting units that are
In today's rule DOE is adopting in its regulations that DOE may select units of a basic model to be tested for enforcement purposes from a distributor, a retailer, or the manufacturer. Reliable enforcement testing requires the selection and testing of an unbiased sample that is representative of the units distributed in commerce. Based on DOE's experience, it is necessary to obtain units from diverse sources to allow for an unbiased, representative, and sufficient sample to produce the most reliable testing. A number of commenters supported DOE's proposal to obtain test units from retailers and distributors, as well as directly from the manufacturer. (AWE, No. 38.1 at p. 3; NEEA, No. 67.1 at p. 7; NRDC, No. 80.1 at p. 6)
Some commenters objected to this change, arguing that test units should come directly from the manufacturer. BWC stated this was necessary since not every manufacturer distributes their product through the retail channel. (NAMA, No. 25.1 at pp. 5-6; BWC, No. 10049 at p. 3; AHRI, No. 92.1 at p. 10) Commenters also noted that DOE's approach of obtaining test units from retailers would be too burdensome for products with limited or no stock. For example, Craig Industries stated that a WICF test unit is not stocked and would therefore have to be built by the manufacturer and then shipped to DOE at a cost of approximately $6,000 per unit under DOE's test unit selection process. (Craig Industries, Public Meeting Transcript, No. 103 at p. 192) As described above, however, DOE did not propose and is not adopting a process to select exclusively from retail sources. Today's rule broadens the potential sources of units for testing. DOE is not changing from a manufacturer-supplied process to an exclusively retail-supplied process.
NAMA and AHRI further argued against selecting units from distributors or retailers because the manufacturer cannot be held responsible for equipment once it is out of their control. (NAMA, No. 25.1 at pp. 5-6; AHRI, No. 92.1 at p. 10) DOE agrees that manufacturers should not be held responsible for most post-production modifications; however, unaltered equipment should function as intended whether it is obtained directly from the manufacturer or through the manufacturer's normal distribution channels. NAMA also questioned whether DOE is considering testing used or rebuilt equipment that has been modified by the purchasers, which would not provide a valid test of compliance. (NAMA, No. 25.1 at pp. 5-6) DOE has previously stated that its authority does not extend to rebuilt and refurbished equipment, and DOE does not plan to test equipment not covered by regulation.
DOE recognizes that for low-volume and built-to-order basic models that are not available from retailers or distributors, the only method of obtaining these units, in many cases, is from the manufacturer. Manufacturers of low-volume and built-to-order basic models also explained that they will most likely not have inventory available for enforcement testing. (
Other commenters expressed concern about the mechanism by which manufacturers would be notified of unit selection when units are obtained from retailers or distributors. AO Smith noted that if DOE adopts the approach of selecting test units from retailers, then a clear definition of cost would need to be established as well as a method of notifying a manufacturer that a unit was selected and obtained from a certain supplier. (AO Smith, No. 81.1 at p. 3) AHRI requested that DOE clarify that a manufacturer's reimbursement to the retailer is limited to providing a replacement product without any additional monetary compensation. (AHRI, No. 92.1 at p. 10; AHRI, Public Meeting Transcript, No. 103 at pp. 191-192) AO Smith also commented that although obtaining samples from a distributor or retailer may be a reasonable idea to prevent pre-selection of units by the manufacturer, it will be difficult (if not impossible) to administer. (AO Smith, No. 81.1 at p. 3)
DOE believes that obtaining units from a distributor or retailer will be relatively straightforward, as manufacturers have specified distributors as sources under the current regulations and have arranged some form of compensation to facilitate the transfer of the units to DOE's specified test lab directly from the distributors. Furthermore, DOE is adopting a process that includes the issuance of a test notice, which will specify the source of units for testing. Therefore, the manufacturer will be aware of the selection of units and can make arrangements to compensate the retailer for the units selected for testing. As stated earlier, DOE will communicate with manufacturers during the enforcement process and keep them informed about the investigation. Today's rule does not specify the form of reimbursement the manufacturer provides to the retailer. Such reimbursement may take the form of a replacement unit, monetary compensation, a voucher, or any other mechanism upon which the manufacturer and retailer agree.
Some of the commenters supporting the rule urged DOE to go farther, recommending that DOE adopt a preference for retail selection and obtain samples for testing from the manufacturer only if no retail product is available. NEEA and NRDC, for example, requested that DOE develop a protocol for enforcement testing that would establish off-the-shelf testing as the preferred method for acquiring products. (NEEA, No. 67.1 at pp. 7-8; NRDC, No. 80.1 at p. 6) NEEA further suggested that DOE's prioritization process for sourcing products for testing should be aligned to the Energy Star program's prioritization process. (NEEA, No. 67.1 at pp. 7-8)
The Department declines to adopt a systematic preference for sourcing products for enforcement testing from either retail or manufacturer sources. As
After the Department has tested a model and determined through statistical analysis that it does not meet the applicable standard, the existing regulations allow a manufacturer to do additional testing at DOE's selected lab at the manufacturer's expense. In the September 2010 NOPR, the Department proposed to remove these sections because manufacturers can perform additional testing on their own at any time.
The Department is removing the regulatory provision governing manufacturer testing because it is both unnecessary—given that manufacturers are free to perform additional testing on their own at any time—and otherwise delays the finality of a compliance determination. In written comments, AHRI, ABB, and NEMA opposed removal of the provisions allowing additional testing at the manufacturer's option. (AHRI, No. 92.1 at p. 11; ABB, No. 53.1 at p. 9, NEMA, No. 85.1 at p. 11) In particular, AHRI commented that this provision provides a safeguard against a “false negative” conclusion and provides manufacturers with fair, due-process in enforcement testing. (AHRI, No. 92.1 at p. 5) AHAM further commented that while it recognizes the Department is interested in minimizing delay in the enforcement process, this should not be at the expense of the Department being fair and obtaining accurate results. (AHAM, Public Meeting Transcript, No. 103 at p. 244)
The Department disagrees that removing the manufacturer optional testing provision will result in unfairness or inaccurate test results. Manufacturers can perform additional testing on their own and provide test results to DOE at any time. There is no need for a regulatory provision to give them this option. Moreover, DOE's enforcement testing is based on a statistically valid sample size. Once the Department has completed its enforcement testing, allowing for any additional testing serves no purpose other than to increase the testing sample size. As NEEA's comment explained, if the enforcement testing is done in a statistically rigorous way (according to procedure, within specified tolerances), then the only impact of further testing, regardless of who does it, is delay in the enforcement process. (NEEA, No. 67.1 at p. 8) Furthermore, under the existing (and proposed) regulation, manufacturers are prohibited from distributing the model in commerce during any additional manufacturer-elected testing, so delay in moving the adjudication process forward works to the disadvantage of the manufacturer.
Raising concerns about the possibility of defects in the tested units, MEUS, Johnson Controls, and Manitowoc Food Service generally commented that it is necessary for manufacturers to have the ability to test the same units that DOE has tested for there to be a determination that a component was defective. (MEUS, Public Meeting Transcript, No. 103 at pp. 233-234; Johnson Controls, Public Meeting Transcript, No. 103 at pp. 233-234; and Manitowoc Food Service, Public Meeting Transcript, No. 103 at pp. 242-243) Similarly, Owens Corning stated at the public meeting that it is imperative for manufacturers to retest a product that has been determined to be out of spec by an outside laboratory to determine whether it was the product or the outside laboratory's test that was at fault. (Owens Corning, Public Meeting Transcript, No. 103 at pp. 226-227) Such comments, however, reflect a misunderstanding of DOE's current regulations, which do not allow the manufacturer (1) to test the same units tested by DOE, (2) to observe the additional testing permitted by the regulation, or (3) to select the test lab for manufacturer-elected testing. Furthermore, today's final rule retains the current regulatory provision addressing defective units, allowing DOE to test a replacement unit if a selected unit is inoperative or is found to be in noncompliance due to failure of the unit to operate according to the manufacturer's design and operating instructions.
Other commenters expressed concerns about variability or uncertainty surrounding how an outside laboratory would conduct enforcement testing, and whether the laboratory would conduct the test in a manner similar to that of the manufacturer. NEMA, for example, asserted that manufacturers of distribution transformers should have some ability to challenge the results of an independent test lab that does not have proven, established experience with the particular product tested. (NEMA, No. 85.1 at p. 11) Similarly, GE Appliances and Lighting asserted that because variability questions exist among laboratories, where labs can test the same or similar products and get very different results, it is difficult for manufacturers to feel comfortable and validate those results. (GE Appliances and Lighting, Public Meeting Transcript, No. 103 at pp. 241-242)
As discussed below, DOE's enforcement testing will be done by appropriately qualified, ISO/IEC 17025:2005 accredited laboratories. However, in recognition of the concerns of the rare instances when laboratories may be unavailable to test certain products or equipment, DOE is adopting a provision in today's final rule that allows DOE to use its discretion to perform DOE-witnessed enforcement testing at a manufacturer's laboratory when there are extenuating circumstances that make testing at an independent laboratory inadequate or unrealistic.
In the September 2010 NOPR, DOE tentatively concluded that the cost of enforcement testing should remain with the Department, as existing regulations require. The Department received comments on this issue from the ALA, AWE and Hoshizaki America, Inc. Specifically, ALA commented that it supports DOE's tentative decision that the cost of enforcement testing should remain with DOE. (ALA, No. 97.1 at p. 1) In addition, AWE noted that DOE should consider alternate vehicles to pay for enforcement testing, including certification fees, VICP from manufacturers, and revolving funds paid from successful enforcement fines. (AWE, No. 38.1 at p. 3) Lastly, Hoshizaki America, Inc. suggested that the cost of enforcement testing be on a case-by-case basis, similar to AHRI's current process, which requires that the loser in the challenge process pay for enforcement testing. (Hoshizaki, No. 75.1 at p. 2) Hoshizaki America stated
DOE appreciates the suggestions by the commenters on the variety of potential methods to pay for enforcement testing. Unlike voluntary programs, which could incorporate a potential fee for registration, DOE's regulatory program requires manufacturers to certify with the Department and we currently have no authority to collect filing fees that could be used for administering the enforcement program. DOE agrees with ALA that the cost of enforcement testing should reside with the Department, as this allows the Department with the greatest flexibility in executing the enforcement testing at the third-party laboratory of its choice. Consequently, DOE concludes that the cost of enforcement testing should remain with the Department and is not adopting a change in today's final rule.
DOE did not propose specific third-party laboratory requirements for enforcement testing in the September 2010 NOPR. However, DOE sought comment, generally, about the attributes of a laboratory accreditation program as it relates to enforcement testing.
In response, DOE generally received comments supporting some type of broad accreditation for laboratories DOE uses to enforcement test covered products and covered equipment. For example, Earthjustice commented that accreditation should be required for all labs testing covered products and equipment. (Earthjustice, No. 83.1 at p. 1) UL stated its support for laboratory accreditation through the ISO/IEC 17025:2005 process. UL further commented that adoption of an ISO/IEC 17025:2005 requirement will improve initial product quality. (UL, No. 60.1 at p. 2) Similarly, IAPMO R&T commented that the laboratory used for determining compliance in enforcement actions should meet the ISO/IEC 17025:2005 requirements. (IAPMO R&T, No. 36.1 at p. 2) Additionally, the Natural Resources Defense Council, the Appliance Standards Awareness Project, the National Consumer Law Center, and the Northeast Energy Efficiency Partnership submitted a joint comment supporting laboratory accreditation for enforcement testing. (NRDC, ASAP, NCLC, and NEEP, No. 39.1 at p. 4)
As a result of the support to establish some type of laboratory accreditation program for enforcement testing, DOE has taken the initial steps towards this goal by requiring that any laboratory used for enforcement testing by DOE be lab accredited to ISO/IEC 17025:2005. DOE believes this requirement, while limiting the laboratories DOE could use for potential enforcement testing, will provide interested parties with additional reassurance in the robustness and accuracy of the test results. DOE will continue to consider additional accreditation requirements, including test procedure-specific requirements, in the next certification, compliance, and enforcement rulemaking.
In the September 2010 NOPR, DOE proposed to modify the label on exported products that do not comply with the applicable energy conservation standard to read “NOT FOR SALE IN THE UNITED STATES” to make it clear that those products are not for distribution in commerce in the United States. Additionally, DOE sought comments on how to modify its certification, compliance, and enforcement provisions to more effectively enforce at the border.
In today's final rule, the Department is modifying its proposed label requirement for exported products to read “NOT FOR SALE FOR USE IN THE UNITED STATES.” The Department believes this new language makes clear that the labeled item cannot be sold or distributed in the United States for ultimate use in the United States—which is what the statute requires—while incorporating commenters' suggestions that the label explicitly state “NOT FOR USE IN THE UNITED STATES.” (
With regard to DOE's question in the September 2010 NOPR on how to modify its regulations to more effectively enforce at the border, the Department received several comments recommending that DOE develop documentation and labeling requirements for determining compliance. For example, GE Prolec recommended that DOE provide additional documentation guidelines for import reviews by U.S. Customs and Border Protection (CBP), since it would be extremely difficult for CBP to determine if a distribution transformer was compliant from only a visual perspective. (GE Prolec, No. 95.1 at p. 9) Additionally, GE Prolec suggested DOE adopt some sort of a labeling requirement, such as a symbol, for commercial products that would explicitly state that it was compliant with the energy efficiency regulations. (GE Prolec, Public Meeting Transcript, No. 103 at pp. 312-314) Similarly, the NEMA Transformer Section recommended that DOE adopt a program, akin to the CC number system used for motor manufacturers, that would indicate to CBP that the product comes from a source that has complied with the certification and compliance requirements of the DOE. (NEMA Transformer Section, No. 84.1 at p. 16) For Medium-Voltage Dry-Type and Liquid-Fill Distribution Transformers, the NEMA Transformers Section proposed requiring a “Circle E” to be placed on all products tested and certified to indicate compliance with the energy conservation standards. (NEMA Transformer Section, No. 84.1 at p. 16)
The Department agrees that it may be beneficial to adopt some type of documentation to verify compliance and will consider these comments in its ongoing discussions with CBP. The Department declines to adopt commenters' suggestions regarding labeling for distribution transformers at this time. DOE questions the value of CC numbers assigned to motor manufacturers and does not wish to extend this practice to distribution transformers. We do not adopt any type of labeling requirement, including placement of a “Circle E” on a product, at this time. While DOE continues to work with CBP for effective enforcement of the energy conservation standards at the border, any labeling requirement DOE would adopt would need to be established in coordination with CBP, as CBP is be the agency that has the authority to deny entrance of any products that are not in compliance with the energy conservation standards.
Other commenters generally suggested that DOE develop some type of enforcement program with CBP to conduct inspections at the port. (
As previously stated, the Department is currently working with CBP on ways to ensure effective enforcement of the Federal energy efficiency regulations at the border and will take commenters' suggestions into consideration in developing any new practices with CBP.
Lastly, regarding specific changes to the regulatory text proposed in the September 2010 NOPR, NEMA recommended that DOE revise its proposed language in the imported and exported products rule in the proposed sections 429.25-26. (NEMA, No. 84.1 at pp. 4-5) NEMA asserted that DOE should make clear that the reference to “this part” in proposed sections 429.25 and 429.26 refers not only to Part 429, but also Parts 430 and 431. (NEMA, No. 84.1 at p. 4) NEMA additionally commented that DOE make explicit in proposed section 429.25(b) that there is an exception for a product imported for export. (NEMA, No. 84.1 at p. 5) The Department agrees with NEMA regarding the reference to “this part” in proposed sections 429.25-26 and revises these sections in today's final rule sections 429.5 and 429.6 to include not only Part 429, but also Parts 430 and 431. With respect to NEMA's comment on proposed section 429.25(b), however, DOE believes that no change is needed. The existing text already reflects that there is an exception for a product imported for export, and, of course, section 429.6 specifically addresses exported products.
In the September 2010 NOPR, DOE proposed to explicitly establish in its rules that a manufacturer's failure to properly certify a covered product or covered equipment and retain records in accordance with DOE regulations may be subject to enforcement action, including the assessment of civil penalties, separate from any determination of whether a covered product or covered equipment does or does not comply with the applicable conservation standard. In addition, the Department proposed to revise its regulations to make clear that the following violations would also constitute a prohibited act subject to enforcement action: (1) A failure to test any covered product or covered equipment subject to any of the conservation standards, including deliberate use of controls or features in such product or equipment to circumvent the requirements of a test procedure and produce test results that are unrepresentative of a product's energy or water consumption if measured pursuant to DOE's required test procedure; (2) a manufacturer or private labeler's distribution in commerce of a basic model after a notice of noncompliance determination has been issued; and (3) the occurrence of a knowing misrepresentation.
DOE received comments from various member sections of NEMA on its proposed enforcement steps. In particular, the NEMA Motor and Generator Section requested clarification that not testing a basic model is not a violation when the efficiency of the basic model has been certified under an AEDM or certification program. (NEMA, No. 85.1 at p. 26) On this point, the Department clarifies that a basic model must be tested in accordance with a DOE test procedure and regulations, which includes sampling plans and alternative methods of testing, to be properly certified. Thus, if a manufacturer is using an AEDM to certify a basic model, then, so long as the manufacturer has substantiated and applied the AEDM properly in accordance with DOE regulations, there is no violation.
The NEMA Motor and Generator Section also commented that DOE should permit a grace period between the time of issuance of a notice of noncompliance determination and the time at which distribution must be fully stopped, since distribution of a noncompliant electric motor may need to be stopped at several locations.
Additionally, the NEMA Lamp Section and NEMA Lamp Ballast Section stated that while they accept the need for enforcement steps in cases of knowing misrepresentation, a high level of confidence should be required to establish this and the enforcement standard would have to acknowledge industry and regulatory tolerances. (NEMA, No. 85.1 at pp. 38, 52) These Sections also noted that the sampling provisions can result in an under-representation of the true performance characteristic and expressed concern that this would be considered a knowing misrepresentation.
Today's rule clarifies that a knowing misrepresentation of the efficiency of a product in a required certification report to the Department is a violation under EPCA. Pursuant to EPCA, DOE has the authority to require that manufacturer submissions are both accurate and provided in accordance with its regulations. (
In the September 2010 NOPR, the Department proposed to revise its regulations to state clearly that for certification requirement violations, per statutory authority and DOE guidance, the Department would calculate penalties based on each day a manufacturer distributes each basic model in commerce in the United States without having submitted a certification report. Additionally, DOE proposed to explicitly state in its regulations that, consistent with its guidance, it would consider numerous factors in assessing civil penalties, including: The nature and scope of the violation; the provision violated; the violator's history of compliance or noncompliance; whether the violator is a small business; the violator's ability to pay; the violator's timely self-reporting of the violation; the violator's self-initiated corrected action, if any; and such other matters as justice may require. In today's final rule, the Department clarifies its penalty procedure. Further, the Department determines not to add to its regulation the specific factors DOE takes into consideration when assessing civil penalties, as proposed in the September 2010 NOPR.
The Department has determined that it will not adopt its proposal to list explicitly in its regulations the factors that DOE takes into consideration in assessing civil penalties. The Department's previously issued Guidance on the Imposition of Civil Penalties for Violations of EPCA Standards and Certification Obligations (Penalty Guidance), available at
Although we are not adopting this provision, the Department has considered comments on DOE's proposal in light of the existing Penalty Guidance. For example, Earthjustice suggested that, to make the assessment of penalties fairer, DOE should use the manufacturer's markup across the industry for a product to calculate how much a manufacturer has benefitted from selling a noncompliant product and then take that into consideration in developing a penalty amount. (Earthjustice, Public Meeting Transcript, No. 103 at pp. 268-269) The Department agrees with Earthjustice and will amend its Penalty Guidance to include a manufacturer's markup data as one of the factors the Department may consider in developing a penalty amount.
A few parties objected to some of the factors listed in DOE's Penalty Guidance. Specifically, American Panel stated that certain factors DOE considers in assessing civil penalties, namely the size of violator's business and violator's ability to pay, have merit but could lead to unequal enforcement. (American Panel, No. 59.1 at p. 3) The NEMA Motor & Generator Section similarly commented that penalties should be the same for any violator, regardless of size or ability to pay (NEMA, No. 85.1 at p. 26) The Department is mindful of such concerns and wishes to reassure parties that it will balance concerns of fairness and equity in the assessment of penalties to achieve deterrence and encourage timely resolution of any instances of non-compliance. While DOE will look at a company's size and their ability to pay, this will just be one factor among others from which the Department determines the appropriate penalty in any given case.
Interested parties also suggested including additional penalties for frivolous claims. Specifically, the NEMA Motor & Generator Section recommended that a penalty be assessed on anyone who submits a frivolous claim about a violation which is found to be untrue.
Lastly, with regard to distribution transformers, Schneider Electric commented that the language in section 429.55 relating to the assessment of civil penalties should be modified from “each day of noncompliance” to “each day energized” since the distribution transformer can sit un-energized for months. (Schneider Electric, No. 63.1 at pp. 4-5) The Department understands that products may be used or not used in a variety of ways once distributed in commerce and that a distribution transformer may be distributed in commerce but not energized for some periods of time. But EPCA prohibits the distribution in commerce of noncompliant products, and this cannot turn on whether and how the product is used or energized once sold. Therefore, DOE declines to adopt Schneider Electric's proposal.
As an additional tool to ensure compliance with the DOE conservation standards and regulations, the Department proposed in the September 2010 NOPR to revise its regulations to provide that the DOE may require independent, third-party testing for certification of covered products and covered equipment where DOE has determined a manufacturer or private labeler is in noncompliance with the certification requirements or applicable conservation standards. DOE received no comments in opposition to this proposal and is including this requirement that allows for third-party certification testing for noncompliance in today's final rule.
In the September 2010 NOPR, the Department proposed to outline the steps to be taken by both parties (DOE and respondent) once a compromise or settlement offer has been made. No interested parties opposed this proposal, and the Department is including language outlining the process for compromising or settling a penalty amount assessed under its regulations in today's final rule.
DOE also addressed the possibility of establishing a mandatory waiver requirement in the September 2010 NOPR. This would obligate manufacturers to obtain a waiver where the test procedure does not evaluate the energy or water consumption characteristics in a representative manner or where the test procedure yields materially inaccurate comparative data.
The Department received comments in support of a mandatory waiver requirement from NRDC, the Appliance Standards Awareness Project,
Although various commenters supported a mandatory waiver requirement, DOE is not adding such a requirement to its final rule. While DOE appreciates that such a requirement may serve to prevent manufacturers from deliberately circumventing the test procedures, DOE believes that its existing regulations already provide adequate protections against such circumvention. DOE notes that coverage of a product is not dependent upon whether there is a test procedure that can test a product. Thus, regardless of whether a waiver is obtained for a product that is not covered by a test procedure, a manufacturer must still meet the required energy conservation standard for the product if it is a covered product under DOE's regulatory authority.
Consequently, DOE has multiple processes to address the testing concerns that are not explicitly addressed by DOE's test procedure. First, manufacturers can submit test procedure related questions through DOE's Test Procedure Guidance process.
In the January WICF Test Procedure NOPR, DOE proposed to have a separate test procedure for the WICF envelope and WICF refrigeration system. 75 FR 186. Due to the separate test procedures for each of the components being considered by the Department, DOE explored the idea that the “manufacturer” of an entire walk-in system (
DOE received a number of comments about this proposed definition in the January WICF Test Procedure NOPR. DOE addressed these comments in the September 2010 NOPR, where DOE proposed that the “manufacturer” is the entity responsible for compliance with any DOE energy conservation standard. 75 FR 56806. EPCA defines the term “manufacture” as “to manufacture, produce, assemble, or import.” (42 U.S.C. 6291(10)) DOE proposed in the September 2010 NOPR that the term “manufacturer” be applied to the entity responsible for designing and/or selecting the various components used in a WICF. 75 FR 56806.
Some stakeholders agreed with DOE's proposed definition of manufacturer. Arctic Industries believes that the person who chooses the specifications for a WIFC should be responsible for its efficiency. (Arctic Industries, Public Meeting Transcript, No. 103 at p. 293) Kysor stated that the installation of the components to create a complete walk-in is accomplished by several different parties: a panel installer, a refrigeration installer, and an electrical contractor, for example. Due to the number of parties involved, Kysor agreed with DOE's clarification of the entity responsible as the person who has control of the completed walk-in and all of its components. (Kysor, No. 68.1 at p. 3) American Panel agreed with the proposed definition but suggested an addition. American Panel stated that the definition of “manufacture” should be modified to state the manufacturer of a WICF means any person who specifies, manufactures, produces, assembles or imports a WICF. American Panel also recommended that the definition of manufacturer should include a food service consultant who prepares a written specification of equipment to be provided on a project. (American Panel, No. 59.1 at p. 4)
Other stakeholders stated that the installer should be involved in WICF compliance. CrownTonka stated that they would be in favor of a definition that held the assembler responsible for compliance, if the definition encompassed the installer. CrownTonka explained that even if components comply, a poor installation will not cause efficiency gains to be realized. (EERE-2008-BT-STD-0015, CrownTonka, Public Meeting Transcript, No. 44 at p. 323) Craig stated that only the installers, who assemble the product in the field, can verify the energy usage for WICFs. (Craig, Public Meeting Transcript, No. 103 at p. 27) Craig expressed concern that unless installers ensure the integrity of the material that goes into a WICF, installers are excluded from the definition of manufacturer even though they can have more impact on the energy use of a WICF than the manufacturers because energy usage depends on proper installation, which the manufacturer cannot control. (Craig, Public Meeting Transcript, No. 103 at p. 25) CrownTonka, Thermalrite, and ICS, also known as the Joint Comment, stated that since the “matched” ratings are applied to remote condensing units the certification should be done by the installer instead of the manufacturer, which would increase the number of responsible parties. (EERE-2008-BT-TP-0014, Joint Comment, No. 2.3.006 at p. 3) Hill Phoenix stated that the responsibility for infiltration testing and compliance should be placed on the installer. (EERE-2008-BT-TP-0014,
Many stakeholders were concerned about the consequences of making the assembler responsible for certifying the entire walk-in. NEEA implied that the proposed definition of a WICF manufacturer was too broad. (NEEA, Public Meeting Transcript, No. 103 at p. 295) NEEA also stated that the current framework would be difficult to enforce (EERE-2008-BT-TP-0014, NEEA, No. 2.3.005 at p. 1) CA State IOU recommended that DOE carefully consider how this rule would be enforced before proceeding under the proposed regulatory framework, which shifts compliance documentation from tens of manufacturers to thousands of contractors and designers, converts this appliance standard to a building standard, and also shifts enforcement from DOE to over 3,000 building departments. (EERE-2008-BT-STD-0015, CA State IOU, No. 60 at p. 4)
Specifically, some stakeholders expressed concern about the cost burden that would be imposed upon the defined “manufacturer.” Heatcraft stated that it would be very burdensome for component manufacturers to be responsible for testing different components that they did not manufacture. (EERE-2008-BT-STD-0015, Public Meeting Transcript, Heatcraft, No. 44 at p. 318) Craig stated that the proposals in the September 2010 NOPR were overly burdensome, and costs associated with the proposed regulations would likely put three quarters of the manufacturers out of business. (Craig, Public Meeting Transcript, No. 103 at p. 24) Manitowoc stated that if the assembler is a local contractor, the contractor may not be in a position to handle the responsibility of demonstrating compliance with an overall performance standard. Manitowoc worried that assemblers may get out of the business for fear of noncompliance consequences. (EERE-2008-BT-STD-0015, Public Meeting Transcript, Manitowoc, No. 44 at p. 30) Hill Phoenix stated that requiring manufacturer certification of installers would place undue burden and cost on both manufacturers and consumers. (EERE-2008-BT-TP-0014, Hill Phoenix, No. 1.2.023 at p. 1)
Various stakeholders suggested other compliance, certification, and enforcement paths the DOE could follow. NWEEA and NPCC stated that one way DOE could ensure compliance with these standards is by conventional means at the manufacturer level for WICF system components. (EERE-2008-BT-STD-0015, NWEEA and NPCC, No. 58 at p. 3) Kysor emphasized that certification and compliance to a panel standard should be incumbent upon the panel manufacturer. (Kysor, No. 68.1 at p. 1) Similarly, Master-Bilt stated that door manufacturers should rate their own doors. (EERE-2008-BT-TP-0014, Master-Bilt, No. 2.3.014 at p. 2) Both Kysor's and Master-Bilt's comments are examples of a component level certification approach. Hill Phoenix argued that the definition of walk-in manufacturer should be clarified because in the current definition, the compliance responsibility could be applied to several entities, including the end user, consulting engineer/architect, dealer, wholesaler, and component manufacturer. Hill Phoenix recommended responsibility fall on three possible areas: The component manufacturers, the installer, and the entity that specifies all of the components of a walk-in envelope. Hill Phoenix also recommended that DOE adopt a regulatory framework similar to NEEA's, in which the component manufacturers are responsible for certifying their own components, the installer is responsible for infiltration, and the entity responsible for specifying the components would be responsible for the efficiency of the whole envelope. (Hill Phoenix, No. 70.1 at p. 3; EERE-2008-BT-TP-0014, Hill Phoenix, No. 2.3.007 at p. 1) Kysor stated that the manufacturer of each component should be responsible for testing that component, but should have nothing to do with the finished product in terms of compliance. (Kysor, No. 44 at p. 317, Standards Preliminary Analysis Public Meeting) Kysor explained that the overall installation is typically controlled or at least monitored by the permitting agency, general contractor, building certification official, or owner. These are the only parties in contact with all involved component manufacturers and installers and are the only parties in a position to have complete information from each component manufacturer for compilation; therefore, they are the only parties that could demonstrate compliance of the completed walk-in. (EERE-2008-BT-STD-0015, Kysor, No. 53 at p. 2; EERE-2008-BT-STD-0015, Public Meeting Transcript, Kysor, No. 44 at p. 326). Kysor also stated that DOE could request test data and certification at any time from the supplier for verification. Also, Kysor requested that the manufacturers be allowed to witness any verification testing of their products because testing labs do not always use the same equipment and often disagree on method or interpretation. (Kysor, 68.1 at p. 3) AHRI suggested that DOE should have two compliance paths: a prescriptive path and a performance path, similar to the International Energy Conservation Code. (EERE-2008-BT-STD-0015, Public Meeting Transcript, AHRI, No. 44 at p. 333)
Stakeholders suggested options like labeling and check sheets to make certification, compliance and enforcement easier. Ingersoll Rand stated that a program with a compliance check sheet would be good because the installer would just have to make sure the walk-in incorporates compliant components and would not have to do actual testing. (EERE-2008-BT-STD-0015, Public Meeting Transcript, Ingersoll Rand, No. 44 at p. 343) CrownTonka agreed with Ingersoll Rand's suggestion and stated that it would be self-regulating. (EERE-2008-BT-STD-0015, Public Meeting Transcript, CrownTonka, No. 44 at p. 343) NEEA stated that the overall U-value can be enforced by attaching paperwork to the shipped panels or a label similar to NFRC-rated fenestration products. NEEA continued to suggest that labeled products would make it easier for the manufacturer to calculate a performance metric. (EERE-2008-BT-TP-0014, NEEA, 2.3.005 at p. 1; EERE-2008-BT-TP-0014, NEEA, 2.3.005 at p. 2) Joint Utilities, which comprises of Southern California Edison, Pacific Gas & Electric, San Diego Gas & Electric, Sacramento Municipal Utility District, and CA State IOU stated that products intended for walk-ins must have certified ratings and have a label and catalog information that indicates that these products are approved for walk-ins. (EERE-2008-BT-TP-0014, Joint Utilities, 2.3.003 at p. 6; EERE-2008-BT-STD-0015, CA State IOU, No. 60 at p. 4) Carpenter Co. suggested WICF components be labeled with their energy consumption to streamline inspection and eliminate confusion when components are from different manufacturers. (EERE-2008-BT-TP-0014, Carpenter Co., 2.3.012 at p. 2) Adjuvant, Kysor, CrownTonka, and ICS all supported labeling WICF components. (EERE-2008-BT-STD-0015; Public Meeting Transcript, Adjuvant, No. 44 at p. 52; EERE-2008-BT-STD-0015, Public Meeting Transcript, Kysor, No. 44 at p. 55; EERE-2008-BT-STD-0015, CrownTonka and ICS, No. 56 at p. 1) NWEEA and NPCC suggested
Stakeholders also discussed who would enforce the WICF standards. Manitowoc stated that a framework exists for oversight by health inspectors and oversight of structural and other elements, and recommended that DOE examine the existing framework to see if it can support energy efficiency measures. (EERE-2008-BT-STD-0015, Public Meeting Transcript, Manitowoc, No. 44 at p. 48) Adjuvant stated that in its experience with the California Title 20 standard, building and health inspectors could not inspect for energy efficiency because it was impossible to tell if a walk-in complied with energy regulations just by looking at it. (EERE-2008-BT-STD-0015, Public Meeting Transcript, Adjuvant, No. 44 at p. 52) CA Codes and Standards stated that building officials trying to evaluate a performance standard (
In light of the comments, DOE is modifying the definition of manufacturer as it relates to WICFs in the final rule. DOE notes that the current legislative design standards set forth by the Energy Independence and Security Act of 2007 (EISA 2007) provide the framework for a component-based approach since each design standard is based on the performance of a given component of the WICF. Using this approach, component manufacturers would be the entity responsible for certifying compliance of the components they manufacture for walk-in applications and ensuring compliance with the applicable standards for those components. This system would follow Master-Bilt's suggestion that door manufacturers certify their own doors. Since the current Federal standards are component level standards, DOE is able to make certification as conventional as possible, as suggested by NWEEA and NPCC. Enabling component manufacturers to certify their own components would also relieve testing and cost burden from the assembler, which s an issue identified by Heatcraft, Craig, and Manitowoc, and Hill Phoenix.
DOE also is specifying certain requirements for the manufacturers or assemblers of complete walk-ins, whether they are assembled in a factory or on-site. Even if the component manufacturers test and certify their components to the Department as required by this final rule, DOE must still ensure that only compliant components are used in walk-ins. Therefore, DOE notes that definition of manufacturer being adopted today extends the compliance responsibility to both the component manufacturer and the assembler even though the component manufacturer is the sole entity responsible for certification. Assemblers of the complete walk-in system are required to use only components that are certified to meet the Federal energy conservation standards in the assembled walk-in. The manufacturer or assembler of the complete walk-in does not have to certify each walk-in, as this could be unduly burdensome. Rather, DOE anticipates that the market will police itself and report noncompliant installations to the Department, especially if component manufacturers educate their purchasers about compliance requirements. This approach is very similar to the compliance pathways proposed by Ingersoll Rand and CrownTonka, Hill Phoenix, and Kysor.
In this final rule, DOE adopts a framework for enforcement in which DOE will determine whether the manufacturer of the component or manufacturer or assembler of the complete walk-in (or both) is responsible for noncompliance on a case-by-case basis. If a component manufacturer certifies a noncompliant component as compliant, or if the component is not properly tested and certified, DOE would initiate an enforcement action against the component manufacturer. If a walk-in is assembled from non-compliant components, DOE would initiate an enforcement action against the manufacturer or assembler of the complete walk-in. This approach provides DOE with flexibility in enforcing WICF standards. Although the outlined approach may not reduce the number of manufacturers, as CA State IOU warned, this approach clearly identifies who is responsible for compliance and certification, and how the standard will be enforced.
In the January WICF Test Procedure NOPR, DOE proposed to define “basic model” as all units of a given type of walk-in equipment manufactured by a single manufacturer, and—(1) With respect to envelopes, which do not have any differing construction methods, materials, components, or other characteristics that significantly affect the energy consumption characteristics. (2) With respect to refrigeration systems, which have the same primary energy source and which do not have any differing electrical, physical, or functional characteristics that significantly affect energy consumption. DOE requested comment on this proposed approach. 75 FR 189.
In the September WICF Test Procedure SNOPR, DOE proposed that envelope models grouped within a basic model could still differ in terms of non-energy characteristics (
Later in the September 2010 NOPR, DOE described the concept of “basic model” as a group of manufacturers' models that have essentially identical energy consumption characteristics such that the manufacturer would derive the efficiency rating for all models in the group from testing sample units of these models. DOE anticipated that applying this concept within the energy conservation program would streamline certification and compliance and alleviate burden on manufacturers by reducing the amount of testing they must do to rate the efficiencies of their products. DOE asked for comment on how manufacturers determine that a particular model constitutes a basic model, and what modifications to an existing model would make it a new basic model subject to the new model certification requirement. 75 FR 56798-56799.
Interested parties, including many manufacturers of walk-in coolers and freezers, submitted comments on the basic model concept to both this rulemaking docket and the WICF test procedure rulemaking docket. For consistency, all comments pertaining to basic model of WICF will be addressed in this rulemaking.
A large number of interested parties expressed concern that DOE's typical approach of using the basic model
Despite the supportive comments from CPI and NRDC, DOE notes that the basic model concept is particularly suited for instances where manufacturers make products that tend to be the same with respect to energy consumption; in that case the basic model concept would reduce the number of models that would need to be tested and certified. However, the comments from AHRI, American Panel, Arctic Industries, Bally, Craig Industries, Heatcraft, Hill Phoenix, Kysor Panel, and Master-Bilt indicate that most walk-ins would tend to differ in energy consumption, making each walk-in effectively a different basic model. Therefore, DOE realizes the need to carefully consider its basic model concept as it applies to walk-ins.
Many interested parties offered suggestions on how to improve the basic model concept so that it could be applied to walk-ins. Some suggested DOE adopt a calculation methodology or allow manufacturers to use a calculation methodology to reduce the number of tests. Hill Phoenix stated that allowing manufacturers to test a limited number of models and then calculate performance of other models would reduce burden. (EERE-2010-BT-TP-0014, Hill Phoenix, No. 2.3.007 at p. 3) Arctic Industries and Craig Industries recommended a calculation or formula based on size. (EERE-2010-BT-CE-0014, Public Meeting Transcript, Arctic Industries, No. 103 at p. 67; EERE-2010-BT-TP-0014, Craig Industries, No. 2.3.013 at p. 6) Heatcraft, Hill Phoenix and SBA stated that manufacturers could calculate the energy consumption based on component test results. (EERE-2010-BT-CE-0014, Heatcraft, No. 65 at p. 1; EERE-2010-BT-CE-0014, Hill Phoenix, No. 70 at p. 1; EERE-2010-BT-TP-0014, SBA, No. 2.3.011 at p. 2) Other interested parties, specifically American Panel, Heatcraft, and SBA, agreed with an approach DOE considered in the Test Procedure SNOPR to group basic models into a more general “family” and only require manufacturers to certify some basic models within the family. (75 FR 55072) (EERE-2010-BT-TP-0014, American Panel, No. 2.3.001 at p. 1; EERE-2010-BT-TP-0014, Heatcraft, No. 2.3.009 at p. 2; EERE-2010-BT-TP-0014, SBA, No. 2.3.011 at p. 3) The Joint Comment recommended that a basic model could represent a family of models as long as a linear relationship could be established with regard to energy consumption over the range of models. (EERE-2010-BT-TP-0014, Joint Comment, No. 1.3.019 at p. 1) Heatcraft also suggested that the family of models could include units of similar design, construction, and function, which would reduce the number of basic models and related equipment tests. (EERE-2010-BT-CE-0014, Heatcraft, No. 65 at p. 1; EERE-2010-BT-TP-0014, Heatcraft, No. 2.3.009 at p. 1) American Panel and Bally suggested DOE allow manufacturers to test one basic unit, with characteristics specified by DOE, for purposes of certifying their walk-ins to DOE. (EERE-2010-BT-CE-0014, Public Meeting Transcript, American Panel, No. 103 at p. 89; EERE-2010-BT-CE-0014, Bally, No. 46 at p. 1)
The majority of interested parties, however, recommended that DOE implement the basic model concept on a component level as this would remove the difficulty of testing and/or certifying different size walk-ins that would have different energy consumption. For instance, American Panel, Craig Industries, Hill Phoenix, and Kysor Panel stated that DOE should define a basic model of a panel which would be distinguished on the basis of insulation value or panel thickness as this characteristic is most closely indicative of the panel's performance. (EERE-2010-BT-TP-0014, American Panel, No. 2.3.001 at p. 1; EERE-2010-BT-CE-0014, Public Meeting Transcript, American Panel, No. 103 at p. 89; EERE-2010-BT-CE-0014, Public Meeting Transcript, Craig Industries, No. 103 at p. 60; EERE-2010-BT-CE-0014, Hill Phoenix, No. 70 at p. 1; EERE-2010-BT-TP-0014, Hill Phoenix, No. 2.3.007 at p. 2; EERE-2010-BT-CE-0014, Kysor Panel, No. 68 at p. 1) Kysor stated that basic model testing should consist of only an R-value test as it distinguishes panels based only on R-value, but NEEA suggested that basic models be defined on the basis of various factors including foam type, panel thickness, panel skin type(s),
Although most comments about component certification specifically pertained to panels, some interested parties commented on refrigeration. AHRI urged DOE to group refrigeration models into the same basic model even if there was some difference in energy consumption. (EERE-2010-BT-TP-0014, AHRI, No. 2.3.015 at p. 2) Heatcraft suggested a more detailed system whereby a basic model would consist of units designed with interchangeable components such that data from component testing and calculation could predict the energy consumption of each unit with minimal verification testing necessary. (EERE-2010-BT-TP-0014, Heatcraft, No. 2.3.009 at p. 1)
DOE agrees with the suggestion of applying the basic model concept at the component level. Since DOE is adopting a component-level approach to certification as described in the section above (
Some interested parties commented on recertification provisions. Craig Industries stated that a restrictive definition of basic model would discourage product improvement because of the corresponding testing expense. (EERE-2010-BT-CE-0014, Public Meeting Transcript, Craig Industries, No. 103 at p. 94) Kysor stated that recertification should only be required if the R-value changes. (EERE-2010-BT-CE-0014, Kysor, No. 68 at p. 1) DOE notes that recertification is only required if a model is re-rated to claim new efficiency or if the model is modified such that testing no longer supports the certified rating. (
As discussed above (Section III.B.), DOE is adopting most of the reporting requirements that it proposed in the September 2010 NOPR. For a few specific products, however, DOE is not adopting the requirement to report the individual manufacturer model numbers. Commenters argued against reporting manufacturer model numbers for distribution transformers and WICFs. (
DOE is adopting a requirement for manufacturers of distribution transformers to report the characteristics of the most and least efficient basic models within the kVA grouping. The term “kVA grouping” is defined to mean a group of basic models, which all have the same kVA rating, have the same insulation type (
Generally, the WICF comments in opposition to reporting manufacturer model numbers were based on DOE's proposal, which required certification of each basic model of completed WICF. (
For external power supplies, DOE is adopting product-specific regulatory text to permit certification on the basis of either a basic model or a design family. Irrespective of the model grouping option chosen, the certification report must include the manufacturer model numbers covered by the basic model or the design family. DOE notes that by certifying using the broader grouping of design family in lieu of reporting basic models, the manufacturer assumes the risk that if one model in a design family is found noncompliant, all of the models in that grouping are noncompliant.
In the September 2010 NOPR, DOE requested comments on a variety of issues relating to the establishment of a potential verification program for covered products and covered equipment. Specifically, DOE requested comment about the requirements and details for verification testing programs (
DOE noted in the September 2010 NOPR that it was not proposing modifications to DOE's provisions defining voluntary industry certification programs (VICP) at that time. However, because the Department is considering imposing a verification testing requirement for all product and equipment types, which may entail changes to the current provisions governing VICPs, DOE sought comment regarding the criteria defining VICPs, and the use of VICPs in DOE's certification, compliance, and enforcement programs for both consumer products and commercial and industrial equipment. Specifically, DOE requested comment about the actions taken by the VICP in conjunction with DOE when a unit is found to have failed the verification testing program of the VICP.
Although DOE did not propose revisions to the requirements for electric motors in the September 2010 NOPR, DOE noted in the NOPR that it intends to propose to move and harmonize, where possible, the certification, compliance, and enforcement provisions for electric motors in new Part 429, as well as add an annual certification requirement, in a second rulemaking. As such, DOE sought comment on the existing provisions for electric motors, including any previous proposals for small electric motors and any changes DOE should consider in the next rulemaking applicable to these products. With regard to an annual certification requirement, DOE specifically sought comment on if and how the certification compliance numbers for electric motors could be modified to clearly demonstrate compliance when there is a change in the Federal energy conservation standards for these products.
Because DOE did not propose to amend any provisions with respect to electric motors, DOE has made amendments to the language of sections 431.403 through 431.407. These amendments make it clear that the general provisions in these sections relate to and maintain the status quo for electric motors.
In the September 2010 NOPR, DOE noted that it is considering adding sampling plans and tolerances for other features of covered products and covered equipment which impact the water or energy characteristics of a product. DOE sought comment on this approach, and the methodologies DOE should consider if it decides to extend the sampling provisions to features other than the regulatory metrics.
In response to these four broad categories, DOE received a plethora of feedback and valuable suggestions for it to consider in the next certification, compliance, and enforcement rulemaking. At that time, DOE will further discuss and address the general issues that were noted by interested parties in this docket.
Today's regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed the certification, compliance, and enforcement requirements being adopted in today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. As discussed in more detail below, DOE found that because a subset of the certification, compliance, and enforcement regulations have not previously been required of manufacturers, all manufacturers, including small manufacturers, could potentially experience a financial burden associated with new certification, compliance, and enforcement requirements. While examining this issue, DOE determined that it could not certify that the final rule, if promulgated, would not have a significant effect on a substantial number of small entities. Therefore, DOE has prepared a final regulatory flexibility analysis (FRFA) for this rulemaking. The FRFA describes potential impacts on small businesses associated with certification, compliance, and enforcement requirements on covered products and covered equipment. This final rule includes changes made to the FRFA in response to the comments from interested parties on the September 2010 NOPR.
The reasons for this final rule are discussed elsewhere in the preamble and not repeated here.
The objectives of and legal basis for the final rule are discussed elsewhere in the preamble and not repeated here.
DOE used the small business size standards published on January 31, 1996, as amended, by the SBA to determine whether any small entities would be required to comply with the rule. 61 FR 3286;
This final rule potentially impacts manufacturers of almost all types of covered products and covered equipment subject to DOE's energy conservation, water conservation, and design standards.
Many of the certification, compliance, and enforcement provisions subject to today's final rule are already codified in existing regulations for consumer products and commercial and industrial equipment. As a result, DOE expects the impact on all manufactures to be minimal. Many of the changes being adopted in today's final rule surround expanding DOE's existing certification requirements and could slightly increase the recordkeeping burden. DOE does not expect manufacturers of all types to incur any capital expenditures as a result of the proposals, since the rulemaking does not impose any product specific requirements that would require changes to existing plants, facilities, product specifications, or test procedures. Rather, this rule clarifies sampling requirements and imposes certain data reporting requirements, which may have a slight impact on labor costs.
With regard to sampling for certification testing, this rule clarifies that the minimum number of units tested for certification compliance must be no less than 2 unless a different minimum number is specified. DOE does not believe this specification increases the testing burden on manufacturers because DOE has always required a minimum of 2 samples, if not
With regard to certification, the final provisions require manufacturers of covered products and covered equipment to certify annually that their products meet the applicable energy conservation standard, water conservation standard or design standard. It is expected that manufacturers will re-submit the original certification testing information each year for basic models with no modifications affecting energy consumption, water consumption, or design. As DOE currently requires manufacturers to submit certification information at the introduction of a new or modified basic model, DOE does not anticipate that annual certification on products already submitted will add substantial additional burden to manufacturers.
The cost of certification testing will depend on the number of basic models a manufacturer produces. The cost of certifying should be minimal once testing for each basic model has occurred pursuant to the test procedures prescribed by DOE.
DOE estimates that a typical firm would spend approximately 20 hours complying with the additional certification, compliance, and enforcement procedures being considered in today's final rule. This estimate does not include any testing burden, which results from DOE's test procedures. DOE has already considered this burden on all manufacturers in the test procedure rulemakings for individual manufacturers. Instead, this burden represents the time it would take a certification engineer to gather the appropriate data, apply the statistical sampling methods required, and submit the required certification to DOE both for new basic models and on an annual basis. DOE has tried to mitigate the impacts on all manufacturers by aligning the annual certification schedule with the Federal Trade Commission's model submission schedule for consumer products. At most, DOE expects an average manufacturer to allocate 4 of the 20 hours to meeting the annual certification reporting requirement.
DOE notes that these values likely overestimate the manufacturer reporting burden, as the Federal Trade Commission currently requires annual submission of data regarding all basic models distributed into commerce for consumer products, and many voluntary programs also require annual data submission.
In addition, to minimize the impact that annual certification filings may have on manufacturers, DOE has introduced the online CCMS system through which manufacturers would be required to submit their products for certification. In addition, DOE is making available CCMS templates for each product, which clearly lay out the certification requirements for each covered product and covered equipment.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the proposed rule being considered today.
This section considers alternatives to the proposals in today's certification, compliance, and enforcement rulemaking. DOE could mitigate the small potential impacts on small manufacturers by reducing the number of samples used, eliminating the annual certification filing, or by expanding the groupings of models. However, DOE strongly believes the proposals in today's rulemaking are essential to a sustainable and consistent enforcement program for all of the covered products and covered equipment. While these alternatives may mitigate the potential economic impacts on small entities compared to the proposed provisions, the ability for DOE to enforce its energy conservation regulations far exceeds any potential burdens. Thus, DOE rejected these alternatives and is adopting the certification, compliance, and enforcement provisions set forth in this rulemaking for all manufacturers of covered products and covered equipment. DOE continues to seek input from businesses that would be affected by this rulemaking and will consider comments received in the development of any final rule.
DOE is developing regulations to implement reporting requirements for energy conservation, water conservation, and design standards, and to address other matters including compliance certification, prohibited actions, and enforcement procedures for covered consumer products and commercial and industrial equipment covered by EPCA.
DOE is adopting provisions to require manufacturers of covered consumer products and commercial and industrial equipment to maintain records about how they determined the energy efficiency, energy consumption, water consumption or design features of their products. DOE is also going to require manufacturers to submit a certification report indicating that all basic models currently produced comply with the applicable standards using DOE's testing procedures, as well as include the necessary product specific certification data. The certification reports are submitted for each basic model, either when the requirements go into effect (for models already in distribution) or when the manufacturer begins distribution of a particular basic model, and annually thereafter. Reports must be updated when a new model is introduced or a change affecting energy efficiency or use is made to an existing model. The collection of information is necessary for monitoring compliance with the conservation standards and testing requirements for the consumer products and commercial and industrial equipment mandated by EPCA.
The information that would be required by these regulations, once effective, and that is the subject of the collection of information, would be submitted by manufacturers to certify compliance with energy conservation, water conservation, and design standards established by DOE. DOE would also use the information to determine whether an enforcement action is warranted and to better inform DOE during a test procedure and energy conservation standards rulemaking.
The certification and recordkeeping requirements for certain consumer products in 10 CFR part 430 have previously been approved by OMB and assigned OMB control number 1910-1400. As part of the September 2010 NOPR, DOE proposed to renew the previously approved certification and recordkeeping requirements, as well as submitted a new proposed certification and recordkeeping requirements for all consumer products and commercial and
Respondents must submit electronic forms using DOE's on-line CCMS system.
The following are DOE estimates of the total annual reporting and recordkeeping burden imposed on manufacturers of all consumer products and commercial and industrial equipment subject to certification, compliance, and enforcement provisions. These estimates take into account the time necessary to develop testing documentation, complete the certification, and submit all required documents to DOE electronically.
DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
DOE reviewed this rule pursuant to Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), which imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. In accordance with DOE's statement of policy describing the intergovernmental consultation process it will follow in the development of regulations that have federalism implications, 65 FR 13735 (March 14, 2000), DOE examined today's final rule and determined that the rule 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.
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 Federal 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. 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 regulations being adopted in today's final rule meet the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4; 2 U.S.C. 1501
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 rule that may affect family well-being. Today's proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE determined under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that today's proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of 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 final rule under 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 OIRA a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) 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 if the proposal is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action, which adopts amendments to the Department's certification, compliance, enforcement procedures, is not a significant regulatory action under Executive Order 12866 or any successor order; would not have a significant adverse effect on the supply, distribution, or use of energy; and has not been designated by the Administrator of OIRA as a significant energy action. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
The Secretary of Energy has approved publication of today's final rule.
Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
Confidential business information, Energy conservation, Household appliances, Imports.
Confidential business information, Energy conservation, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, DOE amends chapter II, subchapter D, of title 10 of the Code of Federal Regulations, to read as set forth below:
1. Add new part 429 to read as follows:
42 U.S.C. 6291-6317.
This part sets forth the procedures to be followed for certification, determination and enforcement of compliance of covered products and covered equipment with the applicable conservation standards set forth in parts 430 and 431 of this subchapter. This part does not cover motors or electric motors as defined in § 431.12, and all references to “covered equipment” in this part exclude such motors.
(a) The definitions found in §§ 430.2, 431.2, 431.62, 431.72, 431.82, 431.92, 431.102, 431.132, 431.152, 431.172, 431.192, 431.202, 431.222, 431.242, 431.262, 431.292, 431.302, 431.322, and 431.442 apply for purposes of this part.
(b) The following definitions apply for the purposes of this part. Any words or terms defined in this section or elsewhere in this part shall be defined as provided in sections 321 and 340 of the Energy Policy Conservation Act, as amended, hereinafter referred to as “the Act.”
(a) General. We incorporate by reference the following standards into Part 429. The material listed has been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Any subsequent amendment to a standard by the standard-setting organization will not affect the DOE regulations unless and until amended by DOE. Material is incorporated as it exists on the date of the approval and a notice of any change in the material will be published in the
(b)
(1) ANSI/AHAM DW-1-1992, American National Standard, Household Electric Dishwashers, approved February 6, 1992, IBR approved for § 429.19.
(2) [Reserved]
(c)
(1) International Organization for Standardization (ISO)/International Electrotechnical Commission, (“ISO/IEC 17025:2005(E)”), “General requirements for the competence of testing and calibration laboratories”, Second edition, May 15, 2005, IBR approved for § 429.110.
(2) [Reserved]
(a) Any person importing any covered product or covered equipment into the United States shall comply with the provisions of this part, and parts 430 and 431, and is subject to the remedies of this part.
(b) Any covered product or covered equipment offered for importation in violation of this part, or part 430 or 431, shall be refused admission into the customs territory of the United States under rules issued by the U.S. Customs and Border Protection (CBP) and subject to further remedies as provided by law, except that CBP may, by such rules, authorize the importation of such covered product or covered equipment upon such terms and conditions (including the furnishing of a bond) as may appear to CBP appropriate to ensure that such covered product or covered equipment will not violate this part, or part 430 or 431, or will be exported or abandoned to the United States.
This part, and parts 430 and 431, shall not apply to any covered product or covered equipment if:
(a) Such covered product or covered equipment is manufactured, sold, or held for sale for export from the United States or is imported for export;
(b) Such covered product or covered equipment or any container in which it is enclosed, when distributed in commerce, bears a stamp or label stating “NOT FOR SALE FOR USE IN THE UNITED STATES”; and
(c) Such product is, in fact, not distributed in commerce for use in the United States.
(a) The following records are not exempt from public disclosure: The brand name, and applicable model number(s), and the energy or water rating submitted by manufacturers to DOE pursuant to § 429.19(b)(13).
(b) Pursuant to the provisions of 10 CFR 1004.11(e), any person submitting
(1) One complete copy, and one copy from which the information believed to be confidential has been deleted.
(2) A request for confidentiality containing the submitter's views on the reasons for withholding the information from disclosure, including:
(i) A description of the items sought to be withheld from public disclosure,
(ii) Whether and why such items are customarily treated as confidential within the industry,
(iii) Whether the information is generally known by or available from other sources,
(iv) Whether the information has previously been made available to others without obligation concerning its confidentiality,
(v) An explanation of the competitive injury to the submitting person which would result from public disclosure,
(vi) A date upon which such information might lose its confidential nature due to the passage of time, and
(vii) Why disclosure of the information would be contrary to the public interest.
(c) In accordance with the procedures established in 10 CFR 1004.11(e), DOE shall make its own determination with regard to any claim that information submitted be exempt from public disclosure.
For purposes of carrying out parts 429, 430, and 431, the General Counsel (or delegee), may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant books, records, papers, and other documents, and administer oaths. Witnesses summoned under the provisions of this section shall be paid the same fees and mileage as are paid to witnesses in the courts of the United States. In case of contumacy by, or refusal to obey a subpoena served, upon any persons subject to parts 429, 430, or 431, the General Counsel (or delegee) may seek an order from the District Court of the United States for any District in which such person is found or resides or transacts business requiring such person to appear and give testimony, or to appear and produce documents. Failure to obey such order is punishable by such court as contempt thereof.
This subpart sets forth the procedures for manufacturers to certify that their covered products and covered equipment comply with the applicable energy conservation standards.
(a) When testing of covered products or covered equipment is required to comply with section 323(c) of the Act, or to comply with rules prescribed under sections 324, 325, or 342, 344, 345 or 346 of the Act, a sample comprised of production units (or units representative of production units) of the basic model being tested shall be selected at random and tested, and shall meet the criteria found in §§ 429.14 through 429.54 of this subpart. Components of similar design may be substituted without additional testing if the substitution does not affect energy or water consumption. Any represented values of measures of energy efficiency, water efficiency, energy consumption, or water consumption for all individual models represented by a given basic model must be the same.
(b) Unless otherwise specified, the minimum number of units tested shall be no less than two (except where a different minimum limit is specified in §§ 429.14 through 429.54 of this subpart); and
(a)
(b)
(1) Product or equipment type;
(2) Product or equipment class (as denoted in the provisions of part 430 or 431 containing the applicable energy conservation standard);
(3) Manufacturer's name and address;
(4) Private labeler's name(s) and address (if applicable);
(5) Brand name, if applicable;
(6) For each brand, the basic model number and the individual manufacturer's model numbers covered by that basic model with the following exceptions: For external power supplies that certify based on design families, the design family model number and the individual manufacturer's model numbers covered by that design family must be submitted for each brand. For walk-in coolers, the basic model number for each brand must be submitted. For distribution transformers, the basic model number or kVA grouping model number (depending on the certification method) for each brand must be submitted;
(7) Whether the submission is for a new model, a discontinued model, a correction to a previously submitted model, data on a carryover model, or a model that has been found in violation of a voluntary industry certification program;
(8) The test sample size (
(9) Certifying party's U.S. Customs and Border Protection (CBP) importer identification numbers assigned by CBP pursuant to 19 CFR 24.5, if applicable;
(10) Whether certification is based upon any waiver of test procedure requirements under § 430.27 or § 431.401 and the date of such waivers;
(11) Whether certification is based upon any exception relief from an applicable energy conservation standard and the date such relief was issued by DOE's Office of Hearing and Appeals;
(12) Whether certification is based upon the use of an alternate way of determining measures of energy conservation (
(13) Product specific information listed in §§ 429.14 through 429.54 of this part.
(c)
(1) The basic model(s) complies with the applicable energy conservation standard(s);
(2) All required testing has been conducted in conformance with the applicable test requirements prescribed in parts 429, 430 and 431, as appropriate, or in accordance with the terms of an applicable test procedure waiver;
(3) All information reported in the certification report is true, accurate, and complete; and
(4) The manufacturer is aware of the penalties associated with violations of the Act, the regulations thereunder, and 18 U.S.C. 1001 which prohibits knowingly making false statements to the Federal Government.
(d)
(e)
(2) For general service fluorescent lamps or incandescent reflector lamps: Prior to or concurrent with the distribution of a new basic model each manufacturer shall submit an initial certification report listing the basic model number, lamp wattage, and date of first manufacture (
(3) For distribution transformers, the manufacturer shall submit all information required in paragraphs (b) and (c) of this section for the new basic model, unless the manufacturer has previously submitted to the Department a certification report for a basic model of distribution transformer that is in the same kVA grouping as the new basic model.
(f)
(g)
(h)
(a) The determination that a basic model complies with an applicable energy conservation standard shall be determined from the values derived pursuant to the applicable testing and sampling requirements set forth in parts 429, 430 and 431. The determination that a basic model complies with the applicable design standard shall be based upon the incorporation of specific design requirements in parts 430 and 431 or as specified in section 325 and 342 of the Act.
(b) Where DOE has determined a particular entity is in noncompliance with an applicable standard or certification requirement, DOE may impose additional testing requirements as a remedial measure.
(a)
(1) The requirements of § 429.11 are applicable to residential refrigerators, refrigerator-freezers and freezers; and
(2) For each basic model of residential refrigerators, refrigerator-freezers, and freezers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(1) The requirements of § 429.12 are applicable to residential refrigerators, refrigerator-freezers and freezers; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The annual energy use in kilowatt hours per year (kWh/yr), total adjusted volume in cubic feet (cu ft), and measured height of the unit.
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific
(a)
(2) For each basic model of room air conditioners, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 97
(ii) Any represented value of the energy efficiency ratio or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/W-h)), cooling capacity in British thermal units per hour (Btu/h), and the electrical power input in watts (W).
(a)
(2)(i) For central air conditioners and heat pumps, each single-package system and each condensing unit (outdoor unit) of a split-system, when combined with a selected evaporator coil (indoor unit) or a set of selected indoor units, must have a sample of sufficient size tested in accordance with the applicable provisions of this subpart. The represented values for any model of a single-package system, any model of a tested split-system combination, any model of a tested mini-split system combination, or any model of a tested multi-split system combination must be assigned such that—
(A) Any represented value of annual operating cost, energy consumption or other measure of energy consumption of the central air conditioner or heat pump for which consumers would favor lower values shall be greater than or equal to the higher of:
(
(
(B) Any represented value of the energy efficiency or other measure of energy consumption of the central air conditioner or heat pump for which consumers would favor higher values shall be less than or equal to the lower of:
(
(
(C) For heat pumps, all units of the sample population must be tested in both the cooling and heating modes and the results used for determining the heat pump's certified Seasonal Energy Efficiency Ratio (SEER) and Heating Seasonal Performance Factor (HSPF) ratings in accordance with paragraph (a)(2)(i)(B) of this section.
(ii) For split-system air conditioners and heat pumps, the condenser-evaporator coil combination selected for tests pursuant to paragraph (a)(2)(i) of this section shall include the evaporator coil that is likely to have the largest volume of retail sales with the particular model of condensing unit. For mini-split condensing units that are designed to always be installed with more than one indoor unit, a “tested combination” as defined in 10 CFR 430.2 shall be used for tests pursuant to paragraph (a)(2)(i) of this section. For multi-split systems, each model of condensing unit shall be tested with two different sets of indoor units. For one set, a “tested combination” composed entirely of non-ducted indoor units shall be used. For the second set, a “tested combination” composed entirely of ducted indoor units shall be used. However, for any split-system air conditioner having a single-speed compressor, the condenser-evaporator coil combination selected for tests pursuant to paragraph (a)(2)(i) of this section shall include the indoor
(A) A sample of sufficient size, comprised of production units or representing production units, must be tested as complete systems with the resulting ratings for the outdoor unit-indoor unit(s) combination obtained in accordance with paragraphs (a)(2)(i)(A) and (a)(2)(i)(B) of this section; or
(B) The representative values of the measures of energy efficiency must be assigned as follows:
(
(
(
(
(iii) Whenever the representative values of the measures of energy consumption, as determined by the provisions of paragraph (a)(2)(ii)(B) of this section, do not agree within 5 percent of the energy consumption as determined by actual testing, the values determined by actual testing must be used to comply with section 323(c) of the Act or to comply with rules under section 324 of the Act.
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Residential central air conditioners: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-h)), the cooling capacity in British thermal units per hour (Btu/h), and the manufacturer and individual manufacturer's model numbers of the indoor and outdoor unit. For central air conditioners whose seasonal energy efficiency ratio is based on an installation that includes a particular model of ducted air mover (
(ii) Residential central air conditioning heat pumps: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-h)), the cooling capacity in British thermal units per hour (Btu/h), the heating seasonal performance factor (HSPF in British thermal units per Watt-hour (Btu/W-h)), and the manufacturer and individual model numbers of the indoor and outdoor unit. For central air conditioning heat pumps whose seasonal energy efficiency ratio and heating seasonal performance factor are based on an installation that includes a particular model of ducted air mover (
(iii) Small duct, high velocity air conditioners: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-h)) and the cooling capacity in British thermal units per hour (Btu/h).
(iv) Small duct, high velocity heat pumps: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-h)), the heating seasonal performance factor (HSPF in British thermal units per Watt-hour (Btu/W-h)), and the cooling capacity in British thermal units per hour (Btu/h).
(iv) Space constrained air conditioners: The seasonal energy
(v) Space constrained heat pumps: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-h)), the coefficient of performance, and the cooling capacity in British thermal units per hour (Btu/h).
(c)
(a)
(2) For each basic model of residential water heaters, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
and
(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The energy factor (EF), rated storage volume in gallons (gal), first hour rating (maximum gallons per minute), and recovery efficiency (percent).
(a)
(2) (i) For each basic model of furnaces, other than basic models of those sectional cast-iron boilers (which may be aggregated into groups having identical intermediate sections and combustion chambers) a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(
Or,
(
and
(B) Any represented value of the annual fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(
Or,
(
(ii) For the lowest capacity basic model of a group of basic models of those sectional cast-iron boilers having identical intermediate sections and combustion chambers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(
Or,
(
and
(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(
Or,
(
(iii) For the highest capacity basic model of a group of basic models of those sectional cast-iron boilers having identical intermediate sections and combustion chambers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(
Or,
(
and
(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(
Or,
(
(iv) For each basic model or capacity other than the highest or lowest of the group of basic models of sectional cast-iron boilers having identical intermediate sections and combustion chambers, represented values of measures of energy consumption shall be determined by either—
(A) A linear interpolation of data obtained for the smallest and largest capacity units of the family, or
(B) Testing a sample of sufficient size to ensure that:
(
(
Or,
(
and
(
(
Or,
(
(v) Whenever measures of energy consumption determined by linear interpolation do not agree with measures of energy consumption determined by actual testing, the values determined by testing must be used for certification.
(vi) In calculating the measures of energy consumption for each unit tested, use the design heating requirement corresponding to the mean
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Residential furnaces and boilers: The annual fuel utilization efficiency (AFUE) in percent (%) and the input capacity in British thermal units per hour (Btu/h).
(ii) For cast-iron sectional boilers: The type of ignition system for gas-fired steam and hot water boilers no later than September 1, 2012.
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: For cast-iron sectional boilers: a declaration of whether certification is based on linear interpolation or testing. For hot water boilers, a declaration that the manufacturer has incorporated the applicable design requirements no later than September 1, 2012.
(a)
(2) For each basic model of dishwashers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy or water consumption or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
and
(ii) Any represented value of the energy or water factor or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The annual energy use in kilowatt hours per year (kWh/yr) and the water factor in gallons per cycle.
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: the capacity in number of place settings as specified in ANSI/AHAM DW-1 (incorporated by reference,
(a)
(2) For each basic model of residential clothes washers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of the water factor, the estimated annual operating cost, the energy or water consumption, or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
and
(ii) Any represented value of the modified energy factor or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The modified energy factor (MEF) in cubic feet per kilowatt hour per cycle (cu ft/kWh/cycle) and the capacity in cubic feet (cu ft). For standard-size residential clothes washers, a water factor (WF) in gallons per cycle per cubic feet (gal/cycle/cu ft).
(a)
(2) For each basic model of clothes dryers a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
and
(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The energy factor in pounds per kilowatt hours (lb/kWh), the capacity in cubic feet (cu ft), and the voltage in volts (V) (for electric dryers only).
(a)
(2) (i) For each basic model of direct heating equipment (not including furnaces) a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(
Or,
(
and
(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(
Or,
(
(ii) In calculating the measures of energy consumption for each unit tested, use the design heating requirement corresponding to the mean of the capacities of the units of the sample.
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: Direct heating equipment, the annual fuel utilization efficiency (AFUE) in percent (%), the mean input capacity in British thermal units per hour (Btu/h), and the mean output capacity in British thermal units per hour (Btu/h). Note, vented hearth heaters as defined in § 430.2 must report no later than April 16, 2013.
(a)
(2) For each basic model of conventional cooking tops, conventional ovens and microwave ovens a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
and
(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The type of pilot light and a declaration that the manufacturer has incorporated the applicable design requirements.
(a)
(2) For each basic model of pool heater a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of the thermal efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(i) The mean of the sample, where:
Or,
(ii) The lower 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The thermal efficiency in percent (%) and the input capacity in British thermal units per hour (Btu/h).
(a)
(2) For each basic model of fluorescent lamp ballasts, a sample of sufficient size, not less than four, shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual energy operating costs, energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 99 percent confidence limit (UCL) of the true mean divided by 1.01, where:
and
(ii) Any represented value of the ballast efficacy factor or other measure of the energy consumption of a basic model for which consumers would favor a higher value shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 99 percent confidence limit (LCL) of the true mean divided by 0.99, where
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The ballast efficacy factor, the ballast power factor, the number of lamps operated by the ballast, and the type of lamps operated by the ballast.
(a)
(2)(i) For each basic model of general service fluorescent lamp, general service incandescent lamp, and incandescent reflector lamp, samples of production lamps shall be obtained from a 12-month period, tested, and the results averaged. A minimum sample of 21 lamps shall be tested. The manufacturer shall randomly select a minimum of three lamps from each month of production for a minimum of 7 out of the 12-month period. In the instance where production occurs during fewer than 7 of such 12 months, the manufacturer shall randomly select 3 or more lamps from each month of production, where the number of lamps
(A) The mean of the sample, where:
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by .97, where:
(ii) For each basic model of general service fluorescent lamp, the color rendering index (CRI) shall be measured from the same lamps selected for the lumen output and watts input measurements in paragraph (a)(2)(i) of this section,
(A) The mean of the sample, where:
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by .97, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) General service fluorescent lamps: the testing laboratory's National Voluntary Laboratory Accreditation Program (NVLAP) identification number or other NVLAP-approved accreditation identification, production dates of the units tested, the 12-month average lamp efficacy in lumens per watt (lm/W),
(ii) Incandescent reflector lamps: The laboratory's NVLAP identification number or other NVLAP-approved accreditation identification, production dates of the units tested, the 12-month average lamp efficacy in lumens per watt (lm/W), and lamp wattage (W).
(iii) General service incandescent lamps: On or after the effective dates specified in § 430.32, the testing laboratory's National Voluntary Laboratory Accreditation Program (NVLAP) identification number or other NVLAP-approved accreditation identification, production dates of the units tested, the 12-month average maximum rate wattage in watts (W), the 12-month average minimum rated lifetime (hours), and the 12-month average Color Rendering Index (CRI).
(c)
(a)
(2) For each basic model of faucet, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be no less than the higher of the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per minute (gpm) or, in the case of metering faucets, gallons per cycle (gal/cycle) for each faucet and the flow water pressure in pounds per square inch (psi).
(a)
(2) For each basic model of a showerhead, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per minute (gpm) and the maximum flow water pressure in pounds per square inch (psi).
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: A declaration that the showerhead meets the requirements of ASME/ANSI A112.18.1M:1996.
(a)
(2) For each basic model of water closet, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.1, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per flush (gpf).
(a)
(2) For each basic model of urinal, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.1, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per flush and for trough-type urinals, the maximum flow rate in gallons per minute (gpm) and the length of the trough in inches (in).
(a)
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The number of speeds within the ceiling fan controls and a declaration that the manufacturer has incorporated the applicable design requirements.
(a)
(2) For each basic model of ceiling fan light kit with sockets for medium screw base lamps or pin-based fluorescent lamps selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any value of estimated energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.1, where:
and
(ii) Any represented value of the efficacy or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.9, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Ceiling fan light kits with sockets for medium screw base lamps: the rated wattage in watts (W) and the system's efficacy in lumens per watt (lm/W).
(ii) Ceiling fan light kits with pin-based sockets for fluorescent lamps: the rated wattage in watts (W), the system's efficacy in lumens per watt (lm/W), and the length of the lamp in inches (in).
(iii) Ceiling fan light kits with any other socket type: the rated wattage in watts (W) and the number of individual sockets.
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: Ceiling fan light kits with any other socket type: a declaration that the basic model meets the applicable design requirement and the features that have been incorporated into the ceiling fan light kit to meet the applicable design requirement (
(a)
(2) Reserved
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: A declaration that the basic model meets the applicable design requirement and the features that have been incorporated into the torchiere to meet the applicable design requirement (
(a)
(2) For each basic model of bare or covered (no reflector) medium base compact fluorescent lamp
(i) No less than five units per basic model must be used when testing for the efficacy, 1,000-hour lumen maintenance, and the lumen maintenance. Each unit must be tested in the base-up position unless the product is labeled restricted by the manufacturer, in which case the unit should be tested in the manufacturer specified position. Any represented value of efficacy, 1,000-hour lumen maintenance, and lumen maintenance shall be based on a sample randomly selected and tested to ensure that the represented value is less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 97.5 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(ii) No less than 6 unique units (
(iii) No less than 10 units per basic model must be used when testing for the average rated lamp life. Half the sample should be tested in the base up position and half of the sample should be tested in the base down position, unless specific use or position appears on the packaging of that particular unit.
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The testing laboratory's NVLAP identification number or other NVLAP-approved accreditation identification, production dates for the units tested, the minimum initial efficacy in lumens per watt (lm/W), the lumen maintenance at 1,000 hours in percent (%), the lumen maintenance at 40 percent of rated life in percent (%), the rapid cycle stress test in number of units passed, and the lamp life in hours (h).
(c)
(a)
(2) For each basic model of dehumidifier selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The energy factor in liters per kilowatt hour (liters/kWh) and capacity in pints per day.
(a)
(2) For each basic model of external power supply selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of the estimated energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 97.5 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(ii) Any represented value of the estimated energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 97.5 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) External power supplies: The average active mode efficiency as a percent (%), no-load mode power consumption in watts (W), nameplate output power in watts (W), and, if missing from the nameplate, the output current in amperes (A) of the basic model or the output current in amperes (A) of the highest- and lowest-voltage models within the external power supply design family.
(ii) Switch-selectable single-voltage external power supplies: The average active mode efficiency as a percent (%), no-load mode power consumption in watts (W) at the lowest and highest selectable output voltage, nameplate output power in watts (W), and, if missing from the nameplate, the output current in amperes (A).
(a)
(2) For each basic model of battery charger selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of the estimated non-active energy ratio or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 97.5 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(ii) Any represented value of the estimated non-active energy ratio or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 97.5 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(b)
(a)
(2) For each basic model of candelabra base incandescent lamp and intermediate base incandescent lamp, a minimum sample of 21 lamps shall be randomly selected and tested. Any represented value of lamp wattage of a basic model shall be based on the sample and shall be less than or equal to the lower of:
(i) The mean of the sample, where:
(ii) The lower 97.5 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Candelabra base incandescent lamp: The rated wattage in watts (W).
(ii) Intermediate base incandescent lamp: The rated wattage in watts (W).
(a)
(2) For each basic model of commercial refrigerator, freezer, or refrigerator-freezer selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any value of estimated maximum daily energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Self-contained commercial refrigerators with solid doors, commercial refrigerators with transparent doors, commercial freezers with solid doors, and commercial freezers with transparent doors: the maximum daily energy consumption in kilowatt hours per day (kWh/day) and the chilled or frozen compartment volume in cubic feet (ft
(ii) Self-contained commercial refrigerator-freezers with solids doors: the maximum average daily energy consumption in kilowatt hours per day (kWh/day) and the adjusted volume in cubic feet (ft
(iii) Remote condensing commercial refrigerators, freezers, and refrigerator-freezers, self-contained commercial refrigerators, freezers, and refrigerator-freezers without doors, commercial ice-cream freezers, and commercial refrigeration equipment with two or more compartments (
(a)
(2) For each basic model of commercial heating, ventilating, air conditioning (HVAC) equipment, efficiency must be determined either by testing, in accordance with applicable test procedures in §§ 431.76, 431.86, 431.96, or 431.106 and the provisions of this section, or by application of an alternative efficiency determination method (AEDM) that meets the requirements of § 429.48 and the provisions of this section. For each basic model of commercial HVAC equipment, a sample of sufficient size shall be selected and tested to ensure that—
(i) Any represented value of energy consumption or other measure of energy usage of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(ii) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Commercial warm air furnaces: The thermal efficiency in percent (%) and the maximum rated input capacity in British thermal units per hour (Btu/h).
(ii) Commercial packaged boilers: The combustion efficiency in percent (%) and the maximum rated input capacity in British thermal unit per hour (Btu/h) for equipment manufactured before March 2, 2012. For equipment manufactured on or after March 2, 2012, either the combustion efficiency in percent (%), or the thermal efficiency in percent (%) as required in § 431.87 and the maximum rated input capacity in British thermal units per hour (Btu/h).
(iii) Commercial package air-conditioning and heating equipment (except small commercial package air conditioning and heating equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h): the energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP) as necessary to meet the standards set forth in § 431.97, the cooling capacity in British thermal unit per hour (Btu/h), and the type of heating used by the unit.
(iv) Small commercial package air conditioning and heating equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)), the heating seasonal performance factor (HSPF in British thermal units per Watt-hour(Btu/Wh)) as necessary to meet the standards set forth in § 431.97, and the cooling capacity in British thermal units per hour (Btu/h).
(v) Package terminal air conditioners: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the cooling capacity in British thermal units per hour (Btu/h), and the wall sleeve dimensions in inches (in).
(vi) Package terminal heat pumps: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/W-h)), the coefficient of performance (COP), the cooling capacity in British thermal units per hour (Btu/h), and the wall sleeve dimensions in inches (in).
(vii) Single package vertical air conditioner: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)) and the cooling capacity in British thermal units per hour (Btu/h).
(viii) Single package vertical heat pumps: The energy efficiency ratio (EER in British thermal units per Watt-hour
(c) Alternative methods for determining efficiency or energy use for commercial HVAC equipment can be found in § 429.70 of this subpart.
(a)
(2) For each basic model of commercial water heating (WH) equipment, efficiency must be determined either by testing, in accordance with applicable test procedures in §§ 431.76, 431.86, 431.96, or 431.106 and the provisions of this section, or by application of an alternative efficiency determination method (AEDM) that meets the requirements of § 429.48 and the provisions of this section. For each basic model of commercial WH equipment, a sample of sufficient size shall be selected and tested to ensure that—
(i) Any represented value of maximum standby loss or other measure of energy usage of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(ii) Any represented value of minimum thermal efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Commercial electric storage water heaters: The maximum standby loss in percent per hour (%/hr), and the measured storage volume in gallons (gal).
(ii) Commercial gas-fired and oil-fired storage water heaters: The minimum thermal efficiency in percent (%), the maximum standby loss in British thermal units per hour (Btu/h), the rated storage volume in gallons (gal), the measured storage volume in gallons (gal) and the nameplate input rate in British thermal units per hour (Btu/h).
(iii) Commercial gas-fired and oil-fired instantaneous water heaters greater than or equal to 10 gallons and gas-fired and oil-fired hot water supply boilers greater than or equal to 10 gallons: the minimum thermal efficiency in percent (%), the maximum standby loss in British thermal units per hour (Btu/h), the rated storage volume in gallons (gal), and the nameplate input rate in Btu/h.
(iv) Commercial gas-fired and oil-fired instantaneous water heaters less than 10 gallons and gas-fired and oil-fired hot water supply boilers less than 10 gallons: the minimum thermal efficiency in percent (%) and the storage volume in gallons (g).
(v) Commercial unfired hot water storage tanks: The minimum thermal insulation (
(c) Alternative methods for determining efficiency or energy use for commercial WH equipment can be found in § 429.70 of this subpart.
(a)
(2) For each basic model of automatic commercial ice maker selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of maximum energy use or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum energy use in kilowatt hours per 100 pounds of ice (kWh/100 lbs ice), the maximum condenser water use in gallons per 100 pounds of ice (gal/100 lbs ice), the harvest rate in pounds of ice per 24 hours (lbs ice/24 hours), the type of cooling, and the equipment type.
(a)
(2) For each basic model of commercial clothes washers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of energy or water consumption or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
and
(ii) Any represented value of the modified energy factor, water factor, or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The modified energy factor (MEF) in cubic feet per kilowatt hour per cycle (cu ft/kWh/cycle) and the water factor in gallons per cubic feet per cycle (gal/cu ft/cycle) for units manufactured on or after January 8, 2013.
(a)
(2) For each basic model of distribution transformer, efficiency must be determined either by testing, in accordance with § 431.193 and the provisions of this section, or by application of an AEDM that meets the requirements of § 429.70 and the provisions of this section.
(i) For each basic model selected for testing:
(A) If the manufacturer produces five or fewer units of a basic model over 6 months, each unit must be tested. A manufacturer may not use a basic model with a sample size of fewer than five units to substantiate an AEDM pursuant to § 429.70.
(B) If the manufacturer produces more than five units over 6 months, a sample of at least five units must be selected and tested.
(ii) Any represented value of efficiency of a basic model must satisfy the condition:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: For the most and least efficient basic models within each “kVA grouping” for which part 431 prescribes an efficiency standard, the kVA rating, the insulation type (
(c)
(d)
(a)
(2) For each basic model of illuminated exit sign selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of input power demand or other measure of energy consumption of a basic model for which consumers would favor lower
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The input power demand in watts (W) and the number of faces.
(a)
(2) For each basic model of traffic signal module or pedestrian module selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated maximum and nominal wattage or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum wattage at 74 degrees Celsius (°C) in watts (W), the nominal wattage at 25 degrees Celsius (°C) in watts (W), and the signal type.
(a)
(2) [Reserved]
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The type of ignition system and a declaration that the manufacturer has incorporated the applicable design requirements.
(a)
(2) For each basic model of commercial pre-rinse spray valves selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of water consumption or other measure of water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the water efficiency or other measure of water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The flow rate in gallons per minute (gpm).
(a)
(2) For each basic model of refrigerated bottled or canned beverage vending machine selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: For units manufactured on or after August 31, 2012, the maximum average daily energy consumption in kilowatt hours per day (kWh/day), the refrigerated volume (V) in cubic feet (ft
(a)
(2) [Reserved]
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The door type, the R-value of the wall, ceiling and door insulation (except for glazed portions of the doors or structural members), the R-value of the floor insulation (for freezers only), the evaporator fan motor type, the efficacy of the lighting including ballast losses, and a declaration that the manufacturer has incorporated the applicable design requirements. In addition, for those walk-in coolers and freezers with transparent reach-in doors and windows: the glass type of the doors and windows (
(a)
(2) For each basic model of metal halide lamp ballast selected for testing, a sample of sufficient size, not less than four, shall be selected at random and tested to ensure that:
(i) Any represented value of estimated energy efficiency calculated as the measured output power to the lamp divided by the measured input power to the ballast (P
(A) The mean of the sample, where:
(B) The lower 99-percent confidence limit (LCL) of the true mean divided by 0.99.
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The minimum ballast efficiency in percent (%), the lamp wattage in watts (W), and the type of ballast (
(a)
(b)
(c)
(i) The AEDM is derived from a mathematical model that represents the energy consumption characteristics of the basic model;
(ii) The AEDM is based on engineering or statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data; and
(iii) The manufacturer has substantiated the AEDM, in accordance with paragraph (c)(2) of this section.
(2)
(i) A manufacturer must first apply the AEDM to three or more basic models that have been tested in accordance with §§ 431.173(b) and 431.175(a). The predicted efficiency calculated for each such basic model from application of the AEDM must be within five percent of the efficiency determined from testing that basic model, and the predicted efficiencies calculated for the tested basic models must, on average, be within one percent of the efficiencies determined from testing such basic models; and
(ii) Using the AEDM, the manufacturer must calculate the efficiency of three or more of its basic models. They must be the manufacturer's highest-selling basic models to which the AEDM could apply and different models than those used to develop the AEDM (
(iii) The manufacturer must test each of these basic models in accordance with § 431.173(b), and either § 431.174(b) or 431.175(a), whichever is applicable; and
(iv) The predicted efficiency calculated for each such basic model from application of the AEDM must be within five percent of the efficiency determined from testing that basic model, and the average of the predicted efficiencies calculated for the tested basic models must be within one percent of the average of the efficiencies determined from testing these basic models.
(3)
(i) The manufacturer must have available for inspection by the Department records showing:
(A) The method or methods used;
(B) The mathematical model, the engineering or statistical analysis, computer simulation or modeling, and other analytic evaluation of performance data on which the AEDM is based;
(C) Complete test data, product information, and related information that the manufacturer generated or acquired under paragraph (c)(1) through (2) of this section; and
(D) The calculations used to determine the average efficiency and energy consumption of each basic model to which an AEDM was applied.
(ii) If requested by the Department, the manufacturer must perform at least one of the following:
(A) Conduct simulations to predict the performance of particular basic models of the commercial HVAC and WH product;
(B) Provide analyses of previous simulations conducted by the manufacturer;
(C) Conduct sample testing of basic models selected by the Department; or
(D) Conduct a combination of these.
(d)
(1)
(i) The AEDM has been derived from a mathematical model that represents the electrical characteristics of that basic model;
(ii) The AEDM is based on engineering and statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data; and
(iii) The manufacturer has substantiated the AEDM, in accordance with paragraph (d)(2) of this section, by applying it to, and testing, at least five other basic models of the same type,
(2)
(i) Apply the AEDM to at least five of the manufacturer's basic models that have been selected for testing in accordance with paragraph (d)(3) of this section, and calculate the power loss for each of these basic models;
(ii) Test at least five units of each of these basic models in accordance with the applicable test procedure and § 429.42, and determine the power loss for each of these basic models;
(iii) The predicted total power loss for each of these basic models, calculated by applying the AEDM pursuant to paragraph (c)(2)(i) of this section, must be within plus or minus five percent of the mean total power loss determined from the testing of that basic model pursuant to paragraph (c)(2)(ii) of this section; and
(iv) Calculate for each of these basic models the percentage that its power loss calculated pursuant to paragraph (c)(2)(i) of this section is of its power loss determined from testing pursuant to paragraph (c)(2)(ii) of this section, compute the average of these percentages, and that calculated average power loss, expressed as a percentage of the average power loss determined from testing, must be no less than 97 percent and no greater than 103 percent.
(3)
(A) Two of the basic models must be among the five basic models with the highest unit volumes of production by the manufacturer in the prior year, or during the prior 12-calendar-month period beginning in 2003,
(B) No two basic models should have the same combination of power and voltage ratings; and
(C) At least one basic model should be single-phase and at least one should be three-phase.
(ii) In any instance where it is impossible for a manufacturer to select basic models for testing in accordance with all of these criteria, the criteria shall be given priority in the order in which they are listed. Within the limits imposed by the criteria, basic models shall be selected randomly.
(4)
(A) The method or methods used;
(B) The mathematical model, the engineering or statistical analysis, computer simulation or modeling, and other analytic evaluation of performance data on which the AEDM is based;
(C) Complete test data, product information, and related information that the manufacturer has generated or acquired pursuant to paragraph (d)(4) of this section; and
(D) The calculations used to determine the efficiency and total power losses of each basic model to which the AEDM was applied.
(ii) If requested by the Department, the manufacturer must perform at least one of the following:
(A) Conduct simulations to predict the performance of particular basic models of distribution transformers specified by the Department;
(B) Provide analyses of previous simulations conducted by the manufacturer;
(C) Conduct sample testing of basic models selected by the Department; or
(D) Conduct a combination of these.
(e)
(1)
(2)
(ii) Each request to DOE for approval of an ARM must include:
(A) The name, mailing address, telephone number, and e-mail address of the official representing the manufacturer.
(B) Complete documentation of the alternative rating method to allow DOE to evaluate its technical adequacy. The documentation must include a description of the methodology, state any underlying assumptions, and explain any correlations. The documentation should address how the method accounts for the cyclic-degradation coefficient, the type of expansion device, and, if applicable, the indoor fan-off delay. The requestor must submit any computer programs—including spreadsheets—having less than 200 executable lines that implement the ARM. Longer computer programs must be identified and sufficiently explained, as specified above, but their inclusion in the initial submittal package is optional. Applicability or limitations of the ARM (
(C) Complete test data from laboratory tests on four mixed (
(
(
(
(D) All product information on each mixed system indoor unit, each matched system indoor unit, and each outdoor unit needed to implement the proposed ARM. The calculated ratings for the four mixed systems, as determined using the proposed ARM, must be provided along with any other related information that will aid the verification process.
(E) If request for approval is for an updated ARM, manufacturers must identify modifications made to the ARM since the last submittal, including any ARM/simulation adjustment factor(s) added since the ARM was last approved by DOE.
(iii) Approval must be received from the Department to use the ARM before the ARM may be used for rating split-system central air conditioners and heat pumps. If a manufacturer has a DOE-approved ARM for products also distributed in commerce by a private labeler, the ARM may also be used by the private labeler for rating these products. Once an ARM is approved, DOE may contact a manufacturer to learn if their ARM has been modified in any way and to verify that the ARM is being applied as approved. DOE will give follow-up priority to individual combinations having questionably high ratings (
(3)
(i) DOE amends the energy conservation standards as specified in § 430.32 for residential central air conditioners and heat pumps. In this case, any testing and evidence required under paragraph (e)(2) of this section shall be developed with units that meet the amended energy conservation standards specified in § 430.32. Re-approval for the ARM must be obtained before the compliance date of amended energy conservation standards. (ii) DOE amends the test procedure for residential air conditioners and heat pumps as specified in Appendix M to Subpart B of Part 430. Re-approval for the ARM must be obtained before the compliance date of amended test procedures.
(4) Manufacturers that elect to use an ARM for determining measures of energy consumption under § 429.16(a)(2)(ii)(B)(
(5) Manufacturers who choose to use computer simulation or engineering analysis for determining measures of energy consumption under § 429.16(a)(2)(ii)(B)(
(a) The manufacturer of any covered product or covered equipment shall establish, maintain, and retain the records of certification reports, of the underlying test data for all certification testing, and of any other testing conducted to satisfy the requirements of this part, part 430, and part 431. Any manufacturer who chooses to use an alternative method for determining energy efficiency or energy use in accordance with § 429.70 must retain the records required by that section, any other records of any testing performed to support the use of the alternative method, and any certifications required by that section, on file for review by DOE for two years following the discontinuance of all models or combinations whose ratings were based on the alternative method.
(b) Such records shall be organized and indexed in a fashion that makes them readily accessible for review by DOE upon request.
(c) The records shall be retained by the manufacturer for a period of two years from the date that the manufacturer or third party submitter has notified DOE that the model has been discontinued in commerce.
This subpart describes the enforcement authority of DOE to ensure compliance with the conservation standards and regulations.
(a) Each of the following actions is prohibited:
(1) Failure of a manufacturer to provide, maintain, permit access to, or copying of records required to be supplied under the Act and this part or failure to make reports or provide other information required to be supplied under the Act and this part, including but not limited to failure to properly certify covered products and covered equipment in accordance with § 429.12 and §§ 429.14 through 429.54;
(2) Failure to test any covered product or covered equipment subject to an
(3) Deliberate use of controls or features in a covered product or covered equipment to circumvent the requirements of a test procedure and produce test results that are unrepresentative of a product's energy or water consumption if measured pursuant to DOE's required test procedure;
(4) Failure of a manufacturer to supply at the manufacturer's expense a requested number of covered products or covered equipment to a designated test laboratory in accordance with a test notice issued by DOE;
(5) Failure of a manufacturer to permit a DOE representative to observe any testing required by the Act and this part and inspect the results of such testing;
(6) Distribution in commerce by a manufacturer or private labeler of any new covered product or covered equipment that is not in compliance with an applicable energy conservation standard prescribed under the Act;
(7) Distribution in commerce by a manufacturer or private labeler of a basic model of covered product or covered equipment after a notice of noncompliance determination has been issued to the manufacturer or private labeler;
(8) Knowing misrepresentation by a manufacturer or private labeler by certifying an energy use or efficiency rating of any covered product or covered equipment distributed in commerce in a manner that is not supported by test data;
(9) For any manufacturer, distributor, retailer, or private labeler to distribute in commerce an adapter that—
(i) Is designed to allow an incandescent lamp that does not have a medium screw base to be installed into a fixture or lamp holder with a medium screw base socket; and
(ii) Is capable of being operated at a voltage range at least partially within 110 and 130 volts; or
(10) For any manufacturer or private labeler to knowingly sell a product to a distributor, contractor, or dealer with knowledge that the entity routinely violates any regional standard applicable to the product.
(b) When DOE has reason to believe that a manufacturer or private labeler has undertaken a prohibited act listed in paragraph (a) of this section, DOE may:
(1) Issue a notice of noncompliance determination;
(2) Impose additional certification testing requirements;
(3) Seek injunctive relief;
(4) Assess a civil penalty for knowing violations; or
(5) Undertake any combination of the above.
DOE may, at any time, test a basic model to assess whether the basic model is in compliance with the applicable energy conservation standard(s).
(a) DOE may initiate an investigation that a basic model may not be compliant with an applicable conservation standard, certification requirement or other regulation at any time.
(b) DOE may, at any time, request any information relevant to determining compliance with any requirement under parts 429, 430 and 431, including the data underlying certification of a basic model. Such data may be used by DOE to make a determination of compliance or noncompliance with an applicable standard.
(a)
(2) DOE will select and test units pursuant to paragraphs (c) and (e) of this section.
(3) Testing will be conducted at a lab accredited to the International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC), “General requirements for the competence of testing and calibration laboratories,” ISO/IEC 17025:2005(E) (incorporated by reference;
(b)
(i) DOE will send the test notice to the manufacturer's certifying official or other company official.
(ii) The test notice will specify the basic model that will be selected for testing, the method of selecting the test sample, the maximum size of the sample and the size of the initial test sample, the dates at which testing is scheduled to be started and completed, and the facility at which testing will be conducted. The test notice may also provide for situations in which the selected basic model is unavailable for testing and may include alternative models or basic models.
(iii) DOE will state in the test notice that it will select the units of a basic model to be tested from the manufacturer, from one or more distributors, and/or from one or more retailers. If any unit is selected from a distributor or retailer, the manufacturer shall make arrangements with the distributor or retailer for compensation for or replacement of any such units.
(iv) DOE may require in the test notice that the manufacturer of a basic model ship or cause to be shipped from a retailer or distributor at its expense the requested number of units of a basic model specified in such test notice to the testing laboratory specified in the test notice. The manufacturer shall ship the specified initial test unit(s) of the basic model to the testing laboratory within 5 working days from the time units are selected.
(v) If DOE determines that the units identified are low-volume or built-to-order products, DOE will contact the manufacturer to develop a plan for enforcement testing in lieu of paragraphs (ii)-(iv) of this section.
(2) [Reserved]
(c)
(i) Manufacturer's warehouse, distributor, or other facility affiliated with the manufacturer. DOE will select a batch sample at random in accordance with the provisions in paragraph (e) of this section and the conditions specified in the test notice. DOE will randomly select an initial test sample of units from the batch sample for testing in accordance with appendices A through C of this subpart. DOE will make a determination whether an alternative sample size will be used in accordance with the provisions in paragraph (e)(1)(iv) of this section.
(ii) Retailer or other facility not affiliated with the manufacturer. DOE will select an initial test sample of units at random that satisfies the minimum units necessary for testing in accordance with the provisions in appendices A through C of this subpart and the conditions specified in the test notice. Depending on the results of the testing, DOE may select additional units for testing from a retailer in accordance with appendices A through C of this subpart. If the full sample is not available from a retailer, DOE will make a determination whether an alternative sample size will be used in accordance with the provisions in paragraph (e)(1)(iv) of this section.
(2) Units tested in accordance with the applicable test procedure under this part by DOE or another Federal agency, pursuant to other provisions or programs, may count toward units in the test sample.
(3) The resulting test data shall constitute official test data for the basic model. Such test data will be used by DOE to make a determination of compliance or noncompliance if a sufficient number of tests have been conducted to satisfy the requirements of paragraph (e) of this section and appendices A through C of this subpart.
(d)
(2) No quality control, testing or assembly procedures shall be performed on a test unit, or any parts and subassemblies thereof, that is not performed during the production and assembly of all other units included in the basic model.
(3) A test unit shall be considered defective if such unit is inoperative or is found to be in noncompliance due to failure of the unit to operate according to the manufacturer's design and operating instructions. Defective units, including those damaged due to shipping or handling, shall be reported immediately to DOE. DOE may authorize testing of an additional unit on a case-by-case basis.
(e)
(i) For products with applicable energy conservation standard(s) in § 430.32, and commercial pre-rinse spray valves, illuminated exit signs, traffic signal modules and pedestrian modules, commercial clothes washers, and metal halide lamp ballasts, DOE will use a sample size of not more than 21 units and follow the sampling plans in appendix A of this subpart (Sampling for Enforcement Testing of Covered Consumer Products and Certain High-Volume Commercial Equipment).
(ii) For automatic commercial ice makers; commercial refrigerators, freezers, and refrigerator-freezers; refrigerated bottled or canned vending machines; and commercial HVAC and WH equipment, DOE will use an initial sample size of not more than four units and follow the sampling plans in appendix B of this subpart (Sampling Plan for Enforcement Testing of Covered Equipment and Certain Low-Volume Covered Products). If fewer than four units of a basic model are available for testing when the manufacturer receives the notice, then:
(A) DOE will test the available unit(s); or
(B) If one or more other units of the basic model are expected to become available within 30 calendar days, DOE may instead, at its discretion, test either:
(
(
(iii) For distribution transformers, DOE will use an initial sample size of not more than five units and follow the sampling plans in appendix C of this subpart (Sampling Plan for Enforcement Testing of Distribution Transformers). If fewer than five units of a basic model are available for testing when the manufacturer receives the test notice, then:
(A) DOE will test the available unit(s); or
(B) If one or more other units of the basic model are expected to become available within 30 calendar days, the Department may instead, at its discretion, test either:
(
(
(iv) Notwithstanding paragraphs (e)(1)(i) through (e)(1)(iii) of this section, if testing of the available or subsequently available units of a basic model would be impractical, as for example when a basic model has unusual testing requirements or has limited production, DOE may in its discretion decide to base the determination of compliance on the testing of fewer than the otherwise required number of units.
(v) When DOE makes a determination in accordance with section (e)(1)(iv) to test less than the number of units specified in parts (d)(1)(i) through (d)(1)(iii) of this section, DOE will base the compliance determination on the results of such testing in accordance with appendix B of this subpart (Sampling Plan for Enforcement Testing of Covered Equipment and Certain Low-Volume Covered Products) using a sample size (n
(vi) For the purposes of paragraphs (e)(1)(i) through (e)(1)(v) of this section, available units are those that are available for distribution in commerce within the United States.
(a) In the event that DOE determines a basic model is noncompliant with an applicable energy conservation standard, or if a manufacturer or private labeler determines a basic model to be in noncompliance, DOE may issue a notice of noncompliance determination to the manufacturer or private labeler. This notice of noncompliance determination will notify the manufacturer or private labeler of its obligation to:
(1) Immediately cease distribution in commerce of the basic model;
(2) Give immediate written notification of the determination of noncompliance to all persons to whom the manufacturer has distributed units of the basic model manufactured since the date of the last determination of compliance; and
(3) Provide DOE, within 30 calendar days of the request, records, reports and other documentation pertaining to the acquisition, ordering, storage, shipment, or sale of a basic model determined to be in noncompliance.
(b) In the event that DOE determines a manufacturer has failed to comply with an applicable certification requirement with respect to a particular basic model, DOE may issue a notice of noncompliance determination to the manufacturer or private labeler. This notice of noncompliance determination will notify the manufacturer or private labeler of its obligation to:
(1) Immediately cease distribution in commerce of the basic model;
(2) Immediately comply with the applicable certification requirement; and/or
(3) Provide DOE within 30 days of the request, records, reports and other documentation pertaining to the acquisition, ordering, storage, shipment, or sale of the basic model.
(c) If a manufacturer or private labeler fails to comply with the required actions in the notice of noncompliance determination as set forth in paragraphs (a) or (b) of this section, the General Counsel (or delegee) may seek, among other remedies, injunctive action and civil penalties, where appropriate.
(d) The manufacturer may modify a basic model determined to be
Pursuant to § 429.102(b)(2), if DOE determines that independent, third-party testing is necessary to ensure a manufacturer's compliance with the rules of this part, part 430, or part 431, a manufacturer must base its certification of a basic model under subpart B of this part on independent, third-party laboratory testing.
If DOE has reason to seek an injunction under the Act:
(a) DOE will notify the manufacturer, private labeler or any other person as required, of the prohibited act at issue and DOE's intent to seek a judicial order enjoining the prohibited act unless the manufacturer, private labeler or other person, delivers to DOE within 15 calendar days a corrective action and compliance plan, satisfactory to DOE, of the steps it will take to ensure that the prohibited act ceases. DOE will monitor the implementation of such plan.
(b) If the manufacturer, private labeler or any other person as required, fails to cease engaging in the prohibited act or fails to provide a satisfactory corrective action and compliance plan, DOE may seek an injunction.
Any person who knowingly violates any provision of § 429.102(a) of this part may be subject to assessment of a civil penalty of no more than $200 for each violation. As to § 429.102(a)(1) with respect to failure to certify, and as to § 429.102(a)(2), (5) through (9), each unit of a covered product or covered equipment distributed in violation of such paragraph shall constitute a separate violation. For violations of § 429.102(a)(1), (3), and (4), each day of noncompliance shall constitute a separate violation for each basic model at issue.
(a) The General Counsel (or delegee) shall provide notice of any proposed civil penalty.
(b) The notice of proposed penalty shall:
(1) Include the amount of the proposed penalty;
(2) Include a statement of the material facts constituting the alleged violation; and
(3) Inform the person of the opportunity to elect in writing within 30 calendar days of receipt of the notice to have the procedures of § 429.128 (in lieu of those of § 429.126) apply with respect to the penalty.
(a) In responding to a notice of proposed civil penalty, the respondent may request:
(1) An administrative hearing before an Administrative Law Judge (ALJ) under § 429.126 of this part; or
(2) Elect to have the procedures of § 429.128 apply.
(b) Any election to have the procedures of § 429.128 apply may not be revoked except with the consent of the General Counsel (or delegee).
(c) If the respondent fails to respond to a notice issued under § 429.120 or otherwise fails to indicate its election of procedures, DOE shall refer the civil penalty action to an ALJ for a hearing under § 429.126.
(a) When elected pursuant to § 429.124, DOE shall refer a civil penalty action brought under § 429.122 of this part to an ALJ, who shall afford the respondent an opportunity for an agency hearing on the record.
(b) After consideration of all matters of record in the proceeding, the ALJ will issue a recommended decision, if appropriate, recommending a civil penalty. The decision will include a statement of the findings and conclusions, and the reasons therefore, on all material issues of fact, law, and discretion.
(c)(1) The General Counsel (or delegee) shall adopt, modify, or set aside the conclusions of law or discretion contained in the ALJ's recommended decision and shall set forth a final order assessing a civil penalty. The General Counsel (or delegee) shall include in the final order the ALJ's findings of fact and the reasons for the final agency actions.
(2) Any person against whom a penalty is assessed under this section may, within 60 calendar days after the date of the final order assessing such penalty, institute an action in the United States Court of Appeals for the appropriate judicial circuit for judicial review of such order in accordance with chapter 7 of title 5, United States Code. The court shall have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in part, the final order, or the court may remand the proceeding to the Department for such further action as the court may direct.
(a) If the respondent elects to forgo an agency hearing pursuant to § 429.124, the General Counsel (or delegee) shall issue an order assessing the civil penalty proposed in the notice of proposed penalty under § 429.122, 30 calendar days after the respondent's receipt of the notice of proposed penalty.
(b) If within 60 calendar days of receiving the assessment order in paragraph (a) of this section the respondent does not pay the civil penalty amount, DOE shall institute an action in the appropriate United States District Court for an order affirming the assessment of the civil penalty. The court shall have authority to review de novo the law and the facts involved and shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, such assessment.
If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under § 429.126 or after the appropriate District Court has entered final judgment in favor of the Department under § 429.128, the General Counsel (or delegee) shall institute an action to recover the amount of such penalty in any appropriate District Court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment shall not be subject to review.
(a) DOE may compromise, modify, or remit, with or without conditions, any civil penalty (with leave of court if necessary).
(b) In exercising its authority under paragraph (a) of this section, DOE may consider the nature and seriousness of the violation, the efforts of the respondent to remedy the violation in a timely manner, and other factors as justice may require.
(c) DOE's authority to compromise, modify or remit a civil penalty may be
(d) Notwithstanding paragraph (a) of this section, DOE or the respondent may propose to settle the case. If a settlement is agreed to by the parties, the respondent is notified and the case is closed in accordance with the terms of the settlement.
(a) The first sample size (
(b) Compute the mean of the measured energy performance (x
where x
(c) Compute the standard deviation (s
(d) Compute the standard error (s
(e)(1) Compute the upper control limit (UCL
(2) For an energy efficiency or water efficiency standard, compare the mean of the first sample (x
(i) If the mean of the first sample is below the lower control limit, then the basic model is in noncompliance and testing is at an end. (Do not go on to any of the steps below.)
(ii) If the mean of the first sample is equal to or greater than the upper control limit, then the basic model is in compliance and testing is at an end. (Do not go on to any of the steps below.)
(iii) If the sample mean is equal to or greater than the lower control limit but less than the upper control limit, then no determination of compliance or noncompliance can be made and a second sample size is determined by Step (e)(3).
(3) For an energy efficiency or water efficiency standard, determine the second sample size (n
(i) If the value of n
(ii) If the value of n
(iii) If the value of n
(4) Compute the combined mean (x
(5) Compute the standard error (S
s
(6) For an energy efficiency standard (EES), compute the lower control limit (LCL
(7) For an energy efficiency standard (EES), compare the combined sample mean (x
(i) If the mean of the combined sample (x
(iii) If the mean of the combined sample (x
(f)(1) Compute the upper control limit (UCL
(2) For an energy or water consumption standard, compare the mean of the first sample (x
(i) If the mean of the first sample is above the upper control limit, then the basic model is in noncompliance and testing is at an end. (Do not go on to any of the steps below.)
(ii) If the mean of the first sample is equal to or less than the lower control limit, then the basic model is in compliance and testing is at an end. (Do not go on to any of the steps below.)
(iii) If the sample mean is equal to or less than the upper control limit but greater than the lower control limit, then no determination of compliance or noncompliance can be made and a second sample size is determined by Step (f)(3).
(3) For an Energy or Water Consumption Standard, determine the second sample size (n
(i) If the value of n
(ii) If the value of n
(iii) If the value of n
(4) Compute the combined mean (x
(5) Compute the standard error (S
s
(6) For an energy or water consumption standard (ECS), compute the upper control limit (UCL
(7) For an energy or water consumption standard (ECS), compare the combined sample mean (x
(i) If the mean of the combined sample (x
(ii) If the mean of the combined sample (x
The Department will determine compliance as follows:
(a) The first sample size (n
(b) Compute the mean of the measured energy performance (x
(c) Compute the standard deviation (s
(d) Compute the standard error (s
(e)(1) For an energy efficiency standard (EES), determine the appropriate lower control limit (LCL
And use whichever is greater. Where EES is the energy efficiency standard and t is a statistic based on a 97.5 percent, one-sided confidence limit and a sample size of n
(2) For an energy consumption standard (ECS), determine the appropriate upper control limit (UCL
And use whichever is less, where ECS is the energy consumption standard and t is a statistic based on a 97.5 percent, one-sided confidence limit and a sample size of n
(f)(1) Compare the sample mean to the control limit.
(i) The basic model is in compliance and testing is at an end if:
(A) For an energy or water efficiency standard, the sample mean is equal to or greater than the lower control limit, or
(B) For an energy or water consumption standard, the sample mean is equal to or less than the upper control limit.
(a) When testing distribution transformers, the number of units in the sample (m
(1) If DOE tests four or more units, it will test each unit once;
(2) If DOE tests two or three units, it will test each unit twice; or
(3) If DOE tests one unit, it will test that unit four times.
(b) DOE shall determine compliance as follows:
(1) Compute the mean (X
(2) Compute the sample standard deviation (S
(3) Compute the standard error (SE(X
(4) Compute the sample size discount (SSD(m
(5) Compute the lower control limit (LCL
(6) Compare the mean of the first sample (X
(i) If the mean of the first sample is below the lower control limit, then the basic model is not compliant and testing is at an end.
(ii) If the mean is equal to or greater than the lower control limit, no final determination of compliance or noncompliance can be made; proceed to Step (7).
(7) Determine the recommended sample size (n) as follows:
Given the value of n, determine one of the following:
(i) If the value of n is less than or equal to n
(ii) If the value of n is greater than n
(8) Compute the combined (X
(9) Compute the standard error (SE(X
(Note that S
(10) Set the lower control limit (LCL
(i) If the mean of the combined sample (X
(ii) If the mean of the combined sample (X
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(1) With respect to general service fluorescent lamps, general service incandescent lamps, and incandescent reflector lamps: Lamps that have essentially identical light output and electrical characteristics—including lumens per watt (lm/W) and color rendering index (CRI).
(2) With respect to faucets and showerheads: Have the identical flow control mechanism attached to or installed within the fixture fittings, or the identical water-passage design features that use the same path of water in the highest flow mode.
(b)(1) A Petition for Waiver shall be submitted either electronically to
5.1 Temperature Measurements. Temperature measurements shall be made at the locations prescribed in Figures 5.1 and 5.2 of HRF-1-2008 (incorporated by reference;
If the interior arrangements of the cabinet do not conform with those shown in Figure 5.1 and 5.2 of HRF-1-2008, the product may be tested by relocating the temperature sensors from the locations specified in the figures to avoid interference with hardware or components within the cabinet, in which case the specific locations used for the temperature sensors shall be noted in the test data records maintained by the manufacturer in accordance with 10 CFR 429.14, and the certification report shall indicate that non-standard sensor locations were used.
5.1 Temperature Measurements. Temperature measurements shall be made at the locations prescribed in Figures 7.1 and 7.2 of HRF-1-1979 (incorporated by reference;
If the interior arrangements of the cabinet do not conform with those shown in Figure 7.1 and 7.2 of HRF-1-1979, the product may be tested by relocating the temperature sensors from the locations specified in the figures to avoid interference with hardware or components within the cabinet, in which case the specific locations used for the temperature sensors shall be noted in the test data records maintained by the manufacturer in accordance with 10 CFR 429.14, and the certification report shall indicate that non-standard sensor locations were used.
5.1 Temperature Measurements. Temperature measurements shall be made at the locations prescribed in Figure 5-2 of HRF-1-2008 (incorporated by reference;
If the interior arrangements of the cabinet do not conform with those shown in Figure 5.2 of HRF-1-2008, the product may be tested by relocating the temperature sensors from the locations specified in the figures to avoid interference with hardware or components within the cabinet, in which case the specific locations used for the temperature sensors shall be noted in the test data records maintained by the manufacturer in accordance with 10 CFR 429.14, and the certification report shall indicate that non-standard sensor locations were used.
5.1 Temperature Measurements. Temperature measurements shall be made at the locations prescribed in Figure 7.2 of HRF-1-1979 (incorporated by reference;
If the interior arrangements of the cabinet do not conform with those shown in Figure 7.2 of HRF-1-1979, the product may be tested by relocating the temperature sensors from the locations specified in the figures to avoid interference with hardware or components within the cabinet, in which case the specific locations used for the temperature sensors shall be noted in the test data records maintained by the manufacturer in accordance with 10 CFR 429.14, and the certification report shall indicate that non-standard sensor locations were used.
42 U.S.C. 6291-6317.
(1) In operation consumes, or is designed to consume energy;
(2) To any significant extent, is distributed in commerce for industrial or commercial use; and
(3) Is not a “covered product” as defined in Section 321(2) of EPCA, 42 U.S.C. 6291(2), other than a component of a covered product with respect to which there is in effect a determination under Section 341(c) of EPCA, 42 U.S.C. 6312(c).
(1) Such product (or its container) is labeled with the brand or trademark of a person other than a manufacturer of such product;
(2) The person with whose brand or trademark such product (or container) is labeled has authorized or caused such product to be so labeled; and
(3) The brand or trademark of a manufacturer of such product does not appear on such label.
(1) With respect to panels, which do not have any differing features or characteristics that affect U-factor.
(2) [Reserved]
(1) Manufactures a component of a walk-in cooler or walk-in freezer that affects energy consumption, including, but not limited to, refrigeration, doors, lights, windows, or walls; or
(2) Manufactures or assembles the complete walk-in cooler or walk-in freezer.
This subpart describes violations of EPCA's energy conservation requirements, specific procedures we will follow in pursuing alleged non-compliance of an electric motor with an applicable energy conservation standard or labeling requirement, and general procedures for enforcement action, largely drawn directly from EPCA, that apply to electric motors.
(b)
(a) Manufacturers of electric motors must establish, maintain and retain records of the following:
(1) The test data for all testing conducted pursuant to this part;
(2) The development, substantiation, application, and subsequent verification of any AEDM used under this part;
(3) Any written certification received from a certification program, including a certificate or conformity, relied on under the provisions of this part;
(b) You must organize such records and index them so that they are readily accessible for review. The records must include the supporting test data associated with tests performed on any test units to satisfy the requirements of this part (except tests performed by DOE).
(c) For each basic model, you must retain all such records for a period of two years from the date that production of all units of that basic model has ceased. You must retain records in a form allowing ready access to DOE, upon request.
(a) Under sections 331 and 345 of the Act, any person importing an electric motor into the United States must comply with the provisions of the Act and of this part, and is subject to the remedies of this part.
(b) Any electric motor offered for importation in violation of the Act and of this part will be refused admission into the customs territory of the United States under rules issued by the Secretary of the Treasury, except that the Secretary of the Treasury may, by such rules, authorize the importation of such electric motor upon such terms and conditions (including the furnishing of a bond) as may appear to the Secretary of the Treasury appropriate to ensure that such electric motor will not violate the Act and this part, or will be exported or abandoned to the United States.
Under Sections 330 and 345 of the Act, this Part does not apply to any electric motor if:
(a) Such electric motor is manufactured, sold, or held for sale for export from the United States (or such electric motor was imported for export), unless such electric motor is, in fact, distributed in commerce for use in the United States; and,
(b) Such electric motor, when distributed in commerce, or any container in which it is enclosed when so distributed, bears a stamp or label stating that such electric motor is intended for export.
Pursuant to sections 329(a) and 345 of the Act, for purposes of carrying out this part, the Secretary or the Secretary's designee, may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant books, records, papers, and other documents, and administer the oaths. Witnesses summoned under the provisions of this section shall be paid the same fees and mileage as are paid to witnesses in the courts of the United States. In case of contumacy by, or refusal to obey a subpoena served upon any persons subject to this part, the Secretary may seek an order from the District Court of the United States for any District in which such person is found or resides or transacts business requiring such person to appear and give testimony, or to appear and produce documents. Failure to obey such order is punishable by such court as a contempt thereof.
Pursuant to the provisions of 10 CFR 1004.11, any manufacturer or private labeler of electric motors submitting information or data which they believe to be confidential and exempt from public disclosure should submit one complete copy, and 15 copies from which the information believed to be confidential has been deleted. In accordance with the procedures established at 10 CFR 1004.11, the Department shall make its own determination with regard to any claim that information submitted be exempt from public disclosure.
Office of the Deputy Under Secretary of Defense (Civilian Personnel Policy) (DUSD (CPP)), DoD.
Notice.
Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1995, Public Law (Pub. L.) 103-337, (10 U.S.C. 2358 note), as amended by section 1109 of NDAA for FY 2000, Public Law 106-65, and section 1114 of NDAA for FY 2001, Public Law 106-398, authorizes the Secretary of Defense to conduct personnel demonstration projects at DoD laboratories designated as Science and Technology Reinvention Laboratories (STRLs). The above-cited legislation authorizes DoD to conduct demonstration projects to determine whether a specified change in personnel management policies or procedures would result in improved Federal personnel management. Section 1105 of the NDAA for FY 2010, Public Law 111-84, 123 Stat. 2486, October 28, 2009, designates additional DoD laboratories as STRLs for the purpose of designing and implementing personnel management demonstration projects for conversion of employees from the personnel system which applied on October 28, 2009. The TARDEC is listed in subsection 1105(a) of NDAA for FY 2010 as one of the newly designated STRLs.
Implementation of this demonstration project will begin no earlier than March 9, 2010.
Since 1966, many studies of DoD laboratories have been conducted on laboratory quality and personnel. Almost all of these studies have recommended improvements in civilian personnel policy, organization, and management. Pursuant to the authority provided in section 342(b) of Public Law 103-337, as amended, a number of DoD STRL personnel demonstration projects were approved. These projects are “generally similar in nature” to the Department of Navy's “China Lake” Personnel Demonstration Project. The terminology, “generally similar in nature,” does not imply an emulation of various features, but rather implies a similar opportunity and authority to develop personnel flexibilities that significantly increase the decision authority of laboratory commanders and/or directors.
This demonstration project involves: (1) Two appointment authorities (permanent and modified term); (2) extended probationary period for newly hired engineering and science employees; (3) pay banding; (4) streamlined delegated examining; (5) modified reduction-in-force (RIF) procedures; (6) simplified job classification; (7) the Contribution-based Compensation and Appraisal System (CCAS); (8) academic degree and certificate training; (9) sabbaticals; (10) a Voluntary Emeritus Corps; (11) direct hire authority for candidates with advanced degrees for scientific and engineering positions; and (12) Distinguished Scholastic Achievement Appointment Authority.
The NDAA for FY 2010 not only designated new STRLs but also repealed the National Security Personnel System (NSPS) mandating conversion of NSPS covered employees to their former personnel system or one that would have applied absent the NSPS. A number of TARDEC employees are covered by the NSPS and must be converted to another personnel system. Section 1105 of NDAA for FY 2010 stipulates the STRLs designated in subsection (a) of section 1105 may not implement any personnel system, other than a personnel system under an appropriate demonstration project as defined in section 342(b) of Public Law 103-337, as amended, without prior congressional authorization. In addition, any conversion under the provisions of section 1105 shall not adversely affect any employee with respect to pay or any other term or condition of employment; shall be consistent with section 4703(f) of title 5 United States Code (U.S.C.); and shall be completed within 18 months after enactment of NDAA for FY 2010. Therefore, since TARDEC is both designated an STRL by section 1105 of NDAA for FY 2010 and has NSPS covered employees, it must convert, at a minimum, its NSPS covered employees to a personnel management demonstration project before the end of April 2011.
On September 9, 2010, DoD published the proposed STRL Demonstration Project for TARDEC in 75 FR 55109-55157. During the public comment period ending October 12, 2010, DoD received comments from five individuals. All comments were carefully considered. The following summary addresses all the comments received, provides responses, and note resultant changes to the original project plan in the first
None of the comments received gave an overall opinion supporting or not supporting the demonstration project. The comments received are categorized as desiring further clarification or offering constructive recommendations on improving the details of the demonstration project. Generally, the comments were very helpful in pointing out areas that needed refinement or correction and were directed to a specific topic. In order to maintain the greatest flexibilities additional detailed instructions will be contained in the TAREC Demonstration Project Internal Operating Instructions.
One (1) comment was received under this section.
One (1) comment was received under this section.
One (1) comment was received under this section.
A total of eleven (11) comments were received under this category relating to four subtopics as follows:
A total of nine comments were received under this category relating to five subtopics as follows:
A total of two comments were received under this category relating to two subtopics as follows:
A total of four comments were received under this category relating to four subtopics as follows:
One (1) comment was received under this section.
A total of four comments were received under this category relating to three subtopics as follows:
One (1) comment was received under this section.
Two (2) comments were received under this section.
One (1) comment was received under this section.
One (1) comment was received under this section.
Flexibilities published in this
TARDEC is a subordinate organization of the U.S. Army Research, Development and Engineering Command (RDECOM). TARDEC is the U.S. Army's Ground Vehicle Center of Excellence and the ground systems integration domain owner for RDECOM. TARDEC provides engineering and scientific expertise for DoD manned and unmanned ground systems and ground support systems. It is the Nation's laboratory for advanced military automotive technology and the Army's lead for advanced science and technology research, demonstration, development, and full Life Cycle engineering for ground vehicle electronics and architecture, power and mobility, intelligent ground systems, maneuver support and sustainment, and survivability.
At TARDEC, the top priority is to deliver the most advanced technology solutions to improve the Nation's ground vehicle fleet. To do this effectively requires more than just hard work and dedication. It takes leadership, vision, and the determination to execute that vision. To be truly successful, the workforce needs to be able to lead, innovate, integrate, and deliver.
To achieve this goal, TARDEC must be able to hire, retain, and continually motivate enthusiastic, innovative, and highly-educated scientists and engineers, supported by accomplished business management and administrative professionals as well as a skilled administrative and technical support staff.
The goal of the project is to enhance the quality and professionalism of the TARDEC workforce through improvements in the efficiency and effectiveness of the human resource system. The project interventions will strive to achieve the best workforce for the TARDEC mission, adjust the workforce for change, and improve workforce satisfaction. The TARDEC proposed demonstration project is similar to the Department of Defense Civilian Acquisition Workforce Personnel Demonstration Project, commonly known as the “Acq Demo.” TARDEC has been using the Acq Demo's Contribution-Based Compensation and Appraisal System (CCAS) and its pay banding structure for a number of years. The TARDEC Project also uses concepts from the U.S. Army Communications-Electronics Research, Development and Engineering Center (CERDEC) demonstration project and the Naval Research Laboratory demonstration project. The results of the project will be evaluated within five years of implementation.
The purpose of the project is to demonstrate that the effectiveness of DoD STRLs can be enhanced by expanding opportunities available to employees and by allowing greater managerial control over personnel functions through a more responsive and flexible personnel system. Federal laboratories need more efficient, cost-effective, and timely processes and methods to acquire and retain a highly creative, productive, educated, and trained workforce. This project, in its entirety, attempts to improve employees' opportunities and provide managers, at the lowest practical level, the authority, control, and flexibility needed to achieve the highest quality organization and hold them accountable for the proper exercise of this authority within the framework of an improved personnel management system.
Many aspects of a demonstration project are experimental. Modifications may be made from time to time as experience is gained, results are analyzed, and conclusions are reached on how the system is working. The provisions of this project plan will not be modified, or extended to individuals or groups of employees not included in the project plan, without the approval of the ODUSD(CPP). The provisions of DoDI 1400.37 are to be followed for any modifications, adoptions, or changes to this demonstration project plan.
TARDEC has participated in a number of personnel systems and personnel demonstrations over the past 25 years. These include the current Civil Service General Schedule (GS) system, the Acq Demo Project, and the NSPS. In October 2009, as part of the NDAA for FY 2010, TARDEC was designated as a STRL for the purpose of designing and implementing a personnel management demonstration project for conversion of employees from the personnel system(s) which applied to them on October 28, 2009. TARDEC's experience with each of these prior personnel systems was that, although each had positive features, each also had negative aspects. As a result of TARDEC's experience, it was determined that certain features from the earlier systems were worthwhile to carry forward and any shortcomings/limitations corrected or alleviated.
The current GS system has existed in essentially the same form since 1949. Work is classified into one of fifteen overlapping pay ranges that correspond with the fifteen grades. Base pay is set at one of those fifteen grades and the ten interim steps within each grade. The Classification Act of 1949 rigidly defines types of work by occupational series and grade, with very precise qualifications for each job. This system does not quickly or easily respond to new ways of designing work and changes in the work itself.
The performance management model that has existed since the passage of the Civil Service Reform Act in 1980 has come under extreme criticism. Employees frequently report there is inadequate communication of performance expectations and feedback on performance. There are perceived inaccuracies in performance ratings with general agreement that the ratings are inflated and often unevenly distributed by grade, occupation, and geographic location.
The need to change the current hiring system is essential as TARDEC must be able to recruit and retain scientific, engineering, acquisition support and other professionals, and skilled
Finally, current limitations on training, retraining and otherwise developing employees make it difficult to correct skill imbalances and to prepare current employees for new lines of work to meet changing missions and emerging technologies.
TARDEC's proposed personnel management demonstration project, by building on previous strengths and addressing shortcomings, is intended to provide the highest potential for movement to a single system that will meet the needs of TARDEC and all its employees.
The primary benefit expected from this demonstration project is greater organizational effectiveness through increased employee satisfaction. The long-standing Department of the Navy's “China Lake” and the National Institute of Standards and Technology (NIST) demonstration projects have produced impressive statistics on increased job satisfaction and quality of work versus that for the Federal workforce in general. This project will demonstrate that a human resource system tailored to the mission and needs of the TARDEC workforce will facilitate increased:
1. Quality in the workforce and resultant products;
2. Timeliness of key personnel processes;
3. Retention of “excellent performers;”
4. Success in recruitment of personnel with critical skills;
5. Management authority and accountability;
6. Satisfaction of customers; and
7. Workforce satisfaction with the personnel management system.
An evaluation model was developed for the Director, Defense, Research and Engineering (DDR&E) in conjunction with STRL service representatives and the Office of Personnel Management (OPM). The model will measure the effectiveness of this demonstration project and will be used to measure the results of specific personnel system changes.
TARDEC is comprised of employees located at the main site in Warren, MI, with others geographically dispersed at the locations shown in Appendix A. TARDEC has employees matrixed to Program Executive Office Combat Support and Combat Service Support; Program Executive Office Ground Combat Systems; Program Executive Office Integration; and Tank Automotive Command (TACOM) Life Cycle Management Command (LCMC) Joint Project Office. Successor organizations will continue coverage in the demonstration project.
This demonstration project will cover approximately 1,427 TARDEC civilian employees under title 5, U.S.C. in the occupations listed in Appendix B. The project plan does not cover members of the Senior Executive Service (SES), Scientific and Professional (ST) employees, Federal Wage System (FWS) employees, employees covered by the Defense Civilian Intelligence Personnel System (DCIPS), Department of Army (DA) and Army Command centrally funded interns, or students employed under the Summer Hire Program.
Department of Army and Army Material Command centrally funded interns will not be converted to the demonstration project until they reach their full performance level. They will continue to be covered under the Total Army Performance Evaluation System (TAPES). The American Federation of Government Employees (AFGE) Local 1658 represents approximately 90% of TARDEC's professional and non-professional workforce.
To foster union acceptance of TARDEC's proposed personnel demonstration project, initial discussions with the Union officials began in December 2009. Negotiations will begin in earnest after publication of this
In October 2009, section 1105 of NDAA for FY 2010 directed TARDEC to transition to a laboratory demonstration project. TARDEC senior leadership decided to move toward adopting many aspects of both the Acq Demo and the CERDEC laboratory personnel demonstration project as modified by this FRN. The Acq Demo project was approved in 1999 and the CERDEC project was approved in 2001. TARDEC hopes to benefit from using the best practices from these demonstration projects.
1. TARDEC is creating a Personnel Management Board to oversee and monitor the fair, equitable, and consistent implementation of the provisions of the demonstration project to include establishment of internal controls and accountability. Members of the board will be senior leaders appointed by the TARDEC Director. As needed, ad hoc members (such as labor counsel, human resource representatives,
2. The board will execute the following:
a. Determine the composition of the CCAS pay pools in accordance with the guidelines of this proposal and internal procedures;
b. Review operation of pay pools and provide guidance to pay pool managers;
c. Oversee disputes in pay pool issues;
d. Formulate and execute the civilian pay budget;
e. Manage the awards pools;
f. Determine hiring and promotion-based pay as well as exceptions to CCAS base pay increases;
g. Conduct classification review and oversight, monitor and adjust classification practices, and decide board classification issues;
h. Approve major changes in position structure;
i. Address issues associated with multiple pay systems during the demonstration project;
j. Establish contribution goals and other evaluation descriptors;
k. Assess the need for changes to demonstration project procedures and policies;
l. Review requests for Supervisory/Team Leader Base Pay Adjustments and provide recommendations to the appropriate Center Director;
m. Ensure in-house budget discipline;
n. Manage the number of employees by occupational family and pay band;
o. Develop policies and procedures for administering Developmental Opportunity Programs;
p. Ensure that all employees are treated in a fair and equitable manner in accordance with the policies, regulations and guidelines covering this demonstration project; and,
q. Monitor the evaluation of the project.
The design of the TARDEC pay banding system takes advantage of the many reviews performed by OPM, DoD, and DA. The design has the benefit of
Occupations with similar characteristics will be grouped together into one of three occupational families with career paths and pay band levels designed to facilitate pay progression. These occupational families are Engineering and Science (E&S), Business and Technical (B&T), and General Support (GEN). Each occupational family's career path will be composed of pay bands corresponding to recognized advancement and career progression expected within the occupations. These career paths and their pay bands will not be the same for each occupational family. Each career path will be divided into three to five pay bands. Employees track into an occupational family based on their current OPM classification series as provided in Appendix B. The current occupations have been examined, and their characteristics and distribution have served as guidelines in the development of the following three occupational families:
Engineering and Science (E&S) (Pay Plan DB): This occupational family includes technical professional positions such as engineers, physicists, chemists, mathematicians, operations research analysts, and computer scientists. Specific course work or educational degrees are required for these occupations. Five pay bands have been established for the E&S occupational family:
a. Band I is a student trainee track covering GS-1, step 1, through GS-4, step 10.
b. Band II is a developmental/full performance level track covering GS-5, step 1, through GS-11, step 10.
c. Band III is a full-performance technical track covering GS-12, step 1, through GS-13, step 10. Some first-level supervisory positions may also be included in this band.
d. Band IV includes both senior technical positions along with supervisors-managers covering GS-14, step 1, through GS-15, step 10.
e. Band V provides the ability to accommodate science and engineering positions having duties and responsibilities that exceed the GS-15 classification criteria. The DoD is developing classification, compensation, and performance management policy, guidance, and implementation processes for this pay band level that will be published in a separate FRN. TARDEC will supplement this information through internal operating guidance.
Business & Technical (B&T) (Pay Plan DE): This occupational family includes such positions as program acquisition specialists, equipment specialists, engineering and electronics technicians, finance, accounting, administrative, and management analysts. Employees in these positions may or may not require specific course work or educational degrees. Four pay bands have been established for the B&T occupational family:
a. Band I is a student trainee track covering GS-1, step 1, through GS-4, step 10.
b. Band II is a developmental/full performance track covering GS-5, step 1, through GS-11, step 10.
c. Band III is a full performance track covering GS-12, step 1, through GS-13, step 10.
d. Band IV is a senior technical/manager track covering GS-14, step 1, through GS-15, step 10.
General Support (GEN) (Pay Plan DK): This occupational family is composed of positions for which specific course work or educational degrees are not required. Clerical work usually involves the processing and maintenance of records. Assistant work requires knowledge of methods and procedures within a specific administrative area. This family includes such positions as secretaries, office automation clerks, and budget/program/computer assistants. Three pay bands have been established for the GEN occupational family:
a. Band I includes entry-level positions covering GS-1, step 1, through GS-4, step 10.
b. Band II includes full-performance positions covering GS-5, step 1, through GS-7, step 10.
c. Band III includes senior technicians/assistants/secretaries covering GS-8, step 1, through GS-10, step 10.
The pay bands for the TARDEC Lab Demo occupational families and how they relate to the current GS framework are shown in Table 1.
The pay bands for the TARDEC Lab Demo occupational families and how they relate to the current Department of Defense Civilian Acquisition Workforce Personnel Demonstration Project framework are shown in Table 2.
The pay bands for the TARDEC Lab Demo occupational families and how they relate to the NSPS conversion framework are shown in Table 3.
The career path pay banding plan for the E&S occupational family includes a pay band V to provide the ability to accommodate positions having duties and responsibilities that exceed the GS-15 classification criteria. This pay band is based on the Above GS-15 Position concept found in other STRL personnel management demonstration projects that was created to solve a critical classification problem. The STRLs have positions warranting classification above GS-15 because of their technical expertise requirements including inherent supervisory and managerial responsibilities. However, these positions are not considered to be appropriately classified as Scientific and Professional Positions (STs) because of the degree of supervision and level of managerial responsibilities. Neither are these positions appropriately classified as Senior Executive Service (SES) positions because of their requirement for advanced specialized scientific or engineering expertise and because the positions are not at the level of general managerial authority and impact required for an SES position.
The original Above GS-15 Position concept was to be tested for a five-year period. The number of trial positions was set at 40 with periodic reviews to determine appropriate position requirements. The Above GS-15 Position concept is currently being evaluated by DoD management for its effectiveness; continued applicability to the current STRL scientific, engineering, and technology workforce needs; and appropriate allocation of billets based on mission requirements. The degree to which the laboratory plans to participate in this concept and develop classification, compensation, and performance management policy, guidance, and implementation processes will be based on the final outcome of the DoD evaluation (
The GS classification system has over 400 occupational series, which are divided into 23 occupational groupings. TARDEC currently has positions in approximately 65 occupational series that fall into approximately three occupational groupings. All positions listed in Appendix B will be in the classification structure. Provisions will be made for including other occupations in response to changing missions.
TARDEC will use an automated classification system. The present system of OPM classification standards will be used for the identification of proper series and occupational titles of positions within the demonstration project. Current OPM Functional Guides for Within White Collar Work will be used to aid in position classification suitability and form the framework for pay band level determinations. Current OPM position classification standards will not be used to grade positions in this project. However, the grading criteria in those standards will be used as a framework to develop new and simplified pay band factor level descriptors for each pay band determination. The objective is to record the essential criteria for each pay band within each occupational family career path by stating the characteristics of the work, the responsibilities of the position, the competencies required, and the expected contributions. The pay band factor level descriptors will serve as both classification criteria and assessment criteria and may be found in Appendix C New position descriptions will replace the current position/job descriptions. The pay band factor level descriptors for each pay band will serve as an important component in the new position description, which will also include position-specific information, and provide data element information pertinent to the job. The computer-assisted process will produce information necessary for position descriptions. The new descriptions will be easier to prepare, minimize the amount of writing time, and make the position description a more useful and accurate tool for other personnel management functions.
Specialty work codes (narrative descriptions) may be used to further differentiate types of work and the competencies required for particular positions within an occupational family and pay band. Each code represents a specialization or type of work within the occupation.
Fair Labor Standards Act (FLSA) exemption and non-exemption determinations will be consistent with criteria found in 5 CFR part 551. All demonstration project positions are covered by the FLSA unless they meet the criteria for exemption. Classification Specialists will evaluate positions on a case-by-case basis comparing the duties and responsibilities assigned, the pay band factor level descriptors for each pay band level, and the FLSA criteria in accordance with 5 CFR part 551. Additionally, the advice and assistance of the servicing Civilian Personnel Advisory Center will be obtained in making determinations. The benchmark position descriptions will not be the sole basis for the determination. Basis for exemption will be documented and attached to each position description. Exemption criteria will be narrowly construed and applied only to those employees who clearly meet the spirit of the exemption. Changes will be documented and provided to the Civilian Personnel Advisory Center.
The TARDEC Director will have delegated classification authority and may, in turn, re-delegate this authority to appropriate levels. Position descriptions will be developed to assist managers in exercising delegated position classification authority. Managers will identify the occupational family, job series, functional code, specialty work code, pay band level, and the appropriate acquisition codes. Personnel specialists will provide ongoing consultation and guidance to managers and supervisors throughout the classification process. These decisions will be documented on the position description.
Classification appeals under this demonstration project will be processed using the following procedures: An employee may appeal the determination of occupational family, occupational series, position title, and pay band level of his/her position at any time. An employee must formally raise the area of concern to supervisors in the immediate chain of command, either verbally or in writing. If an employee is not satisfied with the DoD response, he or she may then appeal to OPM only after DoD has rendered a decision on all the provisions of the demonstration project. Appellate decisions from OPM are final and binding on all administrative, certifying, payroll, dispersing, and accounting officials of the Government. Time periods for cases processed under 5 CFR part 511 apply.
An employee may not appeal the accuracy of the position description, the demonstration project classification criteria, or the pay-setting criteria; the assignment of occupational series to the occupational family; the propriety of a pay schedule; or matters grievable under an administrative or negotiated grievance procedure.
The evaluations of classification appeals under this demonstration project are based upon the demonstration project classification criteria. Case files will be forwarded for adjudication through the CPAC/CHRA providing personnel service and will include copies of appropriate demonstration project criteria.
The purpose of CCAS is to provide an effective, efficient, and flexible method for assessing, compensating, and managing the TARDEC workforce. CCAS is essential for the development and continued growth of the high quality, extremely productive, and innovative workforce needed to achieve a quality, agile and innovative organization and meet mission requirements. The CCAS allows for more employee involvement in the assessment process, fosters increased communication between supervisor and employee, promotes a clear accountability of performance, facilitates employee career progression, and provides an understandable and rational basis for pay changes by linking pay, performance, and contribution. The CCAS process described herein applies to all career paths and pay band levels I through IV. The assessment process for E&S Pay Band V positions will be based on the final outcome of the DoD evaluation and documented in TARDEC Internal Operating Instructions (
CCAS is an assessment system that measures the employee's level of contribution to the organization's mission and how well the employee performed a job. Contribution is simply defined as the measure of the demonstrated value of what an employee did in terms of accomplishing or advancing the organizational objectives and mission impact. CCAS promotes base pay adjustment decisions made on the basis of an individual's overall annual contribution and current base pay, in relation to the other contributions and their level of base pay in the pay pool. The measurement of overall contribution is through a rating process which determines the Overall Contribution Score (OCS).
An employee's performance is a component of contribution that influences the ultimate OCS. Contribution is measured by using a set of factors, discriminators, and descriptors, each of which is relevant to the success of the TARDEC mission. Taken together, these factors, discriminators, and descriptors capture the critical content of jobs in each career path. These factors, discriminators, and descriptors may be modified or supplemented if experience or changing mission requirements indicates a need to do so. These factors, discriminators, and descriptors are the same as those to classify a position at the appropriate pay band level.
The six (6) factors are:
1. Problem Solving,
2. Teamwork/Cooperation,
3. Customer Relations,
4. Leadership/Supervision,
5. Communication, and
6. Resource Management.
Each factor has multiple levels of increasing contribution corresponding to the pay band levels. Each factor contains descriptors for each respective level within the relevant career path.
The appropriate occupational family career path pay band level performance factor descriptors are used by the rating official to determine the employee's actual contribution score. Employees can score within, above, or below their pay band level. For example, a pay band level II employee could score in the pay band level I, II, III, or IV range. Therefore, for the CCAS process, descriptors for all pay band levels of the occupational family performance factors are presented to better assist the supervisor with the employee assessment.
Normally, the rating period will be one year. The minimum rating period will be 90 days. CCAS payouts can be in the form of increases to base pay and/or in the form of bonuses that are not added to base pay but rather are given as a lump sum payment. Other awards such as special acts, time-off awards,
The system will have the flexibility to be modified, if necessary, as more experience is gained under the project.
TARDEC employees will be placed into pay pools that are defined for the purpose of determining performance payouts under the CCAS system. The TARDEC Director will establish pay pools. Typically, pay pools will have between 35 and 300 employees. A pay pool should be large enough to encompass a reasonable distribution of ratings but not so large as to compromise rating consistency. Neither the pay pool manager nor supervisors within a pay pool will recommend or set their own individual pay. Decisions regarding the amount of the performance payout are based on the established formal payout calculations.
Funds within a pay pool available for performance payouts are divided into two components, base pay and bonus. These funds will be defined based on historical data. Base pay increase fund will be set at no less than two percent of total base pay. The bonus amount will be set at no less than one percent of total base pay. The TARDEC Personnel Management Board will annually review the pay pool funding and recommend adjustments to the TARDEC Director to ensure cost
Typically, the annual appraisal cycle begins on October 1 and ends on September 30 of the following year. At the beginning of the annual appraisal period, the pay band level descriptors for each factor will be provided to employees so that they know the basis on which their performance will be assessed. At the discretion of the pay pool manager, weights will be applied to the factors. A weight of zero may not be applied to any factor and the sum of all weights must equal 100. Employees will be informed of the weights at the beginning of the rating cycle.
Supervisor and employee discussion of specific work assignments and established contribution goals for the rating period for each of the six factors should be conducted on an ongoing basis. These goals can be modified during the rating period and form the foundation of the contributions expected to be achieved.
Typically, the rating official is the first-level supervisor. If the current first-level supervisor has been in place for less than 90 days during the rating cycle, the second-level supervisor serves as the initial rating official. If the second-level supervisor is in place for less than 90 days during the rating cycle, the next higher level supervisor in the employee's rating chain conducts the assessment.
Employees and supervisors alike are expected to actively participate in on-going formal and informal performance discussions regarding expectations. The timing of these discussions will vary based on the nature of work performed, but will occur at least at the mid-point and end of the rating period. At least one review, normally the mid-point review, will be documented as a progress review. More frequent, task specific, discussions may be appropriate in some organizations.
The employee will provide a list of his/her accomplishments to the supervisor at both the mid-point and end of the rating period using the six Contribution Factors described in Section III.C.1. An employee may elect to provide self-ratings on the contribution/performance factors and/or solicit input from team members, customers, peers, supervisors in other units, subordinates, and other sources which will assist the supervisor in fully evaluating contributions. At the end of the annual appraisal period, the immediate supervisor (rating official), from employees' inputs and his/her own knowledge, identifies for each employee the appropriate contribution level and recommends the OCS.
To determine the OCS, numerical values are assigned based on the contribution levels of individuals, using the ranges shown in Table 4. Generally, the OCS is calculated by averaging the numerical values (as weighted) assigned for each of the six performance/contribution factors. (All OCS's will be rounded to the nearest whole number). The rating official in conjunction with the second-level supervisor reviews the OCS for all employees, correcting any inconsistencies identified and making the appropriate adjustments in the factor ratings.
The pay pool panel conducts a final review of the OCS for each employee in the pay pool. The pay pool panel has the authority to make OCS adjustments, after discussion with the initial rating officials, to ensure equity and consistency. Final approval of OCS rests with the pay pool manager, the individual within the organization responsible for managing the CCAS process. The OCS, as approved by the pay pool manager, becomes the rating of record. Rating officials will communicate the factor scores and OCS to each employee and discuss the results.
If on October 1, the employee has served under CCAS for less than ninety (90) consecutive calendar days, the rating official shall wait for the subsequent annual cycle to assess the employee.
Employees who have served under CCAS for less than 90 consecutive calendar days shall not receive contribution rating increases or contribution awards for that cycle.
a. The Normal Pay Range (NPR)
The CCAS integrated pay schedule provides a direct link between contribution, performance, and base
b. The NPR was established using the following parameters:
(1) The lowest possible score is an OCS of 0, which equates to the lowest base pay under this demonstration project, GS-1, step 1,
(2) The OCS of 115 equates to the maximum base pay of Pay Band V.
The upper and lower rails are determined by the formulae below, encompass an area of +/- 8.0 percent in terms of base pay which correlates to approximately +/- 4.0 OCS points.
c. Formulae:
Given these constraints, the formulae for the upper and lower rails found in Table 5 are:
Base pay upper rail = (GS-1, Step 1) * (1.0800) * (1.020043)
Base pay lower rail = (GS-1, Step 1) * (0.9200) * (1.020043)
d. The NPR is the same for all the occupational families. What varies among the occupational families are the beginnings and endings of the pay band levels. The minimum and maximum numerical OCS values and associated base pay for each pay band level by occupational family are provided in Table 5. These minimum and maximum breakpoints represent the lowest and highest base pay for the bands; and the minimum and maximum base pay possible for each pay band level. Locality pay or staffing supplements are not included in the NPR but are added to base pay as appropriate.
e. OCS Base Pay Adjustment Guidelines
After the pay pool manager approves the OCS for all employees in the pay pool, the current base pay versus OCS is plotted for all employees on a chart similar to Table 7. This plot relates contribution to base pay, and identifies the placement of each employee into one of three regions: Inappropriately Compensated (A Region—above the NPR), Appropriately Compensated (C Region—within the NPR), or Inappropriately Compensated (B Region—below the NPR).
In Table 7, employee C is in the Appropriately Compensated Region (falls on or within the NPR). Employee B is in the Inappropriately Compensated Region (falls below the lower NPR) for his/her contribution to the organization. Employee A is in the Inappropriately Compensated Region above the NPR (
f. Table 8 illustrates the additional pay categories available for the three groupings of employees.
The employees whose base pay falls within the NPR must receive the full General Pay Increase (GPI), may receive a contribution rating increase of up to 6 percent, and may receive a contribution award. The contribution rating increase is included as a permanent increase in base pay, but the contribution award is a lump-sum payment that does not affect base pay.
The employees whose base pay falls above the NPR could be denied part or
The employees whose base pay falls below the NPR must receive the full general pay increase, may receive up to a 20 percent permanent increase in pay, and also may receive a contribution award.
Employees on retained rate in the demonstration plan will receive base pay adjustments in accordance with 5 U.S.C. 5363 and 5 CFR Part 536. An employee receiving a retained rate is not eligible for a contribution rating increase, but may receive a contribution award.
In general, those employees whose base pay falls below the NPR should expect to receive greater percentage base pay increases than those whose base pay is above the NPR. Over time, people will migrate closer to the normal pay range and receive base pay appropriate for their level of contribution.
Employees whose OCS would result in awarding a contribution rating increase such that the base pay exceeds the maximum base pay for their current pay band level may receive a contribution award equaling the difference.
(a) Accelerated Compensation for Developmental Positions (ACDP) is a pay-setting provision that may be used to recognize the development and attainment of job-related competencies for TARDEC employees participating in training programs, internships, or other developmental capacities as determined by the TARDEC Director. The ACDP includes TARDEC employees serving under the Student Career Experience Program (SCEP) and Student Temporary Employment Program (STEP). ACDP is an increase to base salary. It provides management the opportunity to increase the base pay of employees in developmental positions at rates which match or exceed career ladder promotion rates under the GS system or other labor market forces.
(b) An ACDP increase to base salary may be awarded at anytime throughout the rating year. In order to receive an ACDP, the employee must be in a pay and duty status, have been on an approved CCAS standard for 90 consecutive days and have successfully met the Contribution Goal Objectives of the CCAS standard as determined by a management official.
(c) ACDP is payment in addition to the annual contribution rating increase and contribution award. It generally will not exceed 20 percent of the employee's base pay; however, a higher increase may be provided on a case-by-case basis if approved by an official who is at a higher level than the official who made the initial decision.
(d) ACDP base pay increase is separate funding from the pay pool process.
Inadequate performance at any time during the appraisal period is considered grounds for initiation of a reduction-in-pay or removal action. The following procedures replace those established in 5 U.S.C. 4303 pertaining to reductions in grade or removal for unacceptable performance except with respect to appeals of such actions. 5 U.S.C. 4303(e) provides the statutory authority for appeals of contribution-based actions. As is currently the situation for performance-based actions taken under 5 U.S.C. 4303, contribution-based actions shall be sustained if the decision is supported by substantial evidence and the Merit Systems Protection Board shall not have mitigation authority with respect to such actions. The separate statutory authority to take contribution-based actions under chapter 75 of title 5, U.S.C., as modified in the waiver section of this notice (section IX), remains unchanged by these procedures.
When an employee's OCS plots above the upper rail of the NPR and the employee is considered to be contributing inadequately the supervisor has two options. The first is to take no action but to document this decision in a memorandum for the record. A copy of this memorandum will be provided to the employee and to higher levels of management. The second option is to inform the employee, in writing, that unless the contribution increases to, and is sustained at, a higher level, the employee may be reduced in pay, reduced in pay band level, or removed.
The second option will include a Contribution Improvement Plan (CIP). The CIP will state how the employee's contribution is inadequate, what improvements/results are required, recommendations on how to achieve adequate contribution, assistance that the laboratory may offer to the employee to assist in improving contribution, and consequences of failure to improve. Additionally, the CIP must include standards for adequate contribution, actions required of the employee, and time in which they must be accomplished to increase and sustain the employee's contribution at an adequate level. When an employee is placed on a CIP, the rating official will afford the employee a reasonable opportunity (a minimum of 60 days) to demonstrate acceptable contribution. These provisions also apply to an employee whose contribution deteriorates during the year.
Employees who are on a CIP at the time pay determinations are made do
Once an employee has been afforded a reasonable opportunity to demonstrate adequate contribution but fails to do so, a reduction-in-pay (which may include a change to a lower pay band level and/or reassignment), or removal action may be proposed. If the employee's contribution increases to an acceptable level and is again determined to deteriorate in any factor within two years from the beginning of the opportunity period, actions may be initiated to effect reduction in pay or removal with no additional opportunity to improve. If an employee has contributed acceptably for two years from the beginning of an opportunity period, and the employee's overall contribution once again declines to an inadequate level, the employee will be afforded an additional opportunity to demonstrate adequate contribution before it is determined whether or not to propose a reduction in pay or removal.
An employee whose reduction in pay or removal is proposed is entitled to a 30-day advance notice of the proposed action that identifies specific instances of inadequate contribution by the employee on which the action is based. The employee will be afforded a reasonable time to answer the notice of proposed action orally and/or in writing.
A decision to reduce pay or remove an employee for inadequate contribution may be based only on those instances of inadequate contribution that occurred during the two-year period ending on the date of issuance of the proposed action. The employee will be issued written notice at or before the time the action will be effective. Such notice will specify the instances of inadequate contribution by the employee on which the action is based and will inform the employee of any applicable appeal or grievance rights.
All relevant documentation concerning a reduction in pay or removal that is based on inadequate contribution will be preserved and made available for review by the affected employee or a designated representative. At a minimum, the records will consist of a copy of the notice of proposed action; the written answer of the employee or a summary when the employee makes an oral reply; and the written notice of decision and the reasons thereof, along with any supporting material including documentation regarding the opportunity afforded the employee to demonstrate adequate contribution.
The payouts made to employees from the pay pool may be a mix of base pay increases and/or one-time bonuses, such that all of the allocated funds are disbursed as intended. To continue to provide performance incentives while also ensuring cost discipline, base pay increases may be limited. Certain employees will not be able to receive the projected base pay increase due to base pay caps. Base pay is capped when an employee reaches the maximum rate of base pay in an assigned pay band. Also, for employees receiving retained rates above the applicable pay band maximum, the entire performance payout will be in the form of a bonus payment.
In addition, a pay pool manager may request approval from the TARDEC Director for use of an Extraordinary Achievement Recognition. Such recognition grants a base pay increase and/or bonus to an employee. The funds available for an Extraordinary Achievement Recognition are separately funded within the constraints of the budget.
To provide additional flexibility in motivating and rewarding individuals and groups, some portion of the award budget will be reserved for special acts and other categories as they occur. Awards may include, but are not limited to, special acts, patents, suggestions, on-the-spot, and time-off. The funds available to be used for traditional 5 U.S.C. awards are separately funded within the constraints of the laboratory's budget.
While not directly linked to the CCAS system, this additional flexibility is important to encourage outstanding accomplishments and innovation in accomplishing the diverse mission of TARDEC. Additionally, to foster and encourage teamwork among its employees, organizations may give group awards. The delegation of awards authority is an internal Army decision and will be considered as such.
Employee feedback to supervisors is considered essential for the success of the TARDEC CCAS system. A feedback instrument for subordinates to anonymously evaluate the effectiveness of their supervisors is being developed and shall be implemented as part of the demonstration project. Supervisors and their managers will be provided the results of that feedback in a format that does not identify individual raters or ratings. The data will be aggregated into a summary and used to establish both personal and organizational performance development goals. The use of this type of instrument will help focus attention on desired leadership behaviors, structure the feedback in a constructive manner, and offset the power imbalance that often prevents supervisors from getting useful feedback from their employees.
Except where specifically waived or modified in this plan, adverse action procedures under 5 CFR part 752 remain unchanged.
An employee may grieve the OCS received under the CCAS system. Non-bargaining unit employees, and bargaining unit employees covered by a negotiated grievance procedure that does not permit grievances over performance ratings, must file under administrative grievance procedures. Bargaining unit employees whose negotiated grievance procedures cover performance rating grievances must file under those negotiated procedures. Contribution payout amounts resulting from OCS cannot be grieved.
The qualifications required for placement into a position in a pay band within an occupational family career path will be determined using the OPM Operating Manual for Qualification Standards for GS Positions. Since the pay bands are anchored to the GS grade levels, the minimum qualification requirements for a position will be those corresponding to the lowest GS grade incorporated into that pay band. For example, for a position in the E&S occupational family Pay Band II, individuals must meet the basic requirements for a GS-5 as specified in the OPM Qualification Standard for Professional and Scientific Positions.
Selective factors may be established for a position in accordance with the OPM Operating Manual for Qualification Standards for GS Positions, when determined to be
Competitive service positions will be filled through Merit Staffing, direct-hire authority, Delegated Examining, or other sources. Where delegated to the laboratory level, hiring authority will be exercised in accordance with the requirements of the delegation of authority. The Rule of Three will be eliminated. When there are no more than 15 qualified, eligible applicants and all are either preference eligibles or there are no preference eligibles, all will be immediately referred to the selecting official without rating and ranking. Rating and ranking will be required only when the number of qualified candidates exceeds 15 or there is a mix of preference and non-preference applicants. Statutes and regulations covering veterans' preference will be observed in the selection process and when rating and ranking are required. This project includes the authority to utilize the OPM Administrative Careers With America (ACWA) or successor procedures for occupational series which have been designated as having a testing requirement. This allows for the recruitment of entry level positions covered by the Business and Technical Occupational Family at the DE-II pay band.
This demonstration project establishes a Distinguished Scholastic Achievement Appointment using an alternative examining process which provides the authority to appoint undergraduates and graduates through the doctoral level to professional positions at the equivalent of GS-7 through GS-11, and GS-12 positions.
At the undergraduate level, candidates may be appointed to positions at a base pay level no greater than the equivalent of GS-7, step 10, provided that:
(1) They meet minimum standards for the positions as published in OPM's Operating Manual “Qualification Standards for General Schedule Positions” plus any selective factors stated in the vacancy announcement;
(2) The occupation has a positive education requirement; and
(3) The candidate has a cumulative grade point average (GPA) of 3.5 or better (on a 4.0 scale) in those courses in those fields of study that are specified in the Qualifications Standards for the occupational series.
Appointments may also be made at the equivalent of GS-9 through GS-12 on the basis of graduate education and/or experience for those candidates with a GPA of 3.5 or better (on a scale of 4.0) for graduate level courses in the field of study required for the occupation.
Veterans' preference procedures will apply when selecting candidates under this authority. Preference eligibles who meet the above criteria will be considered ahead of nonpreference eligibles. In making selections, to pass over any preference eligible(s) to select a nonpreference eligible requires approval under current pass-over or objection procedures. Priority must also be given to displaced employees as may be specified in OPM and DoD regulations.
a. Background:
The TARDEC has an urgent need for direct hire authority to appoint qualified candidates possessing an advanced degree to scientific and engineering positions. The market is extremely competitive with industry and academia for the small supply of highly-qualified and security clearable candidates with a Masters Degree or Ph.D. in science or engineering. There are 35,000 scientists and engineers employed in the DoD laboratories; 27% hold Masters Degrees, while 10% are in possession of a Ph.D. The TARDEC employs around 1,427 scientists and engineers; 21% holding Masters Degrees, while 2% percent are in possession of a Ph.D. Over the next five years, the TARDEC plans to hire approximately 500 of the country's best and brightest scientists and engineers (S&Es) just to keep pace with attrition. This number does not include the impact that actions such as Base Realignment and Closure may have on the attrition of S&Es from the TARDEC. Statistics indicate that the available pool of advanced degree, clearable candidates is substantially diminished by the number of non-U.S. citizens granted degrees by U.S. institutions. For instance, in 2006, 20% of Masters Degrees in science and over 35% of Ph.D.s in science were awarded to temporary residents.
It is expected that this hiring authority, together with streamlined recruitment processes, will be very effective in hiring candidates possessing a Masters or Ph.D. and accelerating the hiring process. For instance, under a similar authority found in the NDAA for FY 2009, section 1108, Public Law 110-417, October 28, 2009, one STRL had fifteen Ph.D. selectees in 2009 for the sixteen vacancies for which they were using this hiring authority. Another STRL, using this expedited hiring authority in calendar year 2009, made thirty firm hiring offers in an average of thirteen days from receipt of paper work in the Human Resources Office. Of these thirty selectees, twenty-three possessed Ph.D.s.
b. Definitions:
(1) Scientific and engineering positions are defined as all professional positions in scientific and engineering occupations (with a positive education requirement) utilized by the laboratory.
(2) An advanced degree is a Master's or higher degree from an accredited college or university in a field of scientific or engineering study directly related to the duties of the position to be filled.
(3) Qualified candidates are defined as candidates who:
(a) Meet the minimum standards for the position as published in OPM's operating manual, “Qualification Standards for General Schedule Positions,” or the laboratory's demonstration project qualification standards specific to the position to be filled;
(b) Possess an advanced degree; and
(c) Meet any selective factors.
(4) “Employee” is defined by section 2105 of title 5, U.S.C.
c. Provisions:
(1) Use of this appointing authority must comply with merit system principles when recruiting and appointing candidates with advanced degrees to covered occupations.
(2) Qualified candidates possessing an advanced degree may be appointed without regard to the provisions of subchapter 1 of chapter 33 of title 5, United States Code, other than sections 3303, 3321, and 3328 of such title.
(3) The hiring threshold for this authority shall be consistent with DoD policy and legislative language as expressed in any National Defense Authorization Act addressing such.
(4) Positions and candidates must be counted on a full-time equivalent basis.
(5) Science and engineering positions that are filled as of the close of the fiscal year are those positions encumbered on the last day of the fiscal year.
(6) When completing the personnel action, the following will be given as the authority for the Career-Conditional, Career, Term, Temporary, or special demonstration project appointment authority: Section 1108, NDAA for FY 09.
(7) Evaluation of this hiring authority will include information and data on its use, such as numerical limitation, hires made, how many veterans hired, declinations, difficulties encountered, and/or recognized efficiencies.
For actions taken under the auspices of this demonstration project, the legal authorities, Public Law 103-337, as amended, and Public Law 111-84 will be used. For all other actions, the nature of action codes and legal authority codes prescribed by OPM, DoD, or DA will continue to be used.
TARDEC conducts a variety of projects that range from three to six years. The current four-year limitation on term appointments for competitive service employees often forces the termination of these employees prior to completion of projects they were hired to support. This disrupts the research and development process and affects the organization's ability to accomplish the mission and serve its customers.
TARDEC will continue to have career and career-conditional appointments and temporary appointments not-to-exceed one year. These appointments will use existing authorities and entitlements. Under the demonstration project, TARDEC will have the added authority to hire individuals under a modified term appointment. These appointments will be used to fill positions for a period of more than one year, but not more than a total of five years when the need for an employee's services is not permanent. The modified term appointments differ from term employment as described in 5 CFR 316 in that they may be made for a period not to exceed five, rather than four years. The TARDEC Director is authorized to extend a term appointment one additional year.
Employees hired under the modified term appointment authority are in a non-permanent status, but may be eligible for non-competitive conversion to career or career-conditional appointments. To be converted, the employee must:
a. Have been selected for the term position under competitive procedures, with the announcement specifically stating that the individual(s) selected for the term position may be eligible for conversion to a career or career-conditional appointment at a later date;
b. Have served two years of continuous service in the term position; and
c. Have not been placed on a CIP.
Employees serving under term appointments at the time of conversion to the demonstration project will be converted to the new modified term appointments provided they were hired for their current positions under competitive procedures. These employees will be eligible for conversion to career-conditional or career appointments if they:
(1) Have served two years of continuous service in the term position;
(2) Are selected under merit promotion procedures for the permanent position; and
(3) Have not been placed on a CIP.
Time served in term positions prior to conversion to the modified term appointment is creditable, provided the service was continuous.
The initial probationary period will not be less than one year and will not exceed three years for all newly hired employees as defined in 5 CFR 315. The specific probationary period will be defined and controlled by the TARDEC Director. The purpose of the probationary period is to allow supervisors an adequate period of time to fully evaluate an employee's ability to complete a cycle of work and to fully assess an employee's contribution and conduct. All other features of the current probationary period are retained including the potential to remove an employee without providing the full substantive and procedural rights afforded a non-probationary employee. These provisions only apply to those employees who have been appointed under the authority of this demonstration project.
The probationary or trial period is designed to give supervisors the opportunity to assess how well an employee can perform the duties of a job and if the employee is otherwise well suited for the position. Probationary employees may be terminated for any lawful reason including, but not limited to, failure to demonstrate proper conduct, technical competency, and/or acceptable contribution for continued employment. They may also be terminated for conditions arising before employment. When a supervisor decides to terminate an employee during the probationary period, the supervisor shall terminate the employee's services by written notification stating the reasons for termination and the effective date of the action. The information in the notice shall, at a minimum, outline the supervisor's reasons for termination.
New supervisors, that is, those who have not previously completed a supervisory probationary period, will be required to complete a one-year probationary period for the initial appointment to a supervisory position. An additional supervisory probationary period of one year may be required when an employee is officially assigned to a different supervisory position that constitutes a major change in supervisory responsibilities from any previously held supervisory position. If, during a supervisory probationary period, the decision is made to return the employee to a non-supervisory position for reasons related to supervisory performance, the employee will be returned to a comparable position of no lower base pay than the position from which promoted or reassigned.
Under the demonstration project, the Director will have the authority to offer retired or separated employees voluntary positions. The Director may redelegate this authority. Voluntary Emeritus Corps assignments are not considered employment by the Federal government (except for purposes of injury compensation). Thus, such assignments do not affect an employee's entitlement to buyouts or severance payments based on an earlier separation from Federal service.
The Voluntary Emeritus Corps will ensure continued quality services while reducing the overall salary line by allowing higher paid employees to accept retirement incentives with the opportunity to retain a presence in the TARDEC community. The program will be beneficial during manpower reductions, as employees accept retirement and return to provide a continuing source of corporate knowledge and valuable on-the-job training or mentoring to less experienced employees.
To be accepted into the Volunteer Emeritus Corps, a volunteer must be recommended by a TARDEC manager to the TARDEC Director or delegated authority. Not everyone who applies is entitled to an emeritus position. The responsible official will document acceptance or rejection of the applicant. For acceptance, documentation must be retained throughout the assignment. For rejection, documentation will be maintained for two years.
To ensure success and encourage participation, the volunteer's Federal
Voluntary Emeritus Corps volunteers will not be permitted to monitor contracts on behalf of the Government or to participate on any contracts or solicitations where a conflict of interest exists. The volunteers may be required to submit a financial disclosure form annually. The same rules that currently apply to source selection members will apply to volunteers.
An agreement will be established among the volunteer, the responsible official, and the Civilian Personnel Advisory Center. The agreement must be finalized before the assumption of duties and shall include the following:
a. Statement that the voluntary assignment does not constitute an appointment in the Civil Service, is without compensation, and the volunteer waives any claims against the Government based on the voluntary assignment;
b. Statement that the volunteer will be considered a Federal employee only for the purpose of injury compensation;
c. Volunteer's work schedule;
d. Length of agreement (defined by length of project or time defined by weeks, months, or years);
e. Support provided by the organization (travel, administrative support, office space, and supplies);
f. Statement of duties;
g. Statement providing that no additional time will be added to a volunteer's service credit for such purposes as retirement, severance pay, and leave as a result of being a volunteer;
h. Provision allowing either party to void the agreement with two working days written notice;
i. Level of security access required by the volunteer (any security clearance required by the position will be managed by the employing organization);
j. Provision that any publication(s) resulting from his/her work will be submitted to the Director for review and approval;
k. Statement that the volunteer accepts accountability for loss or damage to Government property occasioned by his/her negligence or willful action;
l. Statement that his/her activities on the premises will conform to the regulations and requirements of the organization;
m. Statement that the volunteer will not release any sensitive or proprietary information without the written approval of the employing organization and further agrees to execute additional non-disclosure agreements as appropriate, if required, by the nature of the anticipated services;
n. Statement that the volunteer will not disclose any inventions made in the course of work performed at the TARDEC. The Director has the option to obtain title to any such invention on behalf of the U.S. Government. Should the Director elect not to take title, the TARDEC shall at a minimum retain a non-exclusive, irrevocable, paid-up, royalty-free license to practice or have practiced the invention worldwide on behalf of the U.S. Government; and
o. Statement that he/she agrees to comply with designated mandatory training.
Exceptions to the provisions in this procedure may be granted by the Director on a case-by-case basis.
A promotion is the movement of an employee to a higher pay band in the same occupational family career path or to another pay band in a different occupational family career path, wherein the pay band in the new occupational family has a higher maximum base pay than the band from which the employee is moving. Positions with known promotion potential to a higher band within an occupational family career path will be identified when they are filled. Movement from one occupational family to another will depend upon individual competencies, qualifications, and the needs of the organization. Supervisors may consider promoting employees at any time, since promotions are not tied to the CCAS system. Progression within a pay band is based upon contribution/performance base pay increases; as such, these actions are not considered promotions and are not subject to the provisions of this section. Except as specified below, promotions will be processed under competitive procedures in accordance with Merit System Principles and requirements of the local merit promotion plan.
A reassignment is the movement of an employee from one position to a different position within the same occupational family and pay band or to another occupational family and pay band wherein the pay band in the new family has the same maximum base pay. The employee must meet the qualifications requirements for the occupational family and pay band.
Employees may be eligible for an increase to base salary upon temporary or permanent reassignment as described in this section. A decision to increase an employee's pay under this section will be based upon business rules that will define criteria necessary to justify a base pay increase. Examples of criteria may include, but are not limited to, one or more of the following factors:
a. A determination that an employee's responsibilities will significantly increase;
b. Critical mission or business requirements;
c. Need to advance multi-functional competencies;
d. Labor market conditions,
e. Reassignment from a nonsupervisory to a supervisory position;
f. Employee's past and anticipated performance and contribution;
g. Physical location of position;
h. Specialized skills, knowledge, or education possessed by the employee in relation to those required by the position; and
i. Salaries of other employees in the organization performing similar work.
When an employee is reassigned within his/her current pay band or to a comparable pay band, an authorized management official will set base pay at an amount no less than the employee's current base pay and may increase the employee's current base pay by up to 6 percent. If the employee's current base pay exceeds the maximum of the new pay band, no increase is provided, and the employee's rate will be set at that maximum rate. There is no limit to the number of times an employee can be reassigned, but local business rules will be established to monitor and control all cases that receive a reassignment base pay change to ensure fairness and consistency across the workforce. Reassignment base pay thresholds may be modified or increased by internal business rules, policies, or procedures as organizational experience dictates.
A demotion is a placement of an employee into a lower pay band within the same occupational family or placement into a pay band in a different occupational family with a lower maximum base pay. Demotions may be for cause (performance or conduct) or for reasons other than cause (
Today's environment of downsizing and workforce fluctuations mandates that the organization have maximum flexibility to assign duties and responsibilities to individuals. Pay banding can be used to address this need, as it enables the organization to have maximum flexibility to assign an employee with either no change or an increase in base pay within broad descriptions consistent with the needs of the organization and the individual's qualifications and level. Subsequent assignments to projects, tasks, or functions anywhere within the organization requiring the same level, area of expertise, and qualifications would not constitute an assignment outside the scope or coverage of the current position description. For instance, a technical expert could be assigned to any project, task, or function requiring similar technical expertise. Likewise, a manager could be assigned to manage any similar function or organization consistent with that individual's qualifications. This flexibility allows broader latitude in assignments and further streamlines the administrative process and system while providing management the option of granting additional base pay in recognition of more complex work or broader scope of responsibility.
The temporary assignment of an employee to a different demonstration project position for a specific period when the employee is expected to return to his or her regular duties at the end of an assignment. (An employee who is on detail is considered for pay and strength purposes to be permanently occupying his or her regular position.)
The following actions are excepted from competitive procedures:
a. Re-promotion to a position which is in the same pay band or GS equivalent and occupational family as the employee previously held on a permanent basis within the competitive service.
b. Promotion, reassignment, demotion, transfer, or reinstatement to a position having promotion potential no greater than the potential of a position an employee currently holds or previously held on a permanent basis in the competitive service.
c. A position change permitted by reduction-in-force procedures.
d. Promotion without current competition when the employee was appointed through competitive procedures to a position with a documented career ladder.
e. A temporary promotion or detail to a position in a higher pay band of 180 days or less.
f. A promotion due to the reclassification of positions based on accretion (addition) of duties.
g. A promotion resulting from the correction of an initial classification error or the issuance of a new classification standard.
h. Consideration of a candidate who did not receive proper consideration in a competitive promotion action.
i. Impact of person in the job and Factor IV process (application of the Research Grade Evaluation Guide, Equipment Development Grade Evaluation Guide, Part III, or similar guides) promotions.
Pay administration policies will be established by the Personnel Management Board. These policies will be exempt from Army Regulations or RDECOM local pay fixing policies, but will conform to basic governmental pay fixing policy. Employees whose performance is acceptable may be eligible for the full annual general pay increase and the full locality pay. TARDEC may make full use of recruitment, retention, and relocation payments as provided for by OPM under 5 U.S.C. and 5 CFR pay flexibilities unless waived by this FRN.
An employee's total monetary compensation paid in a calendar year may not exceed the rate of pay for Level I of the Executive Schedule to be consistent with 5 CFR 530.201 and consistent with 5 U.S.C. 5307 and 5 CFR 530, subpart B. In addition, each pay band will have its own base pay ceiling. Base pay rates for the various pay bands will be linked to the OCS of the CCAS system. Other than where a retained rate applies, base pay will be limited to the maximum base pay payable for each pay band.
Upon initial appointment, the individual's base pay may be set at the lowest base pay in the pay band or anywhere within the pay band level consistent with the special qualifications of the individual and the unique requirements of the position. These special qualifications may be in the form of education, training, experience, or any combination thereof that is pertinent to the position in which the employee is being placed. Guidance on pay setting for new hires will be established by the Personnel Management Board.
HPR will be considered in placement actions authorized under rules similar to the HPR rules in 5 CFR 531.221. Use of HPR will be at the supervisor's discretion; but if used, HPR is subject to policies established by the Personnel Management Board.
The minimum base pay increase upon promotion to a higher pay band will be six percent or the minimum base pay rate of the new pay band, whichever is greater. In no case will the increase exceed the maximum base pay for the pay band. The maximum base pay increase for promotion may be exceeded when necessary to allow for the minimum base pay increase. When a temporary promotion is terminated, the employee's pay entitlements will be re-determined based on the employee's position of record, with appropriate adjustments to reflect pay events during the temporary promotion, subject to the specific policies and rules established by the Personnel Management Board. In no case may those adjustments increase the base pay for the position of record beyond the applicable pay range maximum base pay rate.
A reassignment may be effected without a change in base pay. However, a base pay increase may be granted where a reassignment significantly increases the complexity, responsibility, and authority or for other compelling reasons. Such an increase is subject to the specific guidelines established by the Personnel Management Board.
Employees demoted for cause (performance or conduct) are not entitled to pay retention and will receive a minimum of a five percent decrease in base pay. Employees demoted for reasons other than cause (
Employees who are on a CIP at the time base pay determinations are made do not receive contribution payouts or the general pay increase. This action may result in a base pay that is identified in a lower pay band. This occurs because the minimum rate of base pay in a pay band increases as the result of the general pay increase (5 U.S.C. 5303).
a. Supervisory and team leader pay adjustments may be approved by the TARDEC Director based on the recommendation of the Personnel Management Board to compensate employees with supervisory or team leader responsibilities. Only employees in supervisory or team leader positions as defined by the OPM GS Supervisory Guide or GS Leader Grade Evaluation Guide may be considered for the pay adjustment. These pay adjustments are funded separately from performance pay pools. These pay adjustments are increases to base pay, ranging up to ten percent of that pay rate for supervisors and up to five percent of that pay rate for team leaders. Pay adjustments are subject to the constraint that the adjustment may not cause the employee's base pay to exceed the pay band maximum base pay. Criteria to be considered in determining the base pay increase percentage include:
(1) Needs of the organization to attract, retain, and motivate high quality supervisors/team leaders;
(2) Budgetary constraints;
(3) Years and quality of related experience;
(4) Relevant training;
(5) Performance appraisals and experience as a supervisor/team leader;
(6) Organizational level of position; and
(7) Impact on the organization.
a. The pay adjustment will not apply to employees in Pay Band V of the E&S occupational family.
b. After the date of conversion into the demonstration project, a pay adjustment may be considered under the following conditions:
(1) New hires into supervisory/team leader positions will have their initial rate of base pay set at the supervisor's discretion within the pay range of the applicable pay band. This rate of pay may include a pay adjustment determined by using the ranges and criteria outlined above.
(2) An employee selected for a supervisory/team leader position that is within the employee's current pay band may also be considered for a base pay adjustment. If a supervisor/team leader is already authorized a base pay adjustment and is subsequently selected for another supervisor/team leader position within the same pay band, then the base pay adjustment will be re-determined.
(3) Existing Supervisors/Team Leaders will be converted at their existing base rate of pay and may be eligible for a base pay adjustment upon review of the Personnel Management Board following the conversion.
c. The supervisor/team leader pay adjustment will be reviewed annually, with possible increases or decreases based on the appraisal scores for the performance element, Team/Project Leadership or Supervision/EEO. The initial dollar amount of a base pay adjustment will be removed when the employee voluntarily leaves the position. The cancellation of the adjustment under these circumstances is not an adverse action and is not subject to appeal. If an employee is involuntarily removed from a non-probationary supervisory/team leader position for unacceptable performance or conduct, the base pay adjustment will be removed under adverse action procedures. However, if an employee is involuntarily removed from a non-probationary supervisory/team leader position for conditions other than unacceptable performance or conduct, then pay retention will follow current law and regulations at 5 U.S.C. 5362 and 5363 and 5 CFR part 536, except as waived or modified in section IX.
Supervisory and team leader pay differentials may be used by the TARDEC Director to provide an incentive and to reward supervisors and team leaders as defined by the OPM GS Supervisory Guide and GS Leader Grade Evaluation Guide. Pay differentials are not funded from performance pay pools. A pay differential is a cash incentive that may range up to ten percent of base pay for supervisors and up to five percent of base pay for team leaders. It is paid on a pay-period basis for a specified period of time not to exceed (NTE) one year and is not included as part of the base pay. Criteria to be considered in determining the amount of the pay differential are the same as those identified for Supervisory and Team Leader Pay Adjustments. The pay differential will not apply to employees in Pay Band V of the E&S occupational family.
The pay differential may be considered, either during conversion into or after initiation of the demonstration project, if the supervisor/team leader has subordinate employees in the same pay band. The differential must be terminated if the employee is removed from a supervisory/team leader position, regardless of cause.
After initiation of the demonstration project, all personnel actions involving a supervisory or team leader differential will require a statement signed by the employee acknowledging that the differential may be terminated or reduced at the discretion of the TARDEC Director. The termination or reduction of the differential is not an adverse action and is not subject to appeal.
Employees assigned to occupational categories and geographic areas covered by GS special rates will be entitled to a staffing supplement if the maximum adjusted base pay for the banded GS grades (
The staffing supplement is calculated as follows. Upon conversion, the demonstration base rate will be established by dividing the employee's former GS basic pay (including any locality pay or special salary rate) or, for former NSPS employees, the NSPS adjusted salary (including any local market supplement) by the staffing factor. The staffing factor will be determined by dividing the maximum special rate for the banded grades by the GS unadjusted rate corresponding to that special rate (step 10 of the GS rate for the same grade as the special rate). The employee's demonstration staffing supplement is derived by multiplying the demonstration base pay rate by the staffing factor minus one. Therefore, the employee's final demonstration special staffing rate equals the demonstration base pay rate plus the staffing supplement. This amount will equal the employee's former GS or NSPS adjusted
If an employee is in a band where the maximum GS or NSPS adjusted base pay rate for the banded grades is a locality rate, when the employee enters into the demonstration project, the demonstration base pay rate is derived by dividing the employee's former GS adjusted base pay rate (the higher of locality rate or special rate) by the applicable locality pay factor. The employee's demonstration locality-adjusted base pay rate will equal the employee's former GS adjusted base pay rate in accordance with the above provisions using the new special salary rate. Any GS or special rate schedule adjustment will require computing the staffing supplement again. Employees receiving a staffing supplement remain entitled to an underlying locality rate, which may over time supersede the need for a staffing supplement. If OPM discontinues or decreases a special rate schedule, pay retention provisions will be applied. Upon geographic movement, an employee who receives the staffing supplement will have the supplement recomputed. Any resulting reduction in pay will not be considered an adverse action or a basis for pay retention.
An established base pay rate plus the staffing supplement will be considered adjusted base pay for the same purposes as a locality rate under 5 CFR 531.610,
If an employee is in an occupational category covered by a new or modified special salary rate table, and the pay band to which assigned is not entitled to a staffing supplement, then the employee's adjusted base pay may be reviewed and adjusted to accommodate the rate increase provided by the special salary rate table. The review may result in a one-time base pay increase if the employee's adjusted base pay equals or is less than the highest special salary rate grade and step that exceeds the comparable locality grade and step. Demonstration project operating procedures will identify the officials responsible to make such reviews and determinations.
For purposes of actions within the TARDEC demonstration project that provide entitlement to pay retention the standard provisions of pay retention (5 U.S.C. 5362 and 5363 and 5 CFR 536) shall apply to employees after conversion to the demonstration project, except as waived or modified in Section IX of this plan. Wherever the term “grade” is used in the law or regulation the term “pay band” will be substituted. The TARDEC Director may also grant pay retention to employees who meet general eligibility requirements, but do not have specific entitlement by law, provided they are not specifically excluded.
The Expanded Developmental Opportunity Program will be available to all demonstration project employees. Expanded developmental opportunities complement existing developmental opportunities such as long-term training; rotational job assignments; developmental assignments to Army Materiel Command/Army/DoD; and self-directed study via correspondence courses, local colleges, and universities. Each developmental opportunity must result in a product, service, report, or study that will benefit the TARDEC or customer organization as well as increase the employee's individual effectiveness. The developmental opportunity period will not result in loss of (or reduction) in base pay, leave to which the employee is otherwise entitled, or credit for service time. The positions of employees on expanded developmental opportunities may be back-filled (
a.
One paid sabbatical of up to twelve months in duration or one unpaid sabbatical of up to six months in a calendar year may be granted to an employee in any seven-year period. Employees will be eligible to request a
Specific procedures will be developed for processing sabbatical applications upon implementation of the demonstration project.
b.
c.
The competitive area may be determined by occupational family, lines of business, product lines, organizational units, funding lines, occupational series, functional area, and/or geographical location, or a combination of these elements, and must include all Demonstration Project employees within the defined competitive area. The RIF system has a single round of competition to replace the current GS two-round process. Once the position to be abolished has been identified, the incumbent of that position may displace another employee when the incumbent has a higher retention standing and is fully qualified for the position occupied by the employee with a lower standing.
Retention standing is based on tenure, veterans' preference, and length of service augmented by performance. Modified term appointment and temporary appointment employees are in Tenure Group 0, and are not eligible to complete within a RIF. RIF procedures are not required when separating these employees when their appointments expire.
Displacement is limited to one pay band level below the employee's present pay band level within the occupational family career path. Pay band level I employees can displace within their current pay band level. A veterans' preference eligible employee with a compensable service connected disability of 30 percent or more may displace up to two pay band levels below the employee's present level within the career path. A pay band level I preference eligible employee (with a compensable service connected disability of 30 percent or more) can displace within their current pay band. The same “undue disruption” standard currently utilized, serves as the criteria to determine if an employee is fully qualified.
The additional RIF service credit for performance shall be based on the last three OCS scores and will be applied as follows:
a. 20 years of credit for each year the OCS is equal to or greater than 94 percent of the expected OCS.
b. 16 years of credit for each year the OCS is less than 94 percent but greater than 92 percent of the expected OCS.
c. 12 years of credit for each year the OCS is less than 92 percent but greater than 90 percent of the expected OCS.
d. Zero (0) year of credit for each year the employees OCS is less than 90 percent of the expected OCS.
Expected OCS is the OCS that corresponds to the employee's base pay at the time of rating.
An employee whose current overall contribution score places him/her in the area above the upper rail and on a CIP, any time during the rating cycle, may only displace an employee who is also above the upper rail and also on a CIP during that same period. The displaced individual may similarly displace another employee on a CIP. If/When there is no position in which an employee can be placed by this process or assigned to a vacant position, that employee will be separated. If an employee has not been rated under the demonstration project their rating will be considered acceptable and they will be given the full 21 years of performance credit. After completion of the first or second rating cycle the total years of service will be prorated based on ratings received to date.
A. Critical to the success of the demonstration project is the training developed to promote understanding of the broad concepts and finer details needed to implement and successfully execute this project. New pay banding, job classification, and performance management systems all contribute to significant cultural change to the organization. Training will be tailored to address employee concerns and to encourage comprehensive understanding of the demonstration project. Training will be required both prior to implementation and at various times during the life of the demonstration project.
B. A training program will begin prior to implementation and will include modules tailored for employees, supervisors, senior managers, and administrative staff. Typical modules are:
1. An overview of the demonstration project personnel system;
2. How employees are converted into and out of the system;
3. Pay banding;
4. The CCAS system;
5. Defining contribution goals;
6. How to assign weights;
7. Assessing performance—giving feedback;
8. New position descriptions; and
9. Demonstration project administration and formal evaluation.
C. Various types of training are being considered, including videos, on-line tutorials, and train-the-trainer concepts.
The employee's NSPS occupational series, pay plan, pay band, and supervisory code will be considered upon converting into the demonstration project as follows:
a. Determine the appropriate demonstration project pay plan. Employees will be converted into an occupational family career path pay plan based on the occupational series of their position. If there is a separate pay plan for supervisors, conversion to that pay plan will be without regard to the occupational series. In cases where the employee is assigned to a NSPS-unique occupational series, a corresponding OPM occupational series must be identified using OPM GS classification standards and guidance to determine the proper demonstration project pay plan.
b. Determine the appropriate demonstration project pay band. The appropriate pay band will be determined by establishing the corresponding GS grade for the employee's NSPS position using OPM GS classification standards and guidance. Once the GS grade has been determined, the employee's position will be placed in the appropriate demonstration project pay band in the occupational family career path. In cases where a GS grade is encompassed in more than one pay band of a career path, a careful review will be required using demonstration project classification criteria to determine the appropriate pay band in which to place the position.
a. Determine the appropriate base salary. Conversion from NSPS into the demonstration project will be accomplished with full employee pay protection. Adverse action provisions will not apply to the conversion action. In accordance with section 1113(c)(1) of NDAA 2010, which prohibits a loss of or decrease in pay upon transition from NSPS, employees converting to the demonstration project will retain the adjusted salary (as defined in 5 CFR 9901.304) from their NSPS permanent or temporary position at the time the position converts. Upon conversion, the retained NSPS adjusted salary may not exceed Level IV of the Executive Schedule plus 5 percent. If the employee's base pay exceeds the maximum rate for his or her assigned demonstration project pay band, the employee will be placed on indefinite pay retention until an event, as described in 5 CFR 536.308, results in a loss of eligibility for or termination of pay retention. Increases to the retained rate after conversion will be in accordance with applicable regulations; however, for any NSPS employee whose retained rate exceeds Executive Level IV upon conversion, any adjustment to the retained rate in accordance with applicable pay retention regulations may not cause the employee's adjusted pay to exceed Executive Level IV plus 5 percent.
b. Employees Previously Covered by an NSPS Targeted Local Market Supplement (TLMS)
Employees who were covered by an NSPS TLMS prior to conversion to the demonstration project will no longer be covered by a TLMS. Instead they may receive a locality or similar supplement (
c. Other Pay. Once converted, employees may receive other adjustments and/or differentials, as applicable, as described in this
Since FLSA provisions were not waived under NSPS and duties do not change upon conversion to the demonstration project, the FLSA status determination will remain the same upon conversion. Employees will be converted to the demonstration project with the same FLSA status they had under NSPS.
During the first 12 months following conversion to the demonstration project, management may approve certain adjustments within the pay band for pay equity reasons stemming from conversion. For example, if an employee would have been otherwise promoted but demonstration project pay band placement no longer provides a promotion opportunity, a pay equity adjustment may be authorized provided the adjustment does not cause the employee's base pay to exceed the maximum rate of his or her assigned pay band and the employee's performance warrants an adjustment. The decision to grant a pay equity adjustment is at the sole discretion of TARDEC management and is not subject to employee appeal procedures.
During the first 12 months following conversion, management may approve an adjustment of not more than 10 percent, provided the adjustment does not cause the employee's base pay to exceed the maximum rate of his or her assigned pay band and the employee's performance warrants an adjustment, to mitigate base pay inequities that may be caused by artifacts of the process of conversion into STRL pay bands. For instance, inappropriate “leap-frogging” of more senior employees by more junior employees when the inversion of compensation levels are not warranted by performance or mission accomplishment outcomes.
Employees converting from NSPS to the demonstration project will not be granted pay band retention based on the pay band formerly assigned to their NSPS position.
a. Employees serving under term appointments at the time of conversion to the demonstration project will be converted to modified term appointments provided they were hired for their current positions under competitive procedures. These employees will be eligible for conversion to career or career-conditional appointments in the competitive service provided they:
(1) Have served two years of continuous service in the term position;
(2) Were selected for the term position under competitive procedures; and
(3) Are performing at a satisfactory level.
Converted term employees who do not meet these criteria may continue on their term appointment up to the not-to-exceed date established under NSPS. Extensions of term appointments after conversion may be granted in accordance with 5 CFR part 316, subpart D.
b. Employees serving under temporary appointments under NSPS when their organization converts to the demonstration project will be converted and may continue on their temporary appointment up to the not-to-exceed date established under NSPS. Extensions of temporary appointments after conversion may be granted in accordance with 5 CFR 213.104 for excepted service employees and 5 CFR part 316, subpart D, for competitive service employees.
a. Initial probationary period. NSPS employees who have completed an initial probationary period prior to conversion from NSPS will not be required to serve a new or extended initial probationary period. NSPS employees who are serving an initial probationary period upon conversion from NSPS will serve the time remaining on their initial probationary period and may have their initial probationary period extended in accordance with the demonstration project regulation and implementing issuances.
b. Supervisory probationary period. NSPS employees who have completed a supervisory probationary period prior to conversion from NSPS will not be required to serve a new or extended supervisory probationary period while in their current position. NSPS employees who are serving a supervisory probationary period upon conversion from NSPS will serve the time remaining on their supervisory probationary period.
Conversion from current GS, Acq Demo, or other systems not covered by NSPS into the new pay band system will be accomplished during implementation of the demonstration project (refer Section III.A.2 and Table 1). Initial entry into the demonstration project will be accomplished through a full employee-protection approach that ensures each employee an initial place in the appropriate pay band without loss or decrease of adjusted base pay on conversion. If the employee's base pay exceeds the maximum rate for his or her assigned demonstration project pay band, the employee will be placed on pay retention.
Employees serving under term appointments at the time of the implementation of the demonstration project will be converted to the modified term appointment if all requirements (refer III.D.4 Revisions to Term Appointments) have been satisfied. Position announcements,
Employees serving under temporary appointments at the time of the implementation of the demonstration project will be converted to the demonstration project. Employees on temporary appointments at the time of conversion may continue on those appointments up to the not-to-exceed date established under the former system. Extensions of temporary appointments may be granted in accordance with 5 CFR 213.104 for excepted service employees and 5 CFR part 316, subpart D, for competitive service employees.
Employees who are covered by GS special salary rates prior to entering the demonstration project will no longer be considered a special salary rate employee under the demonstration project. Instead, they will receive locality pay or a staffing supplement, whichever is greater. Special conversion rules, as described in III.F.10, describe staffing supplements which replace GS special salary rates and NSPS targeted local market supplements and apply to employees in occupations and geographic locations to which GS special salary rates or NSPS targeted local market supplements would otherwise apply. The adjusted base pay of these employees will not change. Rather, the employees will receive a new adjusted base pay rate computed under the staffing supplement rules in section III.F.10.
Employees who are on temporary promotions at the time of conversion will be converted to a pay band commensurate with the grade of the position to which temporarily promoted. At the conclusion of the temporary promotion, the employee will revert to the grade or pay band that corresponds to the position of record. When a temporary promotion is terminated, pay will be determined based on the position of record, with appropriate adjustments to reflect pay events during the temporary promotion, subject to the specific policies and rules established by the Personnel Management Board. In no case may those adjustments increase the pay for the position of record beyond the applicable pay band maximum base pay. The only exception will be if the original competitive promotion announcement stipulated that the promotion could be made permanent; in these cases, actions to make the temporary promotion permanent will be considered, and if implemented, will be subject to all existing priority placement programs.
During the first 12 months following conversion, employees will receive pay increases for non-competitive promotion equivalents when the grade level of the promotion is encompassed within the same pay band, the employee's performance warrants the promotion, and promotions would have otherwise occurred during that period. For employees who receive an in-level promotion in accordance with this provision at the time of conversion, a prorated step increase equivalent as defined below will not be provided.
For GS employees, rules governing GS within-grade increases (WGIs) will continue in effect until conversion. Adjustments to a GS employee's base pay for WGI equity will be computed as of the effective date of conversion provided the employee is performing at an acceptable level of competence as defined in 5 CFR 531.403. WGI equity will be acknowledged by increasing base pay by a prorated share based upon the number of full weeks an employee has completed toward the next higher step. Payment will equal the value of the employee's next WGI times the proportion of the waiting period completed (weeks completed in waiting period/weeks in the waiting period) at the time of conversion. GS employees at step 10 or receiving retained rates, on the day of implementation will not be eligible for WGI equity adjustments since they are already at or above the top of the step scale. GS employees serving on retained grade will receive WGI equity adjustments provided they are not at step 10 or receiving a retained rate. Acq Demo and NSPS employees do not receive WGI's and will convert into the demonstration project without WGI adjustments.
Employees who enter the demonstration project from other pay systems (DCIPS, Acq Demo, or other STRLs) after initial implementation by lateral transfer, promotion, reassignment, reduction in band, or realignment will be subject to the pay rules that govern conversion out of their respective systems. Pay conversion into Lab Demo will be based upon the job classification of the employee's new position.
In the event employees' coverage under the TARDEC demonstration project pay plans is terminated, employees move with their demonstration project position to another system applicable to TARDEC employees. The grade of their demonstration project position in the new system will be based upon the position classification criteria of the gaining system. Employees when converted to their positions classified under the new system will be eligible for pay retention under 5 CFR part 536, if applicable.
a. If a demonstration project employee is moving to a GS or other pay system position, the following procedures will be used to translate the employee's project pay band to a GS-equivalent grade and the employee's project base pay to the GS-equivalent rate of pay for pay setting purposes. The equivalent GS grade and GS rate of pay must be determined before movement out of the demonstration project and any accompanying geographic movement, promotion, or other simultaneous action. For lateral reassignments, the equivalent GS grade and rate will become the employee's converted GS grade and rate after leaving the demonstration project (before any other action). For transfers, promotions, and other actions, the converted GS grade and rate will be used in applying any GS pay administration rules applicable in connection with the employee's movement out of the project (
(1) Equivalent GS-Grade-Setting Provisions
An employee in a pay band corresponding to a single GS grade is provided that grade as the GS-equivalent grade. An employee in a pay band corresponding to two or more grades is determined to have a GS-equivalent grade corresponding to one of those grades according to the following rules:
(a) The employee's adjusted base pay under the demonstration project (including any locality payment or staffing supplement) is compared with step 4 rates in the highest applicable GS rate range. For this purpose, a GS rate range includes a rate in:
i. The GS base schedule;
ii. The locality rate schedule for the locality pay area in which the position is located; or
iii. The appropriate special rate schedule for the employee's occupational series, as applicable.
If the series is a two-grade interval series, only odd-numbered grades are considered below GS-11.
(b) If the employee's adjusted base pay under the demonstration project equals or exceeds the applicable step 4 adjusted base pay rate of the highest GS grade in the band, the employee is converted to that grade.
(c) If the employee's adjusted base pay under the demonstration project is lower than the applicable step 4 adjusted base pay rate of the highest grade, the adjusted base pay under the demonstration project is compared with the step 4 adjusted base pay rate of the second highest grade in the employee's pay band. If the employee's adjusted base pay under the demonstration project equals or exceeds the step 4 adjusted base pay rate of the second highest grade, the employee is converted to that grade.
(d) This process is repeated for each successively lower grade in the band until a grade is found in which the employee's adjusted base pay under the demonstration project rate equals or exceeds the applicable step 4 adjusted base pay rate of the grade. The employee is then converted at that grade. If the employee's adjusted base pay is below the step 4 adjusted base pay rate of the lowest grade in the band, the employee is converted to the lowest grade.
(e) Exception: An employee will not be provided a lower grade than the grade held by the employee immediately preceding a conversion, lateral reassignment, or lateral transfer into the project, unless since that time the employee has either undergone a reduction in band or a reduction within the same pay band due to unacceptable performance.
(2) Equivalent GS-Rate-of-Pay-Setting Provisions
An employee's pay within the converted GS grade is set by converting the employee's demonstration project rates of pay to GS rates of pay in accordance with the following rules:
(a) The pay conversion is done before any geographic movement or other pay-related action that coincides with the employee's movement or conversion out of the demonstration project.
(b) An employee's adjusted base pay under the demonstration project (
i. The GS base schedule,
ii. An applicable locality rate schedule, or
iii. An applicable special rate schedule.
(c) If the highest applicable GS rate range is a locality pay rate range, the employee's adjusted base pay under the demonstration project is converted to a GS locality rate of pay. If this rate falls between two steps in the locality-adjusted schedule, the rate must be set at the higher step. The converted GS unadjusted rate of base pay would be the GS base rate corresponding to the converted GS locality rate (
(d) If the highest applicable GS rate range is a special rate range, the employee's adjusted base pay under the demonstration project is converted to a special rate. If this rate falls between two steps in the special rate schedule, the rate must be set at the higher step. The converted GS unadjusted rate of base pay will be the GS rate corresponding to the converted special rate (
(3) Employees with Pay Retention
If an employee is receiving a retained rate under the demonstration project, the employee's GS-equivalent grade is the highest grade encompassed in his or her pay band level. Demonstration project operating procedures will outline the methodology for determining the GS-equivalent pay rate for an employee retaining a rate under the demonstration project.
Service under the demonstration project is creditable for within-grade increase purposes upon conversion back to the GS pay system. Performance pay increases (including a zero increase) under the demonstration project are equivalent increases for the purpose of determining the commencement of a within-grade increase waiting period under 5 CFR Section 531.405(b).
All personnel laws, regulations, and guidelines not waived by this plan will remain in effect. Basic employee rights will be safeguarded and Merit System Principles will be maintained. Servicing CPACs will continue to process personnel-related actions and to provide other appropriate services.
The TARDEC will continue to use the Defense Civilian Personnel Data System (DCPDS) for the processing of personnel-related data. Payroll servicing will continue from the respective payroll offices.
An automated tool will be used to support computation of performance-related pay increases and awards and other personnel processes and systems associated with this project.
Many aspects of a demonstration project are experimental. Modifications
Public Law 103-337 removed any mandatory expiration date for section 342(b) demonstration projects. TARDEC, DA, and DoD will ensure this project is evaluated for the first five years after implementation in accordance with 5 U.S.C. 4703. Modifications to the original evaluation plan or any new evaluation will ensure the project is evaluated for its effectiveness, its impact on mission, and any potential adverse impact on any employee groups. Major changes and modifications to the interventions will be made if warranted by formative evaluation data and will be published in the
Chapter 47 of title 5 U.S.C. requires that an evaluation be performed to measure the effectiveness of the demonstration project and its impact on improving public management. A comprehensive evaluation plan for the entire demonstration program, originally covering 24 DoD laboratories, was developed by a joint OPM/DoD Evaluation Committee in 1995. This plan was submitted to the Office of Defense Research and Engineering and was subsequently approved. The main purpose of the evaluation is to determine whether the waivers granted result in a more effective personnel system and improvements in ultimate outcomes (
1. Appendix D shows an intervention model for the evaluation of the demonstration project. The model is designed to evaluate two levels of organizational performance: Intermediate and ultimate outcomes. The intermediate outcomes are defined as the results from specific personnel system changes and the associated waivers of law and regulation expected to improve human resource (HR) management (
2. Organizational performance measures established by the organization will be used to evaluate the impact of a new HR system on the ultimate outcomes. The evaluation of the new HR system for any given organization will take into account the influence of three factors on organizational performance: Context, degree of implementation, and support of implementation. The context factor refers to the impact which intervening variables (
a. The extent to which the HR changes are given a fair trial period;
b. The extent to which the changes are implemented; and
c. The extent to which the changes conform to the HR interventions as planned.
The support of implementation factor accounts for the impact that factors such as training, internal regulations and automated support systems have on the support available for program implementation. The support for program implementation factor can also be affected by the personal characteristics (
3. The degree to which the project is implemented and operated will be tracked to ensure that the evaluation results reflect the project as it was intended. Data will be collected to measure changes in both intermediate and ultimate outcomes, as well as any unintended outcomes, which may happen as a result of any organizational change. In addition, the evaluation will track the impact of the project and its interventions on veterans and other protected groups, the Merit System Principles, and the Prohibited Personnel Practices. Additional measures may be added to the model in the event that changes or modifications are made to the demonstration plan.
4. The intervention model at Appendix D will be used to measure the effectiveness of the personnel system interventions implemented. The intervention model specifies each personnel system change or “intervention” that will be measured and shows:
a. The expected effects of the intervention,
b. The corresponding measures, and
c. The data sources for obtaining the measures.
Although the model makes predictions about the outcomes of specific interventions, causal attributions about the full impact of specific interventions will not always be possible for several reasons. For example, many of the initiatives are expected to interact with each other and contribute to the same outcomes. In addition, the impact of changes in the HR system may be mitigated by context variables (
A modified quasi-experimental design will be used for the evaluation of the STRL Personnel Demonstration Program. Because most of the eligible laboratories are participating in the program, a title 5 U.S.C. comparison group will be compiled from the Central Personnel Data File (CPDF). This comparison group will consist of workforce data from Government-wide research organizations in civilian Federal agencies with missions and job series matching those in the DoD laboratories. This comparison group will be used primarily in the analysis of pay banding costs and turnover rates.
1. Data from several sources will be used in the evaluation. Information from existing management information systems and from personnel office records will be supplemented with perceptual survey data from employees to assess the effectiveness and perception of the project. The multiple sources of data collection will provide a more complete picture as to how the interventions are working. The information gathered from one source will serve to validate information obtained through another source. In so doing, the confidence of overall findings will be strengthened as the different collection methods substantiate each other.
2. Both quantitative and qualitative data will be used when evaluating outcomes. The following data will be collected:
a. Workforce data;
b. Personnel office data;
c. Employee attitude surveys;
d. Focus group data;
e. Local site historian logs and implementation information;
f. Customer satisfaction surveys; and
g. Core measures of organizational performance.
3. The evaluation effort will consist of two phases, formative and summative evaluation, covering at least 5 years to permit inter- and intra-organizational estimates of effectiveness. The formative evaluation phase will include baseline data collection and analysis, implementation evaluation, and interim assessments. The formal reports and interim assessments will provide information on the accuracy of project operation and current information on impact of the project on veterans and protected groups, Merit System Principles, and Prohibited Personnel Practices. The summative evaluation will focus on an overall assessment of project outcomes after five years. The final report will provide information on how well the HR system changes achieved the desired goals, which interventions were most effective, and whether the results can be generalized to other Federal installations.
An objective of the demonstration project is to ensure in-house cost discipline. A baseline will be established at the start of the project, and labor expenditures will be tracked yearly. Implementation costs (including project development, automation costs, step buy-in costs, and evaluation costs) are considered one-time costs and will not be included in the cost discipline.
The Personnel Management Board will track personnel cost changes and recommend adjustments if required to achieve the objective of cost discipline.
Costs associated with the development of the personnel demonstration project include software automation, training, and project evaluation. All funding will be provided through the organization's budget. The projected annual expenses are summarized in Table 9. Project evaluation costs are not expected to continue beyond the first five years unless the results and external requirements warrant further evaluation.
Public Law 106-398 gave the DoD the authority to experiment with several personnel management innovations. In addition to the authorities granted by the law, the following are waivers of law and regulation that will be necessary for implementation of the demonstration project. In due course, additional laws and regulations may be identified for waiver request.
The following waivers and adaptations of certain title 5 U.S.C. and 5 CFR provisions are required only to the extent that these statutory provisions limit or are inconsistent with the actions contemplated under this demonstration project. Nothing in this plan is intended to preclude the demonstration project from adopting or incorporating any law or regulation enacted, adopted, or amended after the effective date of this demonstration project.
Chapter 5, section 552a: Records maintained on individuals. This section is waived only to the extent required to clarify that volunteers under the Voluntary Emeritus Corps are considered employees of the Federal government for purposes of this section.
Chapter 31, section 3111: Acceptance of Volunteer Service. Waived to allow for a Volunteer Emeritus Corps in addition to student volunteers.
Chapter 33, subchapter 1, section 3318(a): Competitive Service, Selection from Certificate. Waived to the extent necessary to eliminate the requirement for selection using the “Rule of Three.”
Chapter 33, section 3319: Alternative Ranking and Selection Procedures. This section is waived to eliminate quality categories.
Chapter 33, section 3321: Competitive Service; Probationary Period. This section waived only to the extent necessary to replace grade with “pay band level.”
Chapter 33, section 3341: Details. Waived as necessary to extend the time limits for details.
Chapter 41, section 4108 (a)-(c): Employee Agreements: Service After Training. Waived to the extent necessary to: (1) Provide that the employee's service obligation is to continue in the service of TARDEC for the period of the required service; (2) permit the TARDEC Director, to waive in whole or in part, a right of recovery; and (3) require employees under the Student Career Experience Program who have received tuition assistance to sign a service agreement up to three times the length of the training.
Chapter 43, section 4302 and 4303: Waived to the extent necessary to: (1) Substitute pay band for grade; and (2) provide that moving to a lower pay band as a result of not receiving the general pay increase because of poor performance is not an action covered by the provisions of sections 4303(a) through (d).
Chapter 43, section 4304(b)(1) and (3): Responsibilities of the OPM. Waived in its entirety to remove the responsibilities of the OPM with respect to the performance appraisal system.
Chapter 45, subchapter I, section 4502(a) and (b)—Waiver to permit TARDEC to approve awards up to $25,000 for individual employees.
Chapter 51, sections 5101-5112: Classification. Waived as necessary to allow for the demonstration project pay banding system.
Chapter 53, sections 5301, 5302 (8) and (9), 5303, and 5304: Pay Comparability System. Sections 5301, 5302, and 5304 are waived to the extent necessary to allow: (1) Demonstration project employees to be treated as GS employees and (2) basic rates of pay under the demonstration project to be treated as scheduled rates of pay.
Chapter 53, section 5305: Special Pay Authority. Waived to the extent necessary to allow for use of a staffing supplement in lieu of the special pay authority.
Chapter 53, sections 5331-5336: General Schedule Pay Rates. Waived in its entirety to allow for the demonstration project's pay banding system and pay provisions.
Chapter 53, sections 5361-5366: Grade and Pay Retention. Waived to the extent necessary to: (1) Replace “grade” with “pay band;” (2) allow demonstration project employees to be treated as GS employees; (3) provide that pay band retention provisions do not apply to conversions from GS special rates or NSPS Targeted Local Market Supplements to demonstration project pay, as long as total pay is not reduced, to reductions in pay due solely to the removal of a supervisory pay adjustment upon voluntarily leaving a supervisory position, and to movements to a lower pay band as a result of not receiving the general pay increase due to a rating of record of “Unacceptable” contribution; (4) provide that an employee on pay retention whose rating of record is “Unacceptable” contribution is not entitled to 50 percent of the amount of the increase in the maximum rate of base pay payable for the pay band of the employee's position; and (5) provide that pay retention does not apply to reduction in base pay due solely to the reallocation of demonstration project pay rates in the implementation of a staffing supplement.
Chapter 55, section 5542(a) (1)-(2): Overtime rates; computation. Waived to the extent necessary to provide that the GS-10 minimum special rate (if any) for the special rate category to which a project employee belongs is deemed to be the “applicable special rate” in applying the pay cap provisions.
Chapter 55, section 5545(d): Hazardous duty differential. Waived to the extent necessary to allow demonstration project employees to be treated as GS employees. Chapter 55, section 5546: Waived to allow holiday premium pay at twice an employee's adjusted salary hourly rate for each hour worked as directed or approved, including overtime hours.
Chapter 55, section 5547 (a)-(b): Limitation on premium pay. Waived to the extent necessary to provide that the GS-15 maximum special rate (if any) for the special rate category to which an employee belongs is deemed to be the applicable special rate in applying the pay cap provisions in 5 U.S.C. 5547.
Chapter 57, section 5753, 5754, and 5755: Recruitment and relocation bonuses, retention incentives and supervisory differentials. Waived to the extent necessary to allow: (1) Employees and positions under the demonstration project to be treated as employees and positions under the GS and (2) that management may offer a bonus to incentivize geographic mobility to a SCEP student.
Chapter 59, section 5941: Allowances based on living costs and conditions of environment; employees stationed outside continental U.S. or Alaska. Waived to the extent necessary to provide that cost of living allowances paid to employees under the demonstration project are paid in accordance with regulations prescribed by the President (as delegated to OPM).
Chapter 75, sections 7501(1), 7511(a)(1)(A)(ii), and 7511(a)(1)(C)(ii): Adverse Actions—Definitions. Waived to the extent necessary to allow for up to a three-year probationary period and to permit termination during the extended probationary period without using adverse action procedures for those employees serving a probationary period under an initial appointment except for those with veterans' preference.
Chapter 75, section 7512(3): Adverse actions. Waived to the extent necessary to replace “Grade” with “Pay Band.”
Chapter 75, section 7512(4): Adverse actions. Waived to the extent necessary to provide that adverse action provisions do not apply to: (1) Conversions from GS special rates to demonstration project pay, as long as total pay is not reduced; (2) reductions in pay due to the removal of a supervisory or team leader pay adjustment upon voluntary movement to a non-supervisory or non-team leader position; and (3) reduction in supervisory pay due to a performance review.
Part 300, sections 300.601 through 605: Time-in-Grade restrictions. Waived to eliminate time-in-grade restrictions in the demonstration project.
Part 308, sections 308.101 through 308.103: Volunteer service. Waived to allow for a Voluntary Emeritus Corps in addition to student volunteers.
Part 315, section 315.801(a), 315.801(b)(1), (c), and (e), and 315.802(a) and (b)(1): Probationary period and Length of probationary period. Waived to the extent necessary to allow for up to a three-year probationary period and to permit termination during the extended probationary period without using adverse action procedures for those employees serving a probationary period under an initial appointment except for those with veterans' preference.
Part 315, section 315.901 and 315.907: Probation on Initial Appointment to a Supervisory or Managerial Position. This section waived only to the extent necessary to replace grade with “pay band level.”
Part 316, sections 316.301, 316.303, and 316.304: Term Employment. (These sections are waived to allow modified term appointments as described in this
Part 332, sections 332.401 and 332.404: Order on Registers and Order of Selection from Certificates. (These sections are waived to the extent necessary to allow: (1) No rating and ranking when there are 15 or fewer qualified applicants and no preference eligibles; (2) the hiring and appointment authorities as described in this
Part 335, section 335.103(c)(1) i and ii: Agency promotion programs. Waived to the extent necessary to extend the length of details and temporary promotions without requiring competitive procedures or numerous short-term renewals.
Part 337, section 337.101(a): Rating applicants. Waived to the extent necessary to allow referral without rating when there are 15 or fewer qualified candidates and no qualified preference eligibles.
Part 340, subpart A, subpart B, and subpart C: Other than Full-Time Career Employment. (These subparts are waived to the extent necessary to allow a Volunteer Emeritus Corps.)
Part 351, Reduction in Force. This part is waived to the extent necessary to allow provisions of the RIF plan as described in this
Part 351.402(b): Competitive area. Waived to expand the definition of a competitive area.
Part 351, section 351.504: Credit for performance. Waived as necessary to revise the method for adding years of service based on performance; to allow for single round of competition; and modified displacement.
Part 351, sections 351.601-351.608: Release from Competitive Level. Waived order of release from a competitive level based upon augmented service performance.
Part 351, section 351.701: Assignment involving displacement. Waived to the extent that bump and retreat rights are
Part 410, section 410.309: Agreements to continue in service. Waived to the extent necessary to allow the TARDEC Director to determine requirements related to continued service agreements, including employees under the Student Career Experience Program who have received tuition assistance.
Part 430, subpart B: Performance Appraisal for GS and Certain Other Employees. Waived to the extent necessary to be consistent with the demonstration project's CCAS system.
Part 430, section 430.208(a)(1) and (2): Rating Performance. Waived to allow presumptive ratings for new employees hired 90 days or less before the end of the appraisal cycle or for other situations not providing adequate time for an appraisal
Part 432, sections 432.101-432.105: Regarding performance based reduction in grade and removal actions. These sections are waived to the extent necessary to: (1) Replace grade with “pay band;” (2) exclude reductions in pay band level not accompanied by a reduction in pay; and (3) allow provisions of CCAS. For employees who are reduced in pay band level without a reduction in pay, sections 432.105 and 432.106 (a) do not apply.
Part 451, subpart A, section 451.103(c)(2): Waived with respect to performance awards under the TARDEC CCAS.
Part 451, Sections 451.106(b) and 451.107(b): Awards. Waived to permit TARDEC to approve awards up to $25,000 for individual employees.
Part 511, subpart A: General Provisions and subpart B: Coverage of the GS. Waived to the extent necessary to allow for the demonstration project classification system and pay banding structure.
Part 511, section 511.601: Applicability of regulations. Classification appeals modified to the extent that white collar positions established under the project plan, although specifically excluded from title 5 CFR, are covered by the classification appeal process outlined in this FRN section III.B.5, as amended below.
Part 511, section 511.603(a): Right to appeal. Waived to the extent necessary to substitute pay band for grade.
Part 511, section 511.607(b): Non-Appealable Issues. Add to the list of issues that are neither appealable nor reviewable, the assignment of series under the project plan to appropriate occupational families and the demonstration project classification criteria.
Part 530, subpart C: Special Rate Schedules for Recruitment and Retention. Waived in its entirety to allow for staffing supplements.
Part 531, subparts B: Determining Rate of Basic Pay. Waived to the extent necessary to allow for pay setting and CCAS under the provisions of the demonstration project.
Part 531, subparts D and E: Within-Grade Increases and Quality Step Increases. Waived in its entirety.
Part 531, subpart F: Locality-Based Comparability Payments. Waived to the extent necessary to allow: (1) Demonstration project employees, except employees in Pay Band V of the E&S occupational family, to be treated as GS employees; and (2) base rates of pay under the demonstration project to be treated as scheduled annual rates of pay.
Part 536: Grade and Pay Retention: These sections waived to the extent necessary to: (1) Replace grade with “pay band;” (2) allow Demonstration project employees to be treated as GS employees; and (3) to allow provisions of this
Part 550, sections 550.105 and 550.106: Bi-weekly and annual maximum earnings limitations. Waived to the extent necessary to provide that the GS-15 maximum special rate (if any) for the special rate category to which a project employee belongs is deemed to be the applicable special rate in applying the pay cap provisions in 5 U.S.C. 5547.
Part 550, section 550.703: Definitions. Waived to the extent necessary to modify the definition of “reasonable offer” by replacing “two grade or pay levels” with “one band level” and “grade or pay level” with “band level.”
Part 550, section 550.902: Definitions. Waived to the extent necessary to allow demonstration project employees to be treated as GS employees.
Part 575, subparts A, B, and C: Recruitment, Relocation, and Retention Incentives. Waived to the extent necessary to allow: (1) Employees and positions under the demonstration project covered by pay banding to be treated as employees and positions under the GS; (2) Occupational Family relocation incentives to new SCEP students; and (3) relocation incentives to SCEP students whose worksite is in a different geographic location than that of the college enrolled.
Part 575, subpart D: Supervisory Differentials. Subpart D is waived in its entirety.
Part 591, subpart B: Cost-of-Living Allowance and Post Differential—Non-foreign Areas. Waived to the extent necessary to allow: (1) Demonstration project employees to be treated as employees under the GS.
Part 752, sections 752.101, 752.201, 752.301 and 752.401: Principal statutory requirements and Coverage. Waived to the extent necessary to allow for up to a three-year probationary period and to permit termination during the extended probationary period without using adverse action procedures for those employees serving a probationary period under an initial appointment except for those with veterans' preference.
Part 752, section 752.401: Coverage. Waived to the extent necessary to replace grade with pay band and to provide that a reduction in pay band level is not an adverse action if it results from the employee's rate of base pay being exceeded by the minimum rate of base pay for his/her pay band.
Part 752, section 752.401(a)(4): Coverage. Waived to the extent necessary to provide that adverse action provisions do not apply to: (1) Conversions from GS special rates or NSPS Targeted Local Market Supplements to demonstration project pay, as long as total pay is not reduced; and (2) reductions in pay due to the removal of a supervisory or team leader pay adjustment upon voluntary movement to a non-supervisory or non-team leader position or decreases in the amount of a supervisory or team leader pay adjustment based on the annual review.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Work is timely, efficient, and of acceptable quality. Personal and organizational interactions enhance customer relations and actively promote rapport with customers. Flexibility, adaptability, and decisiveness are exercised appropriately.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.
Descriptors indicate the type of contribution appropriate for the high end of each level. Descriptors are not to be used individually to assess contributions, but rather are to be taken as a group to derive a single evaluation of the factor.