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Nuclear Regulatory Commission.
Direct final rule.
The U. S. Nuclear Regulatory Commission (NRC or the Commission) is amending its regulations to add the HI-STORM Flood/Wind cask system to the “List of Approved Spent Fuel Storage Casks.” This direct final rule allows the holders of power reactor operating licenses to store spent fuel in this approved cask system under a general license.
The final rule is effective June 13, 2011, unless significant adverse comments are received by April 27, 2011. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. If the rule is withdrawn, timely notice will be published in the
You can access publicly available documents related to this document using the following methods:
CoC No. 1032, the TS, the preliminary SER, and the environmental assessment are available for inspection at the NRC's PDR, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Single copies of these documents may be obtained from Gregory Trussell, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-6445, e-mail
Gregory Trussell, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-6445, e-mail
Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the U.S. Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “the Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”
To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in Title 10 of the Code of Federal Regulations (10 CFR) part 72, which added a new Subpart K within 10 CFR part 72, entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72, entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs.
This rule will add the Holtec HI-STORM Flood/Wind (FW) cask system to the list of approved spent fuel storage casks in 10 CFR 72.214. Following the procedures specified in 10 CFR 72.230 of Subpart L, Holtec submitted an application for NRC approval, together with the Safety Analysis Report (SAR) entitled “Safety Analysis Report on the HI-STORM FW System.” The NRC evaluated the Holtec submittal and issued a preliminary SER and a proposed CoC for the HI-STORM FW System.
The HI-STORM FW System provides the following: (1) The ability to store and transport Boiling Water Reactor (BWR) fuel with high initial enrichment (up to 4.8 weight percent uranium-235 planer average) without reliance on burnup or gadolinium credit; (2) the ability to load and store spent nuclear fuel from the longest to the shortest currently, and expected to be produced, in the United States without requiring site crane upgrades; (3) a reduction in the 10 CFR part 71 burnup credit requirement for the Pressurized Water Reactor (PWR) basket allowing transportation of 5 weight percent uranium-235 fuel with moderate
The NRC finds that the HI-STORM FW System, as designed and when fabricated and used under the conditions specified in its CoC, meets the requirements of 10 CFR part 72. Thus, use of the HI-STORM FW System, as approved by the NRC, will provide adequate protection of public health and safety. With this final rule, the NRC is approving the use of the HI-STORM FW System under the general license in 10 CFR part 72, subpart K, by holders of power reactor operating licenses under 10 CFR part 50. Simultaneously, the NRC is issuing a final SER and CoC that will be effective on June 13, 2011. Single copies of the CoC and SER are available for public inspection and/or copying for a fee at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.
This direct final rule amends 10 CFR 72.214 by adding CoC No. 1032 to the list of approved spent fuel storage casks.
The HI-STORM FW System, when used under the conditions specified in CoC No. 1032, the TS, and NRC regulations, will meet the requirements of part 72; thus, adequate protection of public health and safety will continue to be ensured.
CoC No. 1032 is added to the list of approved spent fuel storage casks.
The NRC is using the “direct final rule procedure” to add CoC No. 1032 to the list of approved storage casks because the Holtec HI-STORM FW cask system is considered to be similar to other previously approved storage casks and, therefore, is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on June 13, 2011. However, if the NRC receives significant adverse comments on this direct final rule by April 27, 2011, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published elsewhere in this issue of the
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TS.
For detailed instructions on filing comments, please see the companion proposed rule published elsewhere in this issue of the
The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC is adding the HI-STORM FW System to the list of NRC-approved cask systems for spent fuel storage in 10 CFR 72.214. This action does not constitute the establishment of a standard that contains generally applicable requirements.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading
Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has prepared an environmental assessment and, on the basis of this environmental assessment, has made a finding of no significant impact. The rule will add the CoC for the HI-STORM FW System, CoC No. 1032, to the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The HI-STORM FW System provides the following: (1) The ability to store and transport BWR fuel with high initial enrichment (up to 4.8 weight percent uranium-235 planer average) without reliance on burnup or gadolinium credit; (2) the ability to load and store spent nuclear fuel from the longest to
The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Single copies of the environmental assessment and finding of no significant impact are available from Gregory Trussell, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-6445, e-mail:
This rule does not contain any information collection requirements and, therefore, is not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
On July 18, 1990 (55 FR 29181), the Commission issued an amendment to 10 CFR part 72. The amendment provided for the storage of spent nuclear fuel in cask systems with designs approved by the NRC under a general license. Any nuclear power reactor licensee can use cask systems with designs approved by the NRC to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. In that rule, four spent fuel storage casks were approved for use at reactor sites and were listed in 10 CFR 72.214. That rule envisioned that storage casks certified in the future could be routinely added to the listing in 10 CFR 72.214 through the rulemaking process. Procedures and criteria for obtaining NRC approval of new spent fuel storage cask designs were provided in 10 CFR part 72, subpart L.
The alternative to this action is to withhold approval of this new design and issue a site-specific license to each utility that proposes to use the casks. This alternative would cost both the NRC and utilities more time and money for each site-specific license. Conducting site-specific reviews would ignore the procedures and criteria currently in place for the addition of new cask designs that can be used under a general license, and would be in conflict with NWPA direction to the Commission to approve technologies for the use of spent fuel storage at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site reviews. This alternative also would tend to exclude new vendors from the business market without cause and would arbitrarily limit the choice of cask designs available to power reactor licensees. This final rule will eliminate the above problems and is consistent with previous Commission actions. Further, the rule will have no adverse effect on public health and safety.
The benefit of this rule to nuclear power reactor licensees is to make available a greater choice of spent fuel storage cask designs that can be used under a 10 CFR part 50 general license. The new cask vendors with casks to be listed in 10 CFR 72.214 benefit by having to obtain NRC certificates only once for a design that can then be used by more than one power reactor licensee. The NRC also benefits because it will need to certify a cask design only once for use by multiple licensees. Casks approved through rulemaking are to be suitable for use under a range of environmental conditions sufficiently broad to encompass multiple nuclear power plants in the United States without the need for further site-specific approval by NRC. Vendors with cask designs already listed may be adversely impacted because power reactor licensees may choose a newly listed design over an existing one. However, the NRC is required by its regulations and NWPA direction to certify and list approved casks. This rule has no significant identifiable impact or benefit on other Government agencies.
Based on the above discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the Commission's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec. These entities do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR Chapter 1. Therefore, a backfit analysis is not required.
Under the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.
Administrative practice and procedure, Hazardous waste, Nuclear materials, Occupational safety and health, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistle blowing.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72.
Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-10 (42 U.S.C. 2014, 2021, 2021b, 2111).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c),(d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 2244 (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198).
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Gulfstream GVI airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes associated with the use of high incidence protection. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Joe Jacobsen, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Standards Staff, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2011; facsimile (425) 227-1320.
On March 29, 2005, Gulfstream Aerospace Corporation (hereafter referred to as “Gulfstream”) applied for an FAA type certificate for its new Gulfstream Model GVI passenger airplane. Gulfstream later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to September 28, 2006. The Gulfstream Model GVI airplane will be an all-new, two-engine jet transport airplane with an executive cabin interior. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.
Under provisions of Title 14 Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Gulfstream Model GVI airplane (hereafter referred to as “the GVI”) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-119, 25-122 and 25-124. If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model under the provisions of § 21.101.
In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
The GVI is equipped with a novel or unusual design feature: A high incidence protection system that replaces the stall warning system during normal operating conditions, prohibits the airplane from stalling, limits the angle of attack at which the airplane can be flown during normal low speed operation, and cannot be overridden by the flight crew. The system's application of this angle of attack limit impacts the stall speed determination, the stall characteristics, the stall warning demonstration, and the longitudinal airplane handling characteristics. The current regulations, including §§ 25.103, 25.145, 25.201, 25.203, 25.207 and 25.1323, do not address this type of protection feature.
These special conditions, which include airplane performance requirements, will establish a level of
Notice of proposed special conditions No. 25-10-03-SC for Gulfstream GVI airplanes was published in the
As discussed above, these special conditions are applicable to the high incidence protection system on the GVI. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features of the GVI. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream GVI airplanes.
1.
(a)
(b)
(c)
(d)
(e)
2.
(a) It must not be possible during pilot-induced maneuvers to encounter a stall, and handling characteristics must be acceptable as required by paragraphs 5 and 6 of this special condition.
(b) The airplane must be protected against stalling due to the effects of environmental conditions such as windshear and gusts at low speeds as required by paragraph 7 of this special condition.
(c) The ability of the high incidence protection function to accommodate any reduction in stalling angle of attack resulting from flight in the atmospheric icing conditions of 14 CFR part 25, appendix C, must be verified.
(d) The reliability of the high incidence protection function and the effects of failures must be acceptable in accordance with § 25.1309.
(e) The high incidence protection function must not impede maneuvering for pitch angles up to the maximum required for normal maneuvering including an all-engines operating takeoff plus a suitable margin to allow for satisfactory speed control.
3.
(a)
(b) The minimum steady flight speed, Vmin, must be determined with:
(1) The high incidence protection function operating normally.
(2) Idle thrust.
(3) All combinations of flap settings and landing gear positions.
(4) The weight used when V
(5) The most unfavorable center of gravity allowable.
(6) The airplane trimmed for straight flight at a speed selected by the applicant, but not less than 1.13 V
(7) The settings of the high incidence protection function, stall warning system, and stall identification system (if applicable) set at the low angle of attack tolerance limit, unless the production tolerances are acceptably small so as to produce insignificant changes in performance determinations.
(c)
(d) The reference stall speed, V
(e) V
(1) Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed.
(2) The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which V
(3) The weight used when V
(4) The center of gravity position that results in the highest value of reference stall speed.
(5) The airplane trimmed for straight flight at a speed selected by the applicant, but not less than 1.13 V
(f) The flight characteristics at the angle of attack corresponding to V
(g) If V
4.
(a)
(b)
(1) Power off straight stall approaches to a speed 5 percent below the warning onset.
(2) Turning flight stall approaches with at least 1.5g load factor normal to the flight path at an entry rate of at least 2 knots per second when recovery is initiated not less than one second after the warning onset.
5.
(a) Maneuvers to the limit of the longitudinal control, in the nose up direction, must be demonstrated in straight flight and in 30 degree banked turns under the following conditions:
(1) The high incidence protection function operating normally.
(2) Power off.
(3) At a power level necessary to maintain level flight at 1.5 V
(b) In each condition required by paragraph (a) of this section, it must be possible to meet the applicable requirements of § 25.203 defined in paragraph 6 of this special condition with:
(1) Flaps, landing gear, and deceleration devices in any likely combination of positions not prohibited.
(2) Deceleration devices include spoilers and other drag devices when used as air brakes, and thrust reversers. High incidence maneuver demonstrations with deceleration devices deployed should be carried out with power off except where power is normally applied during operations (
(3) Representative weights within the range for which certification is requested.
(4) The most adverse center of gravity.
(5) The airplane trimmed for straight flight at the speed prescribed in paragraph 3(e)(5) of this special condition.
(6) The settings of the high incidence protection function, stall warning system, and stall identification system (if applicable) set at the high angle of attack tolerance limit, unless the production tolerances are acceptably small so as to produce insignificant changes in performance determinations.
(c) The following procedures must be used to show compliance with § 25.203 as amended by paragraph 6 of this special condition:
(1) Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed one knot per second until the control reaches the stop.
(2) The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition and then recovered by normal recovery techniques.
(3) The requirements for turning flight maneuver demonstrations must also be met with accelerated rates of entry to the incidence limit, up to the maximum rate achievable.
6.
(a) Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30 degree banked turns, the airplane's characteristics must be as follows:
(1) No abnormal airplane nose-up pitching.
(2) No uncommanded nose-down pitching (which is indicative of stall). However, reasonable attitude changes associated with stabilizing the incidence at alpha limit as the longitudinal control reaches the stop is acceptable. Any reduction of pitch attitude associated with stabilizing the incidence at the alpha limit should be achieved smoothly and at a low pitch rate, so it is not likely to be mistaken for natural stall identification.
(3) No uncommanded lateral or directional motion, and the pilot must retain good lateral and directional control by conventional use of the cockpit controls throughout the maneuver.
(4) The airplane must not exhibit buffeting of a magnitude or severity that would act as a deterrent to completing the maneuver specified in § 25.201(a) as amended by this special condition.
(b) In maneuvers with increased rates of deceleration, some degradation of characteristics associated with a transient excursion beyond the stabilized alpha-limit is acceptable. However, the airplane must not exhibit dangerous characteristics or characteristics that would deter the pilot from holding the longitudinal control on the aft stop for a period of time appropriate to the maneuvers.
(c) It must always be possible to reduce incidence by conventional use of the longitudinal control.
(d) The rate at which the airplane can be maneuvered from trim speeds associated with scheduled operating speeds, such as V
7.
8.
(a) It must be possible, at any point between the trim speed prescribed in § 25.103(b)(6) as amended by this special condition and Vmin, to pitch the nose downward so that the acceleration to this selected trim speed is prompt.
(b) With the landing gear extended, no change in trim control, or exertion of more than 50 pounds control force (representative of the maximum short-term force that can be applied readily by one hand) may be required for the following maneuver: With power off, flaps extended and the airplane trimmed at 1.3 V
9.
(a) VMO to Vmin with the flaps retracted; and
(b) Vmin to VFE with flaps in the landing position.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental abbreviated new animal drug application (ANADA) filed by Pennfield Oil Co. The supplemental ANADA provides for use of oxytetracycline hydrochloride soluble powder for control of American and European foulbrood in honey bees and for skeletal marking of finfish fry and fingerlings.
This rule is effective March 28, 2011.
John K. Harshman, Center for Veterinary Medicine (HFV-170), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8197, e-mail:
Pennfield Oil Co., 14040 Industrial Rd., Omaha, NE 68144, filed a supplement to ANADA 200-026 that provides for use of PENNOX 343 (oxytetracycline HCl) Soluble Powder for control of American and European foulbrood in honey bees and for skeletal marking of finfish fry and fingerlings by immersion. The supplemental ANADA is approved as of December 6, 2010, and the regulations in 21 CFR 520.1660d and 529.1660 are amended to reflect the approval.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The Agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21
21 U.S.C. 360b.
21 U.S.C. 360b.
Food and Drug Administration, HHS.
Final rule; correcting amendments.
The Food and Drug Administration (FDA) is amending the animal drug regulations to remove sections pertaining to use of arsanilate sodium and sulfaethoxypyridazine in medicated feed because there are no currently approved new animal drug applications (NADAs) for such uses. Conforming amendments are also being made. This action is being taken to improve the accuracy of the regulations.
This rule is effective March 28, 2011.
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-276-9019, e-mail:
FDA has determined the animal drug regulations describe conditions of use for arsanilate sodium and sulfaethoxypyridazine in medicated feed for which no NADA is currently approved.
1.
In 1991, FDA issued a final rule removing most of § 558.20 (56 FR 19263, April 26, 1991) and codifying approved uses in subpart B. Elsewhere in the same issue of the
In 1992, FDA issued a final rule removing the remaining portions of § 558.20 (57 FR 1641, January 15, 1992) and noted that no evidence or comments were received on the 1991 reproposed rule, which had requested that anyone claiming to hold an approved NADA for arsanilate sodium in swine feed submit evidence to substantiate the approval. FDA concluded that NADA 8-966 providing for use of arsanilate sodium in medicated feeds for swine was voluntarily withdrawn at the request of the sponsor (
After careful review of its NADA records, FDA has concluded that all uses of arsanilate sodium in medicated feeds in NADA 8-966 were voluntarily withdrawn by the sponsor in 1973 and that there is no currently approved NADA providing for the use of arsanilate sodium in medicated feed or in any dosage form. Accordingly, the animal drug regulations in part 558 (21 CFR part 558) are amended by removing § 558.60. Conforming amendments are also being made in §§ 558.55 and 558.680 by removing reference to use in combination with amprolium and zoalene, respectively. This action is being taken to comply with the Federal Food, Drug, and Cosmetic Act (FD&C Act) and to improve the accuracy of the regulations.
2.
In a 1976 reorganization of certain food additive regulations from 21 CFR part 121 to new part 558
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.”
Animal drugs.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 522 and 558 are amended as follows:
21 U.S.C. 360b.
(e) * * *
(3)
21 U.S.C. 360b, 371.
In rule document 2011-4276, appearing on pages 10498-10500 in the issue of Friday, February 25, 2011, make the following correction:
On page 10498, in the second column, in the
National Park Service, Interior.
Final rule.
The National Park Service (NPS) is physically moving the office of the Division of Park Programs, National Mall and Memorial Parks (NAMA) which processes applications for special events and demonstrations permits for nine parks in the National Capital Region (NCR). This rule updates the address and location of the office where these permit applications may be obtained and where completed applications are to be submitted by mail or in person.
Effective March 28, 2011.
Robbin M. Owen, Chief, Division of Park Programs, National Park Service, National Capital Region, 900 Ohio Drive SW., Washington, DC 20024. Telephone: (202) 619-7225.
During the fourth week of March, the NPS is expecting to move the Division of Park Programs from 1100 Ohio Drive, SW., to the nearby 900 Ohio Drive, SW., Washington, DC 20024. Now codified at 36 CFR 7.96(g)(3), the NPS 1975 rulemaking established a centralized location where permit applications for special events and demonstrations, must be submitted, Monday—Friday from 8 a.m. to 4 p.m., holidays excepted. As the NPS explained the NCR regulatory permit application process the:
As Acting Secretary of the Interior Nathaniel P. Reed explained, at 41 FR 12880 (1976):
It is the opinion of the Department that receipt of the application in this single location is necessary in order to effectively administer the priority system for the use of park lands, to ensure that the application will be considered by an official of responsible rank, and to allow for consideration of the permit within the applicable time limitation. Even though executed permit applications must be received at that location, application blanks may be obtained at other locations in the National Capital Parks area.* * *
As to why applications had to be received at the permit offices during regular business hours, the NPS explained at 41 FR 12880 (1976), that:
For these reasons public comment is unnecessary and good cause exists for immediately publishing the final rule. For the same reasons, we have determined that there is good cause for making the final rule effective immediately, as allowed under the APA 5 U.S.C. 553(d), and 318 DM 4.7B(1)(i).
District of Columbia, National parks, Reporting and recordkeeping requirements.
In consideration of the reasons stated in the preamble, the National Park Service amends 36 CFR part 7 as follows:
16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under 36 U.S.C. 501-511, DC Code 10-137 (2001) and DC Code 50-2201.07 (2001).
(g) * * *
(3)
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a Tribal implementation plan (TIP) submitted by the Gila River Indian Community (GRIC or Tribe) on February 21, 2007, as supplemented and amended on July 11, 2007, June 22, 2009, and July 17, 2010, and as described in our August 12, 2010 proposal. The TIP includes general and emergency authorities, ambient air quality standards, permitting requirements for minor sources of air pollution, enforcement authorities, procedures for administrative appeals and judicial review in Tribal court, requirements for area sources of fugitive dust and fugitive particulate matter, general prohibitory rules, and source category-specific emission limitations and standards. These provisions establish a base TIP that is suitable for the GRIC's reservation and regulatory capacities and that meets all applicable minimum requirements of the Clean Air Act (CAA or Act) and EPA regulations. The effect of this action is to make the approved portions of the GRIC TIP federally enforceable under the CAA and to further protect air quality within the exterior boundaries of the GRIC reservation.
This final rule is effective April 27, 2011. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of April 27, 2011.
EPA has established a docket for this action under EPA-R09-OAR-2007-0296. Generally, documents in the docket for this action are available electronically at
Wienke Tax, Air Planning Office, Environmental Protection Agency, Region 9 Office, 75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 947-4192 or
Throughout this document, the terms “we”, “us”, and “our” refer to EPA.
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 27, 2011. Under CAA section 307(d)(7)(b), only an objection to this final action that was raised with reasonable specificity during the public comment period can be raised during judicial review. This section also authorizes the convening of a proceeding for reconsideration in specified circumstances. Filing a petition requesting that the Administrator reconsider this final rule does not affect the finality of this action
The GRIC reservation is located in south-central Arizona, adjacent to the Phoenix Metropolitan Area, in Pinal and Maricopa Counties. On August 12, 2010 (75 FR 48880), EPA proposed to approve a TIP submitted by the GRIC on February 21, 2007, as supplemented and amended on July 11, 2007, June 22, 2009, and July 17, 2010, and as described in the proposal. The TIP includes general and emergency authorities, ambient air quality standards, permitting requirements for minor sources of air pollution, enforcement authorities, procedures for administrative appeals and judicial review in Tribal court, requirements for area sources of fugitive dust and fugitive particulate matter, general prohibitory rules, and source category-specific emission limitations and standards.
The TIP is one of four regulatory programs that comprise the GRIC's Air Quality Management Plan (AQMP).
For a more detailed description of the TIP, our evaluation of the TIP and supplemental information, and our rationale for our proposed action, please see the August 12, 2010 proposed rule and related Technical Support Document, both of which can be found in the docket for today's action.
Our August 12, 2010 proposed rule provided for a 30-day comment period, which ended on September 13, 2010. We received two public comment letters expressing only support for our proposed action. The two letters of support that we received can be found in the docket for today's action.
Under CAA sections 110(o), 110(k)(3) and 301(d), EPA is fully approving the TIP submitted by the GRIC DEQ on February 21, 2007, as supplemented and amended on July 11, 2007, June 22, 2009, and July 17, 2010, and as described in our August 12, 2010 proposal (75 FR 48880). For the reasons set forth in this document and in the August 12, 2010 proposed rule, we conclude that the TIP meets the applicable requirements of CAA section 110, EPA's implementing regulations, CAA section 301(d) and the TAR in 40 CFR part 49. The TIP includes the following severable elements of an implementation plan under section 110 of the CAA:
• General authorities that satisfy the requirement in CAA section 110(a)(2)(J) to meet applicable requirements of CAA section 121 (relating to consultation) and section 127 (relating to public notification), and that also satisfy the requirement in CAA section 110(a)(2)(M) to provide for consultation and participation by local political subdivisions affected by the plan;
• Emergency powers that satisfy the requirement in CAA section 110(a)(2)(G) to provide for authority comparable to the emergency powers in section 303 of the Act;
• Procedural requirements for preparation, adoption, submission to EPA, and revision of the TIP that satisfy the applicable requirements of CAA section 110(a)(2) and 40 CFR part 51, subpart F;
• Air quality standards and measurement methods that are consistent with the National Ambient Air Quality Standards in 40 CFR 50.4 through 50.8 and 50.10 through 50.12, as effective in October 2006;
• Legally enforceable procedures to regulate the construction, modification, and operation of “non-title V sources” (“minor sources”) that establish a base program suitable to the GRIC's reservation and that satisfy the minimum requirements of CAA section 110(a)(2)(C) and 40 CFR 51.160 through 51.164;
• Requirements and procedures for enforcement consistent with CAA section 110(a)(2)(C) that provide necessary assurances that the Tribe will have adequate authority under Tribal law to carry out the TIP, as required by CAA section 110(a)(2)(E)(i);
• Requirements and procedures for administrative appeals, final administrative decisions, and judicial review of final administrative decisions that establish adequate procedures for review of the Director's decisions under the TIP and that satisfy the applicable requirements of CAA sections 110(a)(2)(C) and 110(a)(2)(E)(i); and
• Area source emission limits, general prohibitory rules, and source category-specific emission limitations that satisfy EPA's enforceability requirements under CAA section 110(a)(2)(A).
EPA is approving these provisions as elements of a base TIP under CAA section 110 that is suitable to the GRIC's reservation and regulatory capacities. We are not acting today on those elements of the GRIC AQMP that address requirements of CAA title V or any other program under the Act. We intend to take separate action on other CAA programs submitted by the GRIC DEQ, as appropriate.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action approves laws of an eligible Indian tribe as meeting Federal requirements and imposes no additional requirements beyond those imposed by Tribal law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601,
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, 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.” EPA has concluded that this rule will have tribal implications in that it will have substantial direct effects on the GRIC. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. EPA is
EPA worked and consulted with officials of the GRIC early in the process of developing these regulations to permit them to have meaningful and timely input into their development. In order to administer an approved TIP, tribes must be determined eligible (40 CFR part 49) for Treatment as State (TAS) for the purpose of administering a TIP. During the TAS eligibility process, the Tribe and EPA worked together to ensure that the appropriate information was submitted to EPA. GRIC and EPA also worked together throughout the process of development and Tribal adoption of the TIP. The Tribe and EPA also entered into a criminal enforcement MOA.
This action does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action approves Tribal rules implementing a TIP over areas within the exterior boundaries of the Gila River Indian Community's reservation, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action 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, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994). This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing TIP submissions, EPA's role is to approve an eligible tribe's submission, provided that it meets the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the tribe to use voluntary consensus standards (VCS), EPA has no authority to disapprove a TIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a TIP submission, to use VCS in place of a TIP provision that otherwise satisfies the requirements of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Incorporation by reference, Indians, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Part 49 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a)
(b)
(1) Material listed in paragraph (c) of this section was 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. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the
(2) EPA Region IX certifies that the rules/regulations provided by EPA in the TIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated tribal rules/regulations which have been approved as part of the Tribal Implementation Plan as of January 19, 2011.
(3) Copies of the materials incorporated by reference may be inspected at the Region IX Office of EPA at 75 Hawthorne Street, San Francisco, CA 94105-3901 or call 415-947-4192; the U.S. Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket and Information Center, MC 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 or call 202-566-1742; and the National Archives and Records Administration. For information on the availability of this material at NARA, call 202-741-6030, or go to:
(c)
(d) Nonregulatory.
Federal Communications Commission.
Final rule; confirmation of effective date.
On August 6, 2009, the Commission published a final rule adopting procedural rules to govern petitions for forbearance filed pursuant to section 10 of the Communications Act of 1934, as amended. One section within that document could not take effect until the Office of Management and Budget (OMB) had approved the associated information collection requirements. OMB approved those information collection requirements on April 5, 2010, under OMB Control Number 3060-1138. This document confirms the effective date of that rule.
47 CFR 1.54, published at 74 FR 39219, August 6, 2009, is effective March 28, 2011.
Jonathan Reel, Competition Policy Division, Wireline Competition Bureau, at 202-418-1885 or e-mail:
This document announces that, on April 5, 2010, OMB approved, for a period of three years, the information collection requirements contained in the Commission's “complete as filed rule” for forbearance petitions under section 10 of the Communications Act of 1934, as amended. The Commission adopted that rule in its
Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. Questions concerning OMB Control Number 3060-1138 and its expiration date should be directed to Judith Boley-Herman, Federal Communications Commission, Room 1-B441, 445 12th Street, SW., Washington, DC.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; quota transfer.
NMFS announces that the State of North Carolina is transferring a portion of its 2010 and 2011 commercial summer flounder quotas to the Commonwealth of Virginia. Vessels were authorized by Virginia to land summer flounder under safe harbor provisions, thereby requiring a quota transfer to account for an increase in Virginia's landings that would have otherwise accrued against the North Carolina quota. By this action, NMFS adjusts the quotas and announces the revised commercial quota for each state involved.
Effective March 23, 2011 through December 31, 2011.
Carly Knoell, Fishery Management Specialist, 978-281-9224.
Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100.
The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.100(d). The Regional Administrator is required to consider the criteria set forth in § 648.100(d)(3) in the evaluation of requests for quota transfers or combinations.
North Carolina has agreed to transfer 106,013 lb (48,087 kg) of its 2011 commercial quota and 13,500 lb (6,123 kg) of its 2010 commercial quota to Virginia. This transfer was prompted by summer flounder landings of 18 North Carolina vessels that were granted safe harbor in Virginia due to mechanical problems and/or severe winter storm conditions between December 31, 2010, and March 1, 2011. The Regional Administrator has determined that the criteria set forth in § 648.100(d)(3) have been met. The revised summer flounder quotas for calendar year 2010 are: North Carolina, 3,344,731 lb (1,517,144 kg); and Virginia, 2,935,726 lb (1,331,623 kg). The revised summer flounder quotas for calendar year 2011 are: North Carolina, 4,662,739 lb (2,114,983 kg); and Virginia, 3,809,829 lb (1,728,109 kg).
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Modification of fishing seasons, gear restrictions, and landing and possession limits; request for comments.
NOAA Fisheries announces four inseason actions in the ocean salmon fisheries. Inseason action #1 modified the commercial fishery in the area from Cape Falcon, Oregon to Humbug Mountain, Oregon. Inseason action #2 modified the commercial fishery in the area from Humbug Mountain, Oregon to the Oregon/California Border. Inseason action #3 modified the recreational fishery in the area from Horse Mountain, California to Point Arena, California. Inseason action #4 modified the recreational fishery in the area from Point Arena, California to the U.S./Mexico Border.
Inseason actions #1 and #2 were effective on March 15, 2011. Inseason actions #3 and #4 are effective April 2, 2011. Inseason actions #1, #2, #3, and #4 remain in effect until the opening of the 2011 salmon season announced in the 2011 annual management measures or until modified through additional inseason action, which will publish in the
You may submit comments, identified by RIN 0648-XA293, by any one of the following methods:
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•
•
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Peggy Busby, by phone at 206-526-4323.
In the 2010 annual management measures for ocean salmon fisheries (75 FR 24482, May 5, 2010), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada Border to the U.S./Mexico Border, beginning May 1, 2010, and 2011 salmon seasons opening earlier than May 1, 2011.
The Regional Administrator (RA) consulted with representatives of the Council, Oregon Department of Fish and Wildlife and California Department of Fish and Game on March 9, 2011. The information considered during this consultation related to Chinook and coho salmon 2010 spawning escapements, 2011 abundance forecasts, and annual management objectives.
Inseason action #1 delayed the scheduled opening for the commercial salmon fishery from Cape Falcon, Oregon to Humbug Mountain, Oregon, previously scheduled for March 15, 2011, to April 15, 2011. Seven days per week. All salmon except coho. All vessels fishing in the area must land their fish in the State of Oregon. See gear restrictions and definitions (C.2, C.3 in 75 FR 24482) and Oregon State regulations for a description of special regulations at the mouth of Tillamook Bay. This action was taken to comply with conservation constraints. On March 9, 2011, the states recommended this action and the RA concurred; inseason action #1 took effect on March 15, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).
Inseason action #2 cancelled the commercial fishery from Humbug Mountain, Oregon to the Oregon/California Border previously scheduled to open on March 15, 2011. This action was taken to comply with conservation constraints. On March 9, 2011, the states recommended this action and the RA concurred; inseason action #2 took effect on March 15, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).
Inseason action #3 established a recreational fishery from Horse Mountain, California to Point Arena (Fort Bragg), opening April 2, 2011. Seven days per week. All salmon except coho, two fish per day (C.1 in 75 FR 24482). Chinook minimum size limit of 24 inches total length. The same gear restrictions as in 2010 (C.2, C.3 in 75 FR 24482). This action was taken to provide access to fish available for harvest within conservation constraints. On March 9, 2011, the states recommended this action and the RA concurred; inseason action #3 will take effect April 2, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).
Inseason action #4 established a recreational fishery from Point Arena, California to the California/Mexico Border, opening April 2, 2011. Seven days per week. All salmon except coho, two fish per day (C.1 in 75 FR 24482). Chinook minimum size limit of 24 inches total length. The same gear restrictions as in 2010 (C.2, C.3 in 75 FR 24482). This action was taken to provide access to fish available for harvest within conservation constraints. On March 9, 2011, the states recommended this action and the RA concurred; inseason action #4 will take effect April 2, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).
All other restrictions and regulations remain in effect as announced for the 2010 Ocean Salmon Fisheries and previous inseason actions.
The RA determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason actions recommended by the states. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the date the action was effective, by telephone hotline number 206-526-6667 and 800-662-9825, and
The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (75 FR 24482, May 5, 2010), the West Coast Salmon Plan, and regulations implementing the West Coast Salmon Plan 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data were collected to determine the extent of the fisheries, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, thus allowing fishers access to the available fish at the time the fish were available while ensuring that quotas are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under U.S.C. 553(d)(3), as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the Salmon Fishery Management Plan and the current management measures.
These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; closures; correction.
The National Marine Fisheries Service (NMFS) is correcting a final rule that published on March 1, 2011, implementing the final 2011 and 2012 harvest specifications and prohibited species catch allowances for the groundfish fishery of the Bering Sea and Aleutian Islands Management Area (BSAI). Two tables within the document contained errors.
Effective from 1200 hrs, Alaska local time (A.l.t.), March 1, 2011, through 2400 hrs, A.l.t., December 31, 2012.
Steve Whitney, 907-586-7269.
NMFS published the Final 2011 and 2012 BSAI Harvest Specifications in the
The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This correction notice makes only minor changes and does not change operating practices in the fisheries. Corrections should be made as soon as possible to avoid confusion for participants in the fisheries.
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.y
On pages 11153, 11154, and 11156, Tables 10 and 13 are corrected to read as follows:
Nuclear Regulatory Commission.
Proposed rule.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is proposing to amend its spent fuel storage cask regulations to add the HI-STORM Flood/Wind cask system to the “List of Approved Spent Fuel Storage Casks.” This would allow the holders of power reactor operating licenses to store spent fuel in this approved cask system under a general license.
Comments on the proposed rule must be received on or before April 27, 2011.
Please include Docket ID NRC-2011-0007 in the subject line of your comments. For instructions on submitting comments and accessing documents related to this action, see Section I, “Submitting Comments and Accessing Information” in the
Gregory Trussell, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-6445, e-mail:
Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal Rulemaking Web site,
You can access publicly available documents related to this document using the following methods:
For additional information, see the Direct Final Rule published in the Rules and Regulations section of this
Because NRC considers this action noncontroversial and routine, the NRC is publishing this proposed rule concurrently as a direct final rule in the Rules and Regulations section of this
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, Certificate of Compliance (CoC), or Technical Specifications (TS).
For additional procedural information and the regulatory analysis, see the direct final rule published in the Rules and Regulations section of this
Administrative practice and procedure, Hazardous waste, Nuclear materials, Occupational safety and health, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistle blowing.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended, and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR part 72.
1. The authority citation for part 72 continues to read as follows:
Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-10 (42 U.S.C. 2014, 2021, 2021b, 2111).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 2244 (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198).
2. In § 72.214, CoC 1032 is added to read as follows:
Certificate Number: 1032.
Initial Certificate Effective Date: June 13, 2011.
SAR Submitted by: Holtec International, Inc.
SAR Title: Safety Analysis Report on the HI-STORM FW System.
Docket Number: 72-1032.
Certificate Expiration Date: June 13, 2031.
Model Numbers: MPC-37, MPC-89.
For the Nuclear Regulatory Commission.
Financial Stability Oversight Council.
Notice of proposed rulemaking.
The Financial Stability Oversight Council (the “Council” or “FSOC”) proposes regulations to implement the Freedom of Information Act (the “FOIA”). This proposed rule would implement the requirements of the FOIA by setting forth procedures for requesting access to FSOC records. The Dodd-Frank Act, which established the Council, provides that FOIA applies to data or information submitted to the Council.
Comments must be received on or before May 27, 2011.
Interested persons are invited to submit comments regarding this notice of proposed rulemaking according to the instructions below. All submissions must refer to the document title. The Council encourages the early submission of comments.
To receive consideration as public comments, comments must be submitted through the method specified above. Again, all submissions must refer to the title of the notice.
Amias Gerety, Deputy Assistant Secretary, Financial Stability Oversight Council, at (202) 622-0502. All responses to this Notice should be submitted via
The Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203 (the “Act”) established the Council to identify and respond to threats to the financial stability of the United States. Section 112(d)(5)(C) of the Act provides that the FOIA, “including the exceptions thereunder, shall apply to any data or information submitted under this subsection and subtitle B.” These proposed regulations would implement the requirements of the FOIA as they apply to the Council.
This section states that the purpose of the regulations is to implement the FOIA.
This section outlines the types of records that the FOIA requires the Council to make available to the public, either as a matter of course or by request. The section also describes generally the conditions under which a person may request access to Council records. Finally, it sets forth the Council's policy for making discretionary disclosures of its records that are otherwise withholdable pursuant to the FOIA exemptions.
This section implements the requirement of the FOIA that certain agency records be published in the
This section implements the requirement of the FOIA that certain agency records be made available to the public as a matter of course, including through publication on the Council's Web site and in a public reading room, including final opinions, statements of policy and interpretations, staff manuals, and copies of certain frequently requested and previously released Council records.
This section sets forth general procedures for the public to follow when requesting copies of Council records. The section states the Council's requirements for the form and content of such requests, instructions for submitting requests, and general instructions for requesting fee waivers and/or expedited processing of requests. This section furthermore identifies the consequences to the requester of not following the prescribed instructions.
This section outlines certain procedures that govern the Council's responses to FOIA requests. In particular, this section describes the default document date range that the Council will apply when searching for records responsive to requests, identifies persons responsible for making initial determinations as to whether to grant or deny requests, and sets forth circumstances under which the Council will refer FOIA requests to other agencies for consultation or direct response to requesters.
This section identifies the statutory deadline for the Council to respond to FOIA requests and describes circumstances in which the Council may extend or toll this deadline. This section also sets forth the order in which the Council will respond to FOIA requests along with procedures for requesting expedited processing of requests. This section identifies the standards by which the Council shall determine whether to grant requests for expedited processing as well as the procedure for appealing denials of such expedited processing requests.
This section details procedures for the Council to follow when notifying requesters of its receipt of their requests. It also outlines the Council's procedure, upon granting requests, for producing copies of or providing public access to requested records. Likewise, it contains procedures for the Council to follow when denying requests in whole or in part and when no responsive records are located.
This section explains the Council's procedure for responding to requests for records that are classified in accordance with Executive Order No. 13526. It also sets forth the Council's policy of conducting declassification reviews when classified documents become subject to FOIA requests.
This section sets forth the Council's procedure for responding to requests for records that contain information submitted to the government by businesses. In particular, this section details the circumstances under which the Council must notify businesses of FOIA requests that seek information comprising information these businesses submitted to the government. This section also provides business submitters with an opportunity to object to the Council's release of their information in response to such FOIA requests and sets forth a procedure for doing so. Finally, the section explains the procedure that governs the Council's consideration of and responses to such objections.
This section identifies the grounds for which requesters may appeal certain of the Council's FOIA-related determinations, including its determinations to deny requests, in whole or in part, its determinations that no responsive records exist, its determinations to assign requesters to particular fee categories, and its determinations to deny requests for fee waivers and expedited processing. This section also sets forth the procedure that requesters must follow when filing administrative appeals, including the form and content of appeals, and the procedure that governs the Council's responses to such appeals.
This section sets forth the Council's fee schedule for FOIA-related services and describes the circumstances under which the Council will charge fees to requesters for searching for, reviewing and duplicating responsive records. Such fees are assessable based upon the nature of each FOIA requester and the nature and usage of services that are required for the Council to respond to FOIA requests. This section also describes the grounds and procedures for requesting a reduction or waiver of fees, and the Council's procedure for responding to such requests. Finally, the section explains how requesters can make payment to the Council as well as the circumstances in which the Council may require requesters to prepay fees.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a significant regulatory action as defined in Section 3.f of Executive Order 12866.
Freedom of Information.
For the reasons set forth in the preamble, the Financial Stability Oversight Council proposes to add a new part 1301 to 12 CFR chapter XIII, as proposed to be established at 76 FR 4562, January 26, 2011, to read as follows:
12 U.S.C. 5322.
This subpart contains the regulations of the Financial Stability Oversight Council (the “Council”) implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. These regulations set forth procedures for requesting access to the Council's records. These regulations should be read together with the FOIA, which provides additional information about this topic.
(a)
(1) Information required to be published in the
(2) Information required to be made available for public inspection and copying or, in the alternative, to be published and offered for sale (see § 1301.4); and
(3) Information required to be made available to any member of the public upon specific request (see §§ 1301.5 through 1301.12).
(b)
(c)
(2) Even though a FOIA exemption set forth in 5 U.S.C. 552(b) may apply to the records requested, the Council may, if not precluded by law and in its sole discretion, make discretionary disclosures of its records. The fact that the exemption is not applied by the Council in response to a particular request shall have no precedential significance in processing other requests. This policy does not create any right enforceable in court.
Subject to the application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and (c)) and subject to the limitations provided in 5 U.S.C. 552(a)(1), the Council shall state, publish and maintain current in the
(a) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(b) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the Council; and
(e) Each amendment, revision, or repeal of matters referred to in paragraphs (a) through (d) of this section.
(a)
(1) Final opinions, including concurring and dissenting opinions, and orders, made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been adopted by the Council but are not published in the
(3) Its administrative staff manuals and instructions to staff that affect a member of the public;
(4) Copies of all records, regardless of form or format, which have been released previously to any person under 5 U.S.C. 552(a)(3) and §§ 1301.5 through 1301.12, and which the Council determines have become or are likely to become the subject of subsequent requests for substantially the same records because they are clearly of interest to the public at large. When the Council receives three (3) or more requests for substantially the same records, then the Council shall place those requests in front of any existing processing backlog and make the released records available in the Council's public reading room and in the electronic reading room on the Council's Web site.
(5) A general index of the records referred to in paragraph (a)(4) of this section.
(b)
(c)
(d)
(e)
(2) The Council shall make the indices referred to in paragraph (a)(5) and (e)(1) of this section available on its Web site.
(a)
(b)
(1) The request for records shall be made in writing and state, both in the request itself and on any envelope that encloses it, that it comprises a Freedom of Information Act request.
(2) The request shall be addressed and submitted as follows: Financial Stability Oversight Council, Attention: FOIA Request for Council Records, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
(3) The request shall describe the records that the requester seeks in sufficient detail to enable Council personnel to locate them with a reasonable amount of effort. Whenever possible, the request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. If known, the requester should include any file designations or descriptions for the records requested. As a general rule, the more specific the requester is about the records or type of records requested, the more likely the Council will be able to locate those records in response to the request;
(4) The request must include the name of and contact information for the requester, including a mailing address, telephone number, and, if available, an e-mail address at which the Council may contact the requester regarding the request;
(5) The request shall state whether the requester wishes to inspect the records or desires to have a copy made and furnished without first inspecting them.
(6) For the purpose of determining any fees that may apply to processing a request, a requester shall indicate in the request whether the requester is a commercial user, an educational institution, non-commercial scientific institution, representative of the news media, governmental entity, or “other” requester, as those terms are defined in § 1301.12(c). For the same purpose, a request for records shall also state how the records released will be used. The Council shall not use this information to determine the releasability of any record or records.
(7) If a requester seeks a waiver or reduction of fees associated with processing a request, then the request shall include a statement to that effect as is required by § 1301.12(f). Any request that does not seek a waiver or reduction of fees shall constitute an agreement of the requester to pay any and all fees (of up to $25) that may apply to the request, as otherwise set forth in § 1301.12, except that the requester may specify in the request an upper limit (of not less than $25) that the requester is willing to pay to process the request.
(8) If a requester seeks expedited processing of a request, then the request must include a statement to that effect as is required by § 1301.7(c).
(c)
(a)
(b)
(c)
(1) Respond to the request regarding that record, after consulting with the originating agency to determine whether to disclose it and with any other agency that has a substantial interest in it; or
(2) Refer the responsibility for responding to the request regarding that record to the originating agency to determine whether to disclose it, or to another agency that originated the record (but only if that agency is subject to the FOIA). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether to disclose it.
(d)
(a)
(b)
(2) The Council may provide a requester in its complex track with an opportunity to limit the scope of the request to qualify for faster processing within the specified limits of the simple track(s).
(c)
(2)
(i) A request for expedited processing shall be made in writing and submitted as part of the initial request for records. When a request for records includes a request for expedited processing, both the envelope and the request itself must be clearly marked “Expedited Processing Requested.”
(ii) A request for expedited processing shall contain a statement that demonstrates a compelling need for the requester to obtain expedited processing of the requested records. A “compelling need” is defined as follows:
(A) Failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual. The requester shall fully explain the circumstances warranting such an expected threat so that the Council may make a reasoned determination that a delay in obtaining the requested records could pose such a threat; or
(B) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. A person “primarily engaged in disseminating information” does not include individuals who are engaged only incidentally in the dissemination of information. The standard of “urgency to inform” requires that the records requested pertain to a matter of current exigency to the American public and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the American general public. The requester must adequately explain the matter or activity and why the records sought are necessary to be provided on an expedited basis.
(iii) The requester shall certify the written statement that purports to demonstrate a compelling need for expedited processing to be true and correct to the best of the requester's knowledge and belief. The certification must be in the form prescribed by 28 U.S.C. 1746: “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on [date].”
(3)
(4)
(5)
(d)
(1) Make one reasonable demand to the requester for clarifying information about the request and toll the twenty (20) day time period while it awaits the clarifying information; or
(2) Toll the twenty (20) day time period while it addresses any dispute with the requester regarding the assessment of fees.
(e)
(2) As used in this paragraph (e), “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests:
(i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request, or among two or more components or component offices having substantial subject matter interest therein.
(3) Where the Council reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated.
(a)
(1) Identifies the applicable request tracking number;
(2) Identifies the date of receipt of the request, as determined in accordance with § 1301.5(c); and
(3) Confirms, with respect to any fees that may apply to the request pursuant to § 1301.12, that the requester has sought a waiver or reduction in such fees, has agreed to pay any and all applicable fees, or has specified an upper limit (of not less than $25) that the requester is willing to pay in fees to process the request.
(b)
(2)
(3)
(4)
(i) State the exemptions relied on in not granting the request;
(ii) If technically feasible, indicate the amount of information deleted and the exemptions under which the deletion is made at the place in the record where such deletion is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material);
(iii) Set forth the name and title or position of the responsible official;
(iv) Advise the requester of the right to administrative appeal in accordance with § 1301.11; and
(v) Specify the official or office to which such appeal shall be submitted.
(5)
(a)
(b)
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(e)
(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(2) The Council has reason to believe that the information may be protected from disclosure under Exemption 4 because disclosure could reasonably be expected to cause substantial competitive harm to the business submitter.
(f)
(2) When notice is given to a submitter under this section, the requester shall be advised that such notice has been given to the submitter. The requester shall be further advised that a delay in responding to the request may be considered a denial of access to records and that the requester may proceed with an administrative appeal or seek judicial review, if appropriate. However, the requester will be invited to agree to a voluntary extension of time so that the Council may review the business submitter's objection to disclosure.
(g)
(1) A statement of the reasons for which the business submitter's disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date which is not less than ten (10) days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of the final decision to release the requested information has been provided to the submitter. Except as otherwise prohibited by law, notice of the final decision to release the requested information shall be forwarded to the requester at the same time.
(h)
(i)
(1) The Council determines that the information shall not be disclosed;
(2) The information lawfully has been published or otherwise made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1987 Comp., p. 235); or
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous—except that, in such a case, the Council shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(a)
(1) To deny access to records in whole or in part (as provided in § 1301.8(b)(4));
(2) To assign a particular fee category to the requestor (as provided in § 1301.12(c));
(3) To deny a request for a reduction or waiver of fees (as provided in § 1301.12(f)(7));
(4) That no records exist that are responsive to the request (as provided in § 1301.8(b)(5)); or
(5) To deny a request for expedited processing (as provided in § 1301.7(c)(5)).
(b)
(c)
(1) Be made in writing and signed by the requester or his or her representative;
(2) Be labeled “Freedom of Information Act Appeal” and addressed to and submitted to the officer specified in paragraph (e) of this section in the manner set forth in § 1301.5(b);
(3) Set forth the name of and contact information for the requester, including a mailing address, telephone number, or e-mail address at which the Council may contact the requester regarding the appeal;
(4) Specify the date of the initial request and date of the letter of initial determination, and, where possible, enclose a copy of the initial request and the initial determination being appealed; and
(5) Set forth specific grounds for the appeal.
(d)
(e)
(1) If it is decided that the appeal is to be denied (in whole or in part) the requester shall be—
(i) Notified in writing of the denial;
(ii) Notified of the reasons for the denial, including the FOIA exemptions relied upon;
(iii) Notified of the name and title or position of the official responsible for the determination on appeal; and
(iv) Provided with a statement that judicial review of the denial is available in the United States District Court for the judicial district in which the requester resides or has a principal place of business, the judicial district in which the requested records are located,
(2) If the initial determination is reversed on appeal, the requester shall be so notified and the request shall be processed promptly in accordance with the decision on appeal.
(a)
(b)
(1)
(i) $.20 per page, up to 8
(ii) Photographs, films, and other materials—actual cost of duplication.
(iii) Other types of duplication services not mentioned above—actual cost.
(iv) Material provided to a private contractor for copying shall be charged to the requester at the actual cost charged by the private contractor.
(2)
(i)
(ii)
(3)
(4)
(5)
(i) Certifying that records are true copies;
(ii) Sending records by special methods such as express mail, etc.
(c)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(3)
(4)
(d)
(1)
(2)
(3)
(4)
(5)
(e)
(1) Services were performed without charge;
(2) The cost of collecting a fee would be equal to or greater than the fee itself;
(3) The fees were waived or reduced in accordance with paragraph (f) of this section; or
(4) If the Council fails to comply with any time limit under §§ 1301.7 or 1301.11, and no unusual circumstances (as that term is defined in § 1301.7(e)) or exceptional circumstances apply to the processing of the request, then the Council shall not assess search fees, or if the requester is an educational or noncommercial scientific institution (as set forth in paragraphs 1301.12(c)(2)(ii) and (iii) of this section), then the Council shall not assess duplication fees.
(f)
(i) Requests such waiver or reduction of fees in writing and submits the written request to the Council together with or as part of the FOIA request; and
(ii) Demonstrates that the fee reduction or waiver request is in the public interest because:
(A) Furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the government; and
(B) Furnishing the information is not primarily in the commercial interest of the requester.
(2) To determine whether the requester has satisfied the requirements of paragraph (f)(1)(ii)(A) of this section, the Council shall consider the following factors:
(i) The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be
(3) To determine whether the requester has satisfied the requirements of paragraph (f)(1)(ii)(B) of this section, the Council shall consider the following factors:
(i) The Council shall consider any commercial interest of the requester (with reference to the definition of “commercial use” in § 1301.12(c)(2)(i)), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity in the administrative process to provide explanatory information regarding this consideration.
(ii) A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. The Council ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver or reduction of fees, a waiver or reduction shall be granted for those records.
(5)
(6)
(7)
(g)
(2) If the requester has failed to state a limit and the costs are estimated to exceed $250.00, the requester shall be notified of the estimated costs and must pre-pay such amount prior to the processing of the request, or provide satisfactory assurance of full payment if the requester has a history of prompt payment of FOIA fees. The requester shall also be given an opportunity to reformulate the request in such a way as to constitute a request for responsive records at a reduced fee.
(3) The Council reserves the right to request prepayment after a request is processed and before documents are released.
(4) If a requester has previously failed to pay a fee within thirty (30) calendar days of the date of the billing, the requester shall be required to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Council begins to process a new request or the pending request.
(5) When the Council acts under paragraphs (g)(1) through (4) of this section, the administrative time limits of twenty (20) days (excluding Saturdays, Sundays, and legal public holidays) from receipt of initial requests or appeals, plus extensions of these time limits, shall begin only after fees have been paid, a written agreement to pay fees has been provided, or a request has been reformulated.
(h)
(i)
(j)
Financial Stability Oversight Council.
Notice of proposed rulemaking.
Section 804 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “DFA”) provides the Financial Stability Oversight Council (the “Council”) the authority to designate a financial market utility (an “FMU”) the Council determines is or is likely to become systemically important—that is, the failure of or a disruption to the functioning of which could create, or increase, the risk of significant liquidity or credit problems spreading among financial institutions or markets and thereby threaten the stability of the United States financial
Comments must be received on or before May 27, 2011.
Interested persons are invited to submit comments regarding this notice of proposed rulemaking according to the instructions below. All submissions must refer to the document title. The Council encourages the early submission of comments.
To receive consideration as public comments, comments must be submitted through the method specified. Again, all submissions must refer to the title of the notice.
Lance Auer, Deputy Assistant Secretary (Financial Institutions), Treasury, at (202) 622-1262, Kirsten J. Harlow, Senior Policy Advisor, Treasury, at (202) 622-2612, or Steven D. Laughton, Senior Counsel, Office of the General Counsel, Treasury, at (202) 622-8413. All responses to this Notice should be submitted via
The DFA generally defines an FMU as any person that manages or operates a multilateral system for the purposes of transferring, clearing, or settling payments, securities, or other financial transactions among financial institutions or between financial institutions and that person. Section 803(6)(B) of the DFA specifically excludes a number of entities, such as designated contract markets and national securities exchanges meeting certain criteria, from the definition of an FMU. FMUs form a critical part of the nation's financial infrastructure and their smooth functioning is integral to the soundness of the financial system and the overall economy. The importance of these utility-like arrangements has been highlighted by the recent period of market stress. FMUs exist in many financial markets to support and facilitate the transferring, clearing or settlement of financial transactions. Their function, however, as well as their interconnectedness also concentrates a significant amount of risk in the market. The payment and settlement processes of these systems are highly interdependent, either directly through operational, contractual or affiliation linkages, or indirectly through liquidity flows or common participants. Problems at one system could spill over to other systems or financial institutions in the form of liquidity and credit disruptions.
Section 111 of the DFA established the Council. Among the purposes of the Council under section 112 is to “(J) identify systemically important FMUs * * * (as that term is defined in title VIII).” Section 804 of the DFA gives the Council the authority to identify and designate an FMU that is, or is likely to become, systemically important if the Council determines that a failure of or disruption to an FMU could create, or increase, the risk of significant liquidity or credit problems spreading across financial institutions and markets and thereby threaten the stability of the U.S. financial system. Any designation of an FMU requires a two-thirds vote of serving members (including an affirmative vote by the Chairperson), after consultation with the Federal Reserve Board of Governors (the “Board of Governors”) and the relevant federal agency that has primary jurisdiction over a designated FMU under Federal banking, securities, or commodity futures laws (“Supervisory Agency”).
The designation of an FMU as systemically important by the Council then subjects the designated FMU to the requirements of Title VIII. In particular, section 805(a) authorizes the Board of Governors, the CFTC, and the SEC, in consultation with the Council and one or more Supervisory Agencies, to prescribe risk management standards governing the operations related to the payment, clearing, and settlement activities of systemically important FMUs. The objective and principles for the risk management standards prescribed under section 805(a) shall be to promote robust risk management and safety and soundness, reduce systemic risk, and support the stability of the broader financial system. These standards may address areas, as outlined in section 805(c), such as risk management policies and procedures, margin and collateral requirements, participant or counterparty default policies and procedures, the ability to complete timely clearing and settlement of financial transactions, capital and financial resource requirements for designated FMUs and other areas that are necessary to achieve these objectives and principles. In addition, as set forth in section 806(a), the Board of Governors may authorize a Federal Reserve Bank to establish and maintain an account for a designated FMU and provide the services listed in section 11A(b) of the Federal Reserve Act to the designated FMU. Designation further subjects the designated FMU to additional examinations, enforcement actions and reporting requirements.
On December 21, 2010, the Council published an advance notice of proposed rulemaking (an “ANPR”) with 10 questions to invite public comment on the statutory criteria, as laid out in section 804(a)(2), and the analytical framework that should be applied by the Council in designating FMUs under the DFA. This comment period closed on January 20, 2011. This NPR describes the criteria that will inform, and the processes and procedures established under the DFA for, the Council's designation of FMUs under the DFA. This NPR does not address the designation criteria and analytical framework for payment, clearing, or settlement activities carried out by financial institutions, as defined in section 803(7) of the DFA, which the Council is considering separately.
The Council received 12 comments in response to the ANPR from industry groups, advocacy and public interest
1. What quantitative and qualitative information should the Council use to measure the factors it is required to consider in Section 804(a)(2) when making determinations under Section 804 of the DFA? How should quantitative and qualitative considerations be incorporated into the determination process?
The majority of comments stressed the need to apply consistent standards that incorporate both qualitative and quantitative factors that are not overly mechanical across all FMUs.
In addition, there was widespread consensus on the primary factors that should be used for consideration by the Council to assist in the assessment of systemic importance. Notably, these factors included: The level of interdependence of an FMU and its participants, the characteristics of the participants in an FMU, the type of market served by the FMU, the availability of substitute services, whether the FMU operates under finality of settlement, the risk management framework, including capital, margin and liquidity practices and financial resources available to the FMU, governance arrangements, and the extent of existing regulatory oversight. Some commenters also proposed that the Council use a matrix of criteria that incorporates actual historic measures as a way to interpret metrics based on relative thresholds. Please see the discussion of public responses to question (5b) of the ANPR below for a more comprehensive discussion of these factors.
A few commenters also noted that the process used for designation should be transparent to the public, or at least to the FMUs being considered. Many noted the importance for the Council to consider ongoing work and developments in the adoption of international standards in the area of payments, clearing and settlement organizations to ensure that a uniform and consistent cross-border approach is established that incorporates existing best practices and core principles.
2. Can the considerations listed in section 804(a)(2) be broken down into easily measured factors that the Council should use to determine whether financial market utilities are systemically important? Are there certain levels of quantitative measures (
There was significant consensus among commenters expressing support for the statutory considerations listed to measure an FMU, with many noting that metrics should be relatively easy to develop for these considerations.
3. Which of the considerations listed in section 804(a)(2) are most important for the Council to consider? Should the application of the considerations differ depending on the type of FMU, and if so how?
Most commenters believed that all the considerations listed in the statute were equally important for the Council to consider. Some commenters placed particular emphasis on systemic importance, size, interconnectedness, the availability of substitutes, and concentration, as well as the need to balance quantitative metrics with qualitative judgments for a more accurate assessment.
4. How should the Council measure and assess the aggregate monetary value of transactions processed by financial market utilities?
One commenter specifically suggested that absolute terms of value be considered relative to factors such as an FMU's market share, size, importance of the market served, and the number of households affected. An FMU, for example, may process a high absolute value of transactions but may not be systemically important if there are other FMUs that could readily provide an alternative in the event of a disruption, or if the market it serves were not systemically important. The idea that readily available substitutes for the services of an FMU would reduce its systemic importance was a common theme among the majority of commenters, although the operational practicality of switching to a substitute would have to be considered. This commenter also suggested that the value and volume of transactions be considered in light of the FMU's potential performance during actual or projected times of stress.
One commenter argued that, while the absolute number of contracts and aggregate notional value of contracts cleared over a period of time are useful indicators for the measuring of value, it
a. For each type of financial market utility (
As noted, most commenters stated that regardless of the type of FMU, the same criteria and metrics should be applied to each FMU under consideration for designation.
One commenter indicated that for central counterparties (“CCPs”), daily variation margin flow—the changes in values of securities and derivatives contracts that are cleared—and initial margin requirements, should be the primary quantitative references used. In addition, the commenter suggested that the assessment also separately examine the value of securities and commodities that are delivered between a CCP and its members upon maturity of contracts. This commenter also noted that there are two different conventions used by CCPs to process changes in mark-to-market values. Revaluations of derivatives positions tend to result in daily payments and collection of cash, while mark-to-market changes in cash markets affect collateral requirements but not cash obligations. To make assessments of transactional values, both conventions must be covered. The commenter also noted that for both types of conventions used by CCPs to process changes in mark-to-market values, it is important to consider how netting impacts such values.
To assess the systemic importance of the aggregate monetary value of transactions, one commenter suggested looking at the size of an FMU at both the aggregate and transaction level.
b. What time horizon/statistic should be used when assessing value (
There was some difference in opinion expressed by commenters in response to this question with regard to the time horizons that should be used to assess value. One commenter believed that the most significant consideration is an FMU's performance during times of actual or projected market stress, arguing that no single time horizon would effectively capture this performance in all cases. The number of measures should be looked at together with one another and in conjunction with periodic stress tests that are tailored in volume and time horizon to be situation specific and contain qualitative factors. The commenter argued that a measure such as an annual peak will only show an FMU's ability to handle that volume at a given moment, but not whether it would be adequate to handle this same volume under different market conditions or whether it could absorb additional transactions if needed.
In contrast, a different commenter argued that annual peaks, calculated on the basis of a rolling 365 days rather than on the previous calendar year, would be the most appropriate and conservative estimates that would ensure that periods of stress are captured.
One commenter argued that consideration should be given to both the maximum daily value of transactions processed within a given timeframe (at least one year) and, in the case of CCPs, this measure should be stress-tested using the same scenarios as required by supervisors to measure the adequacy of the FMU's default backing and liquidity resources. This would mean that if a CCP's financial resource requirement is greater than a specified value, then it should be designated. The commenter also argued that the Council should also consider whether the FMU processes a significant share of transactions of a specific type and the extent to which the FMU's major participants are domiciled, or have parent companies that are domiciled, in the U.S.
c. Should different measures be applied to different types of financial market utilities based on their activities, products, or markets?
As already mentioned, the majority of commenters argued that the same framework of criteria should be applied equally to each FMU under consideration.
d. What is the best approach for measuring potential aggregate monetary values for start-up financial market utilities?
One commenter argued that in light of the lack of data that would be available in the case of a start-up and the lack of reliable estimates of projected volumes, the Council would have to give greater weight to other qualitative factors, such as the sophistication of risk management techniques in the market.
e. Should certain payment systems that transfer relatively low aggregate values be considered by the Council for designation as systemically important given that the system's failure or
Many commenters urged the Council to consider only the largest interbank payment systems for designation, arguing that smaller retail systems do not fit the definition of “systemically important.”
While largely mentioning similar reasoning for why low-value systems would likely not qualify for designation, two commenters argued that such systems should first be evaluated to determine if a disruption to them would have a significant impact on a substantial market or a large number of households, or if there were no readily-available substitutes.
5. How should the Council measure and assess the aggregate exposure of financial market utilities engaged in payment, clearing, or settlement activities to its counterparties?
a. How should the Council identify the extent to which financial market utilities bear and create risk exposures for themselves and their participants?
b. What measures of exposure should be considered (
There was significant consensus among commenters on the types of factors that should be used by the Council. These include: (i) The liquidity, complexity and volatility of the asset classes/market served by the FMU; (ii) whether the FMU has the potential to create significant liquidity disruptions or dislocations in the event of a failure; (iii) whether the FMU has the potential to create large credit or liquidity exposures relative to participants' financial capacity; (iv) whether the FMU covers a high proportion of large-value transactions; (v) if, and, if so, how many, large financial institutions and/or other FMUs rely on the FMU for its own operations; (vi) whether there are reliable and timely substitutes with other FMUs;
A majority of commenters also suggested that if standards and policy in risk management, governance, capital, margin, and liquidity were strong and well-managed, this would reduce the need for designation. Several commenters emphasized the importance of considering the governance and ownership arrangements of FMUs, noting the importance of aligning the interests of an FMU so that it engages in prudent behavior. For those FMUs that have achieved this balance such that a significant portion of equity capital is at risk, they argue that the FMU would pose a lesser degree of systemic risk. These commenters suggest that the inherent risk alone that an FMU may concentrate or be exposed to should not be considered in isolation. Rather, they argue that the adoption of strong risk mitigating practices could greatly reduce systemic risk, and therefore the need for designation.
c. For each type of financial market utility (
When assessing credit risk, most commenters emphasized the importance of looking at both the quality of the counterparties and the products served by the FMU. When assessing liquidity risk, many commenters emphasized the importance of considering the concentration of the FMU in the market and the capacity/substitutability available among other FMUs. Several commenters also suggested that the Council make use of existing risk assessment tools such as approaches outlined under Basel and in the CPSS/IOSCO Recommendations for CCPs as a foundation to build on.
One commenter argued that the sources of liquidity for an FMU, which are highly related to the underlying credit of members, should be ignored or severely discounted in any analysis. The commenter argued that during a time of stress, sources of liquidity are unreliable because members will be unlikely to respond to an FMU's call for additional support during a severe market event and major default of another member. Similarly, the commenter argued that lines of credit and liquidity will not likely be available in a major default scenario.
6. How should the Council identify, measure, and assess the effects of relationships, interdependencies, and other interactions of financial market utilities listed as considerations in section 804(a)(2)?
a. What role should models of interdependencies (e.g., correlations; stress tests) play in the Council's determinations?
Many commenters discussed the importance of using stress tests and correlations in any model to measure levels of interdependence, although there was some variation in the appropriate assumptions and time horizons that should be used. One commenter, for example, emphasized the need for the stress scenarios to use both historical worst-case scenarios as well as future potential events in order to apply more extreme cases of market illiquidity.
b. What role should the nature of participants or counterparties play in the Council's determinations (
The majority of commenters emphasized the importance of examining the nature of participants and counterparties to an FMU, particularly as a means of measuring interdependence and concentration. This should include considerations such as the type and number of counterparties, particularly if they are significant financial firms or FMUs, as well as the nature of relationships these counterparties have to each other and other FMUs.
c. Should the Council consider the legal, corporate, or contractual relationships of financial market utilities in assessing relationships, interdependencies, and other interactions (
One commenter emphasized the importance for FMUs to operate under a well-established and enforceable legal framework. In particular, the commenter emphasized the importance of assessing the legal risks arising from cross-border relationships, governance and corporate structures and any affiliates or holding companies that are under the same control as the FMU and thus depend on the same creditors. Furthermore, the commenter noted that the Council should consider any cross-margining and/or outsourcing and servicing relationships that an FMU may have.
Another commenter emphasized this point as well, noting the importance for the Council to consider legal, corporate, or contractual relationships of FMUs. This commenter emphasized the importance of paying attention to cases where the same legal entity is acting in multiple capacities, for example if a legal entity acts both as a market operator and a CCP, and also as a participant in a money or tri-party market. Furthermore, this commenter argued that the Council should carefully consider cases in which the holding company of an FMU has significant exposure to foreign markets.
d. Should the Council consider whether there are readily available substitutes for the payment, clearing, and settlement services of financial market utilities?
The importance of readily available substitutes for an FMU was a theme common among all commenters, who argued that the availability of a readily-available alternative would significantly reduce the systemic threat an FMU posed to the financial system, thereby reducing the need for designation by the Council.
7. How should the Council assess whether failures or disruptions to a financial market utility could potentially threaten the financial system of the United States?
a. What measures, information and thresholds should be used in assessing the effect of a financial market utility failure or disruption on critical markets and financial institutions? For example, how might the Council assess potential credit and liquidity effects and spillovers from a financial market utility disruption?
The vast majority of commenters emphasized the importance of considering the level of interconnectedness of participants—both directly and indirectly—of an FMU as well as between FMUs. These relationships would help inform the Council on the potential effect on all relevant market participants in the event that an FMU is unable to function. While some explicitly believed that this should be limited to a more permanent long-term loss of function, noting that temporary disruptions such as operational failures should not be considered, one commenter believed that any potential disruption should be examined to understand the dependencies of participants on the FMU and the resulting impact on the economy as a whole.
Furthermore, nearly all commenters noted the importance of considering the type of counterparties to an FMU, and whether they themselves are systemically important, as well as the concentration of the market and the availability of substitutes. Other factors mentioned widely by commenters, as elaborated on in question (5b) were the capital and liquidity cushions of an FMU, its governance structure, whether or not it offered finality of settlement, and the nature, in terms of size, depth and volatility, of the market that it serves.
As mentioned in question (6a) as well, many suggested the importance of using stress tests and a variety of extreme but plausible assumptions in order to assess the effects from any disruption.
b. What factors should the Council consider when determining whether markets served by financial market utilities are critical? What qualitative or quantitative characteristics might lead the Council to scope in or out particular markets?
Many commenters emphasized the importance of considering the size, depth and volatility of a particular market in order to determine its systemic importance. Furthermore, many argue that the Council should also consider the type and number of participants to the market—for example, if they themselves are systemically important, this will increase the likelihood that the market itself is critical—as well as what percentage of a market may be used by a large percentage of U.S. households.
One commenter argued that all types of disruptions—both temporary and permanent—must be examined by the Council. In addition, the commenter suggested considering whether the
8. Title VIII of the DFA contains distinct provisions with respect to financial market utilities and financial institutions engaged in payment, clearing and settlement activities. What factors should the Council consider in distinguishing between a systemically important financial market utility and a financial institution that is very substantially engaged in a systemically important payment, clearing, or settlement activity?
Most commenters urged the Council to ensure that any designations did not lead to duplicative oversight regimes.
A different commenter stated that the distinction is a critical issue for market participants but that it requires clarification by the Council in order to allow stakeholders the ability to provide a substantive answer.
9. What other types of information would be effective in helping the Council determine systemic importance? What additional factors does your organization consider when assessing exposure to, or the interconnectedness of, financial market utilities?
In addition to the set of common factors elaborated on in question (5b), one commenter also suggested that the Council consider an FMU's opacity/complexity/disclosure, leverage, rate of change of activity, role in monetary and/or fiscal policy, segregation of client margin, business conduct rules, execution requirements, and methodology of margin calculation.
One commenter developed a framework for consideration by the Council. This framework attempts to measure three broad components in order to value systemic significance: fragility of the FMU, exposure of its financial firm members to its failure, and fragility of the members. The framework involves seven steps: (1) Developing a set of “heightened reporting firms;” (2) identifying factors—such as leverage, liquidity, concentration, risk management, complexity, and credit exposure—that can affect systemic significance, defining measures for each factor and dividing them into factors that affect fragility of the FMU and factors that affect exposure of firms to FMUs; (3) estimating the fragility of each heightened reporting firm that is a member of each FMU; (4) estimating the exposure of members to each FMU and for each FMU candidate; (5) creating a single measure of the system's vulnerability by adding up the measures of exposures of all heightened reporting member firms to the candidate FMU, weighted by their fragility estimates; (6) estimating systemic importance of an FMU using several statistical factors; and (7) applying a universal threshold to each FMU to ultimately determine designation.
Lastly, one commenter noted that a supervisory gap existed in the oversight of internet-based payment systems, including P2P payment systems, and asked for the Council to consider the appropriate actions to take to close this loophole.
10. What role should international considerations play in designating financial market utilities?
In response to this question, many commenters emphasized the importance of adopting international standards and best practices, such as the CPSS Core Principles
One commenter argued that the global nature of markets serviced by FMUs as well as the interconnectedness of the global financial system as a whole means that there should be no differences in criteria employed when considering the designation of FMUs that may have substantial foreign activities. As a result, the commenter argued that U.S. supervisors have a justification and need for concomitant supervisory access to any foreign FMU deemed systemically important.
One commenter urged the Council to be conservative when applying Title VIII to non-U.S. entities because Title VIII does not expressly provide for extra-territorial application. To the extent that the Council does apply Title VIII to non-U.S. entities, this commenter urged the Council to ensure that any determination maintains a level playing field for domestic and foreign FMUs with a comparable regulatory regime. Furthermore, the commenter noted that participation in government support programs should not be a factor in identifying whether an FMU is systemically important.
Proposed part 1320 of Title 12 (“Rule 1320”) lays out the framework that the Council proposes to use to determine whether an FMU should be designated as systemically important. The proposed rule incorporates and augments the requirements set forth in the DFA with respect to the determination of whether to designate an FMU as systemically important. The Council requests comment on all aspects of the proposed rule, but in particular, comments in response to the specific questions raised below. The Council is providing a sixty (60) day comment period for this proposed rule.
Section 804 of the DFA provides the Council with the authority to designate those FMUs the Council determines are systemically important—that is, the failure of or a disruption to the functioning of which could create, or increase, the risk of significant liquidity or credit problems spreading among financial institutions or markets and thereby threaten the stability of the U.S. financial system. Section 803(6)(A) of the DFA generally defines an FMU as any person that manages or operates a multilateral system for the purposes of transferring, clearing, or settling payments, securities, or other financial transactions among financial institutions or between financial institutions and that person. Under section 804(a)(2) of the DFA, in making a determination on whether the FMU should be designated as systemically important, the Council must consider:
A. The aggregate monetary value of transactions processed by the FMU;
B. The aggregate exposure of the FMU to its counterparties;
C. The relationship, interdependencies, or other interactions of the FMU with other FMUs or
D. The effect that the failure of or a disruption to the FMU would have on critical markets, financial institutions, or the broader financial system; and
E. Any other factors that the Council deems appropriate.
As discussed in Part II, there were several themes in the ANPR commentary regarding how the Council should apply the statutory considerations to the designation process.
One broad theme from the commenters is that the analytical framework for evaluating an FMU should be applied consistently across all FMUs and that the process used for designation be transparent to the public, or at least to the FMUs under consideration. The Council agrees with the broad theme raised by commenters that it is important to have a consistent framework and transparent process for all FMUs under consideration. However, not all criteria will be relevant to each FMU under consideration. The Council believes it would be appropriate to adopt a flexible approach to the analysis of metrics applicable to each FMU under consideration. Thus, the framework itself should accommodate the range of payment, clearing, and settlement activities that FMUs may engage in and allow the application of relevant criteria to each FMU under consideration, with the relative importance of the criteria applied to be informed by the specific circumstances of the FMU's role in the financial system and the Title VIII definition of “financial market utility.” Several commenters also supported the need to weigh qualitative considerations in addition to quantitative factors.
The Council shares the concerns of commenters and proposes to develop a systematic and robust process that is consistent with the intent of the DFA. Such an analytical framework would be based on the four specific considerations for systemic importance set forth in section 804(a)(2) of the DFA. This framework would apply consistent criteria to FMUs under consideration, recognizing differences across FMUs, including differences in risk management structures and in the potential impact of an FMU's disruption on markets, households, and the financial system. In addition, the Council shares the view of the commenters that both quantitative and qualitative judgments be applied to this process. The Council provides further information with regard to this analytical framework and related process in sections III.B and III.C below.
The Council is equally interested in maintaining a transparent process, which is in keeping with one of the broader goals of the DFA. In particular, there is a provision in the proposed rule for notification of each FMU prior to a vote on a proposed designation, providing the FMU an opportunity to present the Council with arguments and information supporting or opposing its designation. In providing for an appropriately transparent process to the public, the Council will need to take into account that much of the information gathered and decisions made will be sensitive and likely require confidential handling so as not to reveal proprietary information or affect competition. Nonetheless, the Council will establish as transparent a process as is appropriate.
With respect to the criteria for designation, there was broad consensus in the comments on the factors that the Council should incorporate into the analytical framework. The most common suggestions included: an examination of the type of market served by the FMU, the potential for large credit or liquidity dislocations in the event of a disruption, the proportion of large-value transactions that the FMU serves, the nature of counterparties to the FMU, the availability of substitutes for participants in the event of an FMU disruption, and whether the FMU offers finality in settlement.
The Council agrees with commenters that many of these factors could offer considerable insight into the designation process and will consider incorporating them into the analytical framework that is developed. As noted, further insight into the types of factors that may be incorporated into the Council's analysis is further detailed in section III.B.
Many commenters also urged the Council to only consider the largest interbank payment systems for designation, arguing that smaller retail systems do not fit the definition of systemically important. Many of the commenters argued that retail systems settle relatively low-aggregate monetary value, that there are reliable and timely substitutes for retail payments, and that such systems do not operate with finality in settlement and are already under strong regulatory oversight.
While the Council recognizes that the definition of an FMU covers a wide variety of systems, including low-value and large-value payment systems, it acknowledges that the factors raised by several commenters concerning retail payment systems are important considerations. In considering the systemic importance of various FMUs, the Council will take these factors into consideration as well as other relevant characteristics. The Council has decided not to include any categorical exclusion for retail payment or other systems in the proposed regulations because it believes that such exclusions would impair the Council's ability to effectively respond to changing market conditions and industry developments.
Several commenters specifically indicated that institutions that are already subject to comprehensive Federal Reserve oversight, have access to central bank accounts and liquidity, or are already subject to designation under Title I should not be designated. Some also argued that FMUs that are already subject to prudential oversight, have strong risk management frameworks, governance standards, and sufficient financial resources in place have developed controls that would reduce the need for designation since the risk of a systemic disruption would be considerably lower.
The Council recognizes the importance of oversight and of FMU's maintaining strong controls to mitigate the risk of failure. However, the purpose of Title VIII is to consider designating certain FMUs as systemically important because while FMUs that conduct or support multilateral payment, clearing, or settlement activities may reduce risks for their participants, such utilities may also concentrate and create new risks. Recognizing this, Title VIII instructs the Council to designate as systemically important any FMU whose failure or disruption could create, or increase, the risk of significant liquidity or credit problems spreading among financial institutions or markets and thereby threaten the stability of the financial system of the U.S. Thus, the Council is instructed to designate FMUs based on the effect that a disruption or failure of the FMU would have on the stability of the U.S. financial system. The likelihood of that precipitating event—that is to say, the likelihood, in light of any risk mitigating practices that may be in place, that an FMU
There were several other suggestions raised in the comment letters in which there was no consensus. In particular, there were a number of different suggestions provided in response to ANPR question 4 on how the Council should measure and assess the aggregate monetary value of transactions processed by an FMU. Commenters suggested a variety of approaches for measuring value (notional values, margin flows, net versus gross values, etc.) and defining time horizons and
Lastly, in response to ANPR question 10, many commenters took the opportunity to stress the importance of applying consistent standards across borders, specifically advocating the use of international core principles and best practices to ensure consistency and a level playing field. One commenter cautioned the Council to be conservative in applying Title VIII to non-U.S. entities. The Council requests further comment on the role international considerations should play in this rule making, in particular on the application of the proposed analytical framework and the subcategories contained in the proposed section 1320.10 given cross-border payment, clearing and settlement flows, and cross-border participation in FMUs.
The proposed rule incorporates each of the statutory factors that must be considered into the analytical framework to determine whether an FMU should be designated. In developing the proposed rule, the Council has also taken into consideration the comments received on the ANPR. If adopted into a final rule, this framework would be used by the Council to meet its statutory obligations of assessing the threat the failure or disruption of an FMU may pose to the stability of the U.S. financial system. In addition, the Council would consider any other risk-related factors that the Council deems appropriate, under section 804(a)(2)(E).
The Council would evaluate FMUs under each of the four statutory considerations as laid out in section 804(a)(2) of the DFA, in addition to any additional factors it deems appropriate, using quantitative metrics where possible. The Council expects to use its judgment, informed by data on the four considerations, to determine whether an FMU should be designated as systemically important and thus subject to heightened risk management standards prescribed by the Board of Governors, the SEC, or the CFTC, in consultation with the Council and relevant Supervisory Agencies. These standards will take into consideration relevant international standards and existing prudential requirements governing the operations related to the payment, clearing and settlement activities of designated FMUs.
Any determinations of the Council made under the proposed rule using the analytical framework would be based on whether the failure or disruption of the FMU could pose a threat to the financial stability of the U.S. financial system as described in DFA section 803(9).
Under the proposal, the Council expects to use the four statutory considerations as a base for the framework for assessing the systemic importance of FMUs, regardless of the type of payment, clearing and/or settlement activities that they are engaged in. However, the application of this framework would be adapted for the risks presented by a particular type of FMU and business model. For example, the metrics that are best suited to measure the four categories of systemic importance will likely vary across FMUs. The Council will review these metrics on a periodic basis and revise them as appropriate.
In addition, the process that the Council will use to evaluate potential FMUs for designation under an analytical framework is outlined in more detail under section III.C. Briefly, the Council is considering using a two stage process for evaluating FMUs prior to a vote of proposed designation by the Council. The first stage will consist of a largely data-driven process for the Council, working with its committees
To provide further transparency into the analytical framework that the Council is considering, set forth below is additional information regarding the types of metrics that may be considered by the Council.
As described above, the Council is proposing subcategories to further build out the four specific statutory considerations that are set forth in DFA section 804(a)(2). Some of these subcategories and associated metrics are described below to provide illustrative examples of how the factors will be considered in assessing systemic importance.
Consideration (A): Aggregate monetary value of transactions processed by an FMU
• Number of transactions processed, cleared or settled by the FMU
Within this subcategory, examples of the types of metrics that the Council may consider include the mean and median daily gross and net volumes processed, cleared or settled; the historical peak daily gross and net volumes processed; and the volumes processed, cleared or settled as a percentage of the total market volume; and for derivatives central counterparties, the median and peak daily changes in open interest.
• Value of transactions processed, cleared or settled, by the FMU
For this second subcategory, examples of the types of metrics that the Council may consider include the mean and median daily gross and net values processed, cleared or settled; the historical peak daily gross and net values processed, cleared or settled; and the values processed, cleared or settled as a percentage of the total market value.
• Value of other financial flows that may flow through an FMU
For this third subcategory, the Council may consider the mean and median daily value of variation margin; the peak daily value and change of variation margin; and the peak daily value of funding flows.
Consideration (B): Aggregate exposure of an FMU to its counterparties
• Credit exposures
Within this first subcategory, the Council may consider the use of metrics that measure the mean daily and historical peak aggregate intraday credit provided to participants; the mean and peak daily changes in the value of variation margin collected by an FMU; the mean and peak daily value of initial margin held by an FMU; and the mean and peak aggregate value of an FMU's financial resources held to address the credit risks arising from a potential participant default (i.e., participant, clearing or margin fund).
• Liquidity exposures to counterparties
Under the second subcategory, the Council may consider measures of the
Consideration (C): Relationship, interdependencies, or other interactions of an FMU with other FMUs or payment, clearing or settlement activities
Within this category, the Council may consider metrics that measure the relationships and interdependencies of an FMU, including those that measure interactions of an FMU with different participants, such as systemically important financial and/or nonfinancial companies, central banks, or other payment, clearing or settlement systems, with trading platforms (such as exchanges and alternative trading systems), and with the market environment more generally, including contractual relationships, that support the operations of an FMU.
Consideration (D): Effect that the failure of or disruption to an FMU would have on critical markets, financial institutions or the broader financial system
• Role of an FMU in the market served
The Council may consider metrics such as the type of market(s) served by an FMU and the FMU's role in primary and secondary markets.
• Availability of substitutes
Under the second subcategory, the Council may consider the number of other FMUs that may serve the same function and/or product and how readily available a potential substitute would be for participants, considering such additional factors as operational capability and timing.
• Concentration of participants
Under the third subcategory, the Council may consider metrics that look at concentrations of the single largest participant, the top five participants and the top ten participants, as a percentage of the value and volume of activity by all participants.
• Concentration by product type
Under this subcategory, the Council may consider information regarding the degree to which the FMU is a major or sole processor for a particular financial contract or instrument.
• Degree of tiering
Under this subcategory, the Council may consider information regarding the number of an FMU's indirect participants, as well as the concentration of such indirect clearing through an FMU's direct participants.
• Potential impact/spillover in the event of a failure or disruption.
Lastly, under this sixth subcategory, some examples of the types of metrics that the Council may consider include the number and type of systemically important financial and non-financial institutions participating in the activities of the FMU; and the daily gross value of repurchase agreements (both securities-driven and cash-driven), as well as other instruments that are cleared or settled by an FMU.
Consideration (E): Any other factors that the Council deems appropriate
Under this statutory consideration, the Council retains its ability to consider additional subcategories, metrics and qualitative factors as may be relevant based on the particular characteristics of an individual FMU being reviewed, including for example the nature of its operations, corporate structure and business model, and to add any relevant subcategories and metrics to the proposed analytical framework.
The second stage will provide the Council with the opportunity to perform a more in-depth review and analysis of specific FMUs from both a quantitative and qualitative perspective. In this stage, the Council can consider any elements that may be particular to a specific FMU, a type of FMU or market. Each FMU under consideration will undergo a tailored analysis of the potential impact that a failure of or a disruption to the function of the FMU has on the stability of the U.S. financial system, such as the creation of, or increase to, the risk of significant liquidity or credit problems spreading among financial institutions or markets.
The Council expects to begin assessing the systemic importance of FMUs under the proposed analytical framework shortly after adopting a final rule. Subsequently, on at least an annual basis, the Council will continue to evaluate whether there are other FMUs that require designation, and whether previous designations of systemically important FMUs should be rescinded.
The proposed rule implements provisions of Title VIII of the DFA that outline the process that the Council, working with its committees, will carry out in making designations. As noted, the Council is considering using a two stage process for evaluating FMUs prior to a presentation to the Council of an initial assessment of the FMU for a formal vote of proposed designation by the Council. If an FMU reaches the second stage of this evaluation process, the Council will notify the FMU under consideration and provide the FMU with an opportunity to submit written materials to the Council in support of or in opposition to, as it deems relevant, designation by the Council as outlined in proposed section 1320.11. In the case of an affirmative formal vote of the proposed designation by two-thirds of the Council, including the Chairperson, an FMU will be notified and given the opportunity to request a written or oral hearing before the Council to demonstrate that the proposed designation or rescission is not supported by substantial evidence as outlined in proposed section 1320.12. Following this, the Council will complete its considerations and carry out its final vote and notification to the FMU. Below is a more detailed stage-by-stage discussion of the proposed process.
The first stage will be largely data-driven to identify a preliminary set of FMUs, whose failure or disruption could potentially threaten the stability of the financial system of the United States, and which therefore should be subject to a more thorough review under the second stage. This first stage will be informed by both publicly available information and information that is available to a Federal agency with jurisdiction over the FMU. The assessments in stage one will result in materials that provide an overview of the FMUs for further review and consideration. This first-stage identification of potentially systemically important FMUs will be performed at least annually. A reassessment of already designated FMUs will also occur at least annually.
The second stage will involve a more in-depth review and analysis, from both a quantitative and qualitative perspective, of the FMUs determined to merit further assessment based on the first-stage review. This stage involves consideration of additional elements that may be particular to a specific FMU or type of FMU and assembly of a detailed assessment of the FMU and in-depth analysis for consideration by the Council in connection with the Council's determination whether to
In addition, the Council has the opportunity under stage two to request further information from an FMU (as per section 809(a)(1) of the DFA), if the information needed is not available publicly or from a federal agency with jurisdiction over the FMU. The FMU will be notified that this information is being collected to help evaluate whether it should be designated by the Council, based on the Council's determination that there is reasonable cause to believe the FMU meets the regulatory criteria for designation.
The Council is providing a sixty (60) day comment period for this proposed rule.
Proposed section 1320.1(a) clarifies that sections 111, 112, 804, 809, and 810 of the DFA provide the statutory authority for the Council to promulgate this part. Proposed section 1320.1(b) explains that the principal purpose of the part is to set forth standards and procedures governing the Council's designation of FMUs that the Council determines are, or are likely to become, systemically important.
Proposed section 1320.2 contains definitions that are necessary to implement the proposed rules. The proposed definitions (including “financial market utility,” “Supervisory Agency,” and “systemically important”) are taken from the statutory language in sections 2 and 803 of the DFA. The Council is soliciting comment on all aspects of the proposed definitions. In particular, the Council requests comment on whether additional definitions are needed to implement the proposed rules.
Proposed section 1320.10 lists five factors for the Council to consider in making a determination on whether to designate or rescind the designation of an FMU. The five factors are derived from section 804(a)(2) of the DFA. Of the five factors, four are specific and the fifth—any other factors that the Council deems appropriate—is open-ended. For purposes of providing greater transparency as to how the Council will apply each of the specific factors, the Council proposes to include subcategories in the proposed rule. These subcategories are not exclusive, and the Council may take additional items into consideration under each statutory factor when appropriate, in the Council's experience and judgment in light of the particular circumstances of any FMU, but the Council believes including illustrative subcategories will give the public a better understanding of the designation process.
With regard to the first factor covering the aggregate monetary value of transactions processed by an FMU, the Council proposes to consider the number of transactions processed, the value of transactions cleared, settled, and processed, and the value of other financial flows.
For the second factor covering the aggregate exposure of the FMU to its counterparties, the Council proposes to consider credit exposures
For the third factor covering the relationship, interdependencies, or other interactions of an FMU with other FMUs or payment, clearing, or settlement activities, the proposed rule focuses on understanding the FMU's interactions by types of participants. The Council believes that this subcategory will help provide a foundation for an evaluation of the extent to which an FMU is interconnected with other FMUs, the payment, clearing, or settlement activities of financial institutions or the financial markets as a whole.
For the fourth factor covering the effect that the failure of or a disruption to an FMU would have on critical markets, financial institutions, or the broader financial system, the proposed rule lists subcategories focused on the roles of the FMU in the market served, the availability of substitutes, the concentration of participants and product types, the degree of tiering, and the potential impact or spillover in the event of a failure or disruption. The Council believes that these six subcategories will assist the Council's evaluation of the effect of the failure of or a disruption to an FMU on critical markets, financial institutions, and the broader financial system.
The Council requests comment on whether the subcategories in each specific factor are clear, sufficiently detailed, and appropriate. In particular, the Council requests comment on whether the Council should add subcategories, and whether the Council should eliminate or modify any of the proposed subcategories.
Proposed section 1320.11 provides that before providing an FMU with notice of a proposed determination under section 1320.12, the Council will provide an FMU with written notice that the Council is reviewing the FMU under this part and allow the FMU to submit written materials to the Council in support of or in opposition to, as the FMU deems relevant, designation by the Council. Written materials may also include any actions the FMU proposes to take to reduce or increase its systemic risk. The proposed rule does not fix the time frame for an FMU to submit written materials, but rather leaves it up to the Council to decide such timing on a case-by-case basis. The Council believes such flexibility is appropriate to provide FMUs appropriate time to gather and submit information. The Council believes that affording FMUs that progress to Stage 2 of the review process an opportunity to voluntarily submit information to the Council will be mutually beneficial. Specifically, the Council believes an FMU will benefit by having an opportunity to provide the Council with information and analysis that the FMU deems relevant on whether to make a proposed determination. The Council believes that any written materials provided by an FMU will allow it to make a more informed decision regarding a proposed determination. However, the Council notes that the submission of any written materials by an FMU under this proposed section 1320.11 is strictly voluntary. The Council requests comment on the utility of the proposed
Proposed section 1320.12 sets out the process by which the Council will provide an FMU with advance notice and an opportunity for a hearing to contest the Council's proposed determination. As set forth in section 804(c)(2) of the DFA, the Council will provide an FMU with advance written notice of its proposed determination. The FMU will generally have thirty (30) calendar days to request a hearing before the Council to demonstrate that the Council's proposed determination is not supported by substantial evidence. Upon receipt of a timely request for a hearing, the Council will fix a time for the hearing, which in most instances will be through the submission of written materials to the Council, not more than thirty (30) calendar days after receipt of the request for a hearing. The Council requests comment on whether the proposed process is sufficiently detailed and clear.
Proposed section 1320.13 sets out the requirement for the Council to designate an FMU and rescind the designation of a designated FMU depending on whether the standards for systemic importance are met. Proposed section 1320.13 makes clear that any Council proposed or final determination is non-delegable and requires at least a two-thirds vote of the voting members then serving, including the affirmative vote of the Chairperson of the Council. The proposed rule also requires the Council to consult with the relevant Supervisory Agency and the Federal Reserve Board before making any proposed or final determination. These requirements are taken from the statutory language in section 804(a), (b), and (c)(1) of the DFA. The Council requests comment on whether the proposed process is sufficiently detailed and clear.
Proposed section 1320.14 sets out an emergency exception that allows the Council to waive or modify the notice, consultation and hearing requirements set forth in the proposed rules and designate an FMU as systemically important. The Council may invoke this exception only where the Council makes a determination that an emergency designation is necessary to prevent or mitigate an immediate threat to the financial system posed by the FMU. The exercise of this emergency exception requires at least a two-thirds vote of the voting members of the Council then serving, including the affirmative vote of the Chairperson of the Council. In addition, the Council must provide notice of its use of the emergency exception to the FMU no later than 24 hours after such exception is invoked. The emergency exception is based on statutory language in section 804(c)(3) of the DFA. The Council requests comment on whether the proposed emergency exception is sufficiently detailed and clear. In particular, the Council requests comment on whether it should provide a designated FMU an opportunity for a hearing to contest the Council's determination to waive the notification and hearing requirements and the extent to which the opportunity for a hearing should mirror section 113(f)(4) and (5) of the DFA.
In accordance with section 804(d) of the DFA, proposed section 1320.15 sets out the deadline for the Council to notify an FMU of the Council's final determination after providing an FMU notice of the proposed determination and an opportunity for a hearing. If the FMU has timely requested a hearing, the Council must notify the FMU in writing of its final determination within 60 calendar days of the hearing, which must also include the Council's findings of fact upon which the Council's determination is based. If an FMU does not timely request a hearing, the Council will notify the FMU in writing of its final determination within 30 calendar days after the expiration of the date by which the FMU could have requested a hearing. The Council requests comment on whether the notification process is sufficiently detailed and clear. In particular, the Council requests comment on whether the notification to an FMU that did not timely request a hearing should also include the Council's findings of fact.
As set forth in section 804(e) of the DFA, proposed section 1320.16 authorizes the Council to extend the time periods by which an FMU may request a hearing and submit written materials to contest the Council's proposed determination, the 24 hour time period for the Council to notify an FMU of an emergency designation, and the time period for the Council to notify an FMU of its final determination. The Council requests comment on whether the extension of time periods process is sufficiently detailed and clear.
Proposed section 1320.20 authorizes the Council to require any FMU to submit information that the Council may require for the sole purpose of assessing whether the FMU is systemically important. However, before the Council may impose an information collection burden on an FMU, the Council must have reasonable cause to believe that the FMU meets the standards for systemic importance. The Council must also coordinate with the FMU's Supervisory Agency to determine if the requested information is available from or may be obtained by the Supervisory Agency. If the Supervisory Agency is unable to provide the Council with the requested information in less than 15 calendar days after the date the material is requested, the Council may then request the information directly from the FMU. In requesting information from an FMU, the Council must provide a written explanation of the basis for the Council's reasonable cause determination. The Council believes that providing a written explanation to the FMU will help reduce or mitigate an FMU's paperwork burden by providing specific context to the Council's request. This information collection and coordination authority is substantially derived from the statutory language in section 809 of the DFA. The Council requests comment on whether the information collection and consultation process is sufficiently detailed and clear. In particular, the Council requests comment on the utility of the Council providing an FMU with a written explanation of the basis for its belief that the FMU is systemically important.
It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. The rule would apply only to FMUs whose failure could pose a threat to the stability of the U.S. financial system Size is an important factor, although not the exclusive factor, in assessing whether an FMU's failure could pose a threat the stability of the U.S. financial system. The Council does not expect the rule to directly affect a substantial number of small entities. Accordingly, a regulatory flexibility analysis under the Regulatory
The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Financial Stability Oversight Council, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to Kirsten J. Harlow, Department of the Treasury, Washington, DC 20220. Comments on the collection of information must be received by May 27, 2011. Comments are specifically requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Council, including:
Whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collection of information;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
The collection of information in these proposed regulations are found in § 1320.11, § 1320.12, and § 1320.20.
Estimated total annual reporting burden: 500 hours.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
Administrative practice and procedure, Banks, banking, Commodity futures, Electronic funds transfers, Financial market utilities, Securities.
For the reasons set forth in the preamble, the Financial Stability Oversight Council proposes to add a new part 1320 to 12 CFR chapter XIII, as proposed to be established at 76 FR 4562, January 26, 2011, to read as follows:
12 U.S.C. 5321; 12 U.S.C. 5322; 12 U.S.C. 5463; 12 U.S.C. 5468; 12 U.S.C. 5469
(a)
(b)
The terms used in this regulation have the following meanings:
(1) Means—
(i) A depository institution as defined in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813);
(ii) A branch or agency of a foreign bank, as defined in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101);
(iii) An organization operating under section 25 or 25A of the Federal Reserve Act (12 U.S.C. 601-604a and 611 through 631);
(iv) A credit union, as defined in section 101 of the Federal Credit Union Act (12 U.S.C. 1752);
(v) A broker or dealer, as defined in section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78c);
(vi) An investment company, as defined in section 3 of the Investment Company Act of 1940 (15 U.S.C. 80a-3);
(vii) An insurance company, as defined in section 2 of the Investment Company Act of 1940 (15 U.S.C. 80a-2);
(viii) An investment adviser, as defined in section 202 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-2);
(ix) A futures commission merchant, commodity trading advisor, or commodity pool operator, as defined in section 1a of the Commodity Exchange Act (7 U.S.C. 1a); and
(x) Any company engaged in activities that are financial in nature or incidental to a financial activity, as described in section 4 of the Bank Holding Company Act of 1956 (12 U.S.C. 1843(k)).
(2) Does not include designated contract markets, registered futures associations, swap data repositories, and swap execution facilities registered under the Commodity Exchange Act (7 U.S.C. 1
(1) Means any person that manages or operates a multilateral system for the purpose of transferring, clearing, or settling payments, securities, or other financial transactions among financial institutions or between financial institutions and the person; and
(2) Does not include—
(i) Designated contract markets, registered futures associations, swap data repositories, and swap execution facilities registered under the Commodity Exchange Act (7 U.S.C. 1
(ii) Any broker, dealer, transfer agent, or investment company, or any futures commission merchant, introducing broker, commodity trading advisor, or commodity pool operator, solely by reason of functions performed by such institution as part of brokerage, dealing, transfer agency, or investment company activities, or solely by reason of acting on behalf of a financial market utility or a participant therein in connection with the furnishing by the financial market utility of services to its participants or the use of services of the financial market utility by its participants, provided that services performed by such institution do not constitute critical risk management or processing functions of the financial market utility.
(1) The term “payment, clearing, or settlement activity” means an activity carried out by 1 or more financial institutions to facilitate the completion of financial transactions, but shall not include any offer or sale of a security under the Securities Act of 1933 (15 U.S.C. 77a
(2) For purposes of paragraph (1), the term “financial transaction” includes—
(i) Funds transfers;
(ii) Securities contracts;
(iii) Contracts of sale of a commodity for future delivery;
(iv) Forward contracts;
(v) Repurchase agreements;
(vi) Swaps;
(vii) Security-based swaps;
(viii) Swap agreements;
(ix) Security-based swap agreements;
(x) Foreign exchange contracts;
(xi) Financial derivatives contracts; and
(xii) Any similar transaction that the Council determines to be a financial transaction for purposes of this part.
(3) When conducted with respect to a financial transaction, payment, clearing, and settlement activities may include—
(i) The calculation and communication of unsettled financial transactions between counterparties;
(ii) The netting of transactions;
(iii) Provision and maintenance of trade, contract, or instrument information;
(iv) The management of risks and activities associated with continuing financial transactions;
(v) Transmittal and storage of payment instructions;
(vi) The movement of funds;
(vii) The final settlement of financial transactions; and
(viii) Other similar functions that the Council may determine.
(4) Payment, clearing, and settlement activities shall not include public reporting of swap transactions under section 727 or 763(i) of the Dodd-Frank Act.
(1) Means the Federal agency that has primary jurisdiction over a designated financial market utility under Federal banking, securities, or commodity futures laws as follows—
(i) The Securities and Exchange Commission, with respect to a designated financial market utility that is a clearing agency registered with the Securities and Exchange Commission.
(ii) The Commodity Futures Trading Commission, with respect to a designated financial market utility that is a derivatives clearing organization registered with the Commodity Futures Trading Commission.
(iii) The appropriate Federal banking agency, with respect to a designated financial market utility that is an institution described in section 3(q) of the Federal Deposit Insurance Act.
(iv) The Board of Governors, with respect to a designated financial market utility that is otherwise not subject to the jurisdiction of any agency listed in clauses (i), (ii), and (iii).
(2) If a designated financial market utility is subject to the jurisdictional supervision of more than one agency listed in paragraph (1), then such agencies should agree on one agency to act as the Supervisory Agency, and if such agencies cannot agree on which agency has primary jurisdiction, the Council shall decide which is the Supervisory Agency for purposes of this part.
In making any proposed or final determination with respect to whether a financial market utility is, or is likely to become, systemically important under this part, the Council shall take into consideration:
(a) The aggregate monetary value of transactions processed by the financial market utility, including without limitation—
(1) The number of transactions processed, cleared or settled;
(2) The value of transactions processed, cleared or settled; and
(3) The value of other financial flows.
(b) The aggregate exposure of the financial market utility to its counterparties, including without limitation—
(1) Credit exposures, which includes but is not limited to potential future exposures; and
(2) Liquidity exposures.
(c) The relationship, interdependencies, or other interactions of the financial market utility with other financial market utilities or payment, clearing, or settlement activities, including without limitation interactions by types of participants.
(d) The effect that the failure of or a disruption to the financial market utility would have on critical markets, financial institutions, or the broader financial system, including without limitation—
(1) Role of the financial market utility in the market served;
(2) Availability of substitutes;
(3) Concentration of participants;
(4) Concentration by product type;
(5) Degree of tiering; and
(6) Potential impact or spillover in the event of a failure or disruption.
(e) Any other factors that the Council deems appropriate.
Before providing a financial market utility notice of a proposed determination under section 1320.12, the Council shall provide the financial market utility with—
(a) Written notice that the Council is considering whether to make a proposed determination with respect to the financial market utility under § 1320.13; and
(b) An opportunity to submit written materials to the Council, within such time as the Council determines to be appropriate, concerning—
(1) Whether the financial market utility is systemically important taking into consideration the factors set out in § 1320.10; and
(2) Proposed changes by the financial market utility that could—
(i) Reduce or increase the inherent systemic risk the financial market utility poses; and
(ii) Reduce or increase the need for designation under § 1320.13; or
(iii) Reduce or increase the appropriateness of rescission under § 1320.13.
(3) The Council shall consider any written materials submitted by the financial market utility under this section before making a proposed determination under section 1320.13.
(a)
(b)
(c)
(a)
(b)
(c)
(1) Be made by the Council and may not be delegated by the Council; and
(2) Require the vote of not fewer than two-thirds of the members of the Council then serving, including the affirmative vote of the Chairperson of the Council.
(d)
(a)
(1) The Council determines that the waiver or modification is necessary to prevent or mitigate an immediate threat to the financial system posed by the financial market utility; and
(2) The Council provides notice of the waiver or modification to the financial market utility concerned, as soon as practicable, but not later than 24 hours after the waiver or modification.
(b)
(1) Be made by the Council;
(2) Require the affirmative vote of not fewer than two-thirds of members then serving, including the affirmative vote of the Chairperson of Council.
(a)
(b)
The Council may extend the time periods established in §§ 1320.12, 1320.14, or 1320.15 as the Council determines to be necessary or appropriate.
(a)
(b)
(1) Determine that it has reasonable cause to believe that the financial market utility meets the standards for systemic importance in § 1320.10; or
(2) Determine that that it has reasonable cause to believe that the designated financial market utility no longer meets the standards for systemic importance in § 1320.10; and
(3) Coordinate with the Supervisory Agency for the financial market utility to determine if the information is available from or may be obtained by the Supervisory Agency in the form, format, or detail required by the Council.
(c)
(d)
(1) Written notice that the Council is considering whether to make a proposed determination under § 1320.13; and
(2) A description of the basis for the Council's belief under paragraphs (b)(1) or (b)(2) of of this section.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. These airplanes, as modified by Bombardier Inc., will have a novel or unusual design features associated with a SVS that displays video imagery on the HUD. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
We must receive your comments by April 18, 2011.
You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM451, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM451 You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Dale Dunford, FAA, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2239 facsimile (425) 227-1100.
We invite interested people to take part in this rulemaking 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 ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning 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 on or before 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 acknowledge receipt of your comments on this proposal, include with your comments a self-addressed, stamped postcard on which you have written the docket number. We will stamp the date on the postcard and mail it back to you.
On January 26, 2007, Transport Canada Civil Aviation (TCCA), on behalf of Bombardier Inc., located in Montreal, Canada, applied to the New York Aircraft Certification Office (NYACO) for FAA approval of a type-design change on the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. Per Type Certificate Data Sheet (TCDS) T00003NY, those aircraft models are known under the marketing designation of Global Express and Global 5000, respectively. The change is to introduce the Rockwell-Collins avionics suite to replace the existing Honeywell Primus 2000EP avionics suite. It includes the installation of a SVS that displays video imagery.
Video display on the HUD constitutes new and novel technology for which the FAA has no certification criteria. Title 14, Code of Federal Regulations (14 CFR) 25.773 does not permit visual distortions and reflections that could interfere with the pilot's normal duties and was not written in anticipation of such technology. Other applications for certification of such technology are anticipated in the near future and magnify the need to establish FAA safety standards that can be applied consistently for all such approvals. Special conditions are therefore proposed as prescribed under the provisions of § 21.16.
Under the provisions of 14 CFR 21.101, Bombardier Inc. must show that the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in T00003NY or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in T00003NY are as follows:
Based on the application date, January 26, 2007, under the provisions of § 21.101, the applicable type-certification standards for the modification to the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes are as follows:
The original certification basis for the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes shown on TCDS T00003NY, Revision 13.
14 CFR part 25, effective February 1, 1965, including the latest applicable requirements of Amendments 25-1 through 25-119.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under 14 CFR 21.101.
The Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes will incorporate the following novel or unusual design features:
An SVS that displays video imagery on a HUD.
For many years the FAA has approved, on transport category airplanes, the use of HUD that display flight symbology, without a significant visual obscuration of the outside view. When the FAA began to evaluate the display of enhanced vision system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of 14 CFR 25.773. This rule does not permit distortions and reflections in the pilot-compartment view that can interfere with normal duties, and the rule was not written in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view. Therefore, the FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. While many of the characteristics of EVS and SVS video differ in some ways, they have one thing in common; the potential for interference with the outside view through the airplane windshield. The FAA proposes special conditions for new and novel technologies to achieve equivalent levels of safety.
Although the pilot may readily be able to see around and through small, individual, stroke-written symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the SVS may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as the pilot-compartment view currently available without the SVS image.
Because § 25.773 does not provide for any alternatives or considerations for such a new and novel system, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of this special condition is to provide the unique pilot-compartment-view requirements for the SVS installation.
As discussed above, these special conditions are applicable to the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. Should Bombardier Inc. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type-certification basis for Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes.
1. During any phase of flight in which it is to be used, the SVS imagery on the HUD must not degrade flight safety or interfere with the effective use of outside visual references for required pilot tasks.
2. To avoid unacceptable interference with the safe and effective use of the pilot-compartment view, the SVS must meet the following requirements:
a. The SVS design must minimize unacceptable display characteristics or artifacts (
b. Control of SVS image display brightness must be sufficiently effective in dynamically changing background (ambient) lighting conditions to avoid pilot distraction, impairment of the pilot's ability to detect and identify visual references, masking of flight hazards, or to otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single, manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (
c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the SVS image on demand, without having to remove hands from the flight controls and throttles.
d. The SVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such
e. The SVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (
f. A HUD system used to display SVS images must, if previously certified, continue to meet all of the requirements of the original approval.
3. The safety and performance of the pilot tasks associated with the use of the pilot-compartment view must not be degraded by the display of the SVS image. These tasks include the following:
a. Detection, accurate identification and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other flight hazards.
b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.
4. Appropriate limitations must be stated in the Operating Limitations section of the Airplane Flight Manual to prohibit the use of the SVS for functions that have not been found to be acceptable.
Architectural and Transportation Barriers Compliance Board.
Advance notice of proposed rulemaking.
The Architectural and Transportation Barriers Compliance Board (Access Board) is issuing this Advance Notice of Proposed Rulemaking (ANPRM) to develop accessibility guidelines for shared use paths. Shared use paths are designed for both transportation and recreation purposes and are used by pedestrians, bicyclists, skaters, equestrians, and other users. The guidelines will include technical provisions for making newly constructed and altered shared use paths covered by the Americans with Disabilities Act of 1990 (ADA) and the Architectural Barriers Act of 1968 (ABA) accessible to persons with disabilities.
Submit comments by June 27, 2011.
Submit comments by any of the following methods:
•
•
•
•
All comments received will be posted without change to
Peggy H. Greenwell, Office of Technical and Information Services, Access Board, 1331 F Street, NW., Suite 1000, Washington, DC 20004-1111. Telephone number: 202-272-0017 (voice); 202-272-0082 (TTY). Electronic mail address:
The Architectural and Transportation Barriers Compliance Board (Access Board) is responsible for developing accessibility guidelines to ensure that new construction and alterations of facilities subject to the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 12101
In separate rulemakings, the Board is developing accessibility guidelines for outdoor developed areas, including trails, and accessibility guidelines for pedestrian facilities in the public right-of-way, including sidewalks.
The Board issued a Notice of Proposed Rulemaking (NPRM) for the outdoor developed areas accessibility guidelines, including trails, under the ABA in 2007. 72 FR 34074 (June 20, 2007). The NPRM was based on a consensus report containing recommended accessibility guidelines for trails and other outdoor elements from the Board's Regulatory Negotiation Committee on Outdoor Developed Areas. The Board made available for public review a draft of the final outdoor developed areas accessibility guidelines in 2009. The NPRM and draft of the final outdoor developed areas accessibility guidelines included technical provisions for trails. References in this notice to the “Trails Guidelines” refer to the 2009 draft of the final outdoor developed areas accessibility guidelines (
The Board will issue a Notice of Proposed Rulemaking (NPRM) for pedestrian facilities in the public rights-of-way accessibility guidelines, including sidewalks, in the summer of 2011. The Board made available for public review drafts of the proposed public rights-of-way accessibility guidelines in 2002 and 2005. The drafts of the proposed public rights-of-way accessibility guidelines included technical provisions for pedestrian access routes within sidewalks. References in this notice to the “Pedestrian Access Route—Sidewalk Guidelines” refer to the 2005 draft of the proposed public rights-of-way accessibility guidelines (
Public comments received during these rulemakings raised questions about applying the technical provisions for trails and pedestrian access routes within sidewalks to shared use paths. Commenters recommended that the Board develop specific accessibility guidelines for shared use paths that address their unique characteristics. The Board agrees that shared use paths differ sufficiently from trails and sidewalks to warrant specific guidelines for making them accessible.
Like all of the Board's accessibility guidelines, the guidelines for shared use paths will apply to newly constructed and altered facilities. When the Board's final guidelines are adopted by other Federal agencies authorized to issue ADA or ABA standards, they will be enforceable.
Shared use paths are a type of trail designed to be part of a transportation system, providing off-road routes for a variety of users. The primary users of shared use paths are bicyclists and pedestrians, including pedestrians using mobility devices such as manual or motorized wheelchairs. While they may coincidently provide a recreational experience, shared use paths differ from other types of trails with their transportation focus and serving as a supplement to on-road bike lanes, shared roadways, bike boulevards, and paved shoulders. They may extend or complement a roadway network. Shared use path design is similar to roadway design but on a smaller scale and for lower speeds. Whether located within a highway right-of-way, provided along a riverbank, or established over natural terrain within an independent right-of-way, shared use paths differ from sidewalks and trails in that they are primarily designed for bicyclists and others for transportation purposes such as commuting to work.
Trails, on the other hand, are designed primarily for recreational purposes. Since they are not designed with a transportation focus, they are typically not parallel to a roadway. Trails are pedestrian routes developed primarily for outdoor recreational purposes and do not connect elements, spaces, or facilities within a site. Trails are largely designed for pedestrians and other users to “experience” the outdoors and may be used by a variety of users, but they are not designed for transportation purposes.
Sidewalks are located in a public right-of-way and typically are parallel to a roadway. Consequently, sidewalk grades (running slopes) must be generally consistent with roadway grades so that they fit into the right-of-way. Sidewalks are designed for pedestrians and are not designed for bicycles or other recreational purposes.
The American Association of State Highway and Transportation Officials (AASHTO) advocates transportation-related policies and provides technical services to support states in their efforts to efficiently and safely move people and goods. AASHTO develops and publishes more than 125 volumes of standards and guidelines that are used worldwide in the design, construction, maintenance, operation, and administration of highways, bridges, and other transportation facilities. AASHTO is considered a leading source of information related to the design and construction of pedestrian and bicycle facilities. The Board has worked closely with AASHTO over the years in developing accessibility criteria for pedestrian facilities and shared use paths. AASHTO developed the “Guide for the Planning, Design, and Operation of Pedestrian Facilities” (July 2004) and the “Guide for the Development of Bicycle Facilities” (1999). Although compliance with these AASHTO documents is voluntary, many states adopt these AASHTO documents as standards.
In February 2010, AASHTO made available draft revisions to the 1999 “Guide for the Development of Bicycle Facilities.” The February 2010 draft is named the “Guide for Planning, Design, and Operation of Bicycle Facilities.” References in this notice to the AASHTO Bicycle Facilities Guide refer to the February 2010 draft of the “Guide for Guide for Planning, Design, and Operation of Bicycle Facilities.” Chapter 5 of the AASHTO Bicycle Facilities Guide contains technical provisions for shared use paths. Chapter 5 applies a combination of the technical provisions in Board's Trails Guidelines and Pedestrian Access Route—Sidewalk Guidelines to shared use paths. The Board's rulemaking on shared use paths is timely given AASHTO's current plan to revise its guide for bicycle facilities and shared use paths. This rulemaking presents an opportunity for AASHTO and the Board to coordinate their efforts. AASHTO and the Board share a common interest in providing clear and consistent technical provisions for designers, owners and operators of shared use paths. The Board welcomes this opportunity.
On September 13, 2010, the Board held a public information meeting in conjunction with the ProWalk/ProBike 2010 Conference convened by the National Center for Bicycling and Walking. This was an opportunity for individuals with disabilities, designers of shared use paths, and other interested parties to provide information to assist the Access Board to consider how best to approach the development of accessibility guidelines for shared use paths. The meeting featured representatives from the State of Washington Department of Transportation, Florida Department of Transportation, AASHTO, and the Federal Highway Administration (FHWA). Meeting participants addressed major issues, including how to define shared use paths and possible technical provisions. Input from this meeting is reflected in this notice.
The Board seeks input from the public, including individuals with disabilities, and from representatives of
Given the similarity between exterior pedestrian routes, including shared use paths, sidewalks, trails, and accessible routes, it is important to define the term “shared use path” used in this document in order to minimize any potential confusion regarding applicable accessibility criteria.
To accomplish this, the Board has developed a draft definition for “shared use path”. AASHTO and several city, state, and Federal agencies have developed definitions; however, currently there is no universally accepted definition. The table below includes some of those definitions.
In related rulemaking, the Board developed a definition for “trails” in the Trails Guidelines and will reference the 2009 Manual of Uniform Traffic Control Devices (MUTCD) definition of “sidewalks” in the Pedestrian Access Route—Sidewalk Guidelines. These definitions are provided below for comparison to the above definitions of “shared use path.”
Participants attending the information meeting in September 2010 held in conjunction with the ProWalk/ProBike meeting noted the need for a definition of “shared use path.” They identified the key characteristics of a shared use path. The focus on a “transportation” purpose and “multi-use” were found to be primary factors distinguishing shared use paths from sidewalks and trails. Shared use paths are designed primarily for bicycles and pedestrians. The Board has used this input to develop the draft definition below.
Shared use paths are used by pedestrians and bicyclists, joggers, skaters, wheelchair users (both nonmotorized and motorized), equestrians, and other nonmotorized users. The draft definition does not include a list of all the groups that may use a shared use path. The purpose of the definition is to clarify when to apply the scoping and technical provisions for these paths. Local jurisdictions have authority to establish permissible uses on shared use paths. The Department of Justice (DOJ) ADA regulations require local jurisdictions to permit individuals with mobility disabilities to use manually-operated and power-driven wheelchairs in any areas open to the public.
Based on input at the information meeting in September 2010 and other sources, the Board has developed draft technical provisions for shared use paths and invites public comment. Discussion follows each of the draft technical provisions. For some of the draft provisions, we have provided tables showing corresponding provisions for sidewalks in the Pedestrian Access Route—Sidewalk Guidelines; trails in the Trails Guidelines; and shared use paths in the February 2010 draft AASHTO Bicycle Facilities Guide. The draft technical provisions establish criteria for the following components of a shared use path: surface; changes in level (vertical alignment and surface discontinuities); horizontal openings; width; grade and cross slope; protruding objects; gates
A firm, stable, and slip resistant surface is necessary for persons with disabilities using wheeled mobility devices. Bicyclists with narrow-tired bicycles and in-line skaters also need a hard, durable surface. Shared use paths typically are comprised of asphalt or concrete and these surfaces are generally accessible for people with disabilities. These surfaces perform well in inclement weather and require minimal maintenance. Unpaved surfaces that are firm, stable, and slip resistant may be used; however, they may erode over time requiring regular maintenance.
In addition to firm, stable, and slip resistant surfaces, smooth surfaces are also necessary for the safe use of wheeled mobility devices, as well as bicycles and in-line skaters. The draft technical provisions allow vertical changes in level up to
Surface openings or gaps must be minimized in order to ensure a smooth surface on shared-use paths. Utility covers and drainage grates can be hazards and, for the safety of all users, must be treated. Special treatment is necessary where shared use paths cross railroad crossings, both freight and non-freight for the safe passage of wheeled mobility devices, as well as bicycles and other users. The AASHTO Bicycle Facilities Guide recommends that railroad crossings be smooth and be designed at an angle between 60 and 90 degrees to the direction of travel in order to minimize the danger of falls.
The draft technical provisions for surface gaps in shared use paths are consistent with the draft provisions in the Pedestrian Access Route—Sidewalk Guidelines. In most cases, the guidelines will require surface gaps or openings on shared use paths to be no wider than 1/2 inch. However, this specification is not practicable at rail tracks where gaps must be at least 2
The AASHTO Bicycle Facilities Guide recommends the paved width for a shared use path to be 10 feet minimum. Typically, widths range from 10 to 14 feet with the wider ranges in areas with high use or when planning for a wider variety of user groups. In very rare circumstances, a reduced width of 8 feet may be used. Wider shared use paths also are recommended where the path is used by larger maintenance vehicles; on steep grades to provide additional passing area; or through curves to provide more operating space.
The Board is considering requiring accessible shared use paths to provide at least 5 feet minimum width to address those rare circumstances where the AASHTO Bicycle Facilities Guide is not applied so that sufficient space is provided for wheelchair turning and to allow wheelchair users and others to pass one another.
Individuals with disabilities using wheeled mobility devices generally need less steep slopes in order to conserve energy and to better maintain control of the wheeled mobility device. For these reasons, the Board is considering a 5 percent maximum grade on newly constructed and altered shared paths that are not contained within a street or highway border. The AASHTO Bicycle Facilities Guide recommends that grades greater than 5 percent are undesirable for a variety of reasons. Bicyclists may find ascents over-taxing and descents uncomfortable where speed is likely to build. Steep grades affect the safety of all users, particularly where multiple types of users are on the path at the same time. For example, pedestrians with disabilities may have difficulty avoiding faster moving bicycles. More importantly, however, pedestrians with disabilities are likely to experience greater difficulty traveling on steeper slopes than others.
Where the shared use path is contained within a street or highway border, the grade may not exceed the general grade established for the adjacent street or highway. This is consistent with the grade provisions for sidewalks.
Excessive cross slope (exceeding 2 percent) is a major barrier to travel along shared use paths for individuals using wheeled mobility devices and can significantly impede forward progress on an uphill slope and compromise control and balance in downhill travel and on turns. Cross slope also negatively affects pedestrians who have braces or lower-limb prostheses and may use walkers or crutches, and those with gait, balance, and stamina impairments. Energy that might otherwise be used in forward travel must be expended to resist the perpendicular force of a cross slope along a route of travel. The AASHTO Bicycle Facilities Guide recommends a one percent cross slope, particularly at turns where bicyclists tend to lean to one side while turning. A one percent cross slope also provides sufficient slope to convey surface drainage in most situations.
The draft technical provisions for protruding objects are derived from the Board's ADA and ABA Accessibility Guidelines and Pedestrian Access Route—Sidewalk Guidelines. The provisions addresses objects that may project into shared use paths in a manner hazardous to people with vision impairments. Any protrusion on a shared use path is considered hazardous for all users, including individuals with disabilities. These technical provisions would apply to the full width of the shared use path. Objects mounted on walls or posts with leading edges above the standard sweep of canes (27 inches) and below the standard head room clearance (80 inches) would be limited to a 4 inch protrusion.
The draft technical provisions for gates and barriers are based on the Board's ADA and ABA Accessibility Guidelines and Trails Guidelines. Gates or barriers often are wider than 32 inches to allow for the safe passage of bicycles and other authorized users of shared use paths. The Board is proposing to require a 32 inch minimum clearance to address the rare circumstance where gate or barrier openings are deliberately narrow and could restrict access by wheelchair users unless a minimum width applies. A 32 inch wide clear opening provides the minimum clearance necessary to allow passage of an occupied wheelchair or other mobility device. The operation and location provisions for gate hardware are necessary to ensure that individuals with disabilities can operate the hardware.
Treatment of elevation changes, such as at curbs, and controlling cross slope are key factors in ensuring accessibility, particularly where shared use paths and roadways intersect. The draft technical provisions for curb ramps, blended transitions, and detectable warnings are based on the Board's Pedestrian Access Route—Sidewalk Guidelines. In general, the draft provisions for shared use paths require the following.
• The opening of a shared use path at a roadway must be at least as wide as the shared use path itself;
• A curb ramp or blended transition must be provided, and must be the full width of the shared use path;
• The running slope of the curb ramp must not exceed 8.3 percent and blended transition must not exceed 5 percent;
• The cross slope must be the same as the running slope of the roadway at midblock crossings; and
• Where the shared use path crosses a roadway or railway, detectable warnings must be provided the full width of the curb ramp or blended transition for a depth of 2 feet.
Markings at crossings of shared use paths and roadways must also comply with the provisions of Part 3—Markings of the 2009 Manual on Uniform Traffic Control Devices (MUTCD).
The Board has limited the requirement for detectable warnings to locations where a shared use path crosses a roadway or a railway. The Board has not included a requirement for detectable warnings where shared use paths cross other paths or pedestrian facilities. Where pedestrians and bicyclists share a pathway, established bicycle and pedestrian “rules of the road” should provide sufficient guidance for safe use.
In some locations, a shared use path may be part of a sidewalk, or part of a trail. Guidance is needed to clarify which set of guidelines should be applied where there is overlap since the technical provisions are different in some areas. For example, Pedestrian Access Route—Sidewalk Guidelines permit the grade to follow the slope of the roadway and Trails Guidelines specify a maximum grade. The Board is interested in suggestions for ways to treat areas of shared use paths that overlap sidewalks and trails that will provide an acceptable level of accessibility while taking into consideration any unique conditions or situations that may occur where these routes overlap.
The draft technical provisions in this ANPRM apply to the newly constructed and altered shared use paths. Shared use paths may be constructed over many miles and connected with other pedestrian routes, creating a network for transportation purposes. The Board is interested in more information regarding connections between shared use paths and other parts of a transportation network.
The Board is considering including the accessibility guidelines for shared use paths in the same document as the accessibility guidelines for pedestrian facilities in the public right-of-way. State and local government departments of transportation appear to be the principal entities that design and construct shared use paths since these facilities are an extension of the transportation network, and having the accessibility guidelines for shared use paths in the same document as pedestrian facilities in the public right-of-way appears to be a logical choice. In addition, many of the draft technical provisions for shared use paths (
The Board will prepare regulatory assessments required by Executive Orders 12866 and 13563, and the Regulatory Flexibility Act as a part of a Notice of Proposed Rulemaking (NPRM), the next step in this rulemaking.
• Number of existing and planned shared-use paths at the state or national level;
• Number of shared-use paths constructed each year (on average) within your jurisdiction;
• Typical cost for a new shared-use path on a per-mile basis;
• Sources of funding for the construction of shared-use paths (
• The extent to which the AASHTO Bicycle Facilities Guide, or other design guides and standards are used for shared use paths;
• Whether any of the draft technical provisions would result in additional costs for design work, materials, earthmoving, retaining structures, or other items compared to current construction practices or design guides and standards currently followed;
• What, if any, unintended consequences (positive or negative) could result from an agency adopting the guidelines, and
• What impacts will the draft technical provisions have on small entities and are there alternatives that would minimize those impacts?
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (FCC) seeks comment on a series of proposals to streamline and clarify the Commission's rules concerning or affecting retransmission consent negotiations. The Commission believes that these rule changes could allow the market-based negotiations contemplated by the statute to proceed more smoothly, provide greater certainty to the negotiating parties, and help protect consumers.
Submit comments on or before May 27, 2011, and submit reply comments on or before June 27, 2011. See
You may submit comments, identified by MB Docket No. 10-71, by any of the following methods:
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In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act proposed information collection requirements contained herein should be submitted to the Federal Communications Commission via e-mail to
For additional information on this proceeding, contact Diana Sokolow,
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), MB Docket No. 10-71, FCC No. 11-31, adopted and released March 3, 2011. The full text of the NPRM is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; the contractor's Web site,
This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before May 27, 2011.
Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
47 CFR 76.1607 states that a cable operator shall provide written notice by certified mail to all stations carried on its system pursuant to the must-carry rules at least 60 days prior to any change in the designation of its principal headend.
47 CFR 76.1617(a) states within 60 days of activation of a cable system, a cable operator must notify all qualified NCE stations of its designated principal headend by certified mail.
47 CFR 76.1617(b) states within 60 days of activation of a cable system, a cable operator must notify all local commercial and NCE stations that may not be entitled to carriage because they either:
(1) Fail to meet the standards for delivery of a good quality signal to the cable system's principal headend, or
(2) May cause an increased copyright liability to the cable system.
47 CFR 76.1617(c) states within 60 days of activation of a cable system, a cable operator must send by certified mail a copy of a list of all broadcast television stations carried by its system and their channel positions to all local commercial and noncommercial television stations, including those not designated as must-carry stations and those not carried on the system.
47 CFR 76.1708(a) states that the operator of every cable television system shall maintain for public inspection the designation and location of its principal headend. If an operator changes the designation of its principal headend, that new designation must be included in its public file.
The NPRM proposes to redesignate 47 CFR 76.1601 as 47 CFR 76.1601(a), and to add a new 47 CFR 76.1601(b). If adopted, new 47 CFR 76.1601(b) would require broadcast television stations and multichannel video programming distributors (MVPDs) to notify affected subscribers of the potential deletion of a broadcaster's signal a minimum of 30 days in advance of a retransmission consent agreement's expiration, unless a renewal or extension agreement has been executed, and regardless of whether the signal is ultimately deleted. All other remaining existing information collection requirements would stay as they are, and the various burden estimates would be revised to reflect new 47 CFR 76.1601(b).
1. In this Notice of Proposed Rulemaking (NPRM), we seek comment on a series of proposals to streamline and clarify our rules concerning or affecting retransmission consent negotiations. Our primary objective is to assess whether and how the Commission rules in this arena are ensuring that the market-based mechanisms Congress designed to govern retransmission consent negotiations are working effectively and, to the extent possible, minimize video programming service disruptions to consumers.
2. The Communications Act of 1934, as amended (the Act), prohibits cable systems and other multichannel video programming distributors (MVPDs) from retransmitting a broadcast station's signal without the station's consent. 47 U.S.C. 325(b)(1)(A). This consent is what is known as “retransmission consent.” The law requires broadcasters and MVPDs to negotiate for retransmission consent in good faith.
3. Accordingly, we have concluded that it is appropriate for us to reexamine our rules relating to retransmission consent. We consider below revisions to the retransmission consent and related rules that we believe could allow the market-based negotiations contemplated by the statute to proceed more smoothly, provide greater certainty to the negotiating parties, and help protect consumers. Accordingly, as discussed below, we seek comment on rule changes that would:
• Provide more guidance under the good faith negotiation requirements to the negotiating parties by:
○ Specifying additional examples of per se violations in § 76.65(b)(1) of the Commission's rules; and
○ Further clarifying the totality of the circumstances standard of § 76.65(b)(2) of the Commission's rules;
• Improve notice to consumers in advance of possible service disruptions by extending the coverage of our notice rules to non-cable MVPDs and broadcasters as well as cable operators, and specifying that, if a renewal or extension agreement has not been executed 30 days in advance of a retransmission consent agreement's expiration, notice of potential deletion of a broadcaster's signal must be given to consumers regardless of whether the signal is ultimately deleted;
• Extend to non-cable MVPDs the prohibition now applicable to cable operators on deleting or repositioning a local commercial television station during ratings “sweeps” periods; and
• Allow MVPDs to negotiate for alternative access to network programming by eliminating the Commission's network non-duplication and syndicated exclusivity rules.
4. The current regulatory scheme for carriage of broadcast television stations was established by the Cable Television Consumer Protection and Competition Act of 1992 (1992 Cable Act), Public Law 102-385, 106 Stat. 1460 (1992). In 1992, unlike today, local broadcast television stations seeking to reach viewers in a particular DMA through an MVPD service often had only one option—namely, a single local cable provider. While broadcasters benefited from cable carriage, Congress recognized that broadcast programming “remains the most popular programming on cable systems, and a substantial portion of the benefits for which consumers pay cable systems is derived from carriage of the signals of network affiliates, independent television stations, and public television stations.”
5. Pursuant to the statutory provisions enacted in 1992, television broadcasters elect every three years whether to proceed under the retransmission consent requirements of section 325 of the Act, or the mandatory carriage (must carry) requirements of sections 338 and 614 of the Act.
6. Since 2001, broadcasters have also had mandatory carriage rights on DBS systems. The Satellite Home Viewer Improvement Act of 1999 (SHVIA) gives satellite carriers a statutory copyright license to retransmit local broadcast stations to subscribers in the station's market, also known as “local-into-local” service. SHVIA was enacted as Title I of the Intellectual Property and Communications Omnibus Reform Act of 1999 (IPACORA) (relating to copyright licensing and carriage of broadcast signals by satellite carriers, codified in scattered sections of 17 and 47 U.S.C.), Public Law 106-113, 113 Stat. 1501, Appendix I (1999). Generally, when a satellite carrier provides local-into-local service pursuant to the statutory copyright license, the satellite carrier is obligated to carry any qualified local television station in the particular DMA that has made a timely election for mandatory carriage, unless the station's programming is duplicative of the programming of another station carried by the carrier in the DMA or the station does not provide a good quality signal to the carrier's local receive facility.
7. As an alternative to seeking mandatory carriage, a broadcaster may elect carriage under the retransmission consent rules, which allow for negotiations with cable operators and other MVPDs for carriage. A broadcaster electing retransmission consent may accept or request compensation for carriage in retransmission consent negotiations. The legislative history of section 325 indicates that Congress intended “to establish a marketplace for the disposition of the rights to retransmit broadcast signals; it is not the Committee's intention in this bill to dictate the outcome of the ensuing marketplace negotiations.” S. Rep. No. 92, 102nd Cong., 1st Sess. 1991,
8. Initially, section 325 of the Act did not include any standards governing retransmission consent negotiations between broadcasters and MVPDs. That changed in 1999 when Congress adopted SHVIA, which contained provisions concerning the satellite industry, as well as television broadcast stations and terrestrial MVPDs. Specifically, Congress required broadcast television stations engaging in retransmission consent negotiations with any MVPD to negotiate in good faith.
* * * prohibit a television broadcast station that provides retransmission consent from * * * failing to negotiate in good faith, and it shall not be a failure to negotiate in good faith if the television broadcast station enters into retransmission consent agreements containing different terms and conditions, including price terms, with different multichannel video programming distributors if such different terms and conditions are based on competitive marketplace considerations.
* * * prohibit a television broadcast station from * * * refusing to negotiate in good faith regarding retransmission consent agreements. A television station may generally offer different retransmission consent terms or conditions, including price terms, to different distributors. The [Commission] may determine that such different terms represent a failure to negotiate in good faith only if they are not based on competitive marketplace considerations.
9. In implementing the good faith negotiation requirement, the Commission concluded “that the statute does not intend to subject retransmission consent negotiation to detailed substantive oversight by the Commission. Instead, the order concludes that Congress intended that the Commission follow established precedent, particularly in the field of labor law, in implementing the good faith retransmission consent negotiation requirement.”
10. The Commission adopted a two-part framework to determine whether broadcasters and MVPDs negotiate retransmission consent in good faith. First, the Commission established a list of seven objective good faith negotiation standards, the violation of which is considered a per se breach of the good faith negotiation obligation.
11. The Commission concluded that Congress did not intend for it to sit in judgment of the terms of every executed retransmission consent agreement.
12. There have been very few complaints filed alleging violations of the Commission's good faith rules. For example, in 2001, the former Cable Services Bureau issued an order denying EchoStar Satellite Corporation's retransmission consent complaint alleging that Young Broadcasting, Inc. et al. failed to negotiate in good faith.
13. In March 2010, 14 MVPDs and public interest groups filed a rulemaking petition arguing that the Commission's retransmission consent regulations are outdated and are harming consumers. Time Warner Cable Inc. et al. Petition for Rulemaking to Amend the Commission's Rules Governing Retransmission Consent, MB Docket No. 10-71, at 1 (filed Mar. 9, 2010) (the Petition). The petitioners argued that changes in the marketplace, and the increasingly contentious nature of retransmission consent negotiations, justify revisions to the Commission's rules governing retransmission consent. Specifically, the Petition stated that, in 1992, Congress acted out of “concern that cable operators were functioning as monopolies and in turn threatened to undercut the public interest benefits associated with over-the-air broadcasting.” Petition at 2-3 (footnote omitted). The petitioners argued that broadcasters today “enjoy distribution options beyond the cable incumbent in
14. On March 19, 2010, the Media Bureau released a Public Notice inviting public comment on the Petition.
15. In the past year, we have seen high profile retransmission consent disputes result in carriage impasses. When Cablevision Systems Corp. (Cablevision) and News Corp.'s agreement for two Fox-affiliated television stations and one MyNetwork TV-affiliated television station expired on October 15, 2010 and the parties did not reach an extension or renewal agreement, Cablevision was forced to discontinue carriage of the three stations until agreement was reached on October 30, 2010. The carriage impasse resulted in affected Cablevision subscribers being unable to view on cable the baseball National League Championship Series, the first two games of the World Series, a number of NFL regular season games, and other regularly scheduled programs. Previously, on March 7, 2010, Walt Disney Co. (Disney) and Cablevision were unable to reach agreement on carriage of Disney's ABC signal for nearly 21 hours after a previous agreement expired. As a result, the approximately 3.1 million households served by Cablevision were unable to view the first 14 minutes of the Academy Awards through their cable provider. Most recently, we are aware of losses of programming resulting from retransmission consent carriage impasses involving DISH Network and Chambers Communications Corp., Time Warner Cable and Smith Media LLC, DISH Network and Frontier Radio Management, DirecTV and Northwest Broadcasting, Mediacom and KOMU-TV, and Full Channel TV and Entravision.
16. In addition, consumers have been concerned about other high profile retransmission consent negotiations that seemed close to an impasse. For example, a retransmission consent agreement with Time Warner Cable for News Corp.'s Fox television stations expired at midnight on December 31, 2009. A statement from FCC Chairman Julius Genachowski at the time acknowledged that a failure to conclude a new agreement could harm consumers, noting that “[c]ompanies shouldn't force cable-watching football fans to scramble for other means of TV delivery on New Year's weekend.”
17. Our goal in this proceeding is to take appropriate action, within our existing authority, to protect consumers from the disruptive impact of the loss of broadcast programming carried on MVPD video services. Subscribers are the innocent bystanders adversely affected when broadcasters and MVPDs fail to reach an agreement to extend or renew their retransmission consent contracts. In light of the changing marketplace, our proposals in this NPRM are intended to update the good faith rules and remedies in order to better utilize the good faith requirement as a consumer protection tool. While one way to protect consumers' interests might be for the Commission to order that a station continue to be carried notwithstanding the parties' failure to reach an agreement, the statute does not authorize carriage without the station's consent, as discussed below. Therefore, we have identified other measures that we could take to improve the process and decrease the occurrence of these disruptions. As detailed in this NPRM, we seek comment on these measures and on others that could be beneficial and constructive. Is there an impact on the basic service rate that consumers pay as a result of the retransmission consent fees or disputes?
18. As a threshold matter, we note that the Petition proposed, among other suggestions, that the Commission adopt a mandatory arbitration mechanism for retransmission consent disputes, and provide for mandatory interim carriage while an MVPD negotiates in good faith or while dispute resolution proceedings are pending. Petition at 31-40. In response to the Public Notice seeking comment on the Petition, some commenters have agreed that the Commission should adopt mandatory dispute resolution procedures and/or interim carriage mechanisms. In contrast, other commenters have argued that the Commission should not, as a matter of policy, adopt mandatory dispute resolution procedures or interim carriage mechanisms, and/or that in any event the Commission lacks authority to adopt such procedures and mechanisms. We do not believe that the Commission has authority to adopt either interim carriage mechanisms or mandatory binding dispute resolution procedures applicable to retransmission consent negotiations. First, regarding interim carriage, examination of the Act and its legislative history has convinced us that the Commission lacks authority to order carriage in the absence of a broadcaster's consent due to a retransmission consent dispute. Rather, section 325(b) of the Act expressly prohibits the retransmission of a broadcast signal without the broadcaster's consent. 47 U.S.C. 325(b)(1)(A) (“No cable system or other multichannel video programming distributor shall retransmit the signal of a broadcasting station, or any part thereof, except—(A) with the express authority of the originating station”). Furthermore, consistent with the
19. In light of the statutory mandate in section 325 and the restrictions imposed by the ADRA, we do not believe that we have authority to require either interim carriage requirements or mandatory binding dispute resolution procedures. Parties may comment on that conclusion. We seek comment below on other ways the Commission can protect the public from, and decrease the frequency of, retransmission consent negotiation impasses within our existing statutory authority.
20. When the Commission originally adopted the good faith standards in 2000, the circumstances were different from the conditions industry and consumers face today. At that time programming disruptions due to retransmission consent disputes were rare. The Commission's approach then was to provide broad standards of what constitutes good faith negotiation but generally leave the negotiations to the parties.
21. As discussed above, in implementing the reciprocal good faith negotiation requirement of section 325 of the Act, the Commission established a list of seven objective good faith negotiation standards. Violation of any of these standards by a broadcast station or MVPD is considered a per se breach of its obligation to negotiate in good faith. The record indicates that there is some uncertainty in the marketplace about whether certain conduct constitutes a failure to negotiate in good faith. Accordingly, we seek comment on augmenting our rules to include additional objective good faith negotiation standards, the violation of which would be considered a per se breach of § 76.65 of the Commission's rules. We believe that additional per se good faith negotiation standards could increase certainty in the marketplace, thereby promoting the successful completion of retransmission consent negotiations and protecting consumers from impasses or near impasses. In addition, we seek comment on clarifying various aspects of our existing good faith rules.
22. First, we seek comment on whether it should be a per se violation for a station to agree to give a network with which it is affiliated the right to approve a retransmission consent agreement with an MVPD or to comply with such an approval provision. In response to the Public Notice seeking comment on the Petition, certain commenters discussed network involvement in the retransmission consent process. Some commenters have argued that the Commission should consider preventing networks from dictating whether and by what terms an affiliated station may grant retransmission consent. Others have argued that provisions in network-affiliate agreements do not interfere with the requirement that broadcasters negotiate retransmission consent in good faith. Interested parties have argued that, in recent retransmission consent negotiations, a network's exercise of its contractual approval right has hindered the progress of the negotiations. The good faith rules currently require the Negotiating Entity to designate a representative with authority to make binding representations on retransmission consent and not unreasonably delay negotiations. 47 CFR 76.65(b)(1)(ii) and (iii). If a station has granted a network a veto power over any retransmission consent agreement with an MVPD, then it has arguably impaired its own ability to designate a representative who can
23. Second, we seek comment on whether it should be a per se violation for a station to grant another station or station group the right to negotiate or the power to approve its retransmission consent agreement when the stations are not commonly owned. Such consent might be reflected in local marketing agreements (LMAs), Joint Sales Agreements (JSAs), shared services agreements, or other similar agreements. Some commenters have noted problems that occur when one station or station group negotiates retransmission consent on behalf of a station or station group that is not commonly owned. The Commission believes that, when a station relinquishes its responsibility to negotiate retransmission consent, there may be delays to the negotiation process, and negotiations may become unnecessarily complicated if an MVPD is forced to negotiate with multiple parties with divergent interests, potentially including interests that extend beyond a single local market. The proposal on which we seek comment would effectively prohibit joint retransmission consent negotiations by stations that are not commonly owned. Should the Commission, on a going-forward basis, abrogate any such terms that appear in existing agreements? One commenter has argued that the negotiating arrangements about which others complain are rare, and that they are largely in small markets “where such sharing agreements may well be necessary for the stations to survive economically.” Accordingly, we seek comment on the prevalence of agreements that grant one station or station group the right to negotiate or approve the retransmission consent agreement of a station or station group that is not commonly owned; the impact of such arrangements on the negotiation process; and the potential harms and benefits of prohibiting such agreements. How should the Commission balance any asserted benefits of such sharing agreements against the goal of protecting consumers from service disruptions?
24. Third, we seek comment on whether it should be a per se violation for a Negotiating Entity to refuse to put forth bona fide proposals on important issues. One commenter has stated that a refusal to make proposals as to key issues is a bad faith tactic in retransmission consent negotiations. How should we identify the category of issues about which a Negotiating Entity is required to put forth a bona fide proposal? How should we determine what constitutes a bona fide proposal, or whether a proposal is sufficiently unreasonable as to constitute bad faith? We note that the Commission has defined a bona fide request in the context of a programmer's request for leased access on a system of a small cable operator.
25. Fourth, we seek comment on whether it should be a per se violation for a Negotiating Entity to refuse to agree to non-binding mediation when the parties reach an impasse within 30 days of the expiration of their retransmission consent agreement. We seek comment on whether 30 days from the expiration of the retransmission consent agreement is the appropriate time frame within which to require non-binding mediation. In previous retransmission consent disputes, the Commission has encouraged parties to engage in voluntary dispute resolution mechanisms as a means to reach agreement because a neutral third party may be able to facilitate agreement where the parties have otherwise failed. The Commission previously stated its belief “that voluntary mediation can play an important part in the facilitation of retransmission consent and [we] encourage parties involved in protracted retransmission consent negotiations to pursue mediation on a voluntary basis.”
26. Fifth, we seek comment on what it means to “unreasonably” delay retransmission consent negotiations. Section 76.65(b)(1)(iii) of the Commission's rules currently provides that “[r]efusal by a Negotiating Entity to meet and negotiate retransmission consent at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations,” constitutes a violation of the Negotiating Entity's duty to negotiate retransmission consent in good faith. 47 CFR 76.65(b)(1)(iii). Commenters report that negotiations have been adversely affected by a party—either a broadcaster or an MVPD—delaying the commencement or progress of a negotiation as a tactic to gain advantage rather than out of necessity. We believe that delaying retransmission consent negotiations could predictably and intentionally lead
27. Sixth, we seek comment on whether a broadcaster's request or requirement, as a condition of retransmission consent, that an MVPD not carry an out-of-market “significantly viewed” (SV) station violates § 76.65(b)(1)(vi) of the Commission's rules. Section 76.65(b)(1)(vi) of the Commission's rules provides that “[e]xecution by a Negotiating Entity of an agreement with any party, a term or condition of which, requires that such Negotiating Entity not enter into a retransmission consent agreement with any other television broadcast station or multichannel video programming distributor” is a violation of the Negotiating Entity's duty to negotiate in good faith.
28. Finally, we seek comment on whether there are any additional actions or practices that should be deemed to constitute per se violations of a Negotiating Entity's duty to negotiate retransmission consent agreements in good faith under § 76.65 of the Commission's rules, or that we should otherwise prohibit in order to protect consumers. For example, if a broadcaster or MVPD repeatedly insists on month-to-month retransmission consent agreements or a new agreement term of less than one year, should that constitute a per se violation of the Negotiating Entity's duty to negotiate retransmission consent in good faith? Month-to-month retransmission consent agreements are different from short-term extensions to existing retransmission consent agreements for the purpose of negotiating a mutually satisfactory long-term retransmission consent agreement, which the Commission encourages as a means of avoiding a loss of programming. In addition, how should the Commission view the required inclusion of a “most favored nation” (MFN) clause in a retransmission consent agreement? An MFN clause refers to an agreement that if Party A awards terms or conditions to a third party that are more favorable than those currently in place with Party B, then Party A must offer the more favorable terms or conditions to Party B. How often are MFN clauses included in retransmission consent agreements, what is their intended purpose, and what is their effect on retransmission consent negotiations?
29. With respect to other practices the Commission should consider, one commenter stated, “Small and mid-size MVPDs could greatly enhance their ability to negotiate with broadcasters if they were permitted to pool their resources, appoint an agent, and negotiate as a group.” We seek comment on this proposal, including how to reconcile it with the proposal described above that would prevent a broadcast station from granting to another station or station group the right to negotiate or the power to approve its retransmission consent agreement when the stations are not commonly owned. In addition, we ask parties to comment on whether small and new entrant MVPDs are typically forced to accept retransmission consent terms that are less favorable than larger or more established MVPDs, and if so, whether this is fair. And, several commenters have suggested that the Commission should address the ability of broadcasters to condition retransmission consent on the purchase of other programming services, such as the programming of affiliated non-broadcast networks. We note that a number of commenters see problems with such broadcaster requirements. Is this something that the Commission should consider in evaluating whether broadcasters have negotiated in good faith?
30. Are there additional actions that should be listed as presumptive breaches of good faith but subject to arguments rebutting the presumption in special circumstances? Would the approach of rebuttable presumptions rather than per se violations offer beneficial flexibility or diminish the benefits of greater specificity in the good faith rule? We also invite comment on ways the Commission can strengthen the remedies available upon finding a violation of the good faith standards to encourage compliance with the rules. Are there additional penalties that the Commission can impose for failure to negotiate in good faith that would provide a meaningful incentive for compliance with the good faith standard, such as considering such failure in the context of license renewals, including,
31. We seek comment on revising the “totality of the circumstances” standard for determining whether actions in the negotiating process are taken in good faith, in an effort to improve the standard's utility and to better serve innocent consumers. As described in greater detail below, we invite comment on how the Commission can more effectively evaluate complaints that do not allege per se violations but involve behavior calculated to threaten disruption of consumer access as a negotiating tactic. We seek comment on particular behavior that the Commission should evaluate in the context of the “totality of the circumstances” standard.
32. Pursuant to § 76.65(b)(2) of the Commission's rules, “a Negotiating Entity may demonstrate, based on the totality of the circumstances of a particular retransmission consent negotiation, that a television broadcast station or multichannel video programming distributor breached its duty to negotiate in good faith * * *.” 47 CFR 76.65(b)(2). The Commission has stated, “[w]e do not intend the totality of the circumstances test to serve as a `back door' inquiry into the substantive terms negotiated between the parties.”
33. Some commenters have argued that the Commission should clarify or expand on the totality of the circumstances standard, including the related concept of competitive marketplace considerations, while others do not support changes to our rules governing retransmission consent. We seek comment on whether to provide more specificity for the meaning and scope of the “totality of the circumstances” standard of § 76.65(b)(2) of the Commission's rules, in order to define more clearly the instances in which a Negotiating Entity may violate this standard. For example, the Media Bureau previously found a violation of the totality of the circumstances standard, in response to a petition filed by WLII/WSUR Licensee Partnership, G.P. against Choice Cable T.V. (Choice), regarding the parties' negotiations for carriage of WLII-TV and its booster stations WSUR-TV and WORA-TV.
34. Adequate advance notice of retransmission consent disputes for consumers can enable them to prepare for disruptions in their video service. However, such notice can be unnecessarily costly and disruptive when it creates a false alarm, i.e., concern about disruption that does not come to pass, and induces subscribers to switch MVPD providers in anticipation of a service disruption that never takes place. We seek comment on how best to balance useful advance notice against the potential for causing unnecessary anxiety to consumers. We invite comment on how best to revise our notice rules in light of these considerations, as well as the economic impact of notice requirements on both broadcasters and MVPDs.
35. Our current notice requirements apply to cable operators only and are not violated by a failure to provide notice unless service is actually disrupted. Specifically, section 614(b)(9) of the Act requires a cable operator to notify a local commercial television station in writing at least 30 days before either deleting or repositioning that station. 47 U.S.C. 534(b)(9). Section 76.1601 of the Commission's rules further specifies that a cable operator must “provide written notice to any broadcast television station at least 30 days prior to either deleting from carriage or repositioning that station. Such notification shall also be provided to subscribers of the cable system.” 47 CFR 76.1601. (§§ 76.1602 and 76.1603 of the Commission's rules contain additional requirements for notifying subscribers and cable franchise authorities. 47 CFR 76.1602, 76.1603.) Accordingly, under the current rule, if a cable operator fails to give notice 30 days before the retransmission consent agreement's expiration, and the agreement is ultimately renewed without the station being deleted, then the cable operator has not violated the rule. If, however, the station is ultimately deleted, and the cable operator has not given the required 30 day notice, then the cable operator is in violation of § 76.1601 of the Commission's rules. Of course, the cable operator does not know whether the negotiations will ultimately fail and it will be required to delete the broadcast signal until the agreement actually expires. We note that, notwithstanding the fact that the Commission may not have enforced the current notice requirements in all instances in which a station is deleted without notice, it reserves the right to do so in its discretion.
36. Some commenters have proposed that we not only clarify but also expand our existing notice requirements so that consumers will have sufficient time to determine their options and take appropriate action in the event that a broadcast signal is deleted from an MVPD's service. Asserted benefits of enhanced notice include providing consumers with sufficient time to obtain access to particular broadcast signals by alternative means, and encouraging the successful completion of renewal
37. We seek comment on whether we should revise our notice rules to require that notice of potential deletion of a broadcaster's signal be given to consumers once a retransmission consent agreement is within 30 days of expiration, unless a renewal or extension has been executed, and regardless of whether the station's signal is ultimately deleted. Under this approach, if parties have not reached a new agreement prior to 30 days from the agreement's expiration, notice must be given to consumers. Would the requirement to provide such notice encourage the parties to conclude their negotiations more than 30 days before the expiration of the existing agreement, and thus help avoid the station deletions that deprive MVPD customers of local broadcast stations? Should we require notice to be given by any particular means? How should the Commission avoid imposing notice requirements that become so frequent that MVPD customers discount the notices? We have observed that the notices of impending impasses that generally have been provided by broadcasters and MVPDs alike are often little more than ad hominem attacks on the other party. We seek comment on what steps the Commission could take to ensure, to the extent possible, that required notifications provide useful information to consumers instead of merely serving as a further front in the retransmission consent war. For example, LIN objects to notices in which MVPDs “discount the possibility of a carriage interruption.” If the parties to a retransmission consent agreement begin giving notice, and subsequently agree to an extension pending further negotiations, should new notice be required of the extension agreement, and when should that notice be given? Where the parties enter into multiple extensions of their existing agreement, should notice be given of each extension? Would multiple notices be confusing to consumers? We also seek comment on extending the notice requirements with respect to deletions associated with retransmission consent disputes to non-cable MVPDs and broadcasters. What sources of authority does the Commission possess to support imposing notice requirements on non-cable MVPDs and broadcasters?
38. We seek comment on whether we should extend the Commission's “sweeps” prohibition to non-cable MVPDs. Section 614(b)(9) of the Act states:
A cable operator shall provide written notice to a local commercial television station at least 30 days prior to either deleting from carriage or repositioning that station. No deletion or repositioning of a local commercial television station shall occur during a period in which major television ratings services measure the size of audiences of local television stations. The notification provisions of this paragraph shall not be used to undermine or evade the channel positioning or carriage requirements imposed upon cable operators under this section.
No deletion or repositioning of a local commercial television station shall occur during a period in which major television ratings services measure the size of audiences of local television stations. For this purpose, such periods are the four national four-week ratings periods—generally including February, May, July and November—commonly known as audience sweeps.
39. We note that the record evidences some confusion about whether, despite the prohibition on deletion during the sweeps period, a broadcaster may require a cable operator to delete the broadcaster's signal when the retransmission consent agreement expires during sweeps and the parties do not reach an extension or renewal agreement. The sweeps prohibition, found in section 614(b)(9) of the Act, states that “No deletion or repositioning of a local commercial television station shall occur during a period in which major television ratings services measure the size of audiences of local television stations.” 47 U.S.C. 534(b)(9). The provision is contained within Section 614 which imposes carriage obligations on cable operators. 47 U.S.C. 534(a). Although the language of the statute is broadly worded, there is nothing in section 614(b)(9) to suggest that Congress intended to impose a reciprocal obligation on broadcasters during sweeps. To the contrary, the legislative history explains that “A cable operator may not drop or reposition any such station during a `sweeps' period when ratings services measure local television audiences.”
40. Likewise, it does not appear that section 335(a) grants the Commission authority to impose a sweeps limitation on broadcasters. Section 335(a) directs the Commission to “initiate a rulemaking proceeding to impose, on providers of direct broadcast satellite service, public interest or other requirements for providing video programming.” 47 U.S.C. 335(a). Thus, while section 335 would arguably grant the Commission authority to extend the sweeps rule to DBS providers, it does not appear to confer authority to extend the sweeps rule to broadcasters. We invite comment on this view.
41. The sweeps prohibition generally prevents a cable operator from deleting a station during the sweeps period if the retransmission consent agreement expires during sweeps. We do not believe that the existing prohibition on deleting or repositioning a local commercial television station during sweeps periods applies to non-cable MVPDs, such as DBS, given that the provision appears within section 614, a section that focuses on the carriage obligations of cable operators.
42. We seek comment on the potential benefits and harms of eliminating the Commission's rules concerning network non-duplication and syndicated programming exclusivity.
43. The Petition argued that the Commission's rules provide broadcasters with a “one-sided level of protection” that is no longer justified, including through the network non-duplication and syndicated exclusivity rules. Petition at 12-15. Commenters also argued that the exclusivity rules provide broadcasters with artificially inflated bargaining leverage in retransmission consent negotiations. In addition, ACA filed a Petition for Rulemaking to Amend 47 CFR 76.64, 76.93 and 76.103 on March 2, 2005 (ACA's 2005 Petition), asserting that competition and consumers are harmed when broadcasters use exclusivity and network affiliation agreements to extract “supracompetitive prices” for retransmission consent from small cable companies.
44. We seek comment on whether eliminating the Commission's network non-duplication and syndicated exclusivity rules, without abrogating any private contractual provisions, would have a beneficial impact on retransmission consent negotiations. Would eliminating these rules help to minimize regulatory intrusion in the market, thus better enabling free market negotiations to set the terms for retransmission consent? The Commission previously stated in discussing its exclusivity rules, “By requiring MVPDs to black out duplicative programming carried on any distant signals they may import into a local market, the Commission's network non-duplication and syndicated exclusivity rules provide a regulatory means for broadcasters to prevent MVPDs from undermining their contractually negotiated exclusivity rights.”
45. We note that in SHVIA Congress extended the network non-duplication and syndicated exclusivity rules to DBS but only in extremely limited situations that are not equivalent to their application to cable systems.
46. We seek comment on whether there are other actions the Commission should take either to revise its existing rules or adopt new rules in order to protect consumers from harm as a result of impasses or threatened impasses in retransmission consent negotiations. Commenters advocating rule revisions or additions should address the Commission's authority to adopt their proposals.
47. In conclusion, in this NPRM, we seek comment on proposed changes to our rules to provide greater certainty to parties engaged in retransmission consent negotiations and to better protect consumers from the uncertainty and disruption that they may experience when such negotiations fail to yield an agreement.
48. As required by the Regulatory Flexibility Act of 1980, as amended (RFA) the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM).
49. The NPRM seeks comment on a series of proposals to streamline and clarify the Commission's rules concerning or affecting retransmission consent negotiations. The Commission's primary objective is to assess whether and how the Commission rules in this arena are ensuring that the market-based mechanisms Congress designed to govern retransmission consent negotiations are working effectively and,
50. Since Congress enacted the retransmission consent regime in 1992, there have been significant changes in the video programming marketplace. One such change is the form of compensation sought by broadcasters. Historically, cable operators typically compensated broadcasters for consent to retransmit the broadcasters' signals through in-kind compensation, which might include, for example, carriage of additional channels of the broadcaster's programming on the cable system or advertising time.
51. Accordingly, we have concluded that it is appropriate for us to reexamine our rules relating to retransmission consent. In the NPRM, we consider revisions to the retransmission consent and related rules that we believe could allow the market-based negotiations contemplated by the statute to proceed more smoothly, provide greater certainty to the negotiating parties, and help protect consumers. Accordingly, the NPRM seeks comment on rule changes that would:
• Provide more guidance under the good faith negotiation requirements to the negotiating parties by:
○ Specifying additional examples of per se violations in § 76.65(b)(1) of the Commission's rules; and
○ Further clarifying the totality of the circumstances standard of § 76.65(b)(2) of the Commission's rules;
• Improve notice to consumers in advance of possible service disruptions by extending the coverage of our notice rules to non-cable MVPDs and broadcasters as well as cable operators, and specifying that, if a renewal or extension agreement has not been executed 30 days in advance of a retransmission consent agreement's expiration, notice of potential deletion of a broadcaster's signal must be given to consumers regardless of whether the signal is ultimately deleted;
• Extend to non-cable MVPDs the prohibition now applicable to cable operators on deleting or repositioning a local commercial television station during ratings “sweeps” periods; and
• Allow MVPDs to negotiate for alternative access to network programming by eliminating the Commission's network non-duplication and syndicated exclusivity rules.
52. The proposed action is authorized pursuant to sections 4(i), 4(j), 301, 303(r), 303(v), 307, 309, 325, 335, and 614 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 301, 303(r), 303(v), 307, 309, 325, 335, and 534.
53. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
54.
55.
56.
57.
58.
59.
60.
61.
62. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. The term “small entity” within SBREFA applies to small organizations (nonprofits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. 601(4) through (6). We do not collect annual revenue data on EBS licensees. Thus, we estimate that at least 1,932 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” U.S. Census Bureau, 2007 NAICS Definitions, “517110 Wired Telecommunications Carriers,” (partial definition),
63.
64.
65.
66.
67.
68.
69.
70. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.
71. Certain proposed rule changes discussed in the NPRM would affect reporting, recordkeeping or other compliance requirements. Specifically, a potential rule change would (1) revise the Commission's notice rules to specify that, if a renewal or extension agreement has not been executed 30 days in advance of a retransmission consent agreement's expiration, notice of potential deletion of a broadcaster's signal must be given to consumers regardless of whether the signal is ultimately deleted; and (2) extend the coverage of this notice rule to non-cable MVPDs and broadcasters.
72. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603(c)(1) through (c)(4).
73. As discussed in the NPRM, our goal in this proceeding is to take appropriate action, within our existing authority, to protect consumers from the disruptive impact of the loss of broadcast programming carried on MVPD video services. The specific changes on which we seek comment are intended to allow the market-based negotiations contemplated by the statute to proceed more smoothly, provide greater certainty to the negotiating parties, and help protect consumers. The improved successful completion of retransmission consent negotiations would benefit both broadcasters and MVPDs, including those that are smaller entities, as well as MVPD subscribers. Thus, the proposed rules would benefit smaller entities as well as larger entities. For this reason, an analysis of alternatives to the proposed rules is unnecessary. Further, we note that in its discussion of whether there are any additional actions or practices that should be deemed to constitute per se violations of a negotiating entity's duty to negotiate retransmission consent agreements in good faith, the Commission specifically references a proposal to permit small and mid-size MVPDs to “pool their resources, appoint an agent, and negotiate as a group.” Such a proposal would provide particular benefit to small entities. The NPRM further considers the impact of retransmission consent on small entities by asking whether small and new entrant MVPDs are typically forced to accept retransmission consent terms that are less favorable than larger or more established MVPDs, and if so, whether this is fair.
74. We invite comment on whether there are any alternatives we should consider to our proposed modifications to rules that apply to or affect retransmission consent negotiations that would minimize any adverse impact on small businesses, but which maintain the benefits of our proposals.
75. None.
76.
77.
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
○ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
78.
79.
80.
81. Accordingly,
82.
Administrative practice and procedure, Cable television, Equal employment opportunity, Political candidates, and Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 76 as follows:
1. The authority citation for part 76 continues to read as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
2. Amend § 76.65 by revising paragraph (b)(1)(iv) and by adding paragraphs (b)(1)(viii) through (x) to read as follows:
(b) * * *
(1) * * *
(iv) Refusal by a Negotiating Entity to put forth more than a single, unilateral proposal, or to provide a bona fide proposal on an important issue;
(viii) Agreement by a broadcast television station Negotiating Entity to provide a network with which it is affiliated the right to approve the station's retransmission consent agreement with an MVPD;
(ix) Agreement by a broadcast television station Negotiating Entity to grant another station or station group the right to negotiate or the power to approve its retransmission consent agreement when the stations are not commonly owned; and
(x) Refusal by a Negotiating Entity to agree to non-binding mediation when the parties reach an impasse within 30 days of the expiration of their retransmission consent agreement.
3. Revise § 76.1601 to read as follows:
(a) Effective April 2, 1993, a cable operator shall provide written notice to any broadcast television station at least 30 days prior to either deleting from carriage or repositioning that station. Such notification shall also be provided to subscribers of the cable system.
No deletion or repositioning of a local commercial television station shall occur during a period in which major television ratings services measure the size of audiences of local television stations. For this purpose, such periods are the four national four-week ratings periods—generally including February, May, July and November—commonly known as audience sweeps.
(b) Broadcast television stations and multichannel video programming distributors shall notify affected subscribers of the potential deletion of a broadcaster's signal a minimum of 30 days in advance of a retransmission consent agreement's expiration, unless a renewal or extension agreement has been executed.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendment 34 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs. Amendment 34 would amend the Bering Sea and Aleutian Islands Crab Rationalization Program to exempt additional recipients of crab quota share from Gulf of Alaska Pacific cod and pollock harvest limits, called sideboards, which apply to some vessels and license limitation program licenses that are used to participate in these fisheries. The North Pacific Fishery Management Council determined that these recipients demonstrated a sufficient level of historical participation in Gulf of Alaska Pacific cod or pollock fisheries and should be exempt from the Gulf of Alaska Pacific cod and pollock sideboards. This action is necessary to give these recipients an opportunity to participate in the Gulf of Alaska Pacific cod and pollock fisheries at historical levels. To implement Amendment 34, NMFS would revise regulations governing exemptions from and calculations of sideboard harvest limits in the Gulf of Alaska Pacific cod and pollock fisheries, and reissue Federal fisheries permits and license limitation program licenses to all participants that are affected by the proposed action. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs, and other applicable law.
Comments must be received no later than April 27, 2011.
Send comments to Dr. James Balsiger, Regional Administrator, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-AY33,” by any one of the following methods:
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All comments received are a part of the public record and will generally be posted to
NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.
Electronic copies of Amendment 34 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs, the Environmental Assessment (EA), the Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action are available from
Rachel Baker, 907-586-7228.
The King and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP). Groundfish fisheries in the Gulf of Alaska (GOA) are managed under the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP). The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the Crab FMP and the GOA FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Amendments 18 and 19 to the Crab FMP implemented the BSAI Crab Rationalization Program (CR Program). Regulations implementing Amendments 18 and 19 were published on March 2, 2005 (70 FR 10174), and are located at 50 CFR part 680. Regulations implementing the GOA FMP are at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.
The CR Program allocates BSAI crab resources among harvesters, processors, and coastal communities. The CR Program is a limited access privilege program (LAPP) for nine BSAI crab fisheries. Participants receive exclusive harvesting and processing privileges for a portion of the total allowable catch (TAC) established for each crab fishery in the CR Program.
Under the CR Program, persons received quota share (QS) based on their historical participation in one or more of the CR Program crab fisheries during a specific time period. Quota share represents an exclusive but revocable privilege that gives the QS holder an annual allocation to harvest a specific percentage of the TAC from a CR Program crab fishery. NMFS allocated QS to eligible harvesters in 2005, prior to the first year of crab fishing under the CR Program. After the initial allocation of QS, persons can only acquire QS if they are eligible to receive it by transfer.
A person's allocation of crab QS was based on a qualifying harvest history in a CR Program fishery. Each QS allocation is the harvester's average annual portion of the total catch of that crab species during the qualifying period as specified for each CR Program fishery in Table 7 of the CR Program regulations at 50 CFR part 680. Each year, a person who holds QS and submits a timely and complete crab permit application to NMFS receives an exclusive harvest privilege for a portion of the TAC for the CR Program fisheries. This harvest privilege, called individual fishing quota (IFQ), is the annual allocation of pounds (lbs) of crab for harvest that represent a QS holder's percentage of the TAC.
Under the CR Program, crab QS holders may form voluntary crab harvesting cooperatives to combine and cooperatively manage their aggregate QS holdings. Each cooperative that is approved by NMFS receives the amount of crab harvesting cooperative IFQ yielded by the aggregate QS holdings of all of the members of the cooperative. The regulations at § 680.21 govern the formation and operation of crab harvesting cooperatives. Most harvesters in the CR Program assign their IFQ allocations to cooperatives. In the 2008/2009 crab fishing year, more than 90 percent of the IFQ issued in each CR Program fishery was assigned to cooperatives.
The Council and NMFS commonly establish catch limits and other fishery participation restrictions, called sideboards, when implementing LAPPs to prevent participants who benefit from receiving exclusive harvesting privileges from shifting effort into fisheries that are not managed with a LAPP. In developing the CR Program, the Council anticipated that crab harvesting cooperatives would greatly increase operating flexibility for BSAI crab vessel
Historically, the Bering Sea snow crab fishery and many economically valuable GOA groundfish fisheries were conducted concurrently from January through March. Owners of most vessels annually elected to fully participate in either the Bering Sea snow crab fishery or the GOA groundfish fisheries. However, owners of some vessels participated in both fisheries over a number of years. The Council realized that increased flexibility from the CR Program could allow owners of BSAI crab vessels to increase fishing effort in GOA groundfish fisheries, especially in the Pacific cod fishery, because it is one of a limited number of groundfish species in which pots can be effectively used for harvest. Pots are the only legal gear type in BSAI crab fisheries, and most vessels that fish for crab can be configured to catch Pacific cod using groundfish pot gear. The Council determined that the CR Program should include sideboards for most GOA groundfish fisheries to prevent Bering Sea snow crab QS recipients from increasing their participation in GOA groundfish fisheries. However, because some Bering Sea snow crab QS recipients had significant historical participation in the GOA Pacific cod fishery, the Council also developed criteria that would exempt those Bering Sea snow crab QS recipients with significant participation in, or dependence on, the GOA Pacific cod fishery.
The CR Program's GOA groundfish sideboards were implemented in 2006. Under current regulations, CR Program sideboard limits apply to vessels that: (1) Harvest any species of GOA groundfish with the exception of sablefish harvested with fixed gear; (2) are not authorized to conduct directed fishing for pollock under the American Fisheries Act (AFA) of 1998 (Public Law 105-277, Title II of Division C); and (3) meet one or both of the following criteria: (a) made a legal landing of Bering Sea snow crab between January 1, 1996, and December 31, 2000, that generated any amount of Bering Sea snow crab QS; or (b) are named on a GOA groundfish license limitation program (LLP) license that was generated by the fishing history of a vessel that also generated Bering Sea snow crab QS. Vessels that meet these criteria subsequently will be referred to as “non-AFA crab vessels.” The CR Program did not establish sideboard limits for AFA vessels with historical participation in the Bering Sea snow crab fishery because these vessels are subject to GOA harvesting and processing restrictions under the AFA and in implementing regulations for the AFA (§ 679.64(b)). Similarly, non-AFA crab vessels are not restricted by sideboard limits in the GOA fixed-gear sablefish fisheries because these fisheries are managed under a LAPP. Sideboard limits are intended to protect participants in non-LAPP fisheries, who may be disadvantaged by increased fishing effort from participants who benefit from a LAPP.
A non-AFA crab vessel's GOA groundfish sideboard is specified on the Federal Fisheries Permit (FFP) issued by NMFS to the owner of the vessel. An FFP authorizes a vessel owner to deploy the vessel named on the FFP to conduct directed fishing for groundfish in Federal waters of the GOA or BSAI. An FFP is not transferable and is valid only for the vessel for which it is issued. Although the Council primarily intended for the CR Program GOA groundfish sideboard limits to restrict vessels with Bering Sea snow crab catch history, the Council determined that GOA sideboard limits should apply to FFPs and certain LLP licenses. Because LLP licenses are transferable, GOA groundfish sideboard limits apply to those groundfish LLP licenses that are endorsed for the GOA and that derived from a vessel with catch history that also generated Bering Sea snow crab QS. The LLP was implemented in 2000 to limit the number, size, and operation type (gear designation) of vessels that may be deployed in the groundfish fisheries in the exclusive economic zone of the BSAI and GOA, and in the crab fisheries in the BSAI. The LLP requires, with limited exceptions, that a vessel must be named on a legible copy of a valid LLP license that is on board the vessel in order to participate in directed fisheries for LLP species. NMFS issued LLP licenses based on the catch history of a vessel in specific fisheries. The CR Program GOA groundfish sideboards apply to groundfish LLP licenses derived from the catch history of a vessel that also generated Bering Sea snow crab QS to prevent crab QS recipients from circumventing the GOA groundfish sideboards by transferring an LLP license for use on a vessel that is not subject to the sideboards. Thus, any vessel named on a GOA-endorsed groundfish LLP license that was generated by the groundfish catch history of a non-AFA vessel that also generated Bering Sea crab QS is subject to the GOA groundfish sideboards, even if the vessel named on the LLP license did not have historical landings that generated Bering Sea snow crab QS.
The CR Program's GOA groundfish sideboards apply to non-AFA crab vessels that participate in Federal fisheries and State of Alaska (State) parallel groundfish fisheries in the GOA (§ 680.22(f)). State parallel fisheries occur in State waters but are opened at the same time as Federal fisheries in Federal waters. State parallel fishery harvests are considered part of the overall TAC, and Federally-permitted vessels move between State and Federal waters during the concurrent Federal and State parallel fisheries. Applying sideboards to non-AFA crab vessels using an FFP, an LLP, or both, to participate in Federal GOA groundfish fisheries prevents these vessels from using the flexibility of the CR Program to increase participation in GOA groundfish fisheries by fishing in State waters to circumvent fishing closures in Federal waters.
Each year, NMFS calculates the non-AFA crab vessel sideboard limits for GOA groundfish sideboard fisheries. A sideboard limit is calculated as a ratio of the amount of a groundfish species retained by non-AFA crab vessels from 1996 to 2000, relative to the total retained catch of that species by all vessels during the same period. This calculation yields a fixed ratio, or percentage, that is multiplied by the annual TAC for a GOA groundfish sideboard species to determine the non-AFA crab vessel sideboard limit in metric tons (§ 680.22(d)). The sideboard limits are published in the
When developing the CR Program sideboard limits, the Council recognized that individual non-AFA crab vessels had varying levels of historical participation in the GOA Pacific cod fishery. To recognize these different participation patterns, the Council
For the second exception to the sideboard limits, the Council determined that vessels and groundfish LLP licenses with catch history from 1996 through 2000 that demonstrated minimal dependence on the Bering Sea snow crab fishery and sufficient dependence on the GOA Pacific cod fishery should be exempt from the GOA Pacific cod sideboard limits in order to allow these vessels to participate in the GOA Pacific cod fishery unrestricted by the sideboard. In current regulations, a non-AFA crab vessel qualifies for an exemption from the GOA Pacific cod sideboard limit if it meets either or both of the following criteria: (1) The vessel landed less than 100,000 lbs (45.4 mt) of Bering Sea snow crab and more than 500 mt (1,102,311 lbs) of GOA Pacific cod from 1996 through 2000, and the vessel's catch history generated Bering Sea snow crab QS; or (2) the vessel is named on a GOA groundfish LLP license that was generated by the catch history of a vessel that landed less than 100,000 lbs (45.4 mt) of Bering Sea snow crab and more than 500 mt (1,102,311 lbs) of GOA Pacific cod from 1996 through 2000, and the vessel's catch history generated Bering Sea snow crab QS. The exempt non-AFA crab vessels do not have to stop fishing when the GOA Pacific cod sideboard limit is reached and may continue to fish as long as directed fishing for GOA Pacific cod is open. The GOA Pacific cod catch history of the exempt vessels and groundfish LLP licenses is not included in the non-AFA crab vessel sideboard limit ratio calculations, and NMFS does not count the GOA Pacific cod catch of exempt non-AFA crab vessels toward the sideboard limit.
Prior to the first year of fishing under the CR Program, NMFS determined which non-AFA crab vessel sideboard category applied to each vessel with catch history that generated Bering Sea snow crab QS and each GOA groundfish LLP license that was generated by the catch history of a vessel that also generated Bering Sea snow crab QS. The three sideboard categories are: (1) Subject to sideboard limits for all GOA groundfish fisheries (CR GOA Sideboarded); (2) prohibited from directed fishing for GOA Pacific cod and subject to sideboard limits for all other GOA groundfish fisheries (CR GOA Sideboarded, no directed fishing for GOA Pacific cod); and (3) exempt from Pacific cod sideboard limits, and subject to sideboard limits for all other GOA groundfish fisheries (CR GOA Sideboarded except Pacific cod). Figure 1 shows a diagram of the current non-AFA crab GOA groundfish sideboard categories and the number of vessels and LLP licenses subject to each category. Some vessels with catch history that generated Bering Sea snow crab QS did not have groundfish catch histories that resulted in LLP licenses authorizing participation in GOA groundfish fisheries. Hence, the number of vessels is larger than the number of LLP licenses in two of the three sideboard categories.
NMFS opens directed fishing for a GOA groundfish sideboard species when it determines that all catch, both directed and incidental, of that species by non-AFA crab vessels would not exceed the sideboard limit for that species. If directed fishing for a GOA groundfish sideboard species is open to non-AFA crab vessels, NMFS deducts all directed and incidental catch of that GOA groundfish sideboard species by non-AFA crab vessels subject to the sideboard from the annual sideboard limit for that species. When NMFS determines that the non-AFA crab vessel sideboard catch limit is reached or the remainder of the sideboard is needed for incidental catch in other fisheries, NMFS closes directed fishing for that species to non-AFA crab vessels that are subject to the sideboard.
The annual non-AFA crab vessel sideboard limit for a GOA groundfish species is an amount that is smaller than the overall TAC for the groundfish fishery because the sideboard limit is calculated as a ratio of the amount of each groundfish species retained by non-AFA crab vessels from 1996 to 2000, relative to the total retained catch of that species by all vessels during the same period. This calculation yields a fixed ratio, or percentage, that is multiplied by the overall TACs for each GOA groundfish sideboard species to determine the non-AFA crab vessel sideboard limit in metric tons. Since 2006, NMFS has determined that only the Pacific cod sideboard limits in two GOA management areas were of a sufficient amount to open directed fishing for non-AFA crab vessels. NMFS has closed all other GOA groundfish sideboard species, including pollock, to directed fishing by non-AFA crab vessels since 2006 because the sideboard limits were of insufficient amounts to provide for both directed fishing and incidental catch in other target fisheries by non-AFA crab vessels.
Most sideboard limits are apportioned by regulatory area or district because most GOA groundfish TACs are apportioned to separate fisheries in the
Table 1 shows the GOA Pacific cod and pollock sideboard ratios and sideboard limits that applied to non-AFA crab vessels in 2010.
After the CR Program was implemented in 2005, some non-AFA crab vessel operators testified to the Council that the GOA Pacific cod and pollock sideboard limits were too restrictive. These operators indicated that they were unable to maintain historical groundfish catch levels in the GOA and should qualify for an exemption from the sideboard limits. Some operators testified that although their vessel's catch history was more than 100,000 lbs of Bering Sea snow crab from 1996 through 2000, which is the maximum allowable amount to qualify for the exemption from the Pacific cod sideboard limits, they had significant history in, and dependence on, GOA Pacific cod and pollock fisheries. Based on this public testimony and a review of the effects of the sideboard limits in the first 2 years of the CR Program (2005/2006 and 2006/2007 crab fishing years), the Council determined that the existing criteria for exemption from the sideboard limits in GOA Pacific cod and pollock fisheries should be examined to consider inclusion of additional vessels and LLP licenses with historical participation in and sufficient dependence on these fisheries. The Council initiated an analysis in December 2007 to examine alternatives that would expand the criteria for non-AFA crab vessels to qualify for an exemption from the Pacific cod sideboard limits and that would extend a similar exemption to the pollock sideboard limits. In October 2008, the Council recommended Amendment 34 to the Crab FMP to exempt additional vessels and groundfish LLP licenses from the GOA Pacific cod and pollock sideboard limits. The Council also clarified that it did not intend for Amendment 34 to disqualify any vessels or groundfish LLP licenses that are currently exempt from non-AFA crab vessel Pacific cod sideboard limits in the GOA.
This proposed rule would implement two actions. Action 1 would revise the GOA Pacific cod sideboard limit exemption criteria for non-AFA crab vessels. Action 2 would establish new GOA pollock sideboard limit exemption criteria for non-AFA crab vessels. The rationale for, and effects of, the proposed actions follow.
The Council considered two alternatives for this action. Alternative 1, or status quo, would continue the current exemption criteria. Under the status quo, any non-AFA crab vessel that was used to land less than 100,000 lbs (45.4 mt) of Bering Sea snow crab and more than 500 mt (1,102,311 lbs) of GOA Pacific cod between January 1, 1996, and December 31, 2000, is exempt from sideboard directed fishing closures
Under the five options considered in Alternative 2, the maximum amount of Bering Sea snow crab landings were 500,000 lbs (226.8 mt), 750,000 lbs (353.8 mt),and 1,212,673 lbs (550 mt), or 0.22 percent of all Bering Sea snow crab landings from 1996 through 2000. The minimum amount of Pacific cod harvested from the GOA Federal and State parallel fisheries were the status quo alternative amount of 500 mt (1,102,311 lbs), 680 mt (1,499,143 lbs),and 2,500 mt (5,511,557 lbs). Under these minimum and maximum threshold combinations, a range of zero additional vessels and LLP licenses to six additional vessels and LLP licenses would qualify for an exemption.
To evaluate dependence on GOA Pacific cod sufficient to warrant an exemption from the GOA Pacific cod sideboard, the Council primarily focused on the level of participation in the GOA Pacific cod fishery prior to the implementation of the CR Program as well as the level of participation in the GOA Pacific cod sideboard fishery after implementation of the CR Program by vessels estimated to qualify under each option. The Council recognized that any vessel with GOA Pacific cod landings in excess of 2,500 mt prior to implementation of the CR Program clearly demonstrated dependence on and sufficient participation in the GOA Pacific cod fishery. However, the Council determined that dependence on the GOA Pacific cod fishery also was demonstrated at the next lower landings threshold being considered by the Council of 680 mt, as evidenced by the Council's original threshold of 500 mt. NMFS agrees that vessels with catch history meeting the Council's recommended threshold of 680 mt of GOA Pacific cod harvested between 1996 and 2000 would demonstrate significant participation in, and dependence on, the GOA Pacific cod fishery because NMFS estimates that the average landings of GOA Pacific cod per non-AFA crab vessel from 1996 through 2000 totaled approximately 329 mt per vessel. The Council's recommended threshold of a minimum harvest of 680 mt is slightly more than twice this average.
The Council also emphasized that continued participation in the fishery over time was a clear demonstration of dependence. The estimated three vessels and LLP licenses that would qualify for exemption under the Council's preferred option had GOA Pacific cod landings in excess of 680 mt between 1996 and 2000, and also participated in the GOA Pacific cod fishery each year from 1998 through 2007. In considering continued participation, the Council declined to adopt the least restrictive option, which would have exempted the three vessels and LLP licenses that qualified under the preferred option as well as an additional three vessels and LLP licenses for a total of six vessels and LLP licenses. The Council concluded that the additional three vessels that would be exempt under this option failed to demonstrate sufficient dependence on the GOA Pacific cod fishery because these vessels had very limited participation in the fishery in recent years. As shown in Table 1-23 of the EA/RIR/IRFA (
Under the Council's preferred option, the maximum threshold for landings of Bering Sea snow crab would increase to 750,000 lbs. While the proposed 750,000 lbs maximum threshold is a significant increase relative to the original maximum threshold of 100,000 lbs, the Council decided that a higher Bering Sea snow crab threshold was justified given the demonstrated dependence on the GOA Pacific cod fishery by the vessels that are estimated to qualify for exemption under the Council's preferred alternative. NMFS agrees that vessels with Bering Sea snow crab catch history that is less than the Council's recommended threshold of 750,000 lbs would demonstrate minimal participation in, and dependence on, the Bering Sea snow crab fishery because NMFS estimates that the average landings of Bering Sea snow crab from 1996 through 2000 for all vessels with catch history that generated Bering Sea snow crab QS totaled approximately 2,366,000 lbs per vessel. The Council's recommended threshold of a maximum harvest of 750,000 lbs is less than one third of this average.
The Council also considered the effects of additional exempt vessels on participants in the GOA Pacific cod fishery and concluded that three additional vessels and LLP licenses would not be likely to negatively impact other participants. According to Table 1-23 and section 1.4.2.2 in the EA/RIR/IRFA, 254 vessels participated in the GOA Pacific cod fishery in 2009; the estimated three vessels that would be exempt from the GOA Pacific cod sideboard under this action represent approximately one percent of the number of participating vessels with combined past harvests of Pacific cod from 1995 through 2009 of less than 2 percent of the total catch of GOA Pacific cod.
Based on the public testimony provided to the Council, the information and analysis provided in the EA/RIR/IRFA, and the reasons explained above, the Council determined and NMFS agrees that the non-AFA crab GOA Pacific cod sideboard exemption criteria should be changed to exempt any non-AFA crab vessel that was used to land less than 750,000 lbs (340.2 mt) of Bering Sea snow crab and more than 680 mt of GOA Pacific cod between January 1, 1996, and December 31, 2000, from sideboard directed fishing closures for Pacific cod in the GOA. Vessels meeting these criteria have been determined to demonstrate minimal dependence on the Bering Sea snow crab fishery and sufficient dependence on the GOA Pacific cod, and should be relieved from restrictions imposed by the current exemption criteria.
The EA/RIR/IRFA estimates that, in addition to the five vessels and five LLP licenses that are currently exempt from the sideboard limits, the Council's recommended catch criteria would result in three additional vessels and the groundfish LLP licenses that named these vessels at the time of Council final action as qualifying for an exemption from the GOA Pacific cod sideboard
Under the proposed action, eight vessels and eight groundfish LLP licenses (five vessels and groundfish LLP licenses currently exempt and three vessels and groundfish LLP licenses estimated to be exempt under proposed Action 1) would be exempt from the GOA Pacific cod sideboard limits under the Council's preferred alternative. The eight vessels, and any vessel named on one of the eight groundfish LLP licenses exempt from the sideboard limits, would be allowed to conduct directed fishing for GOA Pacific cod if: (1) Directed fishing for Pacific cod is open in the GOA; and (2) the vessel is not subject to a more restrictive sideboard, such as the non-AFA crab vessel sideboard prohibiting a vessel from conducting directed fishing for GOA Pacific cod. In addition, GOA Pacific cod catch by non-AFA crab vessels exempt from the sideboard limits would not count toward the Pacific cod non-AFA crab vessel sideboard limits. Finally, the eight non-AFA crab vessels and eight LLP licenses that would qualify for an exemption from the non-AFA crab GOA Pacific cod sideboard limit under the proposed action would continue to be subject to non-AFA crab GOA groundfish sideboards for other species, unless the vessel or LLP license also would qualify for an exemption from the non-AFA crab GOA pollock sideboard limit under Action 2 of this proposed rule.
As described above under “Current GOA Groundfish Sideboards,” the GOA groundfish catch history of vessels exempt from the non-AFA crab vessel Pacific cod sideboard limits is not included in the sideboard limit ratio calculations. To implement Action 1, NMFS would reduce the non-AFA crab vessel sideboard limits in the GOA inshore component Pacific cod fishery proportional to the 1996 to 2000 catch history of the non-AFA crab vessels that would qualify for exemption from the GOA Pacific cod sideboard under proposed Amendment 34. This adjustment to the sideboard limits is discussed in more detail below under “Implementation of Amendment 34.” Management of the GOA non-AFA crab vessel Pacific cod sideboard limits likely would not change under proposed Action 1, because a maximum of three additional vessels would be exempt from the non-AFA crab vessel GOA Pacific cod sideboard limit and potentially would shift from the GOA Pacific cod sideboard fishery to the GOA Pacific cod fishery limited by the overall TAC. Three additional vessels would be approximately 1 percent of the 258 vessels that participated in the GOA Pacific cod fishery in 2009, and this limited number of additional vessels under the proposed action would not be expected to affect the timing or overall harvest of GOA Pacific cod in a manner that would change NMFS's management of the fishery. NMFS would continue to set an overall TAC for the GOA Pacific cod fishery, deduct GOA Pacific cod catch from the overall TAC, and close the fishery when the overall TAC was reached. NMFS also would continue to calculate the non-AFA crab vessel sideboard limit for each GOA Pacific cod fishery (
The Council heard testimony that some non-AFA crab vessels with historical dependence on GOA pollock fisheries have been prevented from maintaining their historical participation levels in those fisheries under the CR Program. Under the CR Program, all non-AFA crab vessels are subject to sideboard limits in GOA pollock fisheries. Although some non-AFA crab vessels historically participated in GOA pollock fisheries, the aggregate catch history of GOA pollock by non-AFA crab vessels from 1996 to 2000 yielded sideboard limits that NMFS determined were of an insufficient amount to support directed fishing. Since 2006, NMFS has closed the GOA pollock sideboard fishery to directed fishing by non-AFA crab vessels. NMFS determined that the GOA pollock sideboard limits were
The Council considered two alternatives for this action. Alternative 1, or status quo, would not provide for an exemption from the GOA pollock sideboard. Alternative 2 would add an exemption to GOA pollock sideboard limits, and the Council developed three different catch threshold options to qualify for an exemption based on input from affected non-AFA crab vessel owners. Each option required a non-AFA crab vessel to have been used to land less than 1,212,673 lbs (550 mt), or 0.22 percent of all Bering Sea snow crab landings from 1996 through 2000. The options differed by requiring a non-AFA crab vessel to have been used to make a minimum of five, ten or twenty landings of pollock harvested from the GOA from 1996 through 2000.
Under the options considered in Alternative 2, one to four vessels and groundfish LLP licenses would be exempt. The EA/RIR/IRFA estimates that four vessels landed less than 1,212,673 lbs (550 mt) of all Bering Sea snow crab landings from 1996 to 2000 and made at least five pollock landings during the 1996 through 2000 period. The same four vessels would qualify if 10 landings of GOA pollock were required for a sideboard limit exemption. Only one of the four vessels would qualify for the GOA pollock sideboard limit exemption if 20 pollock landings were required.
The Council had limited historical catch data available for Action 2 because the data were confidential for two of the three options being considered. Confidentiality restrictions prevent disclosure of catch data for fewer than four vessels on an aggregated basis. However, the owner of the vessel that would qualify under all of the options waived his right to confidentiality in order for the Council to have some GOA pollock catch data for its decision.
To evaluate dependence on GOA pollock sufficient to warrant an exemption from the sideboard limits, the Council considered a vessel's level of participation in the GOA pollock fisheries prior to the implementation of the CR Program, as well as the effects of exempt vessels on participants in the GOA pollock fisheries. Unlike Action 1, the Council was unable to consider levels of participation in the GOA pollock sideboard fishery since implementation of the CR Program because the sideboard fishery has been closed to directed fishing since 2006.
After receiving public testimony and reviewing the available Bering Sea snow crab and GOA pollock catch information, the Council determined that a non-AFA crab vessel that was used to land less than 0.22 percent of all Bering Sea snow crab landings from 1996 to 2000 (1,212,673 lbs or 550 mt), and made 20 landings of pollock harvested from the GOA from 1996 to 2000, was minimally dependent on the Bering Sea snow crab fishery and sufficiently dependent on the GOA pollock fisheries to qualify for an exemption from the pollock sideboard limits. In reaching this decision, the Council determined that the 20-landings minimum threshold for an exemption from the GOA pollock sideboard limit was the minimum level of participation by non-AFA crab vessels that would demonstrate significant participation in, and dependence on, the GOA pollock fishery. Table 1-31 in the EA/RIR/IRFA shows the amount of pollock harvested from the GOA from 1995 through 2007 by the non-AFA crab vessel that would qualify under the Council's preferred alternative. Pollock comprised approximately 80 percent of the vessel's catch in the GOA in most years from 1995 through 2000. Additionally, this vessel was used to make at least twice as many landings of pollock (20) harvested from the GOA from 1996 through 2000 than the three other vessel operations that would qualify under the 5 and 10 landings options. The Council determined, and NMFS agrees, that this catch information clearly demonstrated the operator's dependence on the GOA pollock fishery. The level of dependence for participants qualifying under the 5 or 10 pollock landings options was less clear to the Council; the Council noted during its deliberations that it had received no testimony advocating a lower pollock landing threshold. NMFS also agrees with the Council that vessels meeting the proposed threshold for Bering Sea snow crab landings would demonstrate minimal participation in, and dependence on, this fishery because it represents a very low level of harvest relative to other participants in the Bering Sea snow crab fishery. NMFS estimates that the average landings of Bering Sea snow crab per vessel from 1996 through 2000 for all vessels with catch history that generated Bering Sea snow crab QS totaled approximately 2,366,000 lbs per vessel. The Council's recommended threshold of a maximum harvest of 1,212,673 lbs is approximately half of this average.
In considering the effects of exempting vessels on participants in the GOA pollock fishery, the Council determined that the exemption of one vessel and one LLP license that clearly demonstrated past dependence on the pollock fishery would not negatively affect other participants in the fishery. However, the Council determined that the exemption of four vessels, three of which had questionable past dependence on the fishery, would negatively affect other GOA pollock fishery participants.
To implement Action 2, NMFS proposes to use the poundage equivalent of the Council's recommended 0.22 percent of all Bering Sea snow crab landings from 1996 to 2000 in the proposed regulations at § 680.22(a)(4)(i). The Council recommended that a non-AFA crab vessel that landed less than 0.22 percent of all Bering Sea snow crab landings from 1996 to 2000, and made 20 landings of pollock harvested from the GOA from 1996 to 2000, should qualify for an exemption from the sideboard limits. The poundage equivalent of 0.22 percent of all Bering Sea Snow crab landings from 1996 through 2000 is 1,212,673 lbs (550 mt). This approach to use equivalent pounds instead of the percentage of all Bering Sea snow crab landings from 1996 to 2000, as recommended by the Council, is proposed to maintain consistency with other non-AFA crab vessel sideboard regulatory text at §§ 680.22(a)(2)(i) and (a)(3)(i).
Management of the GOA non-AFA pollock sideboard limits likely would not change under proposed Action 2. NMFS would continue to set a non-AFA crab vessel sideboard limit for each GOA pollock fishery (
Action 1 and Action 2 would have the overall effect of exempting additional non-AFA crab vessels from GOA Pacific cod and pollock sideboard limits. The Council determined that these participants were unduly restricted by the GOA groundfish sideboard limits in fisheries on which they had historical dependence and should be exempt from the sideboard limits. This rationale is consistent with the Council's intent in establishing the GOA sideboard limits, as described above under “Current GOA Groundfish Sideboards.”
The proposed actions could potentially increase participation in directed fishing for GOA Pacific cod and pollock. Any increase in catch over their current history by the vessel operations that would be exempt from the sideboard limits under the proposed actions would leave less GOA Pacific cod and pollock for other participants, and could result in some economic loss for those participants. As discussed earlier, the EA/RIR/IRFA (
To give effect to the Council's recommendations for Action 1 and Action 2, NMFS would: (1) Modify regulatory text at § 680.22; (2) adjust the non-AFA crab vessel GOA inshore component Pacific cod sideboard limits to remove the catch history of the vessels that would qualify for exemption from the sideboard limits under proposed Amendment 34; and (3) reissue Federal Fisheries Permits (FFPs) and LLP licenses after determining the appropriate non-AFA crab vessel GOA groundfish sideboard category for all affected vessels and groundfish LLP licenses.
As discussed above under “Current GOA Groundfish Sideboards,” the non-AFA crab vessel groundfish sideboard limits constrain the aggregate catch of vessels subject to the sideboard limits to the historical groundfish catch of these vessels from 1996 through 2000. To implement proposed Amendment 34, NMFS would revise non-AFA crab vessel sideboard limit ratios that are specified in the final 2011 and 2012 harvest specifications for the GOA. Each year, NMFS develops GOA groundfish harvest specifications in consultation with the Council. The Council recommended the final 2011 and 2012 GOA harvest specifications to NMFS in December 2010. After considering the Council recommendations and public comment received on the proposed 2011 and 2012 harvest specifications (75 FR 76352, December 8, 2010), NMFS will publish the final harvest specifications for 2011 and 2012 as a final rule in the
For Action 1, NMFS would remove from the inshore component GOA Pacific cod sideboard limits the amount of retained catch of Pacific cod harvested in the GOA from 1996 through 2000 by the non-AFA crab vessels that would qualify for a sideboard limit exemption under Amendment 34. The recalculated ratio would represent the remaining non-AFA crab vessel Pacific cod catch history from 1996 to 2000 of vessels subject to the sideboard, relative to the total retained catch of Pacific cod by all vessels during the same period. The recalculated ratio would be multiplied by the 2011 and 2012 GOA Pacific cod TACs and apportioned by area and season to determine the recalculated sideboard limits in metric tons. For Action 2, no change is proposed under Amendment 34 to the non-AFA crab vessel pollock sideboard limits from the current ratios that are implemented in the final 2011 and 2012 GOA harvest specifications. The 2011 and 2012 non-AFA crab vessel Pacific cod and pollock sideboard limit ratio calculations will already exclude the retained catch of these species harvested from the GOA from 1996 through 2000 by non-AFA crab vessels whose owners took advantage of an agency administrative appeals process to challenge implementation of the sideboard limits on their vessels in 2006 because NMFS removed this catch history during the appeals process. Thus, the 1996 through 2000 catch history of some of the vessels that likely would qualify for an exemption from GOA sideboard limits under Amendment 34 is not currently included in the sideboard limit calculations. As a result, the sideboard limit adjustments necessary to implement Amendment 34 already will be partially reflected in the 2011 and 2012 harvest specifications.
Table 4 and Table 5 present the proposed 2011 and 2012 non-AFA crab vessel sideboard limits for GOA Pacific cod and pollock harvest under Amendment 34 based on the Council's recommended final harvest specifications for these species. If the final 2011 and 2012 harvest specifications as recommended by the Council are approved and implemented by NMFS, the GOA Pacific cod and pollock sideboard limit ratios proposed under Amendment 34 would be as shown in Table 4 and Table 5. NMFS is proposing changes to the GOA inshore component Pacific cod sideboard limits and soliciting public comment as part of the proposed rule to implement Amendment 34. If Amendment 34 is approved after considering comments received in the public comment period, NMFS would publish revised final 2011 and 2012 sideboard limits for GOA pollock and Pacific cod in the final rule to implement Amendment 34.
The proposed actions would affect owners of non-AFA vessels with catch history that generated Bering Sea snow crab QS and also would qualify for a sideboard exemption under proposed Action 1 or Action 2, or both. These vessel owners hold unique FFPs. Federal Fisheries Permits are required on all vessels participating in groundfish fisheries in Federal waters in Alaska. NMFS designates vessel sideboard limitations, or exemptions, on a vessel's FFP. The proposed actions would also affect holders of a groundfish LLP license derived from catch history that was generated by a vessel that would qualify for a sideboard exemption under proposed Action 1 or Action 2, or both.
In June 2008, the Council clarified the process that NMFS should follow when determining which vessels and LLP licenses qualify for an exemption from the non-AFA crab vessel GOA Pacific cod and pollock sideboard limits (EA/RIR/IRFA, Section 1.4.1) (
NMFS would create an official record with all relevant information necessary to assign landings to specific vessels and LLP licenses. The official record created by NMFS would contain vessel landings data and the LLP licenses to which those landings would be attributed. Evidence of the number and amount of landings would be based only on legally submitted NMFS weekly production reports for catcher/processors and State of Alaska fish tickets for catcher vessels. Historically, NMFS has used only these two data sources to determine the specific amount and location of landings, and NMFS proposes to continue to do this under the proposed actions. The official record also would include the records of the specific LLP licenses assigned to vessels and other relevant information necessary to attribute landings to specific LLP licenses.
NMFS would presume the official record is correct and would notify each affected FFP and LLP license holder of the effect of Amendment 34 on their FFP or LLP license. NMFS would mail a notification to the address on record for each FFP and LLP license holder at the time the notification is sent. The notification would indicate which non-AFA crab vessel sideboard category would be applicable to the FFP or LLP license based on the official record: (1) CR GOA Sideboarded for all groundfish species; (2) CR GOA Sideboarded for all groundfish species and no GOA Pacific cod fishing; (3) CR GOA Sideboarded for all groundfish species except Pacific cod; (4) CR GOA Sideboarded for all groundfish species except pollock; or (5) CR GOA Sideboarded for all groundfish species except Pacific cod and pollock. NMFS would include information concerning any changes to the non-AFA crab vessel sideboard restrictions applicable to the FFP or LLP license in the GOA and offer a single 30-day evidentiary period from the date that notification is sent for an FFP or LLP license holder to submit any supporting information, or evidence, to verify that the information contained in the official record is inconsistent with his or her records.
An FFP or LLP license holder who submits claims that are inconsistent with information in the official record would have the burden of proving that the submitted claims are correct. NMFS would not accept inconsistent claims unless verified by clear written documentation. NMFS would evaluate additional information or evidence to support an FFP or LLP license holder's inconsistent claims submitted prior to or within the 30-day evidentiary period. If NMFS determines that the additional information or evidence proves that the FFP or LLP license holder's inconsistent claims were indeed correct, NMFS would act in accordance with that information or evidence. However, if after the 30-day evidentiary period, NMFS were to determine that the additional information or evidence did not show that the FFP or LLP license holder's inconsistent claims were correct, NMFS would deny the claim. NMFS would notify the applicant through an initial administrative determination (IAD) that the additional information or evidence did not meet the burden of proof to overcome the official record.
NMFS's IAD would indicate the deficiencies and discrepancies in the information or the evidence submitted in support of the claim. NMFS's IAD would indicate which claims could not be approved based on the available information or evidence, and include information on how an applicant could appeal the IAD. The appeals process is described under § 679.43. A person who appeals an IAD would be eligible to use the disputed FFP or LLP license until final agency action by NMFS on the appeal. The non-AFA crab vessel sideboard limitation, or exemption, designated on an FFP or LLP license would continue to be effective unless modified by a successful appeal. NMFS would reissue any FFP or LLP licenses pending final action by NMFS as interim FFP or LLP licenses. Once final action has been taken, NMFS would reissue the FFP or LLP license as a non-interim license. Interim LLP licenses would be non-transferable to ensure that a person would not receive an LLP license by transfer and have the non-AFA crab vessel sideboard category changed through an appeals process that was initiated and conducted by the previous LLP license holder, a process that a transferee could not control, and which could substantially affect the value and utility of an LLP license. (FFPs are not transferable.)
If a person does not dispute the notification of changes to their FFP or LLP license, or upon the resolution of any inconsistent claims, a revised non-interim FFP or LLP license with the appropriate non-AFA crab vessel sideboard category would be reissued to the FFP or LLP license holder, unless the FFP or LLP license is interim for another reason.
The Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with Amendment 34 to the Crab FMP, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An RIR was prepared for proposed Action 1 and Action 2 that assesses all costs and benefits of available regulatory
The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A detailed description of the actions, the reasons why they are being considered, and a statement of the objectives of, and the legal basis for, these actions are contained in the preamble of this proposed rule and are not repeated here. The IRFA prepared for these actions describes in detail why the actions are being proposed; describes the objectives and legal basis for the proposed rule; describes and estimates the number of small entities to which the proposed rule would apply; describes any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; identifies no overlapping, duplicative, or conflicting Federal rules; and describes any significant alternatives to the proposed rule that accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes, and that would minimize any significant adverse economic impact of the proposed rule on small entities. A summary of that analysis follows. A discussion of the analysis is also found in the preamble to this proposed rule.
The principal objective of the proposed rule is to rectify an economic burden that was unintentionally imposed on a small group of non-AFA crab vessels by implementation of the sideboard limit provisions of the CR Program. Proposed Action 1 and Action 2 would relieve catch restrictions that apply to certain non-AFA crab vessels in GOA Pacific cod and pollock fisheries. NMFS expects the relief from sideboard limit restrictions would enable these vessels to increase participation in these fisheries as compared to their participation in these fisheries while subject to the sideboard restrictions, thus potentially increasing gross revenues for the vessels exempted by the proposed actions.
The entities directly regulated by the proposed actions are those non-AFA crab vessels that target Pacific cod and pollock in Federal and State parallel fisheries in the GOA. For purposes of an IRFA, the Small Business Administration (SBA) has established that a business involved in fish harvesting is a small business if it is independently owned and operated, not dominant in its field of operation (including its affiliates), and if it has combined annual gross receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. Because the SBA does not have a size criterion for businesses that are involved in both the harvesting and processing of seafood products, NMFS has in the past applied and continues to apply SBA's fish harvesting criterion for these businesses because catcher/processors are first and foremost harvesting businesses. Therefore, a business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. NMFS is currently reviewing its small entity size classification for all catcher/processors in the United States. However, until new guidance is adopted, NMFS will continue to use the annual receipts standard for catcher/processors.
The Council analyzed two alternatives for Action 1 and two alternatives for Action 2. Alternative 1 for each action was the status quo. Alternative 2 for each action included different catch threshold options for vessels and groundfish LLP licenses to qualify for an exemption from non-AFA crab vessel GOA Pacific cod and pollock sideboard limits. Alternative 2 for Action 1 included five options. The 1996 through 2000 catch thresholds for the five options were: (1) Option 2.1—a maximum of 0.22 percent (1,212,673 lbs or 550 mt) of total Bering Sea snow crab catch and a minimum of 500 mt of GOA Pacific cod; (2) Option 2.2—a maximum of 500,000 lbs of Bering Sea snow crab and a minimum of 2,500 mt of GOA Pacific cod; (3) Option 2.3—a maximum of 500,000 lbs of Bering Sea snow crab and a minimum of 680 mt of GOA Pacific cod; (4) Option 2.3.1—a maximum of 500,000 lbs of Bering Sea snow crab, a minimum of 680 mt of GOA Pacific cod, and a minimum of 20 GOA pollock landings; and (5) Option 2.4 (preferred alternative)—a maximum of 750,000 lbs of Bering Sea snow crab and a minimum of 680 mt of GOA Pacific cod. Alternative 2 for Action 2 included three options. Each option had a maximum catch threshold of 0.22 percent (1,212,673 lbs or 550 mt) of total Bering Sea snow crab catch from 1996 through 2000. The minimum GOA pollock landing thresholds from 1996 through 2000 for each option were: (1) Option 2.1—5 pollock landings; (2) Option 2.2—10 pollock landings; and (3) Option 2.3—20 pollock landings. The Council and NMFS determined that the status quo alternatives do not contain exemption criteria that includes all non-AFA crab vessels with demonstrated dependence on GOA Pacific cod and pollock fisheries. This outcome is inconsistent with the Council's intent in establishing the non-AFA crab vessel GOA sideboards, which was to enable non-AFA crab vessels with relatively small amounts of Bering Sea snow crab QS, but with relatively significant participation in GOA groundfish fisheries, to continue fishing in GOA groundfish fisheries without being subject to the sideboard limit restrictions. Compared with the status quo, the alternatives recommended by the Council and NMFS are the alternatives that would most benefit non-AFA crab vessels that the Council deemed are dependent on GOA Pacific cod and pollock fisheries. The recommended alternatives also would have a low likelihood of negatively impacting other participants in these GOA fisheries.
The IRFA prepared for the proposed actions matched earnings from all fisheries in and off Alaska for 2007 with the non-AFA crab vessels that participated in the GOA Pacific cod and pollock fisheries for that year. For all of the options considered by the Council, a total of six vessel operators could be directly regulated by Action 1 to revise the criteria for exemption from non-AFA Pacific cod sideboard limits in the GOA. Of these six vessel operations, five operate catcher vessels and each produced gross earnings less than $4 million, thus categorizing them as small entities. The remaining operation, a catcher/processor, produced gross earnings greater than $4 million, categorizing the operation as a large entity. Of the four vessel operations that could be directly regulated by all options the Council considered under Action 2 to establish criteria for exemption from the non-AFA pollock sideboard limits in the GOA, NMFS estimates that all four entities operate catcher vessels and are small entities. One small entity would qualify for an exemption under Action 1 and Action 2.
Under the Council's preferred alternative for Action 1, three operations would be directly regulated by the proposed action, and all of these are estimated to be small entities. Under the Council's preferred alternative for Action 2, one operation would be directly regulated by the proposed action and is estimated to be a small entity. This small entity would qualify for exemptions under Action 1 and Action 2. NMFS estimates that under the Council's preferred alternatives and this proposed rule, a maximum of three small entities would be directly regulated under Action 1 and Action 2. All of the entities that would be directly regulated under the proposed actions would be expected to benefit from the actions relative to the status quo alternative because the proposed actions would relieve restrictions that limit their ability to conduct directed fishing for GOA Pacific cod and pollock. The proposed action would not be expected to have adverse impacts on any of the directly regulated small entities.
Other options considered by the Council for both Action 1 and Action 2 would have potentially benefited up to five additional small entities, for a total of eight small entities under both actions. However, based on landings and participation data, the Council and NMFS determined that these five vessel operations were not sufficiently dependent on the GOA Pacific cod and pollock fisheries, and should not qualify for exemption from the non-AFA crab vessel sideboard limits in the GOA under Amendment 34. Exempting these entities from the GOA sideboard limits would not be consistent with the Council's objective for these actions, which was to exempt from the sideboard limits only those vessel operations that demonstrated significant participation in, and dependence on, GOA Pacific cod and pollock fisheries. The Council and NMFS also concluded that exempting nine entities from the sideboard limits under the least restrictive options considered for Action 1 and Action 2 would almost double the current number of exempt non-AFA crab vessels (five), and potentially have a negative impact on the ability of other participants in the GOA Pacific cod and pollock fisheries to maintain their historical levels of participation. Two small entities that would have qualified under each of the other four options for Action 1 would be able to continue to participate in the GOA Pacific cod sideboard fishery under Amendment 34. Three small entities that would have qualified under each of the other two options for Action 2 would continue to be subject to the GOA pollock sideboards under Amendment 34. These small entities likely would not be able to participate in the GOA pollock fishery because NMFS likely would continue to find the GOA pollock sideboard limits are insufficient amounts for directed fishing.
The proposed rule would not change existing reporting, recordkeeping, and other compliance requirements. The analysis revealed no Federal rules that would conflict with, overlap, or be duplicated by the alternatives under consideration.
Alaska, Fisheries.
For the reasons set out in the preamble, 50 CFR part 680 is proposed to be amended as follows:
1. The authority citation for 50 CFR part 680 continues to read as follows:
16 U.S.C. 1862; Pub. L. 109-241; Pub. L. 109-479.
2. In § 680.22:
a. Revise paragraph (a)(3)
b. Add paragraph (a)(4).
c. Revise the introductory text of paragraph (d).
d. Redesignate paragraph (d)(2) as (d)(3), and revise redesignated paragraph (d)(3).
e. Add paragraph (d)(2).
(a) * * *
(3)
(i) Any vessel subject to GOA groundfish closures under paragraph (a)(1)(i) of this section that landed less than 750,000 lb (340.2 mt), in raw weight equivalents, of Bering Sea snow crab and more than 680 mt (1,499,143 lb), in round weight equivalents, of Pacific cod harvested from the GOA between January 1, 1996, and December 31, 2000; and
(ii) Any LLP license that:
(A) Was initially issued based on the catch history of a vessel meeting the criteria in paragraph (a)(3)(i) of this section; and
(B) Did not generate crab QS based on legal landings from any vessel other than the vessel meeting the criteria in paragraph (a)(3)(i) of this section.
(4)
(i) Any vessel subject to GOA groundfish closures under paragraph (a)(1)(i) of this section that landed less than 1,212,673 lb (550 mt), in raw weight equivalents, of Bering Sea snow crab, and had 20 or more legal landings of pollock harvested from the GOA between January 1, 1996, and December 31, 2000; and
(ii) Any LLP license that:
(A) Was initially issued based on the catch history of a vessel meeting the criteria in paragraph (a)(4)(i) of this section; and
(B) Did not generate crab QS based on legal landings from any vessel other than the vessel meeting the criteria in paragraph (a)(4)(i) of this section.
(d)
(2)
(3)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice of meeting.
The Wrangell-Petersburg Resource Advisory Committee will meet by video-teleconference. 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 review project proposals and make project funding recommendations.
The meeting will be held on Saturday, April 9, 2011 from 8 a.m. to Noon.
Committee members will meet at the Wrangell Ranger District office at 525 Bennett Street in Wrangell, Alaska and at the Tongass National
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 the Petersburg Ranger District office at 12 North Nordic Drive or the Wrangell Ranger District office at 525 Bennett Street during regular office hours (Monday through Friday 8 a.m.-4:30 p.m.).
Christopher Savage, Petersburg District Ranger, P.O. Box 1328, Petersburg, Alaska, 99833, phone (907) 772-3871, e-mail
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: evaluation of project proposals and recommendation of projects for funding. 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. A one-hour public input session will be provided beginning at 9 a.m. on April 9. Persons who wish to make public comment in person may do so at either the Wrangell or Petersburg locations.
Forest Service, USDA.
Notice of meeting.
The Delta-Bienville Resource Advisory Committee will meet in Forest, Mississippi. 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 review and approve project proposals.
The meeting will be held on April 11, 2011, and will begin at 6 p.m.
The meeting will be held at the Bienville Ranger District Work Center, Hwy 501 South, 935A South Raleigh St., Forest, Mississippi 39074. Written comments should be sent to Michael T. Esters, Bienville Ranger District Office, 3473 Hwy 35 South, Forest, Mississippi 39074. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Bienville Ranger District Office, 3473 Hwy 35 South, Forest, Mississippi 39074. Visitors are encouraged to call ahead to 601 469-3811 to facilitate entry into the building.
Nefisia Kittrell, RAC coordinator, USDA, Bienville Ranger District Office, 3473 Hwy 35 South, Forest, Mississippi; (601) 469-3811; E-mail
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) Review project proposals and recommendations. 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.
Forest Service, USDA.
Notice of meeting.
The Coconino Resource Advisory Committee will meet in Flagstaff, Arizona, to hear project proposals, review submissions and make decisions on which proposals will be recommended to the Designated Federal Official.
Project proposals will be heard on May 4, 2011, beginning at 9 a.m. until 4 p.m. The committee will also meet on May 5, 2011 from 9 a.m. to 5 p.m. to review presentations and decide which proposals to recommend, and the committee has also set aside May 6, 2011, from 9 a.m. to 5 p.m., as a day and time to meet in the case that more time is necessary to review projects and make decisions on proposals.
All of these meetings will be held in the Flagstaff City Hall Chambers, 211 W. Aspen, Flagstaff, Arizona. Send written comments to Brady Smith, RAC Coordinator, Coconino Resource Advisory Committee, c/o Forest Service, USDA, 1824 S. Thompson St., Flagstaff, Arizona 86001 or electronically to
Brady Smith, (928) 527-3490.
Forest Service, USDA.
Notice of meeting.
The Sitka Resource Advisory Committee will meet in Sitka, Alaska. 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 this meeting, is to finalize the list of proposed projects.
The meeting will be held on April 14, 2011, and will begin at 4 p.m.
The meeting will be held at the Forest Service Building, Katlian
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 Sitka Ranger District, 204 Siginaka Way, Sitka, Alaska. Visitors are encouraged to call ahead to 907-747-4214 to facilitate entry into the building.
Lisa Hirsch, RAC coordinator, USDA, Tongass NF, Sitka Ranger District, 204 Siginaka Way, Sitka, Alaska 99835; 907-747-4214; E-mail
The meeting is open to the public. The following business will be conducted: (1) Introductions of all committee members, replacement members and Forest Service personnel; (2) Selection of a chairperson by the committee members; (3) Receive materials explaining the process for considering and recommending Title II projects; and (4) Public Comment. 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.
Forest Service, USDA.
Notice of meeting.
The Ashley Resource Advisory Committee will meet in Vernal, Utah. 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 conduct introductions, approve meeting minutes, develop and finalize evaluation criteria for the ranking of recommended projects, set the next meeting date, time and location and receive public comment on the meeting subjects and proceedings.
The meetings will be held April 19, 2011, from 6 to 9 p.m. and on May 11, 2011 from 6 to 9 p.m.
The meeting will be held in the Interagency Fire Dispatch Center conference room at the Ashley National Forest Supervisor's Office, 355 North Vernal Avenue in Vernal, Utah. Written comments should be sent to Ashley National Forest, 355 North Vernal Avenue, Vernal, UT 84078. Comments may also be sent via e-mail to
Louis Haynes, RAC Coordinator, Ashley National Forest, (435) 781-5105; e-mail:
The meeting is open to the public. The following business will be conducted: (1) Welcome and roll call; (2) Approval of meeting minutes; (3) Roll call voting on projects; (4) Development of a prioritized recommendation for project funding; (5) review of future meeting purpose, location, and date; (6) Receive public comment. 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 and individuals who made written requests by April 6, 2011 will have the opportunity to address the committee at these meetings.
Forest Service, U.S.D.A.
Announcement of Meeting; Federal Advisory Committee meeting to be held authorized under the Secure Rural Schools Act and Community Self-Determination Act, Public Law 110-343.
On April 14, 2011, the U.S Forest Service will host a meeting of the federally designated Secure Rural Schools Resource Advisory Committee (RAC). The public is invited to attend the meeting and provide input. A Secure Rural Schools RAC provides advice and recommendations to the Forest Service on the development and implementation of special projects as authorized under the Secure Rural Schools and Community Self-Determination Act, Public Law 110-343.
The meeting will be held on April 14, 2011 from 12-4.
The meeting location is U.S. Forest Service, Osceola Ranger District, 24874 U.S. Highway 90, Olustee, Florida 32072.
Denise Rains, Public Services Staff Officer, 850-523-8568, e-mail
Florida's RAC consists of 15 people selected to serve on the committee by Secretary of Agriculture Tom Vilsack. Members are from throughout the state and represent varied interests and areas of expertise. They will work collaboratively to improve working relationships among community members and national forest personnel.
Five Florida counties, Liberty, Wakulla, Columbia, Baker and Marion, elected to set aside a percentage of their Secure Rural Schools payment. Counties receive a payment annually for having National Forest lands within their boundaries. The RAC will ultimately review and recommend projects to be funded from this money. Projects approved must benefit National Forests lands and can maintain infrastructure, improve the health of watersheds and ecosystems, protect communities, and strengthen local economies.
Forest Service, USDA.
Notice of meeting.
The Coconino Resource Advisory Committee will meet in
The meeting will be held April 28, 2011, beginning at 12 p.m. to 5 p.m.
The meeting will be held in the Ponderosa Room of the Coconino County Health Department, 2625 N. King St., Flagstaff, Arizona, 86004. Send written comments to Brady Smith, RAC Coordinator, Coconino Resource Advisory Committee, c/o Forest Service, USDA, 1824 S. Thompson St., Flagstaff, Arizona 86001 or electronically to
Brady Smith, Coconino National Forest, (928) 527-3490.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) is extending the time limit for the preliminary results of the new shipper review of uncovered innerspring units (“innersprings”) from the People's Republic of China (“PRC”). The period of review for this review is February 1, 2010-July 31, 2010.
Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0413.
On October 7, 2010 the Department published a notice of initiation of the new shipper review in the antidumping duty order on innersprings from the PRC for Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory (“Quan Li”) and Foshan Yongnuo Import & Export Co., Ltd. (“Yongnuo”).
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the “Act”), and 19 CFR 351.214(i)(1) require the Department to issue the preliminary results of a new shipper review within 180 days after the date on which the new shipper review was initiated and final results within 90 days after the date on which the preliminary results are issued. However, the Department may extend the deadline for completion of the preliminary results of a new shipper review to 300 days if it determines that the case is extraordinarily complicated.
The Department has determined that the review is extraordinarily complicated as the Department must issue, and analyze the responses to, additional supplemental questionnaires concerning Quan Li's and Yongnuo's sales practices and factors of production. Moreover, the Department needs additional time to analyze the
Therefore, the Department is extending the time limit for completion of the preliminary results of this new shipper review by 65 days from the original March 28, 2011, deadline. As a result, the preliminary results will now be due no later than June 1, 2011. The final results continue to be due 90 days after the issuance of the preliminary results.
We are issuing and publishing this notice in accordance with sections 751(a)(2)(B)(iv) and 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public comment on an application for exempted fishing permit.
This notice announces receipt of an application and the public comment period for an exempted fishing permit (EFP) from Mr. John Gauvin of Gauvin and Associates, LLC. If granted, this permit would allow the applicant to continue the development and testing of a salmon excluder device for the Bering Sea pollock trawl fishery. This activity is intended to promote the objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) by reducing salmon bycatch in the Bering Sea pollock trawl fishery.
Written comments must be received by 5 p.m. A.l.t. April 27, 2011. Interested persons may comment on the EFP application and on the environmental assessment during the North Pacific Fishery Management Council (Council) March 28 through April 5, 2011, meeting in Anchorage, AK.
The Council meeting will be held at the Hilton Hotel, 500 West Third Ave., Anchorage, AK. Send comments to Galen Tromble, Acting Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by “RIN 0648-XA295,” by any one of the following methods:
•
•
•
•
All comments received are a part of the public record and will generally be posted to
Copies of the EFP application and the environmental assessment (EA) are available from the Alaska Region, NMFS Web site at
Mary Grady, 907-586-7228.
NMFS manages the domestic groundfish fisheries in the Bering Sea and Aleutian Islands Management Area (BSAI) under the FMP. The Council prepared the FMP under the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing the groundfish fisheries of the BSAI appear at 50 CFR parts 600 and 679. The FMP and the implementing regulations at §§ 600.745(b) and 679.6 authorize issuance of EFPs to allow fishing that would otherwise be prohibited. Procedures for issuing EFPs are contained in the implementing regulations.
NMFS received an application for an EFP from Mr. Gauvin in November 2010. The purposes of the EFP project would be to improve the performance of the salmon excluder device developed under EFP 08-02 from 2008 to 2010, and to validate the performance of this device for pollock trawl gear used in the BSAI. Focused efforts of the EFP project would be on using an excluder device to reduce chum salmon bycatch and refinement to the Chinook salmon excluder device. The goal is to develop a device for pollock trawl gear that reduces salmon bycatch without significantly lowering catch rates of pollock.
The EFP would allow for development and testing of the salmon excluder device from August 2011 through November 2012, for several weeks in each pollock A and B season. Testing in each season would allow the device to be used under salmon occurrence and pollock fishing practices specific to each season. Testing in the A season would catch primarily Chinook salmon and roe-bearing pollock, while testing in the B season would catch Chinook and chum salmon and pollock that are not likely to be roe-bearing. EFP fishing would be conducted by one to two vessels in each season.
To test the salmon excluder device, exemptions would be necessary from regulations for salmon bycatch management, observer requirements, closure areas, and total allowable catch amounts (TACs) for groundfish. The taking of salmon during the experiment is crucial for determining the effectiveness of the device. Salmon taken during the experiment would not be counted toward the Chinook and chum salmon bycatch limits under § 679.21(e)(1)(vii) and f(2). The amount of chum salmon bycatch by the pollock trawl industry during the EFP period could potentially approach or exceed the chum salmon bycatch limits under § 679.21(e). If the EFP chum salmon were counted toward the chum salmon bycatch limits, the EFP salmon may create an additional burden on the pollock trawl fishermen not participating in the intercooperative agreement for chum salmon bycatch reduction by causing earlier closures of the Chum Salmon Savings Area. More information regarding the intercooperative agreement for salmon bycatch reduction is at 72 FR 61070 (October 29, 2007). Information regarding Amendment 91 for Bering Sea Chinook salmon bycatch management is at 75 FR 53026, August 30, 2010.
Approximately 2,500 chum salmon and 125 Chinook salmon for each B season and 125 chum salmon and 600 Chinook salmon for one A season would be required to support the project. In total, the applicant would be limited to harvesting 5,125 chum salmon and 850 Chinook salmon for the time period of the EFP. The experimental design requires this quantity of salmon to ensure statistically valid results.
The applicant also has requested an exemption from the Chum Salmon Savings Area (§§ 679.21(e)(7)(vii) and 679.22(a)(10)), the Bering Sea Pollock Restriction Area (§ 679.22(a)(7)(ii)), and the Steller Sea Lion Conservation Area (§ 679.22(a)(7)(vii)). These overlapping areas occur in locations of salmon concentration. The experiment must be conducted in areas of salmon concentration sufficient to ensure a statistically adequate sample size. These locations are ideal for conducting the experiment and ensuring that the vessel encounters sufficient concentrations of salmon and pollock for meeting the experimental design.
Groundfish taken under the EFP would be exempt from the TACs specified in the annual harvest specifications (§ 679.20). A total of 2,500 metric tons (mt) of groundfish (primarily pollock) would be taken during each season of the EFP for a total of 7,500 mt over the duration of the EFP. Approximately 98 percent of the groundfish harvested is expected to be pollock. The experimental design requires this quantity of pollock to ensure a statistically adequate sample size for measuring pollock escapement through the salmon excluder device. The EFP pollock harvest would not be included in the harvest applied against the Bering Sea groundfish TACs, including the 2011 pollock TAC of 1,266,400 mt and 2012 pollock TAC of 1,253,658 mt. The acceptable biological catches (ABC) for Bering Sea pollock in 2011 and 2012 are 1,270,000 mt and 1,600,000 mt, respectively. Because of very little groundfish incidental catch in the pollock fishery, the harvest of other fish species during the EFP fishing is expected to be 25 mt to 75 mt per season. The majority of these other species harvested under the EFP likely would be Pacific cod, skates, flatfish, halibut, and jellyfish. The amount of groundfish harvest under the EFP and by the commercial groundfish fisheries is not expected to exceed the ABCs for groundfish species in either 2011 or 2012.
Using a catcher/processor for the EFP study would require exemption from the Catcher Vessel Operating Area (CVOA) restriction (§ 679.22(a)(5)) because of the location of the Chinook salmon concentration in the CVOA. Catcher/processors are prohibited from operating in the CVOA during the B season. The EFP fishing may be done by either a catcher vessel or a catcher/processor. It may be necessary for the EFP applicant to use a catcher/processor to conduct tows in this area to ensure encountering sufficient pollock and salmon concentrations to meet the experimental design.
The EFP would include an exemption from the observer requirements at § 679.50. The applicants would use “sea samplers” who are NMFS-trained observers. They would not be deployed as NMFS observers, however, at the time of the EFP fishing. The “sea samplers” would conduct the EFP data collection and perform other observer duties that normally would be required for vessels directed fishing for pollock.
The activities under the EFP are not expected to have a significant impact on the human environment as analyzed in the EA for this action (
In accordance with § 679.6, NMFS has determined that the proposal warrants further consideration and has forwarded the application to the Council to initiate consultation. The Council will consider the EFP application during its March 28 through April 5, 2011 meeting, which will be held at the Hilton Hotel in Anchorage, AK. The applicant has been invited to appear in support of the application.
Public comments are being solicited on the application and the EA through the end of the comment period stated in this notice. To be considered, comments must be received by 5 p.m. A.L.T. on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date. Copies of the application and EA are available for review from NMFS (
Information regarding the meeting is available at the Council's Web site at
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS, has made a preliminary determination that the subject exempted fishing permit (EFP) application contains all the required information and warrants further consideration. This EFP extension would exempt four commercial fishing vessels from the restriction on fishing for, catching, possessing, landing, and selling female red crabs in excess of one standard tote for the purpose of research on an experimental female red crab fishery that is being conducted in conjunction with the Bigelow Laboratory for Ocean Sciences.
Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.
Comments must be received on or before April 12, 2011.
You may submit written comments by any of the following methods:
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•
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Carly Knoell, Fisheries Management Specialist, 978-281-9224,
An application for an EFP extension was submitted on February 28, 2011, by Dr. Richard Wahle of the Bigelow Laboratory for Ocean Sciences; Dr. Yong Chen of the School of Marine Sciences, University of Maine; and Mr. Jon Williams of the New England Red Crab Harvesters' Association to conduct commercial fishing activities that the regulations would otherwise restrict. The EFP would authorize four vessels to catch, possess, land, and sell female red crabs in excess of one standard tote of female red crab, as specified at 50 CFR 648.263(a)(3). Vessels would remain subject to all other commercial fishing regulations, including red crab possession limits and days-at-sea restrictions.
The primary goal of the experimental fishery is to harvest non-egg-bearing females to expand the red crab market and increase efficiency in the harvesting process. In addition, an experimental fishery that includes non-egg-bearing females has provided an opportunity to conduct at-sea sampling, renewed tagging, and model development to better evaluate the growth and reproductive performance of the population, as well as the impact of current and proposed harvesting on yields and egg production. This aspect of the project is conducted by an onboard researcher under the direction of Dr. Wahle.
The EFP was initially issued July 23, 2009, for 1 year, expiring July 22, 2010. An extension was granted July 26, 2010, through the end of the fishing year (February 28, 2011). A subsequent extension is now being requested due to initial logistical delays and additional time to complete research and funding components of this study. No additional exemptions will be included in the extension of this EFP and the activities of the study remain consistent with the Atlantic Deep-Sea Red Crab Fishery Management Plan.
If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
16 U.S.C. 1801
Office of National Marine Sanctuaries (ONMS) National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice and request for applications.
The ONMS is seeking applications for the following vacant seats on the Monterey Bay National Marine Sanctuary Advisory Council: Diving, Education (alternate), Research (alternate), Tourism (alternate) and Agriculture (alternate). Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the protection and management of marine resources; and possibly the length of residence in the area affected by the sanctuary.
Applicants who are chosen should expect to serve until February 2014. The Research alternate and Agriculture alternate should expect to serve until February 2013 because the seats were vacated prematurely.
Applications are due by April 15, 2010.
Application kits may be obtained from 299 Foam Street, Monterey, CA, 93940 or online at
Nicole Capps, 299 Foam Street, Monterey, CA, 93940, (831) 647-4206,
The MBNMS Advisory Council was established in March 1994 to assure continued public participation in the management of the Sanctuary. Since its establishment, the Advisory Council has played a vital role in decisions affecting the Sanctuary along the central California coast.
The Advisory Council's twenty voting members represent a variety of local user groups, as well as the general public, plus seven local, state and federal governmental jurisdictions. In addition, the respective managers or superintendents for the four California National Marine Sanctuaries (Channel Islands National Marine Sanctuary, Cordell Bank National Marine Sanctuary, Gulf of the Farallones National Marine Sanctuary and the Monterey Bay National Marine Sanctuary) and the Elkhorn Slough National Estuarine Research Reserve sit as non-voting members.
Four working groups support the Advisory Council: The Research Activity Panel (“RAP”) chaired by the Research Representative, the Sanctuary Education Panel (“SEP”) chaired by the Education Representative, the Conservation Working Group (“CWG”) chaired by the Conservation Representative, and the Business and Tourism Activity Panel (“BTAP”) chaired by the Business/Industry Representative, each dealing with matters concerning research, education, conservation and human use. The working groups are composed of experts from the appropriate fields of interest and meet monthly, or bi-monthly, serving as invaluable advisors to the Advisory Council and the Sanctuary Superintendent.
The Advisory Council represents the coordination link between the Sanctuary and the state and federal management agencies, user groups, researchers, educators, policy makers, and other various groups that help to focus efforts and attention on the central California coastal and marine ecosystems.
The Advisory Council functions in an advisory capacity to the Sanctuary Superintendent and is instrumental in helping develop policies, program goals, and identify education, outreach, research, long-term monitoring, resource protection, and revenue enhancement priorities. The Advisory Council works in concert with the Sanctuary Superintendent by keeping him or her informed about issues of concern throughout the Sanctuary, offering recommendations on specific issues, and aiding the Superintendent in achieving the goals of the Sanctuary program within the context of California's marine programs and policies.
16 U.S.C. 1431,
Headquarters U.S. Marine Corps, Division of Public Affairs, Community Relations Office, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by May 27, 2011.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Headquarters U.S. Marine Corps, Division of Public Affairs, Community Relations Branch, Attn: Maj Stewart Upton, 3000 Pentagon, Room 4A532, Washington, DC 20350-3000, e-mail
Respondents are patrons of the St. Louis, MO, community who are presently attending all events and programs during Marine Week St. Louis, 20-26 Jun 2011. The event locations defined under OMB number 0703-TBD where public information collection will take place are the Gateway Arch grounds at Jefferson National Expansion Memorial Park, Ballpark Village Field at Busch Stadium, and the Soldiers' Military Memorial Museum.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 11-10 with attached transmittal, policy justification, and Sensitivity of Technology.
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 the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before May 27, 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
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.
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before April 27, 2011.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395-5806 or e-mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB) Chairs. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Green Valley Ranch Resort, 2300 Paseo Verde Parkway, Henderson, Nevada.
Catherine Alexander Brennan, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; Phone: (202) 586-7711.
Tentative Agenda Topics:
○ EM Program Update
○ EM SSAB Chairs' Round Robin: Top Three Site-Specific Issues, EM SSAB Accomplishments, and Major Board Activities
○ EM Headquarters Budget and American Recovery and Reinvestment Act Updates
○ Environmental Management Advisory Board Overview
○ EM Headquarters Waste Disposition Update
○ EM SSAB Chairs' Roundtable Discussion: Day One Presentations and Product Development
○ EM Headquarters Groundwater Update
○ EM SSAB Chairs' Roundtable Discussion: Day Two Presentations and Product Development
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
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 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
This is a supplemental notice in the above-referenced proceeding of Lively Grove Energy Partners, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 7, 2011.
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 Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
On March 15, 2011, Federal Energy Regulatory Commission staff (Staff) held a technical conference to obtain further information to aid the Commission in considering issues related to the ownership of and priority access rights to new participant-funded transmission projects.
In particular, Staff sought to explore issues related to priority rights to use transmission infrastructure developed under various new business models in two specific contexts: independent and/or merchant transmission, and generator lead lines. In both contexts, participants were encouraged to identify and discuss the appropriate balance between the Commission's requirements for open access and the needs of project developers. Participants were also encouraged to propose and discuss specific regulatory alternatives that are consistent with the Commission's open access policies and its statutory responsibility to ensure that rates, terms, and conditions of service are just and reasonable and not unduly discriminatory or preferential.
Persons wishing to comment on these issues should submit written comments to the Commission no later than April 21, 2011.
Environmental Protection Agency (EPA).
Notice of extension of public comment.
EPA is announcing an extension of the public comment period for the first external review draft of a document titled, “First External Review Draft Integrated Science Assessment for Ozone and Related Photochemical Oxidants” (EPA/600/R-10/076A). The original
The public comment period began on February 28, 2011, and ends May 5, 2011. Comments must be received by EPA by May 5, 2011.
The “First External Review Draft Integrated Science Assessment for Ozone and Related Photochemical Oxidants” will be available primarily via the Web page under the Recent Additions and Publications menus at
For technical information, contact Dr. James Brown, NCEA; telephone: 919-541-0765; facsimile: 919-541-1818; or e-mail:
Comments may be submitted electronically via
For information on submitting comments to the docket, please contact the Office of Environmental Information Docket; telephone: 202-566-1752; facsimile: 202-566-1753; or e-mail:
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency (EPA) Office of the Science Advisor (OSA) announces a public meeting of the HSRB to advise the Agency on EPA's scientific and ethical reviews of research with human subjects.
This public meeting will be held on April 13-14, 2011, from approximately 8:30 a.m. to approximately 5 p.m. Eastern Time.
Submit your written comments, identified by Docket ID No. EPA-HQ-ORD-2011-0124, by one of the following methods:
Any member of the public who wishes to receive further information should contact Jim Downing at telephone number: (202) 564-2468; fax: (202) 564-2070; e-mail address:
This action is directed to the public in general. This action may, however, be of particular interest to persons who conduct or assess human studies, especially studies on substances regulated by EPA, or to persons who are, or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult Jim Downing or Lu-Ann Kleibacker listed under
In addition to using regulations.gov, you may access this
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data that you used to support your views.
4. Provide specific examples to illustrate your concerns and suggest alternatives.
5. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
You may participate in this meeting by following the instructions in this section. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA-HQ-ORD-2011-0124 in the subject line on the first page of your request.
The HSRB is a Federal advisory committee operating in accordance with the Federal Advisory Committee Act (FACA) 5 U.S.C. App.2 § 9. The HSRB provides advice, information, and recommendations to EPA on issues related to scientific and ethical aspects of human subjects research. The major objectives of the HSRB are to provide advice and recommendations on: (1) Research proposals and protocols; (2) reports of completed research with human subjects; and (3) how to strengthen EPA's programs for protection of human subjects of research. The HSRB reports to the EPA Administrator through EPA's Science Advisor.
1.
a. The report of a completed scenario monograph and study reports from the Agricultural Handler Exposure Task Force (AHETF) measuring the dermal and inhalation exposure of professional agricultural workers applying liquid spray pesticides to tree or trellis crops using open cab airblast equipment.
b. The report of a completed scenario monograph and study report from the Antimicrobial Exposure Assessment Task Force II (AEATF) in which the dermal and inhalation exposure of professional janitorial workers was monitored as they applied a liquid antimicrobial product to indoor surfaces using a trigger spray bottle and wipes or ready-to-use wipes.
c. A published report by
d. A reevaluation of an intentional human dosing study with chlorpyrifos (Kisicki) previously reviewed by the HSRB; pertinent new information from the sponsor has been made available.
2.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office announces a public face-to-face meeting of the Black Carbon Review Panel.
The meeting will be held on April 18, 2011 from 9 a.m. to 5 p.m. and April 19, 2011 from 8:30 a.m. to 2:30 p.m. (Eastern Time).
The Panel meeting will be held at the Omni Shoreham, 2500 Calvert Street NW., Washington, DC 20008.
Members of the public who wish to obtain further information regarding this meeting must contact Ms. Stephanie Sanzone, Designated Federal Officer (DFO). Ms. Sanzone may be contacted at the EPA Science Advisory Board (1400R), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or by telephone/voice mail at (202) 564-2067; fax at (202) 565-2098; or e-mail at sanzone.stephanie@epa.gov. General information concerning the Council can be found at the EPA Council Web site at
The October 2009 Interior Appropriations bill (Pub. L. 111-88) requires the EPA, in consultation with other Federal agencies, to prepare a comprehensive report to Congress on the climate effects of black carbon. Black carbon, or soot, results from incomplete combustion of organic matter such as fossil fuels and biomass. The report to Congress will evaluate and synthesize available information on sources of black carbon, impacts of black carbon on global and regional climate, and the potential utility and cost-effectiveness of mitigation options for reducing climate and public health impacts of black carbon.
EPA's Office of Air Quality Planning and Standards (OAQPS) requested that the Council review the draft
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit comments for a federal advisory committee to consider as it develops advice for EPA. Input from the public to the Council will have the most impact if it provides specific scientific or technical information or analysis for Council panels to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the Designated Federal Officer for the relevant advisory committee directly.
Federal Election Commission.
Notice of filing dates for special election.
California has scheduled a special general election on May 17, 2011, to fill the U.S. House of Representatives seat in the Thirty-Sixth Congressional District vacated by Representative Jane Harman. Under California law, a majority winner in a special election is declared elected. Should no candidate achieve a majority vote, a special runoff election will be held on July 12, 2011, between the top two vote-getters.
Political committees participating in the California special elections are required to file pre- and post-election reports. Filing deadlines for these reports are affected by whether one or two elections are held.
CONTACT: Mr. Kevin R. Salley, Information Division, 999 E Street, NW., Washington, DC 20463;
All principal campaign committees of candidates who participate in the California Special General and Special Runoff Elections shall file a 12-day Pre-General Report on May 5, 2011; a Pre-Runoff Report on June 30, 2011; and a Post-Runoff Report on August 11, 2011. (
If only one election is held, all principal campaign committees of candidates in the Special General Election shall file a 12-day Pre-General Report on May 5, 2011; and a Post-General Report on June 16, 2011. (
Note that these reports are in addition to the campaign committee's quarterly filings in July and October. (
Political committees filing on a semi-annual basis in 2011 are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the California Special General Election and/or Special Runoff Election by the close of books for the applicable report(s). (
Committees filing monthly that make contributions or expenditures in connection with the California Special General or Special Runoff Election will continue to file according to the monthly reporting schedule.
Additional disclosure information in connection with the California Special Election may be found on the FEC Web site at
Campaign committees, party committees and Leadership PACs that are otherwise required to file reports in connection with the special elections must simultaneously file FEC Form 3L if they receive two or more bundled contributions from lobbyists/registrants or lobbyist/registrant PACs that aggregate in excess of $16,200 during the special election reporting periods (
On behalf of the Commission.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
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 place of performance.
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; and ways to enhance the quality, utility, and clarity of the information to be collected.
Submit comments on or before May 27, 2011.
Submit comments identified by Information Collection 9000-0047 by any of the following methods:
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Mr. Michael O. Jackson, Procurement Analyst, Contract Policy Branch at (202) 208-4949 or e-mail
The information relative to the place of performance and owner of plant or facility, if other than the prospective contractor, is a basic requirement when contracting for supplies or services (including construction). This information is instrumental in determining bidder responsibility, responsiveness, and price reasonableness. A prospective contractor must affirmatively demonstrate its responsibility. Hence, the Government must be apprised of this information prior to award. The contracting officer must know the place of performance and the owner of the plant or facility to (1) determine bidder responsibility; (2) determine price reasonableness; (3) conduct plant or source inspections; and (4) determine whether the prospective contractor is a manufacturer or a regular dealer. The information is used to determine the firm's eligibility for awards and to assure proper preparation of the contract. Contractors can complete the provision electronically in the On-Line Representation and Certifications Application (ORCA); however, because the data being collected could change for a specific solicitation, contractors will still be required to submit place of performance information on an exceptional basis; that is, whenever the place of performance for a specific solicitation is different from the place of performance shown in ORCA.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public 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 environmentally sound products.
Submit comments on or before May 27, 2011.
Submit comments identified by Information Collection 9000-0134 by any of the following methods:
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•
Mr. William Clark, Procurement Analyst, Contract Policy Branch, GSA, (202) 219-1813 or
This information collection complies with Section 6002 of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6962). RCRA requires the Environmental Protection Agency (EPA) to designate items which are or can be produced with recovered materials. RCRA further requires agencies to develop affirmative procurement programs to ensure that items composed of recovered materials will be purchased to the maximum extent practicable. Affirmative procurement programs required under RCRA must contain, as a minimum (1) A recovered materials preference program and an agency promotion program for the preference program; (2) a program for requiring estimates of the total percentage of recovered materials used in the performance of a contract, certification of minimum recovered material content actually used, where appropriate, and reasonable verification procedures for estimates and certifications; and (3) annual review and monitoring of the effectiveness of an agency's affirmative procurement program.
The items for which EPA has designated minimum recovered material content standards are grouped into eight categories: (1) Construction products, (2) landscaping products, (3) nonpaper office products, (4) paper and paper products, (5) park and recreation products, (6) transportation products, (7) vehicular products, and (8) miscellaneous products. The FAR rule also permits agencies to obtain pre-award information from offerors regarding the content of items which the agency has designated as requiring minimum percentages of recovered materials.
In accordance with RCRA, the information collection applies to acquisitions requiring minimum percentages of recovered materials, when the price of the item exceeds $10,000 or when the aggregate amount paid for the item or functionally equivalent items in the preceding fiscal year was $10,000 or more.
Contracting officers use the information to verify offeror/contractor compliance with solicitation and contract requirements regarding the use of recovered materials. Additionally, agencies use the information in the annual review and monitoring of the effectiveness of the affirmative procurement programs required by RCRA.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, email your request, including your address, phone number, OMB number, and OS document identifier, to
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Administration for Children and Families, Department of Health and Human Services (HHS).
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Administration for Children and Families (ACF). The meeting will be open to the public.
The meeting will be held on April 12th and April 13th, 2011, from 8:30 a.m. to 5 p.m.
Hyatt Arlington, 1325 Wilson Boulevard, Arlington, VA 22209, Phone: 703-525-1234.
Jennifer Brooks, Office of Planning, Research, and Evaluation,
ACF welcomes the attendance of the public at this advisory committee meeting and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Jennifer Brooks at least seven days in advance of the meeting. Information about the committee and this meeting can be found at the committee Web site,
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by April 27, 2011.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or e-mailed to
Denver Presley, Jr., Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-3793.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act) added section 414 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 350c), which requires that persons who manufacture, process, pack, hold, receive, distribute, transport, or import food in the United States establish and maintain records identifying the immediate previous sources and immediate subsequent recipients of food. Sections 1.326 through 1.363 of FDA's regulations (21 CFR 1.326 through 1.363) set forth the requirements for recordkeeping and records access. The requirement to establish and maintain records improves FDA's ability to respond to, and further contain, threats of serious adverse health consequences or death to humans or animals from accidental or deliberate contamination of food.
FDA's regulations require that records for non-transporters include the name and full contact information of sources, recipients, and transporters, an adequate description of the food including the quantity and packaging, and the receipt and shipping dates (§§ 1.337 and 1.345). Required records for transporters include the names of consignor and consignee, points of origin and destination, date of shipment, number of packages, description of freight, route of movement and name of each carrier participating in the transportation, and transfer points through which shipment moved (§ 1.352). Existing records may be used if they contain all of the required information and are retained for the required time period.
In the
FDA estimates the burden of this collection of information as follows:
This estimate is based on FDA's estimate of the number of facilities affected by the final rule entitled “Establishment and Maintenance of Records Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002,” published in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (the PRA).
Fax written comments on the collection of information by April 27, 2011.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or e-mailed to
Denver Presley, Jr., Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-3793.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The Program Standards define nine essential elements of an effective regulatory program for retail food establishments, establish basic quality control criteria for each element, and provide a means of recognition for those state, local, and tribal regulatory programs that meet the Program Standards. The program elements addressed by the Program Standards are as follows: (1) Regulatory foundation, (2) trained regulatory staff, (3) inspection program based on Hazard Analysis and Critical Control Point (HACCP) principles, (4) uniform inspection program, (5) foodborne illness and food defense preparedness and response, (6) compliance and enforcement, (7) industry and community relations, (8) program support and resources, and (9) program assessment. Each standard includes a list of records needed to document compliance with the standard (referred to in the Program Standards document as “quality records”) and has one or more corresponding appendices that contain forms and worksheets to facilitate the collection of information needed to assess the retail food regulatory program against that standard. The respondents are State, local and tribal government Agencies. Regulatory Agencies may use existing, available records or may choose to develop and use alternate forms and worksheets that capture the same information.
In the course of their normal activities, state, local, and tribal
State, local, and tribal regulatory Agencies that enroll in the Program Standards and seek listing in the FDA National Registry are required to report to FDA on the completion of the following three management tasks outlined in the Program Standards: (1) Conducting a program self assessment, (2) conducting a baseline survey of the regulated industry, and (3) obtaining an independent outside audit (verification audit). The results are reported to FDA on Form FDA 3519, “FDA National Registry Report” and Form FDA 3520, “Permission to Publish in National Registry.” These forms are located in Appendix I of the Program Standards document. If a regulatory Agency follows all the recordkeeping recommendations in the individual standards and their appendices, it will have all the information needed to complete the forms.
In April 2010, the Conference for Food Protection approved changes to the Program Standards. The changes have been incorporated into a draft 2011 revision, which will be available at:
FDA analyzed whether incorporation of these changes alters its estimate of the recordkeeping and reporting burdens. FDA concluded that the changes will lessen the annual recordkeeping burden estimate because the management tasks will be conducted on a less frequent basis annually. Thus, based on its experience with the Program Standards over the past 3 years, FDA has reduced its estimate of the hours per record to 94.29, from the previously estimated 157 hours per record in 2008. The reduced recordkeeping burden hour estimates are shown in table 1 of this document. FDA notes that jurisdictions that choose to analyze their inspection data per the Standard 9 criteria will enjoy a less resource intensive method for tracking risk factor trends over time. However, the Agency has not reduced its estimate of 333 hours for Standard 9 shown in table 2 of this document. The Agency will consider reducing this estimate in a future information collection request based on supporting data it expects to receive in the future from participating jurisdictions. The two noted changes had no effect on the reporting burden hour estimates shown in table 2 of this document.
FDA's recordkeeping burden estimate includes time required for a State, local, or tribal Agency to review the instructions in the Program Standards, compile information from existing sources, and create any records recommended in the Program Standards that are not already kept in the normal course of the Agency's usual and customary activities. Worksheets (Appendices) are provided to assist in this compilation. In estimating the time needed for the program self-assessment (Program Standards 1-8, shown in table 1 of this document), FDA considered responses from four state and three local jurisdictions that participated in an FDA Program Standards Pilot study. Table 2 of this document shows the estimated recordkeeping burden for the completion of the baseline data collection and table 3 of this document shows the estimated recordkeeping burden for the verification audit.
In the
FDA estimates the burden for this collection of information as follows:
Thus, FDA estimates the recordkeeping burden for this collection of information as follows:
FDA bases its estimates of the number of recordkeepers and the hours per record on its experience with the Program Standards over the past 3 years. FDA estimates that approximately 500 regulatory jurisdictions will participate in the Program Standards. There are approximately 3,000 jurisdictions in the United States and its territories that have retail food regulatory programs. Enrollment in the Program Standards is voluntary and, therefore, FDA does not expect all jurisdictions to participate.
FDA bases its estimate of the hours per record on the recordkeeping estimates for the management tasks of self assessment, baseline data collection, and verification audit (tables 1, 2, and 3 of this document) that enrolled jurisdictions must perform, a total of 471.45 hours (92.3 + 333 + 46.15 = 471.45). As noted, based on its experience with the Program Standards over the past 3 years, FDA has reduced its estimate of the number of recordkeeping hours that enrolled jurisdictions will perform annually to 94.29, from the previously estimated 157 hours per record in 2008. FDA estimates that, annually, 500 recordkeepers will spend 94.29 hours performing the required recordkeeping for a total of 47,145 hours.
FDA requires regulatory jurisdictions that participate in the Program Standards to submit two forms annually: Form FDA 3519, “FDA National Registry Report,” and Form FDA 3520, “Permission to Publish in National Registry.” Form FDA 3519 requires the name and address of the jurisdiction; completion dates for the self assessment, baseline survey (original and update), and verification audit; names of the person(s) who completed the self-assessment, verification audit, baseline survey, baseline survey update, and action plan; signature of the program manager; and date the form was completed. Form FDA 3520 requires the name of the jurisdiction, completion date of the self assessment, date of the verification audit report, name of the auditor, signature and title of the official completing the form, and date the form was completed.
The reporting burden in table 5 of this document includes only the time necessary to fill out and send the forms, as compiling the underlying information (including self-assessment reports, baseline surveys, outside audits, and supporting documentation) is accounted for under the recordkeeping estimates in table 1 of this document.
FDA estimates the reporting burden for this collection of information as follows:
FDA bases its estimates of the number of respondents and the hours per response on its experience with the Program Standards over the past 3 years. As explained previously in this document, FDA estimates that 500 regulatory jurisdictions will enroll in the Program Standards. FDA estimates a total of 12 minutes annually for each enrolled jurisdiction to complete both forms. FDA bases its estimate on the small number of data elements on the two forms and the ease of availability of the information. FDA estimates that, annually, 500 regulatory jurisdictions will submit one Form FDA 3519 for a total of 500 annual responses. Each submission is estimated to take 0.1 hour per response for a total of 50 hours. FDA estimates that, annually, 500 regulatory jurisdictions will submit one Form FDA 3520 for a total of 500 annual responses. Each of these submissions is estimated to take 0.1 hour per response for a total of 50 hours. FDA estimates that, annually, 500 regulatory jurisdictions will submit three requests for documentation of successful completion of staff training using the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of updated special controls guidance documents for class II devices, which contain edits that reflect the Agency's effort to clarify questions and confusion regarding its position on the binding nature of special controls guidance documents. The revised language does not change the Agency's position or view, but rather is intended to clarify its position and remedy any possible confusion or misunderstanding.
Submit either electronic or written comments on this document at any time. General comments on Agency guidance documents are welcome at any time.
See the
Submit electronic comments on this document to
Philip Desjardins, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 5452, Silver Spring, MD 20993-0002, 301-796-5678; or Stephen Ripley, Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852, 301-827-6210.
In December 2008, FDA revised the cover sheet and standard language in newly issued special controls guidance documents to clarify the effect of a guidance that has been established as a special control (“special controls guidance”). In order to comply with the special controls guidance, manufacturers must address each identified risk to health presented in the guidance for the class II device by either meeting the recommendations of the guidance or by some other means that provides equivalent assurances of safety and effectiveness.
FDA is now updating all pre-December 2008 special controls guidance documents with the revised standard language. Revisions to the special controls guidance documents include clarifying the statement of the special controls guidance document's effect by replacing the standard language with the following statement: “The firm must show that its device addresses the issues of safety and effectiveness identified in this guidance, either by meeting the recommendations of this guidance or by some other means that provides equivalent assurances of safety and effectiveness.”
Special controls guidance documents on the following topics have been affected:
1. Acute Upper Airway Obstruction Devices,
2. Clitoral Engorgement Devices,
3. Anti-
4. Shoulder Joint Metal/Polymer/Metal Nonconstrained or Semi-Constrained Porous-Coated Uncemented Prosthesis,
5. B-Type Natriuretic Peptide Premarket Notifications,
6. Home Uterine Activity Monitors,
7. Pharmacy Compounding Systems,
8. Tissue Culture Media for Human ex vivo Tissue and Cell Culture Processing Applications,
9. Indwelling Blood Gas Analyzers,
10. Ingestible Telemetric Gastrointestinal Capsule Imaging System,
11. Premarket Notifications for Automated Differential Cell Counter for Immature or Abnormal Blood Cells,
12. Medical Washers and Medical Washer-Disinfectors,
13. Endolymphatic Shunt Tube with Valve,
14. Hip Joint Metal/Polymer Constrained Cemented or Uncemented Prosthesis,
15. Apnea Monitors,
16. Polymethylmethacrylate (PMMA) Bone Cement,
17. Cyclosporine and Tacrolimus Assays,
18. Transcutaneous Air Conduction Hearing Aid System (TACHAS),
19. Intraoral Devices for Snoring and/or Obstructive Sleep Apnea,
20. Cutaneous Carbon Dioxide and Oxygen Monitors,
21. Knee Joint Patellofemorotibial and Femorotibial Metal/Polymer Porous-Coated Uncemented Prostheses,
22. Optical Impression Systems for Computer Assisted Design and Manufacturing (CAD/CAM) of Dental Restorations,
23. Resorbable Calcium Salt Bone Void Filler Device,
24. Surgical Sutures,
25. Breath Nitric Oxide Test,
26. Breast Lesion Documentation System,
27. Arrhythmia Detector and Alarm,
28. Serological Reagents for the Laboratory Diagnosis of West Nile Virus,
29. Endotoxin Assay,
30. Dental Sonography and Jaw Tracking Devices,
31. Human Dura Mater (applicable to dura mater recovered before May 25, 2005),
32. Hepatitis A Virus Serological Assays,
33. Factor V Leiden DNA Mutation Detection Systems,
34. Immunomagnetic Circulating Cancer Cell Selection and Enumeration System,
35. Root-form Dental Implants and Endosseous Dental Implant Abutments,
36. Dental Base Metal Alloys,
37. Dental Noble Metal Alloys,
38. Serological Assays for the Detection of Beta-Glucan,
39. Sirolimus Test Systems,
40. Newborn Screening Test Systems for Amino Acids, Free Carnitine, and Acylcarnitines Using Tandem Mass Spectrometry,
41. Implantable Radiofrequency Transponder System for Patient Identification and Health Information,
42. External Penile Rigidity Devices,
43. Assisted Reproduction Laser Systems,
44. Vascular and Neurovascular Embolization Devices,
45. Drug Metabolizing Enzyme Genotyping System,
46. Instrumentation for Clinical Multiplex Test Systems,
47. Automated Fluorescence in situ Hybridization (FISH) Enumeration Systems,
48. Dental Bone Grafting Material Devices,
49. RNA Preanalytical Systems (RNA Collection, Stabilization and Purification Systems for RT-PCR used in Molecular Diagnostic Testing),
50. Oral Rinse to Reduce the Adhesion of Dental Plaque,
51. AFP-L3% Immunological Test Systems,
52. CFTR Gene Mutation Detection System,
53. Low Energy Ultrasound Wound Cleaner,
54. Tinnitus Masker Devices,
55. Labeling for Male Condoms Made of Natural Rubber Latex,
56. Implantable Intra-Aneurysm Pressure Measurement System,
57. Reagents for Detection of Specific Novel Influenza A Viruses,
58. Topical Oxygen Chamber for Extremities,
59. Olfactory Test Device,
60. Fecal Calprotectin Immunological Test Systems,
61. Absorbable Hemostatic Device,
62. Quality Control Material for Cystic Fibrosis Nucleic Acid Assays,
63. Oxygen Pressure Regulators and Oxygen Conserving Devices,
64. Herpes Simplex Virus Types 1 and 2 Serological Assays,
65. Computerized Labor Monitoring Systems,
66. Gene Expression Profiling Test System for Breast Cancer Prognosis,
67. Intervertebral Body Fusion Device,
68. Filtering Facepiece Respirator for Use by the General Public in Public Health Medical Emergencies,
69. Absorbable Poly(hydroxybutyrate) Surgical Suture Produced by Recombinant DNA Technology,
70. In Vitro Human Immunodeficiency Virus (HIV) Drug Resistance Genotype Assay,
71. Electrocardiograph Electrodes,
72. Remote Medication Management System,
73. Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle,
74. Plasmodium Species Antigen Detection Assays,
75. Full Field Digital Mammography System,
76. Certain Percutaneous Transluminal Coronary Angioplasty (PTCA) Catheters,
77. Tissue Adhesive for the Topical Approximation of Skin,
78. Bone Sonometers,
79. Tissue Expander,
80. Cord Blood Processing System and Storage Container.
Persons interested in obtaining a copy of any revised special controls guidance document may do so by using the Internet. A search capability for all CDRH guidance documents is available at
For CBER guidances, you may send a request to the Office of Communication, Outreach and Development (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 301-827-1800. In addition, CBER guidance documents are available at
Interested persons may submit to the Division of Dockets Management (see
21 U.S.C. 371(h).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a list of premarket approval applications
Submit written requests for copies of summaries of safety and effectiveness data to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Please cite the appropriate docket number as listed in table 1 of this document when submitting a written request. See the
Nicole Wolanski, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 1650, Silver Spring, MD 20993, 301-796-6570.
In the
In accordance with section 515(d)(4) and (e)(2) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360e(d)(4) and (e)(2)), notification of an order approving, denying, or withdrawing approval of a PMA will continue to include a notice of opportunity to request review of the order under section 515(g) of the FD&C Act. The 30-day period for requesting reconsideration of an FDA action under § 10.33(b) (21 CFR 10.33(b)) for notices announcing approval of a PMA begins on the day the notice is placed on the Internet. Section 10.33(b) provides that FDA may, for good cause, extend this 30-day period. Reconsideration of a denial or withdrawal of approval of a PMA may be sought only by the applicant; in these cases, the 30-day period will begin when the applicant is notified by FDA in writing of its decision.
The regulations provide that FDA publish a quarterly list of available safety and effectiveness summaries of PMA approvals and denials that were announced during that quarter. The following is a list of approved PMAs for which summaries of safety and effectiveness were placed on the Internet from October 1, 2010, through December 31, 2010, and includes one denial action during this period. The list provides the manufacturer's name, the product's generic name or the trade name, and the date of action.
Persons with access to the Internet may obtain the documents at
Food and Drug Administration, HHS.
Notice of meeting.
The Food and Drug Administration (FDA) is announcing the following meeting: Pregnancy and Prescription Medication Use Symposium. The topic to be discussed is “Prescription Drug Use in Pregnancy.”
If you need special accommodations due to a disability, please contact Monica Yu at least 7 days in advance.
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) Denver District Office, in co-sponsorship with the Society of Clinical Research Associates (SoCRA), is announcing a public workshop. The public workshop on FDA's clinical trial requirements is designed to aid the clinical research professional's understanding of the mission, responsibilities, and authority of FDA and to facilitate interaction with FDA representatives. The program will focus on the relationships among FDA and clinical trial staff, investigators, and institutional review boards (IRBs). Individual FDA representatives will discuss the informed consent process and informed consent documents; regulations relating to drugs, devices, and biologics; as well as inspections of clinical investigators, IRBs, and research sponsors.
Attendees are responsible for their own accommodations. Please mention SoCRA to receive the hotel room rate of $119 plus applicable taxes (available until the SoCRA room block is filled).
Society of Clinical Research Associates (SoCRA), 530 West Butler Ave., suite 109, Chalfont, PA 18914, 800-762-7292, FAX: 215-822-8633, e-mail:
If you need special accommodations due to a disability, please contact SoCRA (see
Extended periods of question and answer and discussion have been included in the program schedule. SoCRA designates this educational activity for a maximum of 13.3 Continuing Education (CE) Credits for SoCRA CE and Nurse CNE. SoCRA designates this educational activity for a maximum of 13.3 American Medical Association Physician's Recognition Award
Payment by major credit card is accepted (Visa/MasterCard/AMEX only). For more information on the meeting registration, or for questions on the public workshop, contact SoCRA (see
The public workshop helps fulfill the Department of Health and Human Services' and FDA's important mission to protect the public health. The public workshop will provide those engaged in FDA-regulated (human) clinical trials with information on a number of topics concerning FDA requirements related to informed consent, clinical investigation requirements, IRB inspections, electronic record requirements, and investigator initiated research. Topics for discussion include the following: (1) What FDA Expects in a Pharmaceutical Clinical Trial; (2) Adverse Event Reporting—Science, Regulation, Error, and Safety; (3) Part 11 Compliance—Electronic Signatures; (4) Informed Consent Regulations; (5) IRB Regulations and FDA Inspections; (6) Keeping Informed and Working Together; (7) FDA Conduct of Clinical Investigator Inspections; (8) Meetings With FDA: Why, When, and How; (9) Investigator Initiated Research; (10) Medical Device Aspects of Clinical Research; (11) Working With FDA's Center for Biologics Evaluation and Research; (12) The Inspection Is Over—What Happens Next? Possible FDA Compliance Actions; (13) Ethical Issues in Subject Enrollment; (14) Medical Device Aspects of Clinical Research; and (15) Are We There Yet? An Overview of the FDA Good Clinical Practice Program.
FDA has made education of the drug and device manufacturing community a high priority to help ensure the quality of FDA-regulated drugs and devices. The public workshop helps to achieve objectives set forth in section 406 of the FDA Modernization Act of 1997 (21 U.S.C. 393) which includes working closely with stakeholders and maximizing the availability and clarity of information to stakeholders and the public. The public workshop also is consistent with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) as outreach activities by Government Agencies to small businesses.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). To request a copy of the clearance requests submitted to OMB for review, e-mail
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The Dental Reimbursement Program (DRP) and the Community Based Dental Partnership Program, under Part F of the Ryan White HIV/AIDS Program, offer funding to accredited dental education programs to support the provision of oral health services for HIV-positive individuals. Institutions eligible for these programs are accredited schools of dentistry, post-doctoral dental education programs and dental hygiene programs.
The DRP Application is the Dental Services Report that schools and programs use to apply for funding of non-reimbursed costs, incurred in providing oral health care to patients with HIV, or to report annual program data. Awards are authorized under section 2692(b) of the Public Health Service Act (42 U.S.C. 300ff-111(b). The Dental Services Report collects data in four different areas: program information, patient demographics and services, funding, and training. The report also requests applicants to provide narrative descriptions of their services and facilities, as well as their links and collaboration with community-based providers of oral health services.
The primary purpose of collecting this information annually is to verify eligibility and determine reimbursement amounts for DRP applicants, as well as to document the program accomplishments of Community-Based Dental Partnership Program grant recipients. This information also allows HRSA to learn about (1) The extent of the involvement of dental schools and programs in treating patients with HIV, (2) the number and characteristics of clients who receive HIV/AIDS program-supported oral health services, (3) the types and frequency of the provision of these services, (4) the non-reimbursed costs of oral health care provided to patients with HIV, and (5) the scope of grant recipients' community-based collaborations and training of providers. In addition to meeting the goal of accountability to Congress, clients, advocacy groups, and the general public, information collected in the Dental Services Report is critical for HRSA, state and local grantees, and individual providers, to help assess the status of existing HIV-related health service delivery systems.
The annual estimate of burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by e-mail to
Health Resources and Services Administration, HHS.
Notice of Noncompetitive Replacement Awards to Sunset Park Health Council, Inc.
The Health Resources and Services Administration (HRSA) will transfer the remaining American Recovery and Reinvestment Act (ARRA) Capital Improvement Project (CIP) from Saint Vincent's Catholic Medical Centers (SVCMC) of New York, current grantee of record, to Sunset Park Health Council (SPHC), Inc. in order to continue primary health care services to low-income, underserved homeless patients in New York City.
SPHC is an experienced provider of care and has a demonstrated record of compliance with Health Center Program statutory and regulatory requirements and is located in the same geographical area. The transfer of the ARRA Capital Improvement Project funds will ensure that critical primary health care services continue and remain available to the low-income, underserved homeless patients with no interruption in services to the target population.
Marquita Cullom-Scott via e-mail at
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:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The 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 meeting is being published less than 15 days prior to the meeting date due to scheduling conflicts.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, 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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The 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.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
SAMHSA created the SAMHSA Disaster Technical Assistance Center (SAMHSA DTAC) in 2002. SAMHSA DTAC provides technical assistance (TA) to States, Territories, and Federally recognized tribes (hereafter referred to as ‘States’), as well as any behavioral health worker, in response to, and in preparation for, behavioral health (mental health and substance abuse) needs associated with catastrophic events and emergencies, such as natural disasters, bioterrorism, mass criminal victimization, and environmental disasters. In the aftermath of a disaster or other traumatic event, State and local behavioral health agencies can contact SAMHSA DTAC for assistance with the resulting mental health and substance abuse needs. SAMHSA DTAC TA specialists respond by identifying suitable publications and other materials, arranging for the deployment of expert consultants, or coordinating other support services. For Presidentially declared disasters, SAMHSA DTAC assists States that are eligible for a Crisis Counseling Assistance and Training Program (CCP) grant by providing TA related to completing applications, developing a plan of services, and identifying staff needs for the CCP.
SAMHSA is proposing two new data collection efforts: the Disaster Behavioral Health Needs Assessment (DBHNA) and the Customer Satisfaction Survey. The DBHNA will assess the current gaps and needs at the State and local provider levels in disaster behavioral health (DBH) planning and response efforts. The Customer Satisfaction Survey is being conducted to ensure that the TA SAMHSA DTAC provides is on track, applicable, useful, and well received. Both of these proposed data collection efforts will provide feedback on the ongoing needs at the national, State, and local levels and identify areas in which State and local providers require enhanced TA services.
SAMHSA DTAC will be responsible for administering the two data collection instruments and analyzing the data. SAMHSA DTAC will use data from both instruments to inform current and future TA activities and to ensure these activities continue to align with State and local needs.
The components of the data collection are listed and described below, and a summary table of the number of respondents and respondent burden has also been included.
There are two versions of the DBHNA: The State/Territory Coordinator Disaster Behavioral Health Needs Assessment and the Local Provider Disaster Behavioral Health Needs Assessment. These DBHNAs will collect information on the current needs and challenges that State coordinators and local providers face when integrating DBH preparedness and response into all-hazards plans. Both versions of the survey will be administered online and will be programmed to include simplified screens and intuitive navigational controls, and both will use branching so that each respondent will be presented with only those questions relevant to his or her State or program.
The State/Territory Coordinator version will be administered to all disaster mental health coordinators, disaster substance abuse coordinators, and DBH coordinators (coordinators responsible for both mental health and
Participation in the Customer Satisfaction Survey will be solicited from all 50 States, the U.S. Territories, and the District of Columbia. The initial survey administration will include individuals who have contacted SAMHSA DTAC for TA from March 2006 through the month prior to the initial data collection initiation. In addition to identifying SAMHSA DTAC TA requestors from March 2006 to the present, SAMHSA DTAC will identify potential participants from the subscription lists for the e-communications
Written comments and recommendations concerning the proposed information collection should be sent by April 27, 2011 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-7285.
U.S. Customs and Border Protection.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Advisory Committee on Commercial Operations of Customs and Border Protection (COAC) will meet on April 12, 2011 in Washington, DC. The meeting will be open to the public.
COAC will meet on Tuesday, April 12, 2011, from 1 p.m. to 5 p.m. Please note that the meeting may close early if the committee has completed its business. If you plan on attending, please register either online at
The meeting will be held at the Ronald Reagan Building in the Polaris Room, at 1300 Pennsylvania Avenue, NW., Washington, DC 20229. All visitors to the Ronald Reagan Building must show a state-issued ID or Passport to proceed through the security checkpoint to be admitted to the building.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Ms. Wanda Tate as soon as possible.
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the “Summary” section below. Comments must be submitted in writing no later than April 6, 2011 and must be identified by USCBP-2011-0009 and may be submitted by
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A public comment period will be held during the meeting on April 12, 2011 from 4:25 pm to 4:55 pm, and speakers are requested to limit their comments to 3 minutes. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact the individual listed below to register as a speaker.
Ms. Wanda Tate, Office of Trade Relations, U.S. Customs and Border Protection, Department of Homeland Security, 1300 Pennsylvania Avenue, NW., Room 5.2A, Washington, DC 20229; telephone 202-344-1440; facsimile 202-325-4290.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The COAC provides advice to the Secretary of Homeland Security, the Secretary of the Treasury, and the Commissioner of U.S. Customs and Border Protection (CBP) on matters pertaining to the commercial operations of CBP and related functions within DHS or the Department of the Treasury.
The COAC will meet to review and discuss next steps on the following issues:
1. Managing by Account: Center of Excellence and Expertise (CEE) and Account Executive Pilots
2. The Role of the Broker, A Broker Revision Project
3. One U.S. Government at the Border—Interagency Issues
4. Automation/International Trade Data System
5. Enhancing Air Cargo Security
6. National Strategy Global Supply Chain Security and the Secretary's work to foster international standards and cooperation
7. Enhancing Intellectual Property Rights Enforcement Efforts
8. Risk Based Bonding and Risk Factors
60-Day Notice of Information Collection Under Review; Form N-300, Application to File Declaration of Intention; OMB Control No. 1615-0078.
The Department Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until May 27, 2011.
During this 60 day period, USCIS will be evaluating whether to revise the Form N-300. Should USCIS decide to revise Form N-300 we will advise the public when we publish the 30-day notice in the
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), 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
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, 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, e.g., permitting electronic submission of responses.
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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, Office of the Executive Secretariat, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020, Telephone number 202-272-8377.
60-Day Notice of Information Collection Under Review: Business Transformation—Integrated Operating Environment (IOE); OMB Control No. 1615-NEW.
USCIS is developing an automated Integrated Operating Environment (IOE) to process benefit applications. The IOE will collect information by asking sequential questions using “wizard” technology. The IOE will allow immigration benefit requests to be filed directly via the internet or “e-filed.” In accordance with the Paperwork Reduction Act of 1995 (PRA) this notice provides the general public and Federal agencies with notice that USCIS will be submitting this information collection request to OMB and the public will have an opportunity to review and comment.
Interested persons are invited to submit comments on or before May 27, 2011.
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), USCIS, Chief, Regulatory Products Division, Office of the Executive Secretariat, 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
The IOE will be implemented by USCIS and made available for the public to submit requests over the next few years in increments that USCIS has termed as “releases” and “phases.” As each phase is implemented, DHS will announce each request that has been converted to the IOE, if the IOE will be the sole filing option available, or if the option of filing a paper form will remain available for that benefit for all or certain groups that may seek to submit the applicable request. In general, the IOE will follow the immigration “lifecycle” to first include nonimmigrant benefits, proceeding eventually to applications for naturalization.
The first benefit type available in the automated IOE under Release A, Phase 1, will be the Application to Extend/Change Nonimmigrant Status. Beginning in December 2011, USCIS customers will be able to apply for an extension or change of their nonimmigrant status using the IOE or continue to use the current paper Form I-539 (OMB Control No. 1615-0003). In the future, however, USCIS may allow the current paper Form I-539 to expire, eliminate the option of filing on a paper form, and instead require this benefit application to be filed through the automated IOE. USCIS is very interested in receiving comments concerning mandatory e-filing of this benefit and any future benefits that are added to the automated IOE. USCIS also welcomes comments on which groups, individuals, or businesses for which it would be the most appropriate for USCIS to require (or not require) electronic filing of all benefit requests.
The supporting statement for this information collection contains a more detailed description of the USCIS Business Transformation initiative and wizard technology. The supporting statement can be viewed at:
USCIS is also interested in public comment addressing the following issues:
(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,
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The information collection request contains selected screen shots that demonstrate the look and feel of the automated IOE, and a decision tree to show the sequence of questions that the public will be asked by the wizard and the order in which the questions will be asked. For example, when the user answers the question “What is your First Name?” then he or she will be prompted with the question: “What is your Given Name?” If you need to review this information collection instrument, please visit the Web site at:
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. This information collection is scheduled to expire on March 31, 2011. 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. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before April 27, 2011.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
To request additional information about this ICR, contact Hope Grey at
(1) General take or removal. Relates to human-related mortality including unintentional taking incidental to otherwise lawful activities (
(2) Depredation-related take. Involves take for management purposes where livestock depredation is documented, and may include authorized harassment or authorized lethal take of experimental animals in the act of attacking livestock.
(3) Specimen collection, recovery, or reporting of dead individuals. This information documents incidental or authorized scientific collection. Most of the contacts with the public deal primarily with the reporting of sightings of experimental population animals or the inadvertent discovery of an injured or dead individual.
The information that we collect includes:
• Name, address, and phone number of reporting party.
• Species involved.
• Type of incident.
• Take (quantity).
• Location and time of the reported incident.
• Description of the circumstances related to the incident.
This information helps us to assess the effectiveness of control activities and to develop better means to reduce problems with livestock for those species where depredation is a problem. Service recovery specialists use the information to determine the success of reintroductions in relation to established recovery plan goals for the threatened and endangered species involved.
The first commenter objected to the authorization of depredation-related take. We note the concerns raised by this individual, but the comment did not address issues surrounding the proposed collection of information or the cost and hour burden estimates.
The second commenter provided the following comments:
We have not made any changes to our information collection requirements as a result of the above comments.
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife 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. This IC is scheduled to expire on July 31, 2011. 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.
To ensure that we are able to consider your comments on this IC, we must receive them by May 27, 2011.
Send your comments on the IC to the Service Information Collection Clearance Officer, Fish and Wildlife Service, MS 2042-PDM, 4401 North Fairfax Drive, Arlington, VA 22203 (mail); or
To request additional information about this IC, contact Hope Grey at the e-mail address in
This IC implements requirements of the Endangered Species Act (16 U.S.C. 1531 et seq.) (ESA). There are no corresponding Service regulations for the ESA's post-delisting monitoring requirement. This IC also implements the Migratory Bird Treaty Act (16 U.S.C. 704) and Service regulations in Chapter I, subchapter B of title 50 of the Code of Federal Regulations (CFR).
The American peregrine falcon was removed from the List of Endangered and Threatened Wildlife on August 25, 1999 (64 FR 46542). Section 4(g) of the ESA requires that all species that are recovered and removed from the List of Endangered and Threatened Wildlife (delisted) be monitored in cooperation with the States for a period of not less than 5 years. The purpose of this requirement is to detect any failure of a recovered species to sustain itself without the protections of the ESA. We work with relevant State agencies and other species experts to develop appropriate plans and procedures for systematically monitoring recovered wildlife and plants.
The American peregrine falcon has a large geographic distribution that includes a substantial amount of non-Federal land. Although the ESA requires that monitoring of recovered species be conducted for not less than 5 years, the life history of American peregrine falcons is such that it is appropriate to monitor this species for a longer period of time in order to meaningfully evaluate whether or not the recovered species continues to maintain its recovered status. The Monitoring Plan for the American Peregrine Falcon is available on our Web site at
We will use the information supplied on FWS Forms 3-2307, 3-2308, and 3-2309 to review the status of the American peregrine falcon in the United States and determine if it remains recovered and, therefore, does not require the protections of the ESA:
(1) FWS Form 3-2307 (Peregrine Falcon Monitoring Form) addresses the reporting requirements to record observations on the nesting pair, and the numbers of eggs and young during each nest visit. Each territory will be visited two (or more) times.
(2) FWS Form 3-2308 (Peregrine Falcon Egg Contaminants Data Sheet) addresses the reporting requirements to record data on eggs collected opportunistically during a nest visit.
(3) FWS Form 3-2309 (Peregrine Falcon Feather Contaminants Data Sheet) addresses the reporting requirements to record data on feathers collected opportunistically during a nest visit. Once collected, the eggs and feathers are archived in a deep freeze for analysis at a later time.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
U.S. Geological Survey (USGS), Interior.
Notice of extension of an existing information collection (1028-0056).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to the Office of Management and Budget (OMB) an information collection request (ICR) for the extension of the currently approved paperwork requirements for the USGS North American Reporting Center for Amphibian Malformations (NARCAM). This notice provides the public and other Federal agencies an opportunity to comment on the paperwork burden of this information collection request.
Submit written comments by April 27, 2011.
Please submit written comments on this information collection directly to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior via e-mail to
Lisa Zolly at 703-648-4277 or by mail at U.S. Geological Survey, Biological Informatics Office, 12201 Sunrise Valley Drive, MS 302, Reston, VA 20192. To see a copy of the entire ICR submitted to OMB, go to http://www.reginfo.gov (Information Collection Review, Currently under Review).
We will be requesting OMB approval for an extension of the current form used for the NARCAM data collection efforts.
On December 22, 2010 we published a
We again invite comments concerning this ICR on: (a) Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, usefulness, and clarity of the information to be collected; and (d) ways to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Please note that the comments submitted in response to this notice are a matter of public record. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at anytime. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Bureau of Land Management, Interior.
60-Day Notice and Request for Comments.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) is announcing its intention to request approval to continue and revise the collection of information from applicants for authorization to purchase mineral materials from public lands. The Office of Management and Budget (OMB) previously approved this information collection activity, and assigned it control number 1004-0103.
Please submit comments on the proposed information collection by May 27, 2011.
Comments may be submitted by mail, fax, or electronic mail. Mail: U.S. Department of the Interior, Bureau of Land Management, 1849 C St., NW., Washington, DC 20240. Fax: to Jean Sonneman at 202-912-7102. Electronic mail:
George Brown, Division of Solid
The Paperwork Reduction Act (44 U.S.C. 3501-3521) and OMB regulations at 5 CFR part 1320 provide that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond. 44 U.S.C. 3506 and 3507. In order to obtain or renew an OMB control number, Federal agencies are required to seek public comment on information collection and recordkeeping activities (
The BLM will request a 3-year term of approval for this information collection. For this control number, the BLM requests comments on the following subjects: (1) Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility; (2) The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used; (3) The quality, utility and clarity of the information to be collected; and (4) How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
Please send comments as directed under
The following information is provided for the information collection:
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing its intention to request renewed authority for the collection of information for 30 CFR part 705 and the Form OSM-23, Restriction on financial interests of State employees.
Comments on the proposed information collection must be received by May 27, 2011, to be assured of consideration.
Comments may be mailed to John A. Trelease, Office of Surface Mining Reclamation and Enforcement,
To receive a copy of the information collection request contact John A. Trelease at (202) 208-2783 or electronically at
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for Part 705 is 1029-0067. Responses are mandatory in accordance with 517(g) of the Surface Mining Control and Reclamation Act of 1977.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information is provided for the information collection: (1) Title of the information collection; (2) OMB control number; (3) summary of the information collection activity; and (4) frequency of collection, description of the respondents, estimated total annual responses, and the total annual reporting and recordkeeping burden for the collection of information.
60-Day Notice of Information Collection Under Review: COPS Police and Communities Together (PACT) 360 Needs Assessment Survey.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) 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.
The purpose of this notice is to allow for 60 days for public comment until May 27, 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 Ashley Hoornstra, Department of Justice Office of Community Oriented Policing Services, 145 N St., NE., Washington, DC 20530.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget,
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:
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If additional information is required contact: Lynn Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street, NE., Room 2E-808, Washington, DC 20530.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 504) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of meetings for the transaction of Commission business and other matters specified, as follows:
Thursday, April 7, 2011, at 10 a.m.
Issuance of Proposed Decisions in claims against Albania and Libya.
Open.
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street, NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Executive Officer, Foreign Claims Settlement Commission, 600 E Street, NW., Room 6002, Washington, DC 20579. Telephone: (202) 616-6975.
60-day notice of information collection under review: Extension of a currently approved collection: Annual Parole Survey and Annual Probation Survey
The Department of Justice (DOJ), Office of Justice Programs (OJP), Bureau of Justice Statistics (BJS) 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 for “sixty days” until May 27, 2011. This process is 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 Tom Bonczar, Statistician, (202) 616-3615, Bureau of Justice Statistics, 810 Seventh St., NW., Washington, DC 20531.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses.
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For the CJ-7 form, the affected public consists of 55 respondents including 50 central reporters (two state respondents in California and Pennsylvania, and one each from the remaining states; the District of Columbia; the Federal Bureau of Prisons; and one local authority) responsible for keeping records on parolees. For the CJ-8 form, the affected public includes 306 reporters including 50 state respondents, the District of Columbia, and the Federal Bureau of Prisons; and 254 from local authorities) responsible for keeping records on probationers. For the CJ-8A form, the affected public includes 160 reporters (from local authorities) responsible for keeping records on probationers.
The Annual Parole Survey and Annual Probation surveys have been used since 1977 to collect annual yearend counts and yearly movements of community corrections populations; characteristics of the community supervision population, such as gender, racial composition, ethnicity, conviction
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 521 respondents each taking an average of 1.19 hours to respond.
(6) An estimate of the total public burden (in hours) associated with the collection: 622 annual burden hours.
If additional information is required, contact: Mrs. Lynn Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N. Street, NE., Suite 2E-808, Washington, DC 20530.
Notice.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Recordkeeping and Reporting Occupational Injuries and Illnesses,” to the Office of Management and Budget (OMB) for review and approval for continued use in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35).
Submit comments on or before April 27, 2011.
A copy of this ICR, with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 (these are not toll-free numbers), e-mail:
Contact Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by e-mail at
The OSHAct and regulations 29 CFR part 1904 prescribe that certain employers maintain records of job related injuries and illnesses. The data are needed by the OSHA to carry out intervention and enforcement activities to guarantee workers safe and healthful workplaces. The data are also needed by Bureau of Labor Statistics to produce national statistics on occupational injuries and illnesses.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB control number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• 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,
Notice.
The Department of Labor (DOL) is submitting the proposed Employment and Training
Submit comments on or before April 27, 2011.
A copy of this ICR, with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, Employment and Training Administration (ETA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 (these are not toll-free numbers), e-mail:
Contact Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by e-mail at
The ETA is seeking OMB authorization for a new information collection to evaluate ten grants to test aging worker job attachment initiatives. This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB control number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• 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,
In accordance with section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of February 7, 2011 through February 11, 2011.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1), or (b)(1), or (c)(1) (employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
The following determinations terminating investigations were issued because the petitions are the subject of ongoing investigations under petitions filed earlier covering the same petitioners.
I hereby certify that the aforementioned determinations were issued during the period of February 7, 2011 through February 11, 2011. Copies of these determinations may be requested under the Freedom of Information Act. Requests may be submitted by fax, courier services, or mail to FOIA Disclosure Officer, Office of Trade Adjustment Assistance (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 or
Employment and Training Administration, Labor.
Announcement of meeting.
Pursuant to section 10 of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. 2), notice is hereby given to announce an open meeting of the Advisory Committee on Apprenticeship (ACA) being held on May 16-17, 2011, in Washington, DC.
The ACA, an advisory board to the Secretary of Labor, is a discretionary Committee established by the Secretary of Labor, in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended 5 U.S.C., App. 2, and it's implementing regulations (41 CFR parts 101-6 and 102-3). All meetings of the ACA are open to the public.
The meeting location is the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue, NW., Washington, DC 20210.
The Designated Federal Official, Mr. John V. Ladd, Administrator, Office of Apprenticeship, ETA, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5311, Washington, DC 20210. Telephone: (202) 693-2796, (this is not a toll-free number).
This meeting is open to the public and members of the public are invited to attend the proceedings. If individuals have special needs and/or disabilities that will require special accommodations, please contact Ms. Kenya Huckaby on (202) 693-3795 no later than Monday, May 9, 2011, to request for arrangements to be made. Any member of the public who wishes to file written data or comments pertaining to the agenda may do so by sending the data or comments to Mr. John V. Ladd, Administrator, Office of Apprenticeship, ETA, U.S. Department of Labor, Room N-5311, 200 Constitution Avenue, NW., Washington, DC 20210. Such submissions must be sent by Monday, May 9, 2011, to be included in the record for the meeting.
The agenda is subject to change due to time constraints and priority items which may come before the ACA between the time of this publication and the scheduled date of the ACA meeting.
The purpose of the meeting is to consider several policy matters affecting Registered Apprenticeship programs.
• Workgroup Report-Outs and Open Committee Discussion
• Extended Discussion on Proposed Pre-Apprenticeship Framework
• Review of Available Data Capabilities
• Long-Term Planning
• Apprenticeship Community of Practice
• Public Comment
Any member of the public who wishes to speak at the meeting must indicate the nature of the intended presentation and the amount of time needed by furnishing a written statement to the Designated Federal Official, Mr. John V. Ladd, by Monday, May 9, 2011. The Chairperson will announce at the beginning of the meeting the extent to which time will permit the granting of such requests.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Science Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC. The Meeting will be held for the purpose of soliciting from the scientific community and other persons scientific and technical information relevant to program planning.
Thursday, April 21, 2011, 8:30 a.m. to 4 p.m., and Friday, April 22, 2011, 8:30 a.m. to 2 p.m., Local Time.
NASA Headquarters, 300 E Street, SW., Room 5H45, Washington, DC 20546.
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4452, fax (202) 358-4118, or
The meeting will be open to the public up to the capacity of the room. This meeting is also available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 888-381-5774, pass code Science Committee, to participate in this meeting by telephone. The WebEx link is
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide a copy of their passport, visa, or resident alien card in addition to providing the following information no less than 10 working days prior to the meeting: full name; gender; date/place of birth; citizenship; visa/green card information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee. To expedite admittance, attendees with U.S. citizenship can provide identifying information 3 working days in advance by contacting Marian Norris via e-mail at
The National Coordination Office (NCO) for the Networking and Information Technology Research and Development (NITRD) Program.
Call for participation.
Workshop: May 17, 2011; Deadline: April 15, 2011. Apply via e-mail to
The NCO, on behalf of the Special Cyber Operations Research and Engineering (SCORE) Committee, an interagency working group that coordinates cyber security research activities in support of national security systems, is seeking expert participants in a day-long workshop on the pros and cons of the Security of Distributed Data Schemes. The workshop will be held May 17, 2011 in Gaithersburg, MD. Applications will be accepted until 5 p.m. EST April 15, 2011. Accepted participants will be notified by April 27, 2011.
We are lagging behind and need technological leaps to get, and keep, ahead of adversaries who are themselves rapidly improving attack technology. To answer this call, we must examine the key assumptions that underlie current security architectures. Challenging those assumptions both opens up the possibilities for novel solutions that are rooted in a fundamentally different understanding of the problem and provides an even stronger basis for moving forward on those assumptions that are well-founded. The SCORE Committee is conducting a series of four workshops to begin the assumption buster process. The assumptions that underlie this series are that cyber space is an adversarial domain, that the adversary is tenacious, clever, and capable, and that re-examining cyber security solutions in the context of these assumptions will result in key insights that will lead to the novel solutions we desperately need. To ensure that our discussion has the requisite adversarial flavor, we are inviting researchers who
The third topic to be explored in this series is “Distributed Data Schemes Provide Security.” The workshop on this topic will be held in Gaitherburg, MD on May 17, 2011.
Distributed data architectures, such as cloud computing, offer very attractive cost savings and provide new means of large scale analysis and information sharing. There has been much discussion about securing such architectures, and it is generally felt that distribution, and the replication that is usually associated with it, provides some inherent protection; adversaries will have difficulty locating your data in the cloud, and by breaking it up and replicating different segments throughout the platform we send the adversary on a wild goose chase to find and reassemble all the relevant bits. It is also felt that cryptographic mechanisms like bound tags, encryption, and keyed access control can be used to develop distributed platforms with a high level of assurance. There are several applications of distributed architectures that offer non-sensitive peer to peer TV services. Applications are also offered for potentially sensitive uses like document collaboration. Yet it is unclear whether these applications can safely be extended to highly sensitive uses. Could we readily support a distributed electronic health care system that securely supports ad hoc consultations or remote surgery with full access to patient history while protecting patient privacy, for example?
To answer this question we need to take a closer look at the protection provided inherently and cryptographically. With respect to the former, we must think about how the architecture can be designed to provide secure availability to friend and not foe. We must examine the impact of the design for security, resilience, and availability and understand the trades we are implicitly making among these attributes. We must consider whether the data about data that is required by these architectures introduces a new data risk. We must think about the multiplicity of paths provide by these architectures. We must figure how to do risk analysis on a system when key information like data location is unavailable by design. With respect to the latter, we must consider whether the key management strategy is robust enough to operate in a distributed architecture. We have to think about the assurance of tag binding and access update and revocation. We must consider the vulnerabilities of the platforms that host the cryptographic mechanisms and the distribution of those functions in the architecture.
In this workshop, we will explore the implications of distributed data on security. We will consider what effect the introduction of the notion of a determined adversary has on our analysis of data security requirements. In the first session, we will discuss the properties of distributed platforms that are thought to make such architectures inherently more secure. In the second, we will discuss the issue of cryptography and distributed platforms.
If you would like to participate in this workshop, please submit (1) a resume or curriculum vita of no more than two pages which highlights your expertise in this area and (2) a one-page paper stating your opinion of the assertion and outlining your key thoughts on the topic. The workshop will accommodate no more than 60 participants, so these brief documents need to make a compelling case for your participation.
Applications should be submitted to
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Nuclear Regulatory Commission (NRC).
Notice of availability.
The NRC staff is issuing its Final Interim Staff Guidance (ISG) DC/COL-ISG-018 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML103010113). The purpose of this ISG is to clarify the NRC staff guidance on the design reliability assurance program (RAP). This ISG updates the guidance provided to the staff in Standard Review Plan (SRP), Section 17.4, “Reliability Assurance Program,” of NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants,” March 2007. This ISG revises the NRC staff's review responsibilities and further clarifies the acceptance criteria and evaluation findings contained in the SRP Section 17.4 in support of the NRC reviews of
The NRC maintains ADAMS, which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Mr. Todd A. Hilsmeier, Project Manager, PRA and Severe Accidents Branch, Division of Safety Systems & Risk Assessment, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001; telephone: 301-415-0525 or e-mail:
The agency posts its issued staff guidance in the agency external Web page (
For the Nuclear Regulatory Commission,
Nuclear Regulatory Commission (NRC).
Notice of availability.
The NRC staff is issuing its Final Interim Staff Guidance (ISG) DC/COL-ISG-021 titled “Interim Staff Guidance on the Review of Nuclear Power Plant Designs Using a Gas Turbine Driven Standby Emergency Alternating Current Power System,” Agencywide Documents Access and Management System (ADAMS) Accession No. ML102510119 for DC/COL-ISG-021 and ADAMS Accession No. ML102510164 for Attachment 1 to DC/COL-ISG-021. This ISG provides new guidance for applicants submitting a combined license (COL) or design certification (DC) application for new nuclear power reactors under Title 10 of the Code of Federal Regulations, part 52. In addition, it supplements the guidance provided to the NRC staff in NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants,” March 2007, Standard Review Plan (SRP), Section 8.3.1 and Sections 9.5.4 through 9.5.8. The NRC staff issues DC/COL-ISGs to facilitate activities associated with NRC review of applications for DCs and COLs. The NRC staff intends to incorporate DC/COL-ISG-021 into the next revision of SRP Section 8.3.1 and Sections 9.5.4 through 9.5.8 and Regulatory Guide 1.206, “Combined License Applications for Nuclear Power Plants (LWR Edition),” June 2007.
The NRC maintains ADAMS, which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Mr. Samuel S. Lee, Chief, Balance of Plant Branch 2, Division of Safety Systems & Risk Assessment, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone at 301-415-0155 or e-mail at
The agency posts its issued staff guidance in the agency external Web page (
For the Nuclear Regulatory Commission,
Nuclear Regulatory Commission (NRC).
Tennessee Valley Authority, Watts Bar Nuclear Plant, Unit 2; Notice of No Significant Antitrust Changes and Time for Filing Requests for Reevaluation.
Aaron Szabo, Financial Analyst, Financial Analysis and International Projects Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: 301-415-1985; fax number: 301-415-2102; e-mail:
The Director of the Office of Nuclear Reactor Regulation (NRR) has made a finding in accordance with Section 105c(2) of the Atomic Energy Act, as amended, that no significant (antitrust) changes in the applicant's activities or proposed activities have occurred subsequent to the antitrust construction permit review of Unit 2 of the Watts Bar Nuclear Plant (WBN) by the U.S. Attorney General and the Commission.
Section 105c(2) of the Atomic Energy Act of 1954, as amended, provides for an antitrust review of an operating license application, filed before August 8, 2005, if the Commission determines that significant changes in the applicant's activities or proposed activities have occurred subsequent to the previous construction permit review. The Commission has delegated the authority to make the “significant change” determination to the Director, NRR.
Tennessee Valley Authority's (TVA) application for construction permits and operating licenses for the WBN Units 1 and 2 have been the subject of 4 previous antitrust reviews. In connection with the construction permit review in 1972, the Acting Assistant Attorney General for Antitrust of the U.S. Department of Justice (DOJ) found no antitrust problems that would require a hearing. In subsequent operating license reviews in 1979, 1983 and 1991, the NRC staff found “no significant changes” that would warrant an operating license antitrust review.
Based upon an examination of the events since the previous operating license review of TVA's activities conducted in 1991, the NRC staff has concluded, after consulting with the Department of Justice, that the changes that have occurred since the construction permit review are not of the nature to require a formal antitrust review at the operating license stage of the application.
In reaching this conclusion, the NRC staff considered the structure of the utility industry in the Tennessee Valley and adjacent areas, the events relevant to the construction permit review and the previous operating license reviews for WBN. Due to construction delays at the WBN facility, the staff reviewed TVA's activities in 1979, 1983, 1990, and again in 2010 to determine whether there have been changes in TVA's activities since the completion on the construction permit antitrust review in 1972 that would create or maintain a situation inconsistent with the antitrust laws. Several types of changes were identified in each of the earlier post construction permit reviews; however, it was determined that none of the changes resulted from abuse of TVA's market power.
In its review of TVA's activities in the 2010 operating license review, the staff again found no evidence of changed activity associated with abuse of its market power. In relation to TVA's customers, TVA projected a capacity shortfall based on previous long-term agreements, with or without the operation of WBN Unit 2, which would be inconsistent with a utility using anticompetitive behavior. In relation to building transmission, rate schedules and capacity additions other than from operation of WBN Unit 2, all of the developments were not atypical of a large utility and did not raise significant antitrust issues.
Further, in 1997, TVA reached a settlement agreement that defined the counterparties and arrangements under which TVA can only make exchange power arrangements with other power generating companies consistent with the provisions of the Tennessee Valley Authority Act of 1933, as amended (TVA Act). The region that TVA is allowed to supply and sell power is still dictated by Section 15d(a) of the TVA Act. But, TVA may now only engage in construction of generating capacity or purchase of generating capacity as it needs to supply power demands in its own service area and may not knowingly exchange power if the purchaser is procuring power for the purpose of reselling such power at wholesale to any third party not authorized to exchange power with the TVA.
As a result, the NRC staff does not believe that any changed activity attributed to TVA since the 1979 operating license review is “significant” in terms of the Commission's V.C. Summer decision (see Commission Memorandum and Order CLI-80-28, dated June 30, 1980, at 11 NRC 817). The staff recommended that the Director of the Office of Nuclear Reactor Regulation find that “no significant changes” have occurred in TVA's activities since the previous antitrust operating license review completed in 1991.
On the basis of the staff's analysis and recommendation, the Director of NRR has concluded in his decision dated March 21, 2011, that there have been no “significant changes” in the applicant's activities or proposed activities since the completion of the previous antitrust review.
Documents related to this action, including the application for an operating 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
These documents may also be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
Any person whose interest may be affected by this finding, may file, with full particulars, a request for reevaluation with the Director of the Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555 within 30 days of the initial publication of this notice for the
A copy of the director's decision will be filed with the Secretary of the Commission for the Commission's review. The director's decision will constitute the final action of the Commission 30 days after the date of the decision, unless the Commission, on its own motion, institutes a review of the director's decision in that time.
For the Nuclear Regulatory Commission.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC of the Commission) has issued Renewed Facility Operating License No. DPR-28 to Entergy Nuclear Vermont Yankee, LLC (Entergy VY), and Entergy Nuclear Operations, Inc. (ENO), (licensee), the operator of the Vermont Yankee Nuclear Power Station (VYNPS). Renewed Facility Operating License No. DPR-28 authorizes operation of VYNPS by the licensee at reactor core power levels not in excess of 1912 megawatts thermal (650 megawatts electric), in accordance with the provisions of the VYNPS renewed license and its technical specifications.
The notice also serves as the record of decision for the renewal of Facility Operating License No. DPR-28, consistent with Title 10 of the Code of Federal Regulations Section 51.103 (10 CFR 51.103). As discussed in the final supplemental environmental impact statement for VYNPS, dated August 2007, the Commission has considered a range of reasonable alternatives that included the no-action alternative. The factors considered in the record of decision can be found in the supplemental environmental impact statement (SEIS) for VYNPS.
VYNPS is a boiling water reactor located five miles south of Brattleboro, Vermont. The application for the renewed license complied with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations. As required by the Act and the Commission's regulations in 10 CFR chapter 1, the Commission has made appropriate findings, which are set forth in the renewed license. Prior public notice of the Commission considering the license renewal application (LRA) and of an opportunity for a hearing regarding the LRA was published in the
For further details with respect to this action, see: (1) Entergy VY and ENO, LRA for VYNPS dated January 25, 2006, as supplemented by letters dated through February 21, 2008; (2) the Commission's safety evaluation report (SER) (NUREG-1907), published in May 2008; (3) Supplements 1 and 2 to the SER, published in September 2009 and March 2011; (4) the licensee's updated safety analysis report; and (5) the Commission's final environmental impact statement (NUREG-1437, Supplement 30), for VYNPS, published on August 1, 2007. These documents are available at the NRC's Public Document Room, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, and can be viewed from the NRC Public Electronic Reading Room at
Copies of the Renewed Facility Operating License No. DPR-28, may be obtained by writing to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Director, Division of License Renewal. Copies of the VYNPS SER (NUREG-1907), supplemental SER, and the final environmental impact statement (NUREG-1437, Supplement 30) may be purchased from the National Technical Information Service, U.S. Department of Commerce, Springfield, Virginia 22161 (
For the Nuclear Regulatory Commission.
Overseas Private Investment Corporation (OPIC)
Request for comments.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to publish a Notice in the
Comments must be received by May 27, 2011.
Copies of the subject form and the request for review prepared for submission to OMB may be obtained from the Agency Submitting Officer. Comments on the form should be submitted to the Agency Submitting Officer.
Agency Submitting Officer: Essie Bryant, Records Management Officer, Overseas Private Investment Corporation, 1100 New York Avenue, NW., Washington, DC 20527; (202) 336-8563.
Overseas Private Investment Corporation (OPIC).
Request for comments.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), agencies are required to publish a Notice in the
This is the 60-day notice for OPIC Form-52; OMB-3420-0011 (Application for Political Risk Insurance) is to inform the public, that this collection is being submitted to OMB for approval. Any Comments must be forwarded to the Office of Information/Regulatory Affairs, Office of Management & Budget, 725 17th Street, NW., Washington, DC 20503.
Copies of the subject form and the request for review prepared for submission to OMB may be obtained from the Agency submitting officer. Comments on the form should be submitted to the Agency Submitting Officer.
OPIC Agency Submitting Officer: Essie Bryant, Records Management Officer, Overseas Private Investment Corporation, 1100 New York Avenue, NW., Washington, DC 20527; (202) 336-8563.
individuals.
Overseas Private Investment Corporation (OPIC)
Request for comments.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to publish a Notice in the
Comments must be received by May 27, 2011.
Copies of the subject form and the request for review prepared for submission to OMB may be obtained from the Agency Submitting Officer. Comments on the form should be submitted to the Agency Submitting Officer.
Agency Submitting Officer: Essie Bryant, Records Management Officer, Overseas Private Investment Corporation, 1100 New York Avenue, NW., Washington, DC 20527; (202) 336-8563.
Summary of Form Under Review:
Overseas Private Investment Corporation (OPIC).
Request for comments.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to publish a Notice in the
Comments must be received by May 27, 2011.
Copies of the subject form and the request for review prepared for submission to OMB may be obtained from the Agency Submitting Officer. Comments on the form should be submitted to the Agency Submitting Officer.
Agency Submitting Officer: Essie Bryant, Records Management Officer, Overseas Private Investment Corporation, 1100 New York Avenue, NW., Washington, DC 20527; (202) 336-8563.
Overseas Private Investment Corporation (OPIC).
Request for comments.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), agencies are required to publish a Notice in the
Comments must be received by May 27, 2011.
Copies of the subject form and the request for review prepared for submission to OMB may be obtained from the Agency Submitting Officer. Comments on the form should be submitted to the Agency Submitting Officer.
Agency Submitting Officer: Essie Bryant, Records Management Officer, Overseas Private Investment Corporation, 1100 New York Avenue, NW., Washington, DC 20527; (202) 336-8563.
60-day notice and request for comments.
The Peace Corps will be submitting the following information collection requests to the Office of Management and Budget (OMB) for Revision of a currently approved information collection. In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Peace Corps invites the general public to comment on the extension, with change, of currently approved information collection, Peace Corps Volunter Medical Application Health Status Review (OMB 0420-0510) which consists of three forms: The Health Status Review form (PC 1789); the Report of Medical Exam (PC 1790 S); and, Dental Exam (PC 1790). The Peace Corps wants to remove the Dental Exam (PC 1790) from OMB 0420-0510 and request a new OMB Control Number for Dental Exam (PC 1790). This process is conducted in accordance with 5 CFR 1320.10.
Comments must be submitted on or before May 27, 2011.
Comments should be addressed to Denora Miller, Freedom of Information Act Officer. Denora Miller can be contacted by telephone at 202-692-1236 or e-mail at
Denora Miller at Peace Corps address above.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17a-3 under the Securities Exchange Act of 1934 establishes minimum standards with respect to business records that broker-dealers registered with the Commission must make and keep current. These records are maintained by the broker-dealer (in accordance with a separate rule), so they can be used by the broker-dealer and reviewed by Commission examiners, as well as other regulatory authority examiners, during inspections of the broker-dealer.
The collections of information included in Rule 17a-3 is necessary to provide Commission, self-regulatory organization and State examiners to conduct effective and efficient examinations to determine whether broker-dealers are complying with relevant laws, rules, and regulations. If broker-dealers were not required to create these baseline, standardized records, Commission, self-regulatory organization and State examiners could be unable to determine whether broker-dealers are in compliance with the Commission's antifraud and anti-manipulation rules, financial responsibility program, and other Commission, SRO, and State laws, rules, and regulations.
As of October 1, 2010, there were 5,057 broker-dealers registered with the Commission. The Commission estimates that these broker-dealer respondents incur a total burden of 2,723,970 hours per year to comply with Rule 17a-3. Approximately 1,464,777 of those hours are attributable to paragraph 17a-3(a)(17), and about 1,259,193 hours are attributable to the rest of Rule 17a-3.
In addition, Rule 17a-3 contains ongoing operation and maintenance costs for broker-dealers including the cost of postage to provide customers with account information, and costs for equipment and systems development. The Commission estimates that under Rule 17a-3(a)(17), approximately 35,627,958 customers will need to be provided with information regarding their account on a yearly basis. The Commission estimates that the postage costs associated with providing those customers with copies of their account record information would be approximately $10,688,387 per year (35,627,958 × $0.30). The staff believes that the ongoing equipment and systems development costs relating to Rule 17a-3 for the industry would be about $23,514,452 per year. Consequently, the total cost burden associated with Rule 17a-3 would be approximately $34,202,839 per year.
Rule 17a-3 does not contain record retention requirements. Compliance with the rule is mandatory. The required records are available only to the staffs of the Commission, self-regulatory organizations of which the broker-dealer is a member, and the States during examination, inspections and investigations.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
The public may view the background documentation for this information collection at the following Web site,
U.S. Securities and Exchange Commission (“Commission”).
Notice of application for an order under Section 26(c) of the Investment Company Act of 1940, as amended (the “1940 Act”).
TIAA-CREF Life Insurance Company (“TC LIFE”), TIAA-CREF Life Separate Account VA-1 (“Separate Account VA-1”), and TIAA-CREF Life Separate Account VLI-1 (“Separate Account VLI-1”) (together with, Separate Account VA-1, the “Separate Accounts”) (all foregoing parties collectively referred to herein as the “Applicants”).
Applicants request an order of the Commission, pursuant to Section 26(c) of the Act, approving the substitution of shares of the Commodity Return Strategy Portfolio of the Credit Suisse Trust (the “Substituted Portfolio”) for Class II shares of the Natural Resources Portfolio of The Prudential Series Fund (the “Replacement Portfolio”) under certain variable life insurance policies and variable annuity contracts (the “Contracts”), each issued through a Separate Account.
The application was filed on July 7, 2010 and amended and restated on November 3, 2010, January 20, 2011, and March 14, 2011.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Secretary of the Commission and serving Applicants with a copy of the request, personally or by mail. Hearing requests must be received by the Commission by 5:30 p.m. on April 20, 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 requester's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary of the Commission.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants, c/o Ken Reitz, Associate General Counsel, TIAA-CREF Life Insurance Company, 8500 Andrew Carnegie Boulevard, Charlotte, North Carolina 28262-8500.
Michael L. Kosoff, Branch Chief, at (202) 551-6754 or Harry Eisenstein, Senior Special Counsel, Office of Insurance Products, Division of Investment Management, at (202) 551-6795.
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 for an applicant using the Company name box, at
1. TC LIFE is a stock life insurance company organized under the laws of the State of New York on November 20, 1996. TC LIFE's executive office mailing address is 730 Third Avenue, New York, New York 10017.
2. TC LIFE established Separate Account VA-1 under New York state law on July 27, 1998. Separate Account VA-1 meets the definition of a “separate account” under the federal securities laws and is registered with the Commission under the Act as a unit investment trust (File No. 811-08963). Separate Account VA-1 consists of 47 subaccounts, each investing in a different investment portfolio and including subaccounts investing in both the Substituted Portfolio and Replacement Portfolio. The subaccount investing in the Substituted Portfolio was closed to additional payments and transfers of contract value on April 12, 2010. The assets of Separate Account VA-1 support Contracts (the “Separate Account VA-1 Contracts”) that offer the Substituted Portfolio and the Replacement Portfolio as investment options, and interests in Separate Account VA-1 offered through such Contracts have been registered under the Securities Act of 1933 Act (the “1933 Act”) on Form N-4 (File No. 333-145064). Other than the subaccounts investing in the Substituted Portfolio and the two other Credit Suisse portfolios, all of the Separate Account VA-1 subaccounts are currently available under the Separate Account VA-1 Contracts.
3. TC LIFE is the legal owner of the assets in Separate Account VA-1. Pursuant to the Separate Account VA-1 Contracts and prospectuses, TC LIFE reserves the right to substitute shares of one portfolio for shares of another. The terms of the Separate Account VA-1
4. TC LIFE established Separate Account VLI-1 under New York state law on May 23, 2001. Separate Account VLI-1 meets the definition of a “separate account” under the Federal securities laws and is registered with the Commission under the Act as a unit investment trust (File No. 811-10393). Separate Account VLI-1 consists of 47 subaccounts, each investing in a different investment portfolio and including subaccounts investing in both the Substituted Portfolio and the Replacement Portfolio. The subaccount investing in the Substituted Portfolio was closed to additional payments and transfers of contract value on April 12, 2010. The assets of Separate Account VLI-1 support Contracts (the “Separate Account VLI-1 Contracts”) that offer the Substituted Portfolio and the Replacement Portfolio as investment options, and interests in Separate Account VLI-1 offered through such Contracts have been registered under the 1933 Act on Form N-6 (File Nos. 333-128699 and 333-151910). Other than the subaccounts investing in the Substituted Portfolio and the two other Credit Suisse portfolios, all of the Separate Account VLI-1 subaccounts are currently available under the Separate Account VLI-1 Contracts.
5. TC LIFE is the legal owner of the assets in Separate Account VLI-1. Pursuant to the Separate Account VLI-1 Contracts and prospectuses, TC LIFE reserves the right to substitute shares of one portfolio for shares of another. The terms of the Separate Account VLI-1 Contracts and the prospectuses for the Separate Account VLI-1 Contracts also permit Contract owners to transfer contract value among the subaccounts. TC LIFE currently does not assess a transfer charge or limit the number of transfers permitted per year, although TC LIFE does reserve the right to deduct a $25 charge for the thirteenth and each additional transfer during a policy year. Transfers due to dollar cost averaging, automatic account rebalancing, loans, changes in a subaccount's investment policy, or the initial reallocation from a money market subaccount do not count as transfers for the purpose of assessing the transfer charge. Contract owners also must transfer at least $250, or the total value in the allocation option being transferred, if less. TC LIFE also has in place market timing policies and procedures that may operate to limit transfers. TC LIFE also imposes certain restrictions on transfers from the fixed account.
6. Credit Suisse Trust was organized on March 15, 1995 under the laws of the Commonwealth of Massachusetts as a Massachusetts business trust. It is registered under the Act as a open-end management investment company (File No. 811-07261). Credit Suisse Trust currently consists of three portfolios, one of which—the Commodity Return Strategy Portfolio—is the Substituted Portfolio. The Credit Suisse Trust issues a separate series of shares of beneficial interest in connection with each portfolio and has registered such shares under the 1933 Act on Form N-1A (File No. 33-58125). Credit Suisse Asset Management, LLC (“Credit Suisse Management”) serves as the investment adviser to each portfolio of the Credit Suisse Trust.
7. Aberdeen Investment Management acquired Credit Suisse Management in December 2009. Applicants state that they are concerned that the acquisition could result in a change in investment style so that the Substituted Portfolio may no longer serve the investment purposes for which it was selected as an investment option in the Contracts.
8. The Prudential Series Fund is organized as a Delaware statutory trust and is registered under the Act as an open-end management investment company (File No. 811-03623). The Prudential Series Fund currently consists of 19 separate portfolios, one of which—the Natural Resources Portfolio—is the Replacement Portfolio. The Prudential Series Fund issues a separate series of shares of beneficial interest in connection with each portfolio and has registered such shares under the 1933 Act on Form N-1A (File No. 2-80896). Prudential Investments LLC (“P.I.”), a wholly-owned subsidiary of Prudential Financial, Inc., serves as the investment adviser to each portfolio of The Prudential Series Fund and receives an investment management fee from each portfolio it manages.
9. Prudential Mutual Fund Management, Inc. (“PMFM”), the former investment adviser to funds sponsored by Prudential Financial, Inc. and its affiliates, obtained an order from the Commission pursuant to Section 6(c) of the Act exempting it from Section 15(a) of the Act and Rule 18f-2 under the Act, with respect to subadvisory agreements (the “Manager of Managers Order”).
10. The Manager of Managers Order applies not only to the specific applicants but also to any future open-end management investment company advised by PMFM or a person controlling, controlled by, or under common control with PMFM, provided that such investment company operates in substantially the same manner as the applicant investment company and complies with the condition of the Manager of Managers Order. More particularly, Applicants believe that the Manager of Managers Order permits P.I. to enter into and materially amend investment subadvisory agreements with respect to The Prudential Series Fund without obtaining shareholder approval. For this reason, the Applicants believe that the relief granted in the Manager of Managers Order extends to the Natural Resources Portfolio.
11. Neither the Substituted Portfolio nor the Replacement Portfolio nor their investment advisers are affiliated with the Applicants.
12. The following charts set out the investment objective of the Substituted Portfolio and the Replacement Portfolio, as stated in their respective prospectuses dated May 1, 2010.
13. The following information sets out the current principal investment strategies of the Substituted Portfolio and the Replacement Portfolio, as stated in their respective prospectuses and/or Statements of Additional Information (“SAI”) dated May 1, 2010.
14. The following sets out the principal investment risks of the Substituted Portfolio and the Replacement Portfolio, as stated in their respective prospectuses and/or SAIs dated May 1, 2010.
The Commodity Return Strategy Portfolio is subject to the following principal investment risks:
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The Natural Resources Portfolio is subject to the following principal investment risks:
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15. The following charts compare the investment management fees and total operating expenses (before and after any waivers and reimbursements) for the year ended December 31, 2010, expressed as an annual percentage of average daily net assets, of the Substituted Portfolio and the Replacement Portfolio.
16. The following charts
17. The following charts compare the levels of net assets (rounded to the nearest thousand) of the Substituted Portfolio and the Replacement Portfolio on December 31, 2010 and the prior four calendar years, as well as the levels of net assets of the Separate Accounts invested in the Substituted Portfolio for the same time period and the percentage of the Substituted Portfolio's total net assets represented by the investments of the Separate Accounts.
18. Applicants represent
19. Applicants represent that TC LIFE reviewed all of the underlying fund options with the goal of ensuring that Contract owners would be provided with investment options under their Contracts following the Substitution that are similar to the investment options under their Contracts before the Substitution. Based in particular on a better performance record and lower total expenses of the Replacement Portfolio, TC LIFE believes that the adviser to the Replacement Portfolio is better positioned overall to provide exposure to the asset classes that were originally selected as well as being able to offer the potential for consistent above-average performance for the Portfolio than is the adviser to the Substituted Portfolio. The Replacement Portfolio also is considerably larger than the Substituted Portfolio, thus offering better economies of scale with a larger asset base over which to spread the various portfolio costs ultimately passed on to Contract owners. As such, TC LIFE believes that effecting the Substitution will provide Contract owners with a Replacement Portfolio that has a comparable investment objective to the Substituted Portfolio but is, overall, less expensive, consistent with the desired asset class exposure, better positioned to provide consistent above-average performance, and with greater expectations for growth. Moreover, TC LIFE maintains that the investment objective and policies of the Replacement Portfolio are sufficiently similar to those of the Substituted Portfolio so that Contract owners will have reasonable continuity in investment expectations.
20. Applicants seek the Commission's approval under Section 26(c) to engage in the substitution transaction described below. Pursuant to its authority under the respective Contracts and the prospectuses describing the same, and subject to the approval of the Commission under Section 26(c) of the Act, TC LIFE proposes to substitute shares of the Commodity Return Strategy Portfolio of the Credit Suisse Trust for Class II Shares of the Natural Resources Portfolio of The Prudential Series Fund.
21. Applicants represent that TC LIFE will effect the Substitution as soon as practicable following the issuance of the requested order as follows. As of the effective date of the Substitution (the “Effective Date”), shares of the Substituted Portfolio will be redeemed for cash and that cash will be used to purchase shares of the Replacement Portfolio. Redemption requests and purchase orders will be placed simultaneously so that contract values will remain fully invested at all times. All redemptions of shares of the Substituted Portfolio and purchases of shares of the Replacement Portfolio will be effected in accordance with Section 22(c) of the Act and Rule 22c-1 thereunder. The Substitution will take place at relative net asset value as of the Effective Date with no change in the
22. Applicants represent that contract values attributable to investments in the Substituted Portfolio will be transferred to the Replacement Portfolio without charge (including sales charges or surrender charges) and without counting toward the number of transfers that may be permitted without charge. Contract owners will not incur any additional fees or charges as a result of the Substitution, nor will their rights or TC LIFE's obligations under the Contracts be altered in any way, and the Substitution will not change Contract owners' insurance benefits under the Contracts. All expenses incurred in connection with the Substitution, including legal, accounting, transactional, and other fees and expenses, including brokerage commissions, will be paid by TC LIFE. In addition, the Substitution will not impose any tax liability on Contract owners. The Substitution will not cause the Contract fees and charges currently paid by existing Contract owners to be greater after the Substitution than before the Substitution. TC LIFE will not exercise any right it may have under the Contracts to impose a transfer charge or restrictions on transfers under the Contracts for the period beginning on the date the initial application was filed with the Commission through at least thirty (30) days following the Effective Date for transfers of contract value from the subaccount investing in the Substituted Portfolio (before the Substitution) or the Replacement Portfolio (after the Substitution) to one or more other subaccount(s).
23. The Applicants represent that they will not receive, for three years from the date of the Substitution, any direct or indirect benefits from the Replacement Portfolio, its advisors or underwriters (or their affiliates), in connection with assets attributable to Contracts affected by the Substitution, at a higher rate than Applicants have received from the Substituted Portfolio, its advisors or underwriters (or their affiliates), including without limitation Rule 12b-1 fees, shareholder service, administration, or other service fees, revenue sharing, or other arrangements in connection with such assets. Applicants represent that the Substitution and the selection of the Replacement Portfolio were not motivated by any financial consideration paid or to be paid to TC LIFE or its affiliates by the Replacement Portfolio, its advisors, underwriters, or their respective affiliates.
24. The Applicants assert that the procedures to be implemented are sufficient to assure that each Contract owner's cash values immediately after the Substitution shall be equal to the cash value immediately before the Substitution.
25. The Applicants represent that Existing Contract owners as of the date the initial application was filed, and new Contract owners who have purchased or who will purchase a Contract subsequent to that date but prior to the Effective Date, have been or will be notified of the proposed Substitution by means of a prospectus or prospectus supplement for each of the Contracts (“Pre-Substitution Notice”). The Pre-Substitution Notice:
• States that the Applicants filed the application to seek approval of the Substitution;
• Sets forth the anticipated Effective Date;
• Explains that contract values attributable to investments in the Substituted Portfolio would be transferred to the Replacement Portfolio on the Effective Date; and
• States that, from the date the initial application was filed with the Commission through the date thirty (30) days after the Substitution, Contract owners may transfer contract value from the subaccount investing in the Substituted Portfolio (before the Substitution) or the Replacement Portfolio (after the Substitution) to one or more other subaccount(s) without a transfer charge and without that transfer counting against their contractual transfer limitations.
Further, all Contract owners will have received a copy of the most recent prospectus for the Replacement Portfolio prior to the Substitution.
26. Finally, the Applicants represent that within five (5) days following the Substitution, Contract owners affected by the Substitution will be notified in writing that the Substitution was carried out. This notice will restate the information set forth in the Pre-Substitution Notice, and will also explain that the contract values attributable to investments in the Substituted Portfolio were transferred to the Replacement Portfolio without charge (including sales charges or surrender charges) and without counting toward the number of transfers that may be permitted without charge.
27. Applicants represent that Section 26(c) of the Act prohibits any depositor or trustee of a unit investment trust that invests exclusively in the securities of a single issuer from substituting the securities of another issuer without the approval of the Commission. Section 26(c) provides that such approval shall be granted by order of the Commission, if the evidence establishes that the substitution is consistent with the protection of investors and the purposes of the Act. Section 26(c) was intended to provide for Commission scrutiny of proposed substitutions which could, in effect, force shareholders dissatisfied with the substitute security to redeem their shares, thereby possibly incurring a loss of the sales load deducted from initial premium, an additional sales load upon reinvestment of the proceeds of redemption, or both.
28. Applicants represent that the replacement of the Substituted Portfolio with the Replacement Portfolio is consistent with the protection of Contract owners and the purposes fairly intended by the policy and provisions of the Act and, thus, meets the standards necessary to support an order pursuant to Section 26(c) of the Act.
29. The Applicants assert that the investment objective and principal investment strategies of the Replacement Portfolio are substantially similar to those of the Substituted Portfolio. The Commodity Return Strategy Portfolio seeks total return relative to the performance of the DJ-UBS Index, and the Natural Resources Portfolio seeks long-term growth of capital. Applicants submit that these are substantially similar investment objectives and, while the Portfolios' principal investment strategies are
30. The Applicants represent that, although not identical, the principal investment risks of the Natural Resources Portfolio are comparable to those of the Commodity Return Strategy Portfolio. Both Portfolios use derivatives, exposing each Portfolio to a number of specific derivative-related risks such as the possibility that the counterparty to the transaction is unable to honor its financial obligation; using derivatives may also subject each Portfolio to other more general risks including commodity risk, correlation risk, liquidity risk, interest-rate risk, market risk, and credit risk. Because both Portfolios may invest in foreign securities, they also are subject to increased risk relating to currency exchange rate fluctuations, price volatility, adverse political developments, etc. Both Portfolios also are subject to market risk relating to increased and/or unpredictable fluctuations in the market value of the securities in which they invest, as well as to liquidity risk. Finally, both the Natural Resources Portfolio and the Commodity Return Strategy Portfolio are non-diversified investment companies, and therefore may invest in fewer issuers and be more greatly affected by the performance of relatively few securities. Further, the Applicants do not believe that overall the Natural Resources Portfolio is exposed to greater risk than the Commodity Return Strategy Portfolio, despite the fact that certain enumerated risks of the Natural Resources Portfolio are not explicitly detailed as principal investment risks in the prospectus for the Commodity Return Strategy Portfolio. For example, the Applicants believe that the Commodity Return Strategy Portfolio, like the Natural Resources Portfolio, is subject to commodity price risk, expense risk, industry/sector risk, and valuation risk—all typical risks that are generally present for most portfolios that invest in the commodity and natural resources asset categories. Moreover, the Natural Resources Portfolio is not subject to the specific derivative, tax, and focus risks the Commodity Return Strategy Portfolio is exposed to as a result of the latter's primary investment in commodity-linked instruments. Lastly, because the Commodity Return Strategy Portfolio invests in the Credit Suisse Cayman Commodity Fund II, Ltd., the Portfolio also is indirectly exposed to the risks associated with that portfolio's investments.
31. The Applicants represent that the investment management fee of the Natural Resources Portfolio is lower than that of the Commodity Return Strategy Portfolio, and each Portfolio imposes a 12b-1 fee of 0.25%. Moreover, total operating expenses of the Natural Resources Portfolio were lower than those of the Commodity Return Strategy Portfolio as of December 31, 2010.
32. The Applicants represent that the Natural Resources Portfolio outperformed the Commodity Return Strategy Portfolio for the one-year period ending December 31, 2010 and since inception. In addition, the assets of the Natural Resources Portfolio have been consistently (and significantly) higher than those of the Commodity Return Strategy Portfolio as of December 31, 2010 and for each of the prior four calendar years.
33. For purposes of the approval sought pursuant to Section 26(c) of the Act, the Applicants represent that the Substitution will not be completed unless all of the following conditions are met.
• The Commission shall have issued an order approving the Substitution under Section 26(c) of the Act as necessary to carry out the transactions described in the Application.
• Each Contract owner will have been sent (i) prior to the Effective Date, a copy of the effective prospectus for the Replacement Portfolio, (ii) prior to the Effective Date, a Pre-Substitution Notice describing the terms of the Substitution and the rights of the Contract owners in connection with the Substitution, and (iii) within five (5) days after the Substitution occurs, a notice informing Contract owners affected by the Substitution that the Substitution was carried out (this notice will restate the information set forth in the Pre-Substitution Notice, and also explain that the contract values attributable to investments in the Substituted Portfolio were transferred to the Replacement Portfolio without charge (including sales charges or surrender charges) and without counting toward the number of transfers that may be permitted without charge).
• The Applicants have satisfied themselves that (i) The Contracts allow the substitution of the Portfolios in the manner contemplated by the Substitution and related transactions described herein, (ii) the transactions can be consummated as described in the Application under applicable insurance laws, and (iii) any applicable regulatory requirements in each jurisdiction where the Contracts are qualified for sale have
34. The Applicants acknowledge that reliance on exemptive relief, if granted, depends upon compliance with all of the representations and conditions set forth in the Application.
Applicants assert that, for all the reasons stated in the Applicant, the Substitution is consistent with the protection of investors and the purposes fairly intended by the policy of the Contracts and provisions of the Act and that the requested order should be granted.
For the Commission, by the Division of Investment Management pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on March 30, 2011 at 10 a.m., in the Auditorium, Room L-002.
The subject matters of the Open Meeting will be:
Item 1: The Commission will consider whether to propose joint rules with other Agencies to implement Section 941(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act relating to credit risk retention by securitizers of asset-backed securities.
Item 2: The Commission will consider whether to propose a new rule and rule amendments to implement Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires the Commission to direct the national securities exchanges and national securities associations to adopt certain listing standards with respect to compensation committees and compensation advisers. Section 952 also requires the Commission to adopt new disclosure rules concerning the use of compensation consultants and conflicts of interest.
Commissioner Casey, as duty officer, determined that no earlier notice thereof was possible.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission a proposal to extend a pilot program that eliminates minimum value sizes for FLEX index options and FLEX equity options (together known as “FLEX Options”).
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend Phlx Rule 1079 (FLEX Index, Equity and Currency Options) to extend a pilot program that eliminates minimum value sizes for FLEX Options (the “Pilot Program” or “Pilot”).
Rule 1079 deals with the process of listing and trading FLEX equity, index, and currency options on the Exchange. Rule 1079(a)(8)(A) currently sets the minimum opening transaction value size in the case of a FLEX Option in a newly established (opening) series if there is no open interest in the particular series when an Request-for-Quote (“RFQ”) is submitted (except as provided in Commentary .01 to Rule 1079): (i) $10 million underlying equivalent value, respecting FLEX market index options, and $5 million underlying equivalent value respecting FLEX industry index options;
Presently, Commentary .01 to Rule 1079 states that by virtue of the Pilot Program ending March 28, 2011, there shall be no minimum value size requirements for FLEX Options as noted
The Exchange now proposes to extend the Pilot Program for a period of one year ending March 30, 2012.
The Exchange believes that there is sufficient investor interest and demand in the Pilot Program to warrant extension for an additional year. The Exchange believes that the Pilot Program has provided investors with additional means of managing their risk exposures and carrying out their investment objectives. Extension of the Pilot Program would continue to provide greater opportunities for traders and investors to manage risk through the use of FLEX Options, including investors that may otherwise trade in the unregulated over the counter (“OTC”) market where similar size restrictions do not apply.
In support of the proposed extension of the Pilot Program, the Exchange has submitted to the Commission a Pilot Program Report (“Report”) that provides an analysis of the Pilot Program covering the period during which the Pilot has been in effect. This Report includes: (i) data and analysis on the open interest and trading volume in (a) FLEX equity options that have an opening transaction with a minimum size of 0 to 249 contracts and less than $1 million in underlying value; (b) FLEX index options that have an opening transaction with a minimum opening size of less than $10 million in underlying equivalent value; and (ii) analysis of the types of investors that initiated opening FLEX Options transactions (
If, in the future, the Exchange proposes an additional extension of the Pilot Program, or should the Exchange propose to make the Pilot Program permanent, the Exchange will submit, along with any filing proposing such amendments to the Pilot Program, an additional Pilot Program Report covering the period during which the Pilot Program was in effect and including the details referenced in the prior paragraph. The Exchange will also provide the nominal dollar value of each trade. The Pilot Program Report would be submitted to the Commission at least two months prior to the expiration date of the Pilot Program and would be provided on a confidential basis.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
Further, Phlx is proposing to extend the existing pilots on the same terms and conditions as they were originally approved by the Commission. This includes, as described in more detail above, a representation that Phlx will continue to monitor the pilot and submit certain interim reports during the extended pilot period, as well as a final report covering the pilot period should the Exchange decide to extend or file for permanent approval of the pilot. Finally, the Commission notes that the Exchange has represented that it has not experienced any adverse market effects with respect to the pilot program.
Based on the above, the Commission finds that it is consistent with investor protection and the public interest to waive the 30-day operative delay in accordance with Rule 19b-4(f)(6)(iii) so that the pilot can continue on an uninterrupted basis, and therefore
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes [sic] its option trading rules to extend the operation of its pilot program (“Pilot Program”) regarding minimum value sizes for flexible exchange options (“FLEX Options”), currently scheduled to expire on March 28, 2011, until March 30, 2012. The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange hereby proposes to amend its option trading rules to extend the operation of its Pilot Program regarding minimum value sizes for FLEX Options, currently scheduled to expire on March 28, 2011,
In support of the proposed extension of the Pilot Program, and as required by the terms of the Pilot Program's implementation,
The Exchange believes that there is sufficient investor interest and demand in the Pilot Program to warrant extension for an additional year. The Exchange believes that the Pilot Program has provided investors with additional means of managing their risk exposures and carrying out their investment objectives. The Exchange has not experienced any adverse market effects with respect to the Pilot Program.
If, in the future, the Exchange proposes an additional extension of the Pilot Program, or should the Exchange propose to make the Pilot Program permanent, the Exchange will submit, along with any filing proposing such amendments to the Pilot Program, an additional Pilot Program Report covering the period during which the Pilot Program was in effect and including the details referenced above, along with the nominal dollar value of the underlying security of each trade. The Pilot Program Report would be submitted to the Commission at least two months prior to the expiration date of the Pilot Program and would be provided on a confidential basis.
The Exchange notes that any positions established under this Pilot Program would not be impacted by the expiration of the Pilot Program. For example, a 10-contract FLEX Equity Option opening position that overlies less than $1 million in the underlying security and expires in January 2015 could be established during the Pilot Program. If the Pilot Program were not extended, the position would continue to exist and any further trading in the series would be subject to the minimum value size requirements for continued trading in that series.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission finds that waiver of the operative delay is consistent with the protection of investors and the public interest. The Commission notes in waiving the 30-day operative delay that the Exchange's original pilot was published for comment in the
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its option trading rules to extend the operation of its pilot program (“Pilot Program”) regarding minimum value sizes for flexible exchange options (“FLEX Options”), currently scheduled to expire on March 28, 2011, until March 30, 2012. The text of the proposed rule change is available at the Exchange; on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange hereby proposes to amend its option trading rules to extend the operation of its Pilot Program regarding minimum value sizes for FLEX Options, currently scheduled to expire on March 28, 2011,
In support of the proposed extension of the Pilot Program, and as required by the terms of the Pilot Program's implementation,
The Exchange believes that there is sufficient investor interest and demand in the Pilot Program to warrant extension for an additional year. The Exchange believes that the Pilot Program has provided investors with additional means of managing their risk exposures and carrying out their investment objectives. The Exchange has not experienced any adverse market effects with respect to the Pilot Program.
If, in the future, the Exchange proposes an additional extension of the Pilot Program, or should the Exchange propose to make the Pilot Program
The Exchange notes that any positions established under this Pilot Program would not be impacted by the expiration of the Pilot Program. For example, a 10-contract FLEX Equity Option opening position that overlies less than $1 million in the underlying security and expires in January 2015 could be established during the Pilot Program. If the Pilot Program were not extended, the position would continue to exist and any further trading in the series would be subject to the minimum value size requirements for continued trading in that series.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay to permit the current pilot to continue uninterrupted. The Commission finds that waiver of the operative delay is consistent with the protection of investors and the public interest. The Commission notes in waiving the 30 day operative delay that NYSE Amex's original pilot was published for comment in the
Further, NYSE Amex is proposing to extend the existing pilot on the same terms and conditions as they were originally approved by the Commission. This includes, as described in more detail above, a representation that NYSE Amex will continue to monitor the pilot and submit certain interim reports during the extended pilot period, as well as a final report covering the pilot period should the Exchange decide to extend or file for permanent approval of the pilot. Finally, the Commission notes that the Exchange has represented that it has not experienced any adverse market effects with respect to the pilot program.
Based on the above, the Commission finds that it is consistent with investor protection and the public interest to waive the 30 day operative delay in accordance with Rule 19b-4(f)(6)(iii) so that the pilot can continue on an uninterrupted basis, and therefore designates the proposal operative upon filing.
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that C3 Capital Partners IT, L.P., 4520 Main Street, Suite 1600, Kansas City, Missouri, 64111-7700, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under section 312 of the Act and section 107.730, Financings Which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) rules and regulations (13 CFR 107.730 (2006)). C3 Capital Partners IL, L.P., proposes to provide financing to Findett LLC, P.O. Box 0960, St. Charles, MO 63302-0960. The financing is contemplated to provide growth capital.
The financing is brought within the purview of Sec. 107.730(a)(1) of the Regulations because C3 Capital Partners, L.P., an Associate of C3 Capital Partners II, L.P., currently owns greater than 10 percent of Findett LLC, and therefore, Findett LLC, is considered an Associate of C3 Capital Partners II, L.P. as defined in Sec. 105.50 of the regulations.
Notice is hereby given that any interested person may submit written comments on the transaction, within 15 days, to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
Notice is hereby given that KLH Capital, L.P., 101 East Kennedy Boulevard, Suite 3925, Tampa, FL, 33602 a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). KLH Capital, L.P., proposes to purchase securities of Energy Hardware Holdings, LLC, 2730 E. Phillips Road, Greer, SC 29650 from EH Holdings Associates, LLC. The financing is contemplated for growth and general corporate purposes.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because EH Holdings Associates, LLC, is an Associate of KLH Capital, L.P., due to common ownership and control, and owns more than ten percent of Energy Hardware Holdings, LLC. Therefore, Energy Hardware Holdings, LLC and EH Holdings Associates, LLC, are considered Associates of KLH Capital, L.P., as defined in Sec. 105.50 of the regulations.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment and Innovation, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
Renewal of an Advisory Committee. The Department of State has renewed the Charter of the Advisory Committee on International Economic Policy. The Committee serves in a solely advisory capacity concerning major issues and problems in international economic policy. The Committee provides information and advice on the effective integration of economic interests into overall foreign policy and on the Department of State's role in advancing American economic and commercial interests in a competitive global economy. The Committee also appraises the role and limits of international economic institutions and advises on the formulation of U.S. economic policy and positions.
This Committee includes representatives of American organizations and institutions having an interest in international economic policy, including representatives of American business, state and local government, labor unions, public interest groups, and trade and professional associations. The Committee meets at least annually to advise the Department on the full range of international economic policies and issues.
For further information, please call Tiffany Enoch, Deputy Outreach Coordinator, Office of Economic Policy Analysis and Public Diplomacy, Bureau of Economic, Energy and Business Affairs, U.S. Department of State, at (202) 647-2231.
Tennessee Valley Authority (TVA).
Notice of meeting.
The TVA Regional Resource Stewardship Council (RRSC) will hold a meeting on Wednesday, April 27 and
The RRSC was established to advise TVA on its natural resource stewardship activities. Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2.
The management of the Tennessee Valley reservoirs and the lands adjacent to them has long been an integral component of TVA's mission. As part of implementing the TVA Environmental Policy, TVA is developing a Natural Resource Plan (NRP) that will help prioritize techniques for the management of TVA's biological and cultural resource management activities, recreation management activities, water resource protection and improvement activities, and lands planning. In accordance with the National Environmental Policy Act, TVA is also developing an accompanying Environmental Impact Statement (EIS) in which TVA will evaluate the preferred strategy for the NRP, as well as other viable alternative strategies. TVA is using the RRSC as a key stakeholder group throughout the development of the NRP to advise TVA on the issues, tradeoffs, and focus of environmental stewardship activities. The draft NRP and accompanying draft EIS were recently released for public comment. At the April 2011 meeting, TVA will be seeking advice from the Council on issues regarding the programs which comprise the draft NRP.
The meeting agenda includes the following:
1. Introductions.
2. NRP Overview; Programs included in the draft NRP for biological, cultural, water, and recreational resources and lands planning; Incorporation of Guiding Principles and advice received from the RRSC at its January 2011 meeting; Public comments received regarding the draft NRP and draft EIS.
3. Tour of Melton Hill Dam Campground; Presentations regarding several specific ongoing or proposed stewardship programs.
4. RRSC Discussion Topic: The scope of the programs included in the resource area components of the draft NRP and the benefits and challenges stemming from such programs.
5. Public Comments.
6. Council Discussion and Advice.
The RRSC will hear opinions and views of citizens by providing a public comment session. The public comment session will be held at 10 a.m., EDT, on Thursday, April 28. Persons wishing to speak are requested to register at the door by 9 a.m. on Thursday, April 28 and will be called on during the public comment period. Handout materials should be limited to one printed page. Written comments are also invited and may be mailed to the Regional Resource Stewardship Council, Tennessee Valley Authority, 400 West Summit Hill Drive, WT 11B, Knoxville, Tennessee 37902.
The meeting will be held on Wednesday, April 27 from 8:30 a.m. to 4:30 p.m., and Thursday, April 28 from 8 a.m. to 12 noon, EDT.
The meeting will be held at the Tennessee Valley Authority, 400 West Summit Hill Drive, Knoxville, Tennessee 37902, and will be open to the public. Anyone needing special access or accommodations should let the contact below know at least a week in advance.
Beth Keel, 400 West Summit Hill Drive, WT 11B, Knoxville, Tennessee 37902, (865) 632-6113.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. This collection of information is necessary to determine how satisfied applicants are with the automated staffing solution. The information enables the FAA to improve and enhance its automated staffing process.
Written comments should be submitted by May 27, 2011.
Carla Scott on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 712, Federal Aviation Administration, IT Enterprises Business Services Division, AES-200, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The FAA's Fuel Tank Flammability Safety rulemaking requires manufacturers to provide a report to the FAA every six months for up to 5 years after the flammability reduction system is incorporated into the fleet. The data collection is needed to assure system performance meets that predicted at the time of certification.
Written comments should be submitted by May 27, 2011.
Carla Scott on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 712, Federal Aviation Administration, IT Enterprises Business Services Division, AES-200, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, FAA has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted by April 27, 2011.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Carla Scott on (202) 267-9895, or by e-mail at:
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: the target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The FAA received no comments in response to the 60-day notice published in the
Below we provide FAA's projected average estimates for the next three years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Federal Aviation Administration (FAA), DOT.
Notice of new task assignment for the Aviation Rulemaking Advisory Committee (ARAC).
The FAA assigned ARAC a new task to consider whether changes to part 25 are necessary to address rudder pedal sensitivity and rudder reversals. This notice is to inform the public of this ARAC activity.
Robert C. Jones, Propulsion/Mechanical Systems Branch, ANM-112, Transport Airplane Directorate, Federal Aviation Administration, 1601 Lind Avenue, SW., Renton, Washington 98057, telephone (425) 227-1234, facsimile (425) 227-1149; e-mail
The FAA established the Aviation Rulemaking Advisory Committee (ARAC) to provide advice and recommendations to the FAA Administrator on the FAA's rulemaking activities with respect to aviation-related issues. This includes obtaining advice and recommendations on the FAA's commitments to harmonize Title 14, Code of Federal Regulations (14 CFR), with its partners in Europe, Canada, and Brazil; in this instance, on rudder pedal sensitivity and rudder reversals. The committee will address the task under the ARAC's Transport Airplane and Engine Issues, and will reestablish the Flight Controls Harmonization Working Group, to assist in analysis of this task.
Recent research shows that regardless of training, pilots make inadvertent and erroneous rudder inputs, some of which have resulted in pedal reversals. Accident and incident data show airplanes that have experienced pedal reversals that surpassed the airplane's structural limit load and sometimes ultimate load. One case resulted in loss of the vertical fin, the airplane and 265 lives.
On November 12, 2001, an Airbus A300-600 crashed at Belle Harbor on climb-out resulting in 265 deaths and an airplane hull loss. The National Transportation Safety Board (NTSB) found “that the probable cause of this accident was the in-flight separation of the vertical stabilizer as a result of the loads beyond ultimate design that were created by the first officer's unnecessary and excessive rudder pedal inputs. Contributing to these rudder pedal inputs were characteristics of the Airbus A300-600 rudder system design and elements of the American Airlines Advanced Aircraft Maneuvering Program.”
In two additional events, commonly known as the Miami Flight 903 event and the Interflug event, pilot commanded pedal reversals caused A300-600/A310 fins to experience loads greater than their ultimate load level. Both airplanes survived because they possessed greater strength than required by the current standards.
In January 2008, an Airbus 319 encountered a wake vortex. The pilot responded with several pedal reversals. Analysis shows that this caused a fin load exceeding limit load by approximately 29 percent. The pilot eventually stabilized the airplane and safely landed. The Transportation Safety Board (TSB) Canada investigated this event, with the NTSB providing accredited representatives.
On May 27, 2005, a de Havilland DHC-8-100 (Dash 8) airplane (registration C-GZKH, serial number 117) was on a passenger revenue flight from St. John's to Deer Lake, Newfoundland, with 36 passengers and 3 crew on board. During the climb-out from St. John's, the indicated airspeed gradually decreased to the point that the airplane entered an aerodynamic stall. The airplane descended rapidly, out of control, losing 4200 feet before recovery was effected approximately 40 seconds later. The incident occurred during daylight hours in instrument meteorological conditions. There were no injuries and the airplane was not damaged. During this event, the pilot commanded a pedal reversal.
The FAA sponsored studies
2. DOT/FAA/AR-09-5, Pilot Simulations Study to Develop Transport Aircraft Rudder Control System Requirements Phase 1 Simulator Motion System Requirements and Initial Results, Authors Hoh, Desrochers, Niscoll, 18 April 2007.
3. DOT/FAA/AR-10/17, Piloted Simulation Study to Develop Transport Aircraft Rudder Control System Requirements Phase 2 Develop Criteria for Rudder Overcontrol, Authors Hoh, Desrochers, Niscoll.
1. Pilots use the rudder more than previously thought and often in ways
2. Pilots make erroneous pedal inputs, and some erroneous pedal inputs include rudder reversals.
3. After years of training, many pilots are not aware that they should not make pedal reversals, even below design maneuvering speed (V
4. Pilots in airplane upset situations (
The current standards in part 25 address large pedal inputs at airspeeds up to the design dive airspeed (V
The FAA is partially addressing this condition for new designs by requiring under § 25.601 that applicants for new type certificates show that the design is capable of continued safe flight and landing after experiencing rudder pedal reversals. The applicants have been able to show compliance with this requirement by appropriate rudder controls. These control schemes have been incorporated through software and therefore add no weight or maintenance cost to the airplanes. However, such controls might only be capable of a limited number of pedal reversals before exceeding airframe ultimate loads, and part 25 may need to address this situation.
Excessive use of rudder, beyond its design capabilities, has been identified as a contributing factor in several incidents and accidents. The FAA is tasking ARAC to consider:
1. the need to revise 14 CFR part 25, subpart C, to ensure airplane structural capability in the presence of rudder reversals and associated buildup of sideslip angles through a defined flight envelope (see question 1), or
2. if other sections of the airworthiness standard may more appropriately address this concern, such as certain pedal characteristics that discourage pilots from making pedal reversals (reduce pedal sensitivity).
If ARAC determines new requirements are necessary, it must recommend performance-based standards that allows manufacturers the flexibility to design airplanes to meet their needs while ensuring airplane safety. ARAC would also need to recommend methods of compliance (criteria), such as background simulation or piloted simulation, to support the rule change.
In addition, ARAC must consider the need to revise 14 CFR parts 26, 121, 125, 129, and 135, or to write airworthiness directives to address the safety concerns posed by rudder reversals in the existing transport airplane fleet. Finally, ARAC must recommend criteria that can be used to determine the need for retrofit.
ARAC is expected to provide a report that addresses the following questions regarding new airplane designs, with rationale for their responses. Any disagreement should be documented, including the rationale from each party and the reasons for the disagreement.
1. Define what is meant by pilot misuse/use of rudder and rudder pedal sensitivity, and determine the appropriate flight envelope that should be considered.
2. Consider what types of part 25 standards can be developed to prevent unintended or inappropriate rudder usage, or to ensure that unintended usage provides a level of safety commensurate with part 25. The working group should consider the following areas of the existing airworthiness standard:
a. Loads.
b. Maneuverability.
c. System design.
d. Control sensitivity.
e. Warning.
3. What is the best regulatory approach to address rudder usage? For example, is it better to assume certain inputs and provide mitigation to ensure safe flight (envelope protection), or to provide certain standards to ensure that the pilot will not make (inadvertent or inappropriate) inputs?
4. What changes, if any, to part 25—including details for compliance demonstration and guidance—are recommended for new type certification applications to prevent unintended improper rudder usage? Some considerations include use of analysis, desktop or piloted simulation, or actual flight testing.
5. Are there any regulations or guidance material that might conflict with the proposal?
6. Does current technology exist to support implementation of new requirements?
7. What are the effects and implications of any proposed change regarding commonly used system designs? For example, would a new standard cause adverse interaction with currently used fly-by-wire flight control systems, stability augmentation or auto-flight systems, or with current operations?
8. Does the proposed solution present any issues relating to specific flight phases or environmental conditions? If so, what are they, and how should they be addressed?
9. What recommended guidance material is needed?
10. After reviewing airworthiness standard, safety, cost, benefit, and other relevant factors, including recent certification and fleet experience, are there any additional considerations that should be taken into account?
11. Is coordination necessary with other harmonization working groups (e.g., Human Factors, Flight Test)?
The report must address the following questions while considering existing transport airplane designs, with rationale for the responses. Any disagreements should be documented, including the rationale from each party and the reasons for the disagreement.
1. What factors should be considered to determine if retrofit should be required?
2. For airplanes that require retrofit per the criteria, what differences should be considered from the requirements developed for new transport airplanes?
3. What are the effects and implications of any proposed retrofit standards and guidance for current system designs? For example, would the retrofit cause adverse interaction with currently used fly-by-wire flight control systems, stability augmentation or auto-flight systems, or with current operations?
4. After reviewing airworthiness standards, safety, cost, benefit, and other relevant factors, including recent certification and fleet experience, are there any additional considerations that should be taken into account?
5. If improvements are needed to ensure safe rudder usage, what is the recommended method to mandate retrofit? (Ad hoc airworthiness directives, part 26 rules, etc.) In responding, ARAC should address the factors set forth in “FAA Policy Statement: Safety-A Shared
ARAC should provide information that could lead to requirements in rudder load conditions, and/or system design that can be satisfied with practical design approaches.
The FAA will provide a copy of each DOT report mentioned in this tasking notice.
ARAC accepted the task and will assign it to the reestablished Flight Controls Harmonization Working Group, under Transport Airplane and Engine Issues. This working group will use task groups to assist in their activities. Nominees should have experience in the areas of flight test, flight controls, loads, or human factors. The working group serves as support to ARAC and assists in the analysis of assigned tasks. ARAC must review and approve the working group's recommendations. If ARAC accepts the working group's recommendations, it will forward them to the FAA.
The Flight Controls Harmonization Working Group must comply with the procedures adopted by ARAC. As part of the procedures, the working group must:
1. Recommend a work plan for completion of the task, including the rationale supporting such a plan, for consideration at the next ARAC meeting on Transport Airplane and Engine Issues held following publication of this notice.
2. Give a detailed conceptual presentation of the proposed recommendations before proceeding with the work stated in item 3 below.
3. Draft the appropriate documents and required analyses and/or any other related materials or documents.
4. Provide a status report at each ARAC meeting held to consider Transport Airplane and Engine Issues.
The Flight Controls Harmonization Working Group will be composed of technical experts having an interest in the assigned task. A working group member need not be a representative or a member of the full committee.
If you have expertise in the subject matter and wish to become a member of the working group, write to the person listed under the caption
If you are chosen for membership on the working group, you must represent your aviation community segment and actively participate in the working group by attending all meetings, and providing written comments when requested to do so. You must devote the resources necessary to support the working group in meeting any assigned deadlines. You must keep your management chain and those you may represent advised of working group activities and decisions to ensure that the proposed technical solutions don't conflict with your sponsoring organization's position when the subject being considered is presented to ARAC for approval. Once the working group has begun deliberations, members will not be added or substituted without the approval of the assistant chair, the assistant executive director and the working group chair.
The Secretary of Transportation determined that the formation and use of ARAC is necessary and in the public interest in connection with the performance of duties imposed on the FAA by law.
ARAC meetings are open to the public. Meetings of the Flight Controls Harmonization Working Group will not be open to the public, except to the extent individuals with an interest and expertise are selected to participate. The FAA will make no public announcement of working group meetings.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this Notice of Intent to advise the public that an Environmental Impact Statement (EIS) will be prepared for the Grand Crossing Rail Project, which involves new railroad track work, structural work, grading, and signal improvements to provide a new direct route for Amtrak trains from New Orleans, Louisiana or Carbondale, Illinois into Chicago Union Station, and to provide sufficient mainline capacity to accommodate existing and additional Amtrak trains along with freight traffic in the City of Chicago, Cook County, Illinois.
Norman R. Stoner, P.E., Division Administrator, Federal Highway Administration, 3250 Executive Park Drive, Springfield, Illinois 62703, Phone: (217) 492-4600. Steve McClarty, Acting Bureau Chief, Bureau of Railroads, Illinois Department of Transportation, 100 W. Randolph Street, Suite 6-600, Chicago, Illinois 60601-3229, Phone: (312) 793-3940.
The FHWA, in cooperation with the Illinois Department of Transportation, Bureau of Railroads, will prepare an EIS on a proposal to construct a direct rail connection between the Canadian National (CN) and Norfolk Southern (NS) Chicago Line to provide a new, more direct route to Chicago's Union Station for Amtrak trains coming from New Orleans, Louisiana, and Carbondale, Illinois. The proposed project is an element of the overall Chicago Region Environmental and Transportation Efficiency Program (CREATE), a joint effort of the Illinois Department of Transportation, the Chicago Department of Transportation, and the Association of American Railroads to restructure, modernize, and expand freight and passenger rail facilities and highway grade separations in the Chicago metropolitan area. Alternative track configurations will be considered and refined. The no-action alternative will also be evaluated. A preferred alternative and associated potential impacts will be presented at a public hearing. Preliminary measures to minimize harm, construction cost estimates, and estimated right-of-way and relocation requirements will also be developed.
The proposed action will reduce travel time on the Amtrak's Illini-Saluki and City of New Orleans trains by eliminating a time-consuming back-up move into Union Station that these trains currently perform due to the existing track configuration. In addition, the proposed action will provide
The project is located principally on existing railroad rights-of-way owned by CN, NS, and the Metra commuter railroad. The project area—bounded by 117th Street on the south, Lake Michigan on the east, Pershing Road on the north, and Halsted Street on the west—consists of urban residential and industrial land uses; no significant natural resource impacts are anticipated. Potential impacts may include residential and commercial relocations, effects on community cohesion and low-income and minority populations, economic impacts, and impacts to publicly owned parks, properties potentially eligible for listing on the National Register of Historic Places, special waste sites, and public facilities and services. There is also the potential for noise and vibration, and air quality impacts.
In an attempt to address the full range of issues related to this proposed action and identify all substantive issues, this project is being developed using the principles of Context Sensitive Solutions per the Illinois Department of Transportation's Policies and Procedures. A Stakeholder Involvement Plan (SIP) will be developed that will detail the public involvement activities that will be conducted as part of this study and will address the Coordination Plan requirements of 23 U.S.C. 139(g) within the context of the National Environmental Policy Act (NEPA) process. Under the SIP, an interdisciplinary Project Study Group will be formed to develop the project, and a Community Advisory Group will be formed to provide input to the study process. As part of the EIS process, a scoping meeting for obtaining input from resource agencies will be held in June 2011 and invitations will be sent to the resource agencies. Public informational meetings, focus meetings with stakeholders, a public hearing, newsletters, a project Web site, and interest group meetings will provide additional opportunities for public involvement. The project's Draft EIS will be available for public and agency review prior to the public hearing. The time and location of the public hearing will be announced in local newspapers. Comments or questions concerning this proposed action and the Draft EIS should be directed to FHWA or the Illinois Department of Transportation at the addresses provided above.
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation.
Request for public comment on an extension of a currently approved collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
This document describes a collection of information for which NHTSA intends to seek OMB approval.
Comments must be received on or before May 27, 2011.
You may submit comments using any of the following methods. All comments must have the applicable DOT docket number (
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Alex Ansley, Recall Management Division (NVS-215), Room W46-412, NHTSA, 1200 New Jersey Ave., Washington, DC 20590. Telephone: (202) 493-0481.
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the Federal Register providing a 60-day comment period and otherwise consult with members of the public and affected agencies concerning each proposed collection of information. The OMB has promulgated regulations describing what must be included in such a document. Under OMB's regulation,
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) How to enhance the quality, utility, and clarity of the information to be collected; and
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use
In compliance with these requirements, NHTSA asks for public comments on the following collection of information:
Pursuant to the Act, motor vehicle and motor vehicle equipment manufacturers are obligated to notify, and then provide various information and documents, to NHTSA in the event a safety defect or noncompliance with Federal Motor Vehicle Safety Standards (FMVSS) is identified in products they manufactured.
Manufacturers are also required to file with NHTSA a plan explaining how they intend to reimburse owners and purchasers who paid to have their products remedied before being notified of the safety defect or noncompliance, and explain that plan in the notifications they issue to owners and purchasers about the safety defect or noncompliance.
The Act and Part 573 also contain numerous information collection requirements specific to tire recall and remedy campaigns. These requirements relate to the proper disposal of recalled tires, including a requirement that the manufacturer conducting the tire recall submit a plan and provide specific instructions to certain persons (such as dealers and distributors) addressing that disposal, and a requirement that those persons report back to the manufacturer certain deviations from the plan.
49 U.S.C. 30166(n), and its implementing regulation found at 49 CFR 573.10, mandates that anyone who knowingly and willfully sells or leases for use on a motor vehicle a defective tire or a tire that is not compliant with FMVSS, and with actual knowledge that the tire manufacturer has notified its dealers of the defect or noncompliance as required under the Act, is required to report that sale or lease to NHTSA no more than five working days after the person to whom the tire was sold or leased takes possession of it.
There continue to be an average of 650 noncompliance or safety defect notifications to NHTSA filed each year by approximately 175 distinct manufacturers, with an estimated 750 quarterly reports filed per quarter (or 3,000 reports per year). Although the average number of recalls filed per year and the average number of manufacturers filing fluctuates each year, we have not seen, nor expect to see, consistent dramatic changes in these averages.
We continue to estimate that it takes a manufacturer an average of 4 hours to complete each notification report to NHTSA, that it takes another 4 hours to complete each quarterly report, and that maintenance of the required owner, purchaser, dealer and distributors lists requires 8 hours. Accordingly, the subtotal estimate of annual burden hours related to the reporting to NHTSA of a safety defect or noncompliance, completion of quarterly reports on the progress of recall campaigns, and maintenance of owner and purchaser lists is 16,000 hours annually ((650 notices × 4 hours/report) + (3,000 quarterly reports × 4 hours/report) + (175 manufacturers × 8 hours)).
In addition, we continue to estimate an additional 2 hours will be needed to add to a manufacturer's information report details relating to the manufacturer's intended schedule for notifying its dealers and distributors, and tailoring its notifications to dealers and distributors in accordance with the requirements of 49 CFR 577.13. This would total to an estimated 1,300 hours annually (650 notices × 2 hours/report).
In the event a manufacturer supplied the defect or noncompliant product to independent dealers through independent distributors, that manufacturer is required to include in its notifications to those distributors an instruction that the distributors are to then provide copies of the manufacturer's notification of the defect or noncompliance to all known distributors or retail outlets further down the distribution chain within five working days.
As for the burden linked with a manufacturer's preparation of and notification concerning its reimbursement for pre-notification remedies, consistent with previous estimates (
In summary, the total burden associated with the defect and noncompliant information collection and reporting requirements we continue to estimate at 21,350 hours per year.
As explained earlier, the Act and part 573 also contain numerous information collection requirements specific to tire recall and remedy campaigns, as well as a statutory and regulatory reporting requirement that anyone that knowingly and intentionally sells or leases a defective or noncompliant tire notify NHTSA of that activity.
Manufacturers are required to include specific information relative to tire disposal in the notifications they provide NHTSA concerning identification of a safety defect or noncompliance with FMVSS in their tires, as well as in the notifications which they issue to their dealers or other tire outlets participating in the recall campaign.
Manufacturer owned or controlled dealers are required to notify the manufacturer and provide certain information should they deviate from the manufacturer's disposal plan. Consistent with previous analysis, we continue to ascribe zero burden hours to this requirement since to date no such reports have been provided and our original expectation that dealers would comply with manufacturers' plans has proven true.
Accordingly, we estimate 20 burden hours a year will be spent complying with the tire recall campaign requirements found in 49 CFR 573.6(c)(9).
And, as we have yet to receive a single report of a defective or noncompliant tire being intentionally sold or leased in the fourteen years since this rule was proposed, our previous estimate of zero burden hours remains unchanged with this notice.
In summary, our previous estimate of 21,370 total burden hours associated with this approved information collection stands.
NHTSA receives reports of defect or noncompliance from roughly 175 manufacturers per year. Again, this figure fluctuates from year to year, but we do not have a basis at this juncture to suspect this annual figure will change significantly. Accordingly, we estimate that there will continue to be approximately 175 manufacturers per year filing defect or noncompliance reports and completing the other information collection responsibilities associated with those filings.
We discussed above that we have yet to receive a single report filed pursuant to 49 CFR 573.10. This information collection requirement, to reiterate, requires anyone who sells or leases a defective or noncompliant tire, with knowledge of that tire's defectiveness or noncompliance, to report that sale or lease to NHTSA. Given the lack of filing history over many years, we estimate that there will continue to be zero reports filed and therefore zero respondents as to this requirement.
In summary, we estimate that there will be a total of 175 respondents per year associated with OMB No. 2127-0004.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing additional identifying information associated with the five individuals listed in the Annex to Executive Order 13566 of February 25, 2011, “Blocking Property and Prohibiting Certain Transactions Related to Libya,” whose property and interests in property are therefore blocked.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, 1500 Pennsylvania Avenue, NW. (Treasury Annex), Washington, DC 20220, Tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On February 25, 2011, the President issued Executive Order 13566, “Blocking Property and Prohibiting Certain Transactions Related to Libya,” (the “Order”) pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, of persons listed in the Annex to the Order and of persons determined by the Secretary of the Treasury, in consultation with the Secretary of State, to satisfy certain criteria set forth in the Order.
The Annex to the Order lists five individuals whose property and interests in property are blocked pursuant to the Order. OFAC is publishing additional identifying information associated with those individuals.
Listings for those individuals on OFAC's list of Specially Designated Nationals and Blocked Persons, which incorporates this additional identifying information, are as follows:
Dated: February 25, 2011
Internal Revenue Service, Treasury.
Notice of closed meeting of Art Advisory Panel for Fine Art.
Closed meeting of the Art Advisory Panel will be held in Washington, DC.
The meeting will be April 13, 2011.
The closed meeting of the Art Advisory Panel for Fine Art will be held on April 13, 2011, beginning at 9:30 a.m., in the Appeals Media Center, Franklin Court Building, 1099 14th Street, NW., Washington, DC 20005.
Daniel M. Beckerle, Jr., C:AP:PV:ART, 1099 14th Street, NW., Washington, DC 20005. Telephone (202) 435-5790 (not a toll free number).
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App., that a closed meeting of the Art Advisory Panel for Fine Art will be held on April 13, 2011, beginning at 9:30 a.m., in Room 4136—Appeals Media Center, Franklin Court Building, 1099 14th Street, NW., Washington, DC 20005.
The agenda will consist of the review and evaluation of the acceptability of fair market value appraisals of works of art involved in Federal income, estate, or gift tax returns. This will involve the discussion of material in individual tax returns made confidential by the provisions of 26 U.S.C. 6103.
A determination as required by section 10(d) of the Federal Advisory Committee Act has been made that this meeting is concerned with matters listed in section 552b(c)(3), (4), (6), and (7), and that the meeting will not be open to the public.
United States Mint, 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 revisions to currently approved information collection 1525-0012, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the United States Mint, a bureau of the Department of the Treasury, is soliciting comments on the United States Mint customer satisfaction and opinion surveys and focus group interviews.
Written comments should be received on or before May 27, 2011 to be assured of consideration.
Direct all written comments to Yvonne Pollard; Chief, Compliance Branch; United States Mint; 801 9th Street, NW., 5th Floor; Washington, DC 20220; (202) 354-6784 (this is not a toll-free number);
Requests for additional information or copies of the information collection package should be directed to Yvonne Pollard; Chief, Compliance Branch; United States Mint; 801 9th Street, NW., 5th Floor; Washington, DC 20220; (202) 354-6784 (this is not a toll-free number);
Securities and Exchange Commission.
Publication of Staff Accounting Bulletin.
This Staff Accounting Bulletin (SAB) revises or rescinds portions of the interpretive guidance included in the codification of the Staff Accounting Bulletin Series. This update is intended to make the relevant interpretive guidance consistent with current authoritative accounting guidance issued as part of the Financial Accounting Standards Board's Accounting Standards Codification. The principal changes involve revision or removal of accounting guidance references and other conforming changes to ensure consistency of referencing throughout the SAB Series.
Lisa Tapley, Assistant Chief Accountant, or Annemarie Ettinger, Senior Special Counsel, Office of the Chief Accountant, at (202) 551-5300, or Craig Olinger, Deputy Chief Accountant, Division of Corporation Finance, at (202) 551-3400, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
The statements in staff accounting bulletins are not rules or interpretations of the Commission, nor are they published as bearing the Commission's official approval. They represent interpretations and practices followed by the Division of Corporation Finance and the Office of the Chief Accountant in administering the disclosure requirements of the Federal securities laws.
This Staff Accounting Bulletin (SAB) revises or rescinds portions of the interpretive guidance included in the codification of the Staff Accounting Bulletin Series. This update is intended to make the relevant interpretive guidance consistent with current authoritative accounting guidance issued as part of the Financial Accounting Standards Board's Accounting Standards Codification (FASB ASC). The principal changes involve revision or removal of accounting guidance references and other conforming changes to ensure consistency of referencing throughout the SAB Series.
The following describes the changes made to the Staff Accounting Bulletin Series and certain specific topics that are presented at the end of this release:
a. The SAB Series is amended to update authoritative accounting literature references to the FASB ASC throughout. In addition, several conforming formatting changes were made for consistency across SAB topics. Due to the number of these changes, the SAB Series is represented in its entirety in this release. All of the changes are technical in nature, and none of the changes are intended to change the guidance provided in the SAB Series.
a. Topic 1.D.1, the introductory facts are amended to conform to changes made to Items 17 and 18 of Form 20-F to reflect that certain disclosures are required only if a basis of accounting other than U.S. generally accepted accounting principles (GAAP) or International Financial Reporting Standards as issued by the International Accounting Standards Board is used. The introductory facts are also amended to remove the reference to Form F-2, as this form was eliminated effective December 1, 2005. Finally, the introductory facts are amended to reflect the foreign issuer reporting enhancements contained in SEC Release No. 33-8959.
b. Topic 1.I, the footnote previously numbered 6 within the interpretive response to question 1 is removed as the referenced guidance is now within the FASB ASC, and thus a history of the prior source is no longer relevant.
c. Topic 1.I, the footnote previously numbered 7 within the interpretive response to question 2 is removed as the term “ADC” is now defined within the body of SAB Topic 1.I.
d. Topic 1.K, the interpretive response to question 3 is amended to conform to the accounting guidance contained in FASB ASC Topic 350, Intangible Assets—Goodwill and Other. This conforming change reflects the fact that goodwill is no longer subject to amortization. The interpretive response to question 3 is also amended to replace the term “carrying value” with the term “fair value” to reflect the measurement guidance for financial assets and liabilities as stated in FASB ASC Topic 820, Fair Value Measurements and Disclosures.
e. Topic 1.K, the interpretive response to question 4, is amended to replace Item 7 of Form 8-K with Item 9.01 of Form 8-K.
a. Topic 3.A, the interpretive response is amended to replace Rule 11-02(a)(7) of Regulation S-X with Rule 11-02(b)(7) of Regulation S-X.
a. Topic 5.F, the introductory facts and interpretive response are amended to replace the term “restatement” with the term “retrospective adjustment,” to replace the term “restate(d)” with the term “retrospectively adjust(ed)” and to replace the term “retroactively” with the term “retrospectively” to conform to the accounting guidance contained in FASB ASC Topic 250, Accounting Changes and Error Corrections.
b. Topic 5.F, the interpretive response is amended to remove an unnecessary reference to FASB Statement No. 5 and FASB Statement No. 13.
c. Topic 5.M, the footnote previously numbered 8 within the interpretive response is removed to delete a reference which is not included in the FASB ASC.
d. Topic 5.S, the interpretive responses to questions 2, 4 (including footnote 29) and 5 are amended to revise the quoted accounting guidance to conform to the language as published in the FASB ASC. The interpretive response to question 4 is amended to remove guidance which is not included in the FASB ASC. The footnote previously numbered 31 within the interpretive response to question 4 is removed to delete a reference which is not included in the FASB ASC.
e. Topic 5.V, the interpretive response to question 1 is amended to remove an unnecessary reference to SAB Topic 5.E, as the referenced guidance in SAB Topic 5.E was removed with the issuance of SAB No. 112. As a result, the related footnote previously numbered 38 is removed.
f. Topic 5.Y, the interpretive response to question 3 is amended to remove the reference to Regulation S-B, as this Regulation was eliminated effective February 4, 2008.
g. Topic 5.Z.4, footnote 51 is amended to remove an unnecessary reference to SAB Topic 5.E.
h. Topic 5.BB, the introductory facts are amended to revise the quoted
a. Topic 6.K.3, the interpretive response is amended to conform to the accounting guidance contained in FASB ASC Topic 350, Intangible Assets—Goodwill and Other. This conforming change reflects the fact that goodwill is not amortized, but rather only tested for impairment.
b. Topic 6.L is amended throughout to update the references to the AICPA Audit and Accounting Guide, Depository and Lending Institutions with Conforming Changes as of June 1, 2009 (Audit Guide). Quoted guidance has been amended to conform to the language as published in the Audit Guide.
a. Topic 8.A, the interpretive response is amended to remove unnecessary background information on the issuance of pre-FASB Codification standards.
a. Topic 13.A.4.c, the interpretive response is amended to revise the quoted accounting guidance to conform to the language as published in the FASB ASC.
b. Topic 13.B, questions 2, 3, 4 and 5 and the interpretive responses and footnotes related to questions 2, 3, 4 and 5 are removed to eliminate unnecessary references and guidance specifically related to the original adoption of this SAB Topic.
a. Topic 14.G is removed to eliminate unnecessary guidance on non-GAAP financial measures. Staff guidance on non-GAAP financial measures can be found in the Division of Corporation Finance's Compliance and Disclosure Interpretations.
b. Topics 14.H, 14.J, 14.K and 14.M are removed to eliminate unnecessary transition guidance specifically related to the first time adoption of FASB Statement No. 123(R), Share-Based Payment. Companies that had share-based payment arrangements prior to the adoption of FASB Statement No. 123(R) were required to apply this transition guidance in 2006 and therefore for these companies the guidance in Topics 14.H, 14.J, 14.K and 14.M is no longer relevant. For companies now entering into share-based payment arrangements for the first time, the guidance in FASB ASC Topic 718, Compensation—Stock Compensation, should be applied.
c. Topic 14.L is removed to conform to changes made to Items 17 and 18 of Form 20-F to reflect that reconciling items are required for disclosure only if a basis of accounting other than U.S. generally accepted accounting principles or International Financial Reporting Standards as issued by the International Accounting Standards Board is used.[
The text of SAB 114 will not appear in the Code of Federal Regulations.
1. Officer and employee salaries,
2. Rent or depreciation,
3. Advertising,
4. Accounting and legal services, and
5. Other selling, general and administrative expenses.
When the subsidiary's financial statements have been previously reported on by independent accountants and have been used other than for internal purposes, the staff has accepted a presentation that shows income before tax as previously reported, followed by adjustments for expenses not previously allocated, income taxes, and adjusted net income.
In addition, since agreements with related parties are by definition not at arms length and may be changed at any time, the staff has required footnote disclosure, when practicable, of management's estimate of what the expenses (other than income taxes and interest discussed separately below) would have been on a stand alone basis, that is, the cost that would have been incurred if the subsidiary had operated as an unaffiliated entity. The disclosure has been presented for each year for which an income statement was required when such basis produced materially different results.
Notwithstanding the absence of a requirement for certain disclosures within the body of the financial statements, some matters routinely disclosed pursuant to U.S. GAAP may rise to a level of materiality such that their disclosure is required by Item 5 (Management's Discussion and Analysis) of Form 20-F. Among other things, this item calls for a discussion of any known trends, demands, commitments, events or uncertainties that are reasonably likely to affect liquidity, capital resources or the results of operations in a material way. Also, instruction 2 of this item requires “a discussion of any aspects of the differences between foreign and U.S. GAAP, not discussed in the reconciliation, that the registrant believes is necessary for an understanding of the financial statements as a whole.” Matters that may warrant discussion in response to Item 5 include the following:
• Material undisclosed uncertainties (such as reasonably possible loss contingencies), commitments (such as those arising from leases), and credit risk exposures and concentrations;
• Material unrecognized obligations (such as pension obligations);
• Material changes in estimates and accounting methods, and other factors or events affecting comparability;
• Defaults on debt and material restrictions on dividends or other legal constraints on the registrant's use of its assets;
• Material changes in the relative amounts of constituent elements comprising line items presented on the face of the financial statements;
• Significant terms of financings which would reveal material cash requirements or constraints;
• Material subsequent events, such as events that affect the recoverability of recorded assets;
• Material related party transactions (as addressed by FASB ASC Topic 850, Related Party Disclosures) that may affect the terms under which material revenues or expenses are recorded; and
• Significant accounting policies and measurement assumptions not disclosed in the financial statements, including methods of costing inventory, recognizing revenues, and recording and amortizing assets, which may bear upon an understanding of operating trends or financial condition.
Financial statements for which the auditors' opinions contain qualifications relating to the acceptability of accounting principles used or the completeness of disclosures made are also unacceptable. (
• There are no anticipated changes in the shareholders' relative equity ownership interest in the underlying bank assets, except for redemption of no more than a nominal number of shares of unaffiliated persons who dissent;
• In the aggregate, only nominal borrowings are to be incurred for such purposes as organizing the holding company, to pay nonaffiliated persons who dissent, or to meet minimum capital requirements;
• There are no new classes of stock authorized other than those corresponding to the stock of Bank A immediately prior to the reorganization;
• There are no plans or arrangements to issue any additional shares to acquire any business other than Bank A; and,
• There has been no material adverse change in the financial condition of the bank since the latest fiscal year-end included in the annual report to shareholders.
Although the financial statements may be omitted, the filing should include a section captioned, “Financial Statements,” which states either that an annual report containing financial statements for at least the latest fiscal year prepared in conformity with GAAP was previously furnished to shareholders or is being delivered with the prospectus. If financial statements have been previously furnished, it should be indicated that an additional copy of such report for the latest fiscal year will be furnished promptly upon request without charge to shareholders. The name and address of the person to whom the request should be made should be provided. One copy of such annual report should be furnished supplementally with the initial filing for purposes of staff review.
If any nominal amounts are to be borrowed in connection with the formation of the holding company, a statement of capitalization should be included in the filing which shows Bank A on an historical basis, the pro forma adjustments, and the holding company on a pro forma basis. A note should also explain the pro forma effect, in total and per share, which the borrowings would have had on net income for the latest fiscal year if the transaction had occurred at the beginning of the period.
The consolidated financial statements of the holding company to be included in the registrant's initial report on Form 10-K should comply with the applicable financial statement requirements in Regulation S-X at the time such annual report is filed. However, the regulations also provide that the staff may allow one or more of the required statements to be unaudited where it is consistent with the protection of investors.
The registrant should file audited balance sheets as of the two most recent fiscal years and audited statements of income and cash flows for each of the three latest fiscal years, with appropriate footnotes and schedules as required by Regulation S-X unless the financial statements have not previously been audited for the periods required to be filed. In such cases, the Division will not object if the financial statements in the first annual report on Form 10-K (or the special report filed pursuant to Rule 15d-2)
The information required by Guide 3 should also be provided in the Form 10-K for at least the periods for which audited financial statements are furnished. If some of the statistical information for the two most recent fiscal years for which audited financial statements are included (other than information on nonperforming loans and the summary of loan loss experience) is unavailable and cannot be obtained without unwarranted or undue burden or expense, such data may be omitted provided a brief explanation in support of such representation is included in the report on Form 10-K. In all cases, however, information with respect to nonperforming loans and loan loss experience, or reasonably comparable data, must be furnished for at least the two latest fiscal years in the initial 10-K. Thereafter, for subsequent years in reports on Form 10-K, all of the Guide 3 information is required; Guide 3 information which had been omitted in the initial 10-K in accordance with the above procedure can be excluded in any subsequent 10-Ks.
Included in the category of properties acquired or to be acquired under Rule 3-14 are operating properties underlying certain mortgage loans, which in economic substance represent an investment in real estate or a joint venture rather than a loan. Certain characteristics of a lending arrangement indicate that the “lender” has the same risks and potential rewards as an owner or joint venturer. Those characteristics
FASB ASC Subtopic 815-15, Derivatives and Hedging—Embedded Derivatives, generally requires that embedded instruments meeting the definition of a derivative and not clearly and closely related to the host contract be accounted for separately from the host instrument. If the embedded expected residual profit component of an ADC arrangement need not be separately accounted for as a derivative under FASB ASC Topic 815, then the disclosure requirements discussed below for ADC loans and similar arrangements should be followed.
In certain cases the “lender” has virtually the same potential rewards as those of an owner or a joint venturer by virtue of participating in expected residual profit.
The financial statements of properties which will secure mortgage loans made or to be made from the proceeds of the offering which have the characteristics of real estate investments or joint ventures should be included as required by Rule 3-14 in the registration statement when such properties secure loans previously made, or have been identified as security for probable loans prior to effectiveness, and in filings made pursuant to the undertaking in Item 20D of Securities Act Industry Guide 5.
Rule 1-02(w) of Regulation S-X includes the conditions used in determining whether an acquisition is significant. The separate financial statements of an individual property should be provided when a property would meet the requirements for a significant subsidiary under this rule using the amount of the “loan” as a substitute for the “investment in the subsidiary” in computing the specified conditions. The combined financial statements of properties which are not individually significant should also be provided. However, the staff will not object if the combined financial statements of such properties are not included if none of the conditions specified in Rule 1-02(w), with respect to all such properties combined, exceeds 20% in the aggregate.
Under certain circumstances, information may also be required regarding operating properties underlying mortgage loans where the terms do not result in the lender having virtually the same risks and potential rewards as those of owners or joint venturers. Generally, the staff believes that, where investment risks exist due to substantial asset concentration, financial and other information should be included regarding operating properties underlying a mortgage loan that represents a significant amount of the registrant's assets. Such presentation is consistent with Rule 3-13 of Regulation S-X and Rule 408 under the Securities Act of 1933.
Where the amount of a loan exceeds 20% of the amount in good faith expected to be raised in the offering, disclosures would be expected to consist of financial statements for the underlying operating properties for the periods contemplated by Rule 3-14. Further, where loans on related properties are made to a single person or group of affiliated persons which in the aggregate amount to more than 20% of the amount expected to be raised, the staff believes that such lending arrangements result in a sufficient concentration of assets so as to warrant the inclusion of financial and other information regarding the underlying properties.
Likewise, the staff believes that filings made under the 1934 Act should include the same financial and other information relating to properties underlying any loans which are significant as discussed in the last paragraph of Question 1, except that in the determination of significance the 20% disclosure threshold should be measured using total assets. The staff believes that this presentation would be consistent with Rule 12b-20 under the Securities Exchange Act of 1934.
The staff has also indicated that separate summarized financial information (as defined in Rule 1-02(bb) of Regulation S-X) should be provided in the footnotes to the registrant's financial statements for each nonconsolidated investment-type arrangement that is 10% or more but less than 20%. Of course, registrants should also make appropriate textural disclosure with respect to material investment-type arrangements in the “business” and “property” sections of their annual reports to the Commission.
In order for the pre-acquisition audited financial statements of an acquiree to be omitted from the registration statement, the following conditions must be met:
a. The combined significance of businesses acquired or to be acquired for which audited financial statements cover a period of less than 9 months
b. The combined significance of businesses acquired or to be acquired for which audited financial statements cover a period of less than 21 months may not exceed 20%; and
c. The combined significance of businesses acquired or to be acquired for which audited financial statements cover a period of less than 33 months may not exceed 40%.
Combined significance is the total, for all included companies, of each individual company's highest level of significance computed under the three tests of significance. The significance tests should be applied to pro forma financial statements of the registrant, prepared in a manner consistent with Article 11 of Regulation S-X. The pro forma balance sheet should be as of the date of the registrant's latest balance sheet included in the registration statement, and should give effect to businesses acquired subsequent to the end of the latest year or to be acquired as if they had been acquired on that date. The pro forma statement of operations should be for the registrant's most recent fiscal year included in the registration statement and should give effect to all acquisitions consummated during and subsequent to the end of the year and probable acquisitions as if they had been consummated at the beginning of that fiscal year.
The three tests specified in Rule 1-02(w) should be made in comparison to the registrant's pro forma consolidated assets and pretax income from continuing operations. The assets and pretax income of the acquired businesses which are being evaluated for significance should reflect any new cost basis arising from purchase accounting.
On February 20, 20X9 Registrant files Form S-1 containing its audited consolidated financial statements as of and for the three years ended December 31, 20X8. Acquisitions since inception have been:
The following table reflects the application of the significance tests to the combined financial information at the time the registration statement is filed.
Year 1 (most recent fiscal year)—Entity E is the only acquiree for which pre-acquisition financial statements may be omitted for the latest year since significance for each other entity exceeds 10% under one or more test.
Year 2 (preceding fiscal year)—Financial statements for E and F may be omitted since their combined significance is 20% and no other combination can be formed with E which would not exceed 20%.
Year 3 (second preceding fiscal year)—Financial statements for D, E and F may be omitted since the combined significance of these entities is 33%
The financial statement requirements must be satisfied by filing separate pre-acquisition audited financial statements for each entity that was not included in the consolidated financial statements for the periods set forth above. The following table illustrates the requirements for this example.
Many troubled institutions have merged into stronger institutions or reduced the scale of their operations through the sale of branches and other assets pursuant to recommendation or directives of the regulatory agencies. In other situations, institutions that were taken over by or operated under the management of a Federal regulator have been reorganized, sold or transferred by that Federal agency to financial and nonfinancial companies.
A number of registrants have acquired, or are contemplating acquisition of, these troubled financial institutions. Complete audited financial statements of the institutions for the periods necessary to comply fully with Rule 3-05 of Regulation S-X may not be reasonably available in some cases. Some troubled institutions have never obtained an audit while others have been operated under receivership by regulators for a significant period without audit. Auditors' reports on the financial statements of some of these acquirees may not satisfy the requirements of Rule 2-02 of Regulation S-X because they contain qualifications due to audit scope limitations or disclaim an opinion.
A registrant that acquires a troubled financial institution for which complete audited financial statements are not reasonably available may be precluded from raising capital through a public offering of securities for up to three years following the acquisition because of the inability to comply with Rule 3-05.
For purposes of this waiver a “troubled financial institution” is one which either:
1. Is in receivership, conservatorship or is otherwise operating under a similar supervisory agreement with a Federal financial regulatory agency; or
2. Is controlled by a Federal regulatory agency; or
3. Is acquired in a Federally assisted transaction.
In all cases where a registrant succeeds to assets and/or liabilities of a troubled financial institution which are significant to the registrant pursuant to the tests in Rule 1-02(w) of Regulation S-X, narrative description should be required, quantified to the extent practicable, of the anticipated effects of the acquisition on the registrant's financial condition, liquidity, capital resources and operating results. If Federal financial assistance (including any commitments, agreements or understandings made with respect to capital, accounting or other forbearances) may be material, the limits, conditions and other variables affecting its availability should be disclosed, along with an analysis of its likely short term and long term effects on cash flows and reported results.
If the transaction will result in the recognition of any significant intangibles that cannot be separately sold, such as goodwill or a core deposit intangible, the discussion of the transaction should describe the amount of such intangibles, the necessarily subjective nature of the estimation of the life (in the case of intangibles subject to amortization) and value of such intangibles, and the effects upon future results of operations, liquidity and capital resources, including any consequences if a recognized intangible will be excluded from the calculation of capital for regulatory purposes. The discussion of the impact on future operations should specifically address the period over which intangibles subject to amortization will be amortized and the period over which any discounts on acquired assets will be taken into income. If amortization of intangibles subject to amortization will be over a period which differs from the period over which income from discounts on acquired assets will be recognized (whether from amortization of discounts or sale of discounted assets), disclosure should be provided concerning the disparate effects of the amortization and income recognition on operating results for all affected periods.
Information specified by Industry Guide 3 should be furnished to the extent applicable and reasonably available. For the categories identified in the Industry Guide, the registrant should disclose the fair value of loans and investments acquired, as well as their principal amount and average contractual yield and term. Amounts of acquired investments, loans, or other assets that are nonaccrual, past due or restructured, or for which other collectibility problems are indicated should be disclosed. Where historical financial statements of the acquired entity are furnished, pro forma information presented pursuant to Rule 11-02 should be supplemented as necessary with a discussion of the likely effects of any Federal assistance and changes in operations subsequent to the acquisition. To the extent historical financial statements meeting all the requirements of Rule 3-05 are not furnished, the filing should include an explanation of the basis for their omission.
The use of a percentage as a numerical threshold, such as 5%, may provide the basis for a preliminary assumption that—without considering all relevant circumstances—a deviation of less than the specified percentage with respect to a particular item on the registrant's financial statements is unlikely to be material. The staff has no objection to such a “rule of thumb” as an initial step in assessing materiality. But quantifying, in percentage terms, the magnitude of a misstatement is only the beginning of an analysis of materiality; it cannot appropriately be used as a substitute for a full analysis of all relevant considerations. Materiality concerns the significance of an item to users of a registrant's financial statements. A matter is “material” if there is a substantial likelihood that a reasonable person would consider it important. In its Concepts Statement 2, Qualitative Characteristics of Accounting Information, the FASB stated the essence of the concept of materiality as follows:
The omission or misstatement of an item in a financial report is material if, in the light of surrounding circumstances, the magnitude of the item is such that it is probable that the judgment of a reasonable person relying upon the report would have been changed or influenced by the inclusion or correction of the item.
This formulation in the accounting literature is in substance identical to the formulation used by the courts in interpreting the Federal securities laws. The Supreme Court has held that a fact is material if there is—
a substantial likelihood that the * * * fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.
Under the governing principles, an assessment of materiality requires that one views the facts in the context of the “surrounding circumstances,” as the accounting literature puts it, or the “total mix” of information, in the words of the Supreme Court. In the context of a misstatement of a financial statement item, while the “total mix” includes the size in numerical or percentage terms of the misstatement, it also includes the factual context in which the user of financial statements would view the financial statement item. The shorthand in the accounting and auditing literature for this analysis is that financial management and the auditor must consider both “quantitative” and “qualitative” factors in assessing an item's materiality.
The FASB has long emphasized that materiality cannot be reduced to a numerical formula. In its Concepts Statement 2, the FASB noted that some had urged it to promulgate quantitative materiality guides for use in a variety of situations. The FASB rejected such an approach as representing only a “minority view, stating—
The predominant view is that materiality judgments can properly be made only by those who have all the facts. The Board's present position is that no general standards of materiality could be formulated to take into account all the considerations that enter into an experienced human judgment.
The FASB noted that, in certain limited circumstances, the Commission and other authoritative bodies had issued quantitative materiality guidance, citing as examples guidelines ranging from one to ten percent with respect to a variety of disclosures.
The FASB rejected a formulaic approach to discharging “the onerous duty of making materiality decisions”
[M]agnitude by itself, without regard to the nature of the item and the circumstances in which the judgment has to be made, will not generally be a sufficient basis for a materiality judgment.
Evaluation of materiality requires a registrant and its auditor to consider
As a result of the interaction of quantitative and qualitative considerations in materiality judgments, misstatements of relatively small amounts that come to the auditor's attention could have a material effect on the financial statements.
Among the considerations that may well render material a quantitatively small misstatement of a financial statement item are—
• Whether the misstatement arises from an item capable of precise measurement or whether it arises from an estimate and, if so, the degree of imprecision inherent in the estimate.
Another factor in materiality judgments is the degree of precision that is attainable in estimating the judgment item. The amount of deviation that is considered immaterial may increase as the attainable degree of precision decreases. For example, accounts payable usually can be estimated more accurately than can contingent liabilities arising from litigation or threats of it, and a deviation considered to be material in the first case may be quite trivial in the second.
This SAB is not intended to change current law or guidance in the accounting literature regarding accounting estimates.
• Whether the misstatement masks a change in earnings or other trends.
• Whether the misstatement hides a failure to meet analysts' consensus expectations for the enterprise.
• Whether the misstatement changes a loss into income or vice versa.
• Whether the misstatement concerns a segment or other portion of the registrant's business that has been identified as playing a significant role in the registrant's operations or profitability.
• Whether the misstatement affects the registrant's compliance with regulatory requirements.
• Whether the misstatement affects the registrant's compliance with loan covenants or other contractual requirements.
• Whether the misstatement has the effect of increasing management's compensation—for example, by satisfying requirements for the award of bonuses or other forms of incentive compensation.
• Whether the misstatement involves concealment of an unlawful transaction.
This is not an exhaustive list of the circumstances that may affect the materiality of a quantitatively small misstatement.
For the reasons noted above, the staff believes that a registrant and the auditors of its financial statements should not assume that even small intentional misstatements in financial statements, for example those pursuant to actions to “manage” earnings, are immaterial.
The materiality of a misstatement may turn on where it appears in the financial statements. For example, a misstatement may involve a segment of the
situations may arise in practice where the auditor will conclude that a matter relating to segment information is qualitatively material even though, in his or her judgment, it is quantitatively immaterial to the financial statements taken as a whole.
In determining whether multiple misstatements cause the financial statements to be materially misstated, registrants and the auditors of their financial statements should consider each misstatement separately and the aggregate effect of all misstatements.
the significance of an item to a particular entity (for example, inventories to a manufacturing company), the pervasiveness of the misstatement (such as whether it affects the presentation of numerous financial statement items), and the effect of the misstatement on the financial statements taken as a whole.* * *
Registrants and their auditors first should consider whether each misstatement is material, irrespective of its effect when combined with other misstatements. The literature notes that the analysis should consider whether the misstatement of “individual amounts” causes a material misstatement of the financial statements taken as a whole. As with materiality generally, this analysis requires consideration of both quantitative and qualitative factors.
If the misstatement of an individual amount causes the financial statements as a whole to be materially misstated, that effect cannot be eliminated by other misstatements whose effect may be to diminish the impact of the misstatement on other financial statement items. To take an obvious example, if a registrant's revenues are a material financial statement item and if they are materially overstated, the financial statements taken as a whole will be materially misleading even if the effect on earnings is completely offset by an equivalent overstatement of expenses.
Even though a misstatement of an individual amount may not cause the financial statements taken as a whole to be materially misstated, it may nonetheless, when aggregated with other misstatements, render the financial statements taken as a whole to be materially misleading. Registrants and the auditors of their financial statements accordingly should consider the effect of the misstatement on subtotals or totals. The auditor should aggregate all misstatements that affect each subtotal or total and consider whether the misstatements in the aggregate affect the subtotal or total in a way that causes the registrant's financial statements taken as a whole to be materially misleading.
The staff believes that, in considering the aggregate effect of multiple misstatements on a subtotal or total, registrants and the auditors of their financial statements should exercise particular care when considering whether to offset (or the appropriateness of offsetting) a misstatement of an estimated amount with a misstatement of an item capable of precise measurement. As noted above, assessments of materiality should never be purely mechanical; given the imprecision inherent in estimates, there is by definition a corresponding imprecision in the aggregation of misstatements involving estimates with those that do not involve an estimate.
Registrants and auditors also should consider the effect of misstatements from prior periods on the current financial statements. For example, the auditing literature states,
Matters underlying adjustments proposed by the auditor but not recorded by the entity could potentially cause future financial statements to be materially misstated, even though the auditor has concluded that the adjustments are not material to the current financial statements.
Even if misstatements are immaterial,
The conference committee adopted the prudent man qualification in order to clarify that the current standard does not connote an unrealistic degree of exactitude or precision. The concept of reasonableness of necessity contemplates the weighing of a number of relevant factors, including the costs of compliance.
Cong. Rec. H2116 (daily ed. April 20, 1988).
The staff recognizes that there is limited authoritative guidance
In assessing whether a misstatement results in a violation of a registrant's obligation to keep books and records that are accurate “in reasonable detail,” registrants and their auditors should consider, in addition to the factors discussed above concerning an evaluation of a misstatement's potential materiality, the factors set forth below.
•
•
The Conferees intend to codify current Securities and Exchange Commission (SEC) enforcement policy that penalties not be imposed for insignificant or technical infractions or inadvertent conduct. The amendment adopted by the Conferees [Section 13(b)(4)] accomplishes this by providing that criminal penalties shall not be imposed for failing to comply with the FCPA's books and records or accounting provisions. This provision [Section 13(b)(5)] is meant to ensure that criminal penalties would be imposed where acts of commission or omission in keeping books or records or administering accounting controls have the purpose of falsifying books, records or accounts, or of circumventing the accounting controls set forth in the Act. This would include the deliberate falsification of books and records and other conduct calculated to evade the internal accounting controls requirement.
Cong. Rec. H2115 (daily ed. April 20, 1988).
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•
Section 10A(b) of the Exchange Act requires auditors to take certain actions upon discovery of an “illegal act.”
As noted, an intentional misstatement of immaterial items in a registrant's financial statements may violate Section 13(b)(2) of the Exchange Act and thus be an illegal act. When such a violation occurs, an auditor must take steps to see that the registrant's audit committee is “adequately informed” about the illegal act. Because Section 10A(b)(1) is triggered regardless of whether an illegal
The requirements of Section 10A echo the auditing literature.
Auditors that learn of intentional misstatements may also be required to (1) re-evaluate the degree of audit risk involved in the audit engagement, (2) determine whether to revise the nature, timing, and extent of audit procedures accordingly, and (3) consider whether to resign.
Intentional misstatements also may signal the existence of reportable conditions or material weaknesses in the registrant's system of internal accounting control designed to detect and deter improper accounting and financial reporting.
The tone set by top management—the corporate environment or culture within which financial reporting occurs—is the most important factor contributing to the integrity of the financial reporting process. Notwithstanding an impressive set of written rules and procedures, if the tone set by management is lax, fraudulent financial reporting is more likely to occur.
An auditor is required to report to a registrant's audit committee any reportable conditions or material weaknesses in a registrant's system of internal accounting control that the auditor discovers in the course of the examination of the registrant's financial statements.
The auditor should inform the audit committee about adjustments arising from the audit that could, in his judgment, either individually or in the aggregate, have a significant effect on the entity's financial reporting process. For purposes of this section, an audit adjustment, whether or not recorded by the entity, is a proposed correction of the financial statements. * * *
Some have argued to the staff that registrants should be permitted to follow an industry accounting practice even though that practice is inconsistent with authoritative accounting literature. This situation might occur if a practice is developed when there are few transactions and the accounting results are clearly inconsequential, and that practice never changes despite a subsequent growth in the number or materiality of such transactions. The staff disagrees with this argument. Authoritative literature takes precedence over industry practice that is contrary to GAAP.
This SAB is not intended to change current law or guidance in the accounting or auditing literature.
Topic 1M notes that a materiality evaluation must be based on all relevant quantitative and qualitative factors.
The diversity in approaches for quantifying the amount of misstatements primarily stems from the effects of misstatements that were not corrected at the end of the prior year (“prior year misstatements”). These prior year misstatements should be considered in quantifying misstatements in current year financial statements.
The techniques most commonly used in practice to accumulate and quantify misstatements are generally referred to as the “rollover” and “iron curtain” approaches.
The rollover approach, which is the approach used by the registrant in this example, quantifies a misstatement based on the amount of the error originating in the current year income statement. Thus, this approach ignores the effects of correcting the portion of the current year balance sheet misstatement that originated in prior years (
The iron curtain approach quantifies a misstatement based on the effects of correcting the misstatement existing in the balance sheet at the end of the current year, irrespective of the misstatement's year(s) of origination. Had the registrant in this fact pattern applied the iron curtain approach, the misstatement would have been quantified as a $100 misstatement based on the end of year balance sheet misstatement. Thus, the adjustment needed to correct the financial statements for the end of year error would be to reduce the liability by $100 with a corresponding decrease in current year expense.
As demonstrated in this example, the primary weakness of the rollover approach is that it can result in the accumulation of significant misstatements on the balance sheet that are deemed immaterial in part because the amount that originates in each year is quantitatively small. The staff is aware of situations in which a registrant, relying on the rollover approach, has allowed an erroneous item to accumulate on the balance sheet to the point where eliminating the improper asset or liability would itself result in a material error in the income statement if adjusted in the current year. Such registrants have sometimes concluded that the improper asset or liability should remain on the balance sheet into perpetuity.
In contrast, the primary weakness of the iron curtain approach is that it does not consider the correction of prior year misstatements in the current year (
The staff does not believe the exclusive reliance on either the rollover or iron curtain approach appropriately quantifies all misstatements that could be material to users of financial statements.
In describing the concept of materiality, Concepts Statement 2, Qualitative Characteristics of Accounting Information, indicates that materiality determinations are based on whether “it is probable that the judgment of a reasonable person relying upon the report would have been changed or influenced
As a reminder, a change from an accounting principle that is not generally accepted to one that is generally accepted is a correction of an error.
The staff believes that the registrant should quantify the current year misstatement in this example using both the iron curtain approach (
It is possible that correcting an error in the current year could materially misstate the current year's income statement. For example, correcting the
• Correct the $20 error originating in the current year;
• Correct the $80 balance sheet carryover error that originated in Years 1 through 4; but also
• Misstate the current year income statement by $80.
If the $80 understatement of current year expense is material to the current year, after all of the relevant quantitative and qualitative factors are considered, the prior year financial statements should be corrected, even though such revision previously was and continues to be immaterial to the prior year financial statements. Correcting prior year financial statements for immaterial errors would not require previously filed reports to be amended. Such correction may be made the next time the registrant files the prior year financial statements.
The following example further illustrates the staff's views on quantifying misstatements, including the consideration of the effects of prior year misstatements:
Further, in this example, recording an adjustment in the current year could alter the amount of the error affecting the current year financial statements. For instance:
• If only the $60 understatement of revenues were to be corrected in the current year, then the overstatement of current year end accounts receivable would increase to $110; or,
• If only the $50 overstatement of accounts receivable were to be corrected in the current year, then the understatement of current year revenues would increase to $110.
If the misstatement that exists after recording the adjustment in the current year financial statements is material (considering all relevant quantitative and qualitative factors), the prior year financial statements should be corrected, even though such revision previously was and continues to be immaterial to the prior year financial statements. Correcting prior year financial statements for immaterial errors would not require previously filed reports to be amended. Such correction may be made the next time the registrant files the prior year financial statements.
If the cut-off error that existed in the prior year was not discovered until the current year, a separate analysis of the financial statements of the prior year (and any other prior year in which previously undiscovered errors existed) would need to be performed to determine whether such prior year financial statements were materially misstated. If that analysis indicates that the prior year financial statements are materially misstated, they would need to be restated in accordance with FASB ASC Topic 250, Accounting Changes and Error Corrections.
To provide full disclosure, registrants electing not to restate prior periods should reflect the effects of initially applying the guidance in Topic 1N in their annual financial statements covering the first fiscal year ending after November 15, 2006. The cumulative effect of the initial application should be reported in the carrying amounts of assets and liabilities as of the beginning of that fiscal year, and the offsetting adjustment should be made to the opening balance of retained earnings for that year. Registrants should disclose the nature and amount of each individual error being corrected in the cumulative adjustment. The disclosure should also include when and how each error being corrected arose and the fact that the errors had previously been considered immaterial.
Early application of the guidance in Topic 1N is encouraged in any report for an interim period of the first fiscal year ending after November 15, 2006, filed after the publication of this Staff Accounting Bulletin. In the event that the cumulative effect of application of the guidance in Topic 1N is first reported in an interim period other than the first interim period of the first fiscal year ending after November 15, 2006, previously filed interim reports need not be amended. However, comparative information presented in reports for interim periods of the first year subsequent to initial application should be adjusted to reflect the cumulative effect adjustment as of the beginning of the year of initial application. In addition, the disclosures of selected quarterly information required by Item 302 of Regulation S-K should reflect the adjusted results.
When an investment banker provides services in connection with a business combination or asset acquisition and also provides underwriting services associated with the issuance of debt or equity securities, the total fees incurred by an entity should be allocated between the services received on a relative fair value basis. The objective of the allocation is to ascribe the total fees incurred to the actual services provided by the investment banker.
FASB ASC Topic 805, Business Combinations, provides guidance for the portion of the costs that represent acquisition-related services. The portion of the costs pertaining to the issuance of debt or equity securities should be accounted for in accordance with other applicable GAAP.
1.
One financial reporting issue in exchange transactions involves deciding which prior financial results of the entities should be reported.
The staff believes that the financial statements in an exchange offer registration statement should provide sufficient historical reserve quantity and value-based disclosures to enable offerees and secondary market public investors to evaluate the effect of the exchange proposal. Accordingly, in all cases, it will be necessary to present information as of the latest year-end on reserve quantities and the future net revenues associated with such quantities. In certain circumstances, where the exchange is accounted for using the acquisition method of accounting, the staff will consider, on a case-by-case basis, granting exemptions from (i) the disclosure requirements for year-to-year reconciliations of reserve quantities, and (ii) the requirements for a summary of oil and gas producing activities and a summary of changes in the net present value of reserves. For instance, the staff may consider requests for exemptions in cases where the properties acquired in the exchange transaction are fully explored and developed, particularly if the management of the emerging company has not been involved in the exploration and development of such properties.
(1) Show varying levels of acceptance of the offer.
(2) Conform the accounting methods used in the historical financial statements to those to be applied by the new entity.
(3) Recompute the depreciation, depletion and amortization charges, in cases where the new entity will use full-cost accounting, on a combined basis. If this computation is not practicable, and the exchange offer is accounted for as a transaction among entities under common control, historical depreciation, depletion and amortization provisions may be aggregated, with appropriate disclosure.
(4) Reflect the acquisition in the pro forma statements where the exchange offer is accounted for using the acquisition method of accounting, including depreciation, depletion and amortization based on the measurement guidance in FASB ASC Topic 805, Business Combinations.
(5) Provide pro forma reserve information comparable to the disclosures required by FASB ASC paragraphs 932-235-50-3 through 932-235-50-11B and FASB ASC paragraphs 932-235-50-29 through 932-235-50-36.
(6) Reflect significant changes, if any, in levels of operations (revenues or costs), or in income tax status and to reflect debt incurred in connection with the transaction.
1. If the registrant can demonstrate that full historical financial statements of the offeree businesses are not reasonably available, the staff may permit presentation of audited Statements of Combined Gross Revenues and Direct Lease Operating Expenses for all years for which an income statement would otherwise be required. In these circumstances, the registrant should also disclose in an unaudited footnote the amounts of total exploration and development costs, and general and administrative expenses along with the reasons why presentation of full historical financial statements is not practicable.
2. The staff will consider requests to waive the requirement for prior year financial statements of the offerees and instead allow presentation of only the latest fiscal year and interim period, if the registrant can demonstrate that the prior years' data would not be meaningful because the offerees had no material quantity of production.
The staff would expect that the full historical financial statements as specified in Rules 3-01 and 3-02 of Regulation S-X would be included in the registration statement for exchange offers accounted for as transactions among entities under common control, including all required supplemental reserve information. The presentation of individual or combined financial statements would depend on the circumstances of the particular exchange offer.
Registrants are also reminded that wherever historical results are presented, it may be appropriate to explain the reasons why historical costs are not necessarily indicative of future expenditures.
The accounting described in the preceding paragraph would apply irrespective of whether the redeemable preferred stock may be voluntarily redeemed by the issuer prior to the mandatory redemption date, or whether it may be converted into another class of securities by the holder. Companies also should consider the guidance in FASB ASC paragraph 480-10-S99-3A (Distinguishing Liabilities from Equity Topic).
Prior to the effective date of FASB ASC Topic 260, Earnings Per Share, the staff believed that certain stock and warrants
In applying the requirements of FASB ASC Topic 260, the staff believes that nominal issuances are recapitalizations in substance. In computing basic EPS for the periods covered by income statements included in the registration statement and in subsequent filings with the SEC, nominal issuances of common stock should be reflected in a manner similar to a stock split or stock dividend for which retroactive treatment is required by FASB ASC paragraph 260-10-55-12. In computing diluted EPS for such periods, nominal issuances of common stock and potential common stock
Registrants are reminded that disclosure about materially dilutive issuances is required outside the financial statements. Item 506 of Regulation S-K requires presentation of the dilutive effects of those issuances on net tangible book value. The effects of dilutive issuances on the registrant's liquidity, capital resources and results of operations should be addressed in Management's Discussion and Analysis.
It should be noted generally that all amounts receivable from officers and directors resulting from sales of stock or from other transactions (other than expense advances or sales on normal trade terms) should be separately stated in the balance sheet irrespective of whether such amounts may be shown as assets or are required to be reported as deductions from stockholders' equity.
The staff will not suggest that a receivable from an officer or director be deducted from stockholders' equity if the receivable was paid in cash prior to the publication of the financial statements and the payment date is stated in a note to the financial statements. However, the staff would consider the subsequent return of such cash payment to the officer or director to be part of a scheme or plan to evade the registration or reporting requirements of the securities laws.
The income statements of partnerships should be presented in a manner which clearly shows the aggregate amount of net income (loss) allocated to the general partners and the aggregate amount allocated to the limited partners. The statement of income should also state the results of operations on a per unit basis.
The balance sheet display of these or similar items is not determined by the quality or actual value of the receivable or other asset “contributed” to the capital of the affiliated general partner, but rather by the relationship of the parties and the control inherent in that relationship. Accordingly, in these situations, the receivable must be treated as a deduction from stockholders' equity in the balance sheet of the corporate general partner.
If such equipment is depreciated on the basis of group of composite accounts for fleets of like vehicles, gains (or losses) may be charged (or credited) to accumulated depreciation with the result that depreciation is adjusted over a period of years on an average basis. It should be noted that the latter treatment would not be appropriate for (1) an enterprise (such as an airline) which replaces its fleet on an episodic rather than a continuing basis or (2) an enterprise (such as a car leasing company) where equipment is sold after limited use so that the equipment on hand is both fairly new and carried at amounts closely related to current acquisition cost.
In some instances, there may be no reference to reimbursement of the broker for expenses and commissions to be assumed. The arrangements may provide that all interest earned on investments accrues to the partnership but that commissions on commodity transactions paid to the broker are at higher rates for a specified initial period and at lower rates subsequently.
The nature of Company Y's business was such that Company X's guarantees were considered a necessary predicate to obtaining future contracts until such time as Company Y achieved profitable operations and substantial financial independence from Company X.
The staff will not always require that predecessor cost be used to value nonmonetary assets received from an enterprise's promoters or shareholders. However, deviations from this policy have been rare applying generally to situations where the fair value of either the stock issued
When the form of ownership is within the control of the parent, the basis of accounting for purchased assets and liabilities should be the same regardless of whether the entity continues to exist or is merged into the parent's operations. Therefore, Company B's separate financial statements should reflect the new basis of accounting recorded by Company A upon acquisition (
Therefore, the staff believes that the equity section of Company B's balance sheet and any pro forma financial information and capitalization tables should clearly disclose that this arrangement exists.
The staff also believes that the advisory conclusions recommended in the issues paper are generally consistent with conclusions previously expressed by the Commission, such as:
1. Pooling-paragraph 4-6 of the paper discusses LIFO inventory pooling and concludes “establishing separate pools with the principal objective of facilitating inventory liquidations is unacceptable.” In Accounting and Auditing Enforcement Release 35, August 13, 1984, the Commission stated that it believes that the Company improperly realigned its LIFO pools in such a way as to maximize the likelihood and magnitude of LIFO liquidations and thus, overstated net income.
2. New Items-paragraph 4-27 of the paper discusses determination of the cost of new items and concludes “if the double extension or an index technique is used, the objective of LIFO is achieved by reconstructing the base year cost of new items added to existing pools.” In ASR 293, the Commission stated that when the effects of inflation on the cost of new products are measured by making a comparison with current cost as the base-year cost, rather than a reconstructed base-year cost, income is improperly increased.
The value of investments in equity securities classified as available-for-sale may decline for various reasons. The market price may be affected by general market conditions which reflect prospects for the economy as a whole or by specific information pertaining to an industry or an individual company. Such declines require further investigation by management. Acting upon the premise that a write-down may be required, management should consider all available evidence to evaluate the realizable value of its investment in equity securities classified as available-for-sale.
There are numerous factors to be considered in such an evaluation and their relative significance will vary from case to case. The staff believes that the
a. The length of the time and the extent to which the market value has been less than cost;
b. The financial condition and near-term prospects of the issuer, including any specific events which may influence the operations of the issuer such as changes in technology that may impair the earnings potential of the investment or the discontinuance of a segment of the business that may affect the future earnings potential; or
c. The intent and ability of the holder to retain its investment in the issuer for a period of time sufficient to allow for any anticipated recovery in market value.
Unless evidence exists to support a realizable value equal to or greater than the carrying value of the investment in equity securities classified as available-for-sale, a write-down to fair value accounted for as a realized loss should be recorded. Such loss should be recognized in the determination of net income of the period in which it occurs and the written down value of the investment in the company becomes the new cost basis of the investment.
• Discounting liabilities for unpaid claims and claim adjustment expenses at the same rates that it uses for reporting to state regulatory authorities with respect to the same claims liabilities, or
• Discounting liabilities with respect to settled claims under the following circumstances:
(1) The payment pattern and ultimate cost are fixed and determinable on an individual claim basis, and
(2) The discount rate used is reasonable on the facts and circumstances applicable to the registrant at the time the claims are settled.
Conversely, charges relating to activities previously included under “other income and expenses” should be similarly classified, also separately disclosed if material.
MD&A also should discuss the events and decisions which gave rise to the restructuring, the nature of the charge and the expected impact of the restructuring on future results of operations, liquidity and sources and uses of capital resources.
Beginning with the period in which the exit plan is initiated, FASB ASC Topic 420, Exit or Disposal Cost Obligations, requires disclosure, in
a. A description of the exit or disposal activity, including the facts and circumstances leading to the expected activity and the expected completion date
b. For each major type of cost associated with the activity (for example, one-time termination benefits, contract termination costs, and other associated costs):
(1) The total amount expected to be incurred in connection with the activity, the amount incurred in the period, and the cumulative amount incurred to date
(2) A reconciliation of the beginning and ending liability balances showing separately the changes during the period attributable to costs incurred and charged to expense, costs paid or otherwise settled, and any adjustments to the liability with an explanation of the reason(s) therefor
c. The line item(s) in the income statement or the statement of activities in which the costs in (b) above are aggregated
d. For each reportable segment, the total amount of costs expected to be incurred in connection with the activity, the amount incurred in the period, and the cumulative amount incurred to date, net of any adjustments to the liability with an explanation of the reason(s) therefor
e. If a liability for a cost associated with the activity is not recognized because fair value cannot be reasonably estimated, that fact and the reasons therefor
The staff frequently reminds registrants that in periods subsequent to the initiation date that material changes and activity in the liability balances of each significant type of exit cost and involuntary employee termination benefits
For material exit or involuntary employee termination costs related to an acquired business, the staff has requested disclosure in either MD&A or the financial statements of:
1. When the registrant began formulating exit plans for which accrual may be necessary,
2. The types and amounts of liabilities recognized for exit costs and involuntary employee termination benefits and included in the acquisition cost allocation, and
3. Any unresolved contingencies or purchase price allocation issues and the types of additional liabilities that may result in an adjustment of the acquisition cost allocation.
The staff has noted that the economic or other events that cause a registrant to consider and/or adopt an exit plan or that impair the carrying amount of assets, generally occur over time. Accordingly, the staff believes that as those events and the resulting trends and uncertainties evolve, they often will meet the requirement for disclosure pursuant to the Commission's MD&A rules prior to the period in which the exit costs and liabilities are recorded pursuant to GAAP. Whether or not currently recognizable in the financial statements, material exit or involuntary termination costs that affect a known trend, demand, commitment, event, or uncertainty to management, should be disclosed in MD&A. The staff believes that MD&A should include discussion of the events and decisions which gave rise to the exit costs and exit plan, and the likely effects of management's plans on financial position, future operating results and liquidity unless it is determined that a material effect is not reasonably likely to occur. Registrants should identify the periods in which material cash outlays are anticipated and the expected source of their funding. Registrants should also discuss material revisions to exit plans, exit costs, or the timing of the plan's execution, including the nature and reasons for the revisions.
The staff believes that the expected effects on future earnings and cash flows resulting from the exit plan (for example, reduced depreciation, reduced employee expense,
The staff often finds that, because of the discretionary nature of exit plans and the components thereof, presenting and analyzing material exit and involuntary termination charges in tabular form, with the related liability balances and activity (
At the time of issuance, eight percent per annum was considered to be a market rate for dividend yield on Class A, given its characteristics other than scheduled cash dividend entitlements (voting rights, liquidation preference,
The issuance price of Class B shares was determined by a similar approach, based on the terms and characteristics of the Class B shares.
Accordingly, the staff believes that discounts on increasing rate preferred stock should be amortized over the period(s) preceding commencement of the perpetual dividend, by charging imputed dividend cost against retained earnings and increasing the carrying amount of the preferred stock by a corresponding amount. The discount at time of issuance should be computed as
Simplified (ignoring quarterly calculations) application of this accounting to the Class A preferred stock described in the “Facts” section of this bulletin would produce the following results on a per share basis:
During 20X4 and thereafter, the stated dividend of $8 measured against the carrying amount of $100
The staff believes that existing authoritative literature, while not explicitly addressing increasing rate preferred stocks, implicitly calls for the accounting described in this bulletin.
The pervasive, fundamental principle of accrual accounting would, in the staff's view, preclude registrants from recognizing the dividend cost on the basis of whatever cash payment schedule might be arranged. Furthermore, recognition of the effective cost of unstated rights and privileges is well-established in accounting, and is specifically called for by FASB ASC Subtopic 835-30, Interest—Imputation of Interest, and Topic 3.C of this codification for unstated interest costs of debt capital and unstated dividend costs of redeemable preferred stock capital, respectively. The staff believes that the requirement to recognize the effective periodic cost of capital applies also to nonredeemable preferred stocks because, for that purpose, the distinction between debt capital and preferred equity capital (whether redeemable
For example, assume that a preferred stock issued 1/1/X1 is scheduled to pay dividends at annual rates, applied to the stock's par value, equal to 20% of the actual (fluctuating) market yield on a particular Treasury security in 20X1 and 20X2, and 90% of the fluctuating market yield in 20X3 and thereafter. The discount would be computed as the present value of a two-year dividend stream equal to 70% (90% less 20%) of the 1/1/X1 Treasury security yield, annually, on the stock's par value. The discount would be amortized in years 20X1 and 20X2 so that, together with 20% of the 1/1/X1 Treasury yield on the stock's par value, a constant rate of cost vis-a-vis the stock's carrying amount would result. Changes in the Treasury security yield during 20X1 and 20X2 would, of course, cause the rate of total reported preferred dividend cost (amortization of discount plus cash dividends) in those years to be more or less than the rate indicated by discount amortization plus 20% of the 1/1/X1 Treasury security yield. However, the fluctuations would be due solely to the impact of changes in the index on the stated dividends for those periods.
1. Earned surplus, as of the date selected, is exhausted;
2. Upon consummation of the quasi-reorganization, no deficit exists in any surplus account;
3. The entire procedure is made known to all persons entitled to vote on matters of general corporate policy and the appropriate consents to the particular transactions are obtained in advance in accordance with the applicable laws and charter provisions;
The procedure accomplishes, with respect to the accounts, substantially what might be accomplished in a reorganization by legal proceedings—namely, the restatement of assets in terms of present considerations as well as appropriate modifications of capital and capital surplus, in order to obviate, so far as possible, the necessity of future reorganization of like nature.
FASB ASC paragraph 852-20-25-5 (Reorganizations Topic) indicates that, following a quasi-reorganization, an “entity's accounting shall be substantially similar to that appropriate for a new entity.” The staff believes that implicit in this “fresh-start” concept is the need for the company's accounting principles in place at the time of the quasi-reorganization to be those planned to be used following the reorganization to avoid a misstatement of earnings and retained earnings after the reorganization.
In addition, the staff believes that adopting a discretionary change in accounting principle that will be reflected in the financial statements within 12 months following the consummation of a quasi-reorganization leads to a presumption that the accounting change was contemplated at the time of the quasi-reorganization.
The staff believes that all registrants that comply with the requirements of Section 210 in effecting a quasi-
The staff believes that such a transaction is similar to those described in FASB ASC paragraph 718-10-15-4 (Compensation—Stock Compensation Topic), which states that “share-based payments awarded to an employee of the reporting entity by a related party or other holder of an economic interest
The staff believes that the problem of separating the benefit to the principal stockholder from the benefit to the company cited in FASB ASC Topic 718 is not limited to transactions involving stock compensation. Therefore, similar accounting is required in this and other
Some registrants and their accountants have taken the position that since FASB ASC Topic 850, Related Party Disclosures, applies to these transactions and requires only the disclosure of material related party transactions, the staff should not analogize to the accounting called for by FASB ASC paragraph 718-10-15-4 for transactions other than those specifically covered by it. The staff notes, however, that FASB ASC Topic 850 does not address the measurement of related party transactions and that, as a result, such transactions are generally recorded at the amounts indicated by their terms.
The transactions for which FASB ASC Topic 850 requires disclosure generally are those in which a company receives goods or services directly from, or provides goods or services directly to, a related party, and the form and terms of such transactions may be structured to produce either a direct or indirect benefit to the related party. The participation of a related party in such a transaction negates the presumption that transactions reflected in the financial statements have been consummated at arm's length. Disclosure is therefore required to compensate for the fact that, due to the related party's involvement, the terms of the transaction may produce an accounting measurement for which a more faithful measurement may not be determinable.
However, transactions of the type discussed in the facts given do not have such problems of measurement and appear to be transacted to provide a benefit to the stockholder through the enhancement or maintenance of the value of the stockholder's investment. The staff believes that the substance of such transactions is the payment of an expense of the company through contributions by the stockholder. Therefore, the staff believes it would be inappropriate to account for such transactions according to the form of the transaction.
The financial institution typically will manage the assets for a fee, providing necessary services to liquidate the assets, but otherwise does not have the right to appoint directors or legally control the operations of the new entity.
FASB ASC Topic 860, Transfers and Servicing, provides guidance for determining when a transfer of financial assets can be recognized as a sale. The interpretive guidance provided in response to Questions 1 and 2 of this SAB does not apply to transfers of financial assets falling within the scope of FASB ASC Topic 860. Because FASB ASC Topic 860 does not apply to distributions of financial assets to shareholders or a contribution of such assets to unrelated third parties, the interpretive guidance provided in response to Questions 1 and 2 of this SAB would apply to such conveyances.
Further, registrants should consider the guidance contained in FASB ASC Topic 810, Consolidation, in determining whether it should consolidate the newly-formed entity.
Where accounting for the transfer as a sale or disposition is not appropriate, the nonperforming assets should remain on the financial institution's balance sheet and should continue to be disclosed as nonaccrual, past due, restructured or foreclosed, as appropriate, and the debt of the new entity should be recorded by the financial institution.
The staff notes that, in situations in which the transaction is accounted for as a sale to an unconsolidated party and a portion of the consideration received by the registrant is debt or another
FASB ASC Topic 450, Contingencies, requires, among other things, disclosure of loss contingencies.
FASB ASC Topic 275, Risks and Uncertainties,
FASB ASC Topic 275 requires disclosures regarding current vulnerability due to certain concentrations which may be applicable as well.
Additionally, the staff also expects companies to disclose the nature of the loss contingency and the potential impact on trends in their loss reserve development discussions provided pursuant to Property-Casualty Industry Guides 4 and 6. Consideration should also be given to the need to provide disclosure in MD&A.
The disclosure concepts expressed in this example would also apply to an individual claim or group of claims that are related to a single catastrophic event or multiple events having a similar effect.
If the liability is recognized on a discounted basis to reflect the time value of money, the notes to the financial statements should, at a minimum, include disclosures of the discount rate used, the expected aggregate undiscounted amount, expected payments for each of the five succeeding years and the aggregate amount thereafter, and a reconciliation of the expected aggregate undiscounted amount to amounts recognized in the statements of financial position. Material changes in the expected aggregate amount since the prior balance sheet date, other than those resulting from pay-down of the obligation, should be explained.
• Circumstances affecting the reliability and precision of loss estimates.
• The extent to which unasserted claims are reflected in any accrual or may affect the magnitude of the contingency.
• Uncertainties with respect to joint and several liability that may affect the magnitude of the contingency, including disclosure of the aggregate expected cost to remediate particular sites that are individually material if the likelihood of contribution by the other significant parties has not been established.
• Disclosure of the nature and terms of cost-sharing arrangements with other potentially responsible parties.
• The extent to which disclosed but unrecognized contingent losses are expected to be recoverable through insurance, indemnification arrangements, or other sources, with disclosure of any material limitations of that recovery.
• Uncertainties regarding the legal sufficiency of insurance claims or solvency of insurance carriers.
• The time frame over which the accrued or presently unrecognized amounts may be paid out.
• Material components of the accruals and significant assumptions underlying estimates.
Registrants are cautioned that a statement that the contingency is not expected to be material does not satisfy the requirements of FASB ASC Topic 450 if there is at least a reasonable possibility that a loss exceeding amounts already recognized may have been incurred and the amount of that additional loss would be material to a decision to buy or sell the registrant's securities. In that case, the registrant must either (a) disclose the estimated additional loss, or range of loss, that is reasonably possible, or (b) state that such an estimate cannot be made.
Disclosures made pursuant to the guidance identified in the preceding paragraph should be sufficiently specific to enable a reader to understand the scope of the contingencies affecting the registrant. For example, a registrant's discussion of historical and anticipated environmental expenditures should, to the extent material, describe separately (a) recurring costs associated with managing hazardous substances and pollution in on-going operations, (b) capital expenditures to limit or monitor hazardous substances or pollutants, (c) mandated expenditures to remediate previously contaminated sites, and (d) other infrequent or non-recurring clean-up expenditures that can be anticipated but which are not required in the present circumstances. Disaggregated disclosure that describes accrued and reasonably likely losses with respect to particular environmental sites that are individually material may be necessary for a full understanding of these contingencies. Also, if management's investigation of potential liability and remediation cost is at different stages with respect to individual sites, the consequences of this with respect to amounts accrued and disclosed should be discussed.
Examples of specific disclosures typically relevant to an understanding of historical and anticipated product liability costs include the nature of personal injury or property damages alleged by claimants, aggregate settlement costs by type of claim, and related costs of administering and litigating claims. Disaggregated disclosure that describes accrued and reasonably likely losses with respect to particular claims may be necessary if they are individually material. If the contingency involves a large number of relatively small individual claims of a similar type, such as personal injury from exposure to asbestos, disclosure of the number of claims pending at each balance sheet date, the number of claims filed for each period presented, the number of claims dismissed, settled, or otherwise resolved for each period, and the average settlement amount per claim may be necessary. Disclosures should address historical and expected trends in these amounts and their reasonably likely effects on operating results and liquidity.
FASB ASC paragraph 205-20-45-4 requires that “adjustments to amounts previously reported in discontinued operations that are directly related to the disposal of a component of an entity in a prior period shall be classified separately in the current period in discontinued operations.” The staff believes that the provisions of FASB ASC paragraph 205-20-45-4 apply only to adjustments that are necessary to reflect new information about events that have occurred that becomes available prior to disposal of the component of the entity, to reflect the actual timing and terms of the disposal when it is consummated, and to reflect the resolution of contingencies associated with that component, such as warranties and environmental liabilities retained by the seller.
Developments subsequent to the disposal date that are not directly related to the disposal of the component or the operations of the component prior to disposal are not “directly related to the disposal” as contemplated by FASB ASC paragraph 205-20-45-4. Subsequent changes in the carrying value of assets received upon disposition of a component do not affect the determination of gain or loss at the disposal date, but represent the consequences of management's subsequent decisions to hold or sell those assets. Gains and losses, dividend and interest income, and portfolio management expenses associated with assets received as consideration for discontinued operations should be reported within continuing operations.
FASB ASC paragraph 330-10-35-14 indicates that “[i]n the case of goods which have been written down below cost at the close of a fiscal year, such reduced amount is to be considered the cost for subsequent accounting purposes.”
Lastly, the FASB ASC Master Glossary provides “inventory obsolescence” as one of the items subject to a change in accounting estimate.
Standards for recognizing and measuring impairment of the carrying amount of long-lived assets including certain identifiable intangibles to be held and used in operations are found in FASB ASC Topic 360, Property, Plant, and Equipment. Standards for recognizing and measuring impairment of the carrying amount of goodwill and identifiable intangible assets that are not currently being amortized are found in FASB ASC Topic 350, Intangibles—Goodwill and Other.
The staff also believes that registrants must continually evaluate the appropriateness of useful lives assigned to long-lived assets, including identifiable intangible assets and goodwill. In the above fact pattern, management had contemplated removal of the mainframe computers beginning in January 20X2 and, more formally, in August 20X2 as part of compiling the 20X3 capital expenditures budget. At those times, at a minimum, management should have reevaluated the original useful life assigned to the computers to determine whether a seven year amortization period remained appropriate given the company's current facts and circumstances, including ongoing technological changes in the market place. This reevaluation process should have continued at the time of the September 20X2 board of directors' meeting to discuss capital expenditure plans and, further, as the company pursued mainframe computer bids. Given the contemporaneous evidence that management's best estimate during much of 20X2 was that the current mainframe computers would be removed from service in 20X3, the depreciable life of the computers should
The staff recognizes that various factors, including management's judgments and assumptions about the business plans and strategies, affect the development of future cash flow projections for purposes of applying FASB ASC Topic 360. The staff, however, cautions registrants that the judgments and assumptions made for purposes of applying FASB ASC Topic 360 must be consistent with other financial statement calculations and disclosures and disclosures in MD&A. The staff also expects that forecasts made for purposes of applying FASB ASC Topic 360 be consistent with other forward-looking information prepared by the company, such as that used for internal budgets, incentive compensation plans, discussions with lenders or third parties, and/or reporting to management or the board of directors.
For example, the staff has reviewed a fact pattern where a registrant developed cash flow projections for purposes of applying the provisions of FASB ASC Topic 360 using one set of assumptions and utilized a second, more conservative set of assumptions for purposes of determining whether deferred tax valuation allowances were necessary when applying the provisions of FASB ASC Topic 740, Income Taxes. In this case, the staff objected to the use of inconsistent assumptions.
In addition to disclosure of key assumptions used in the development of cash flow projections, the staff also has required discussion in MD&A of the implications of assumptions. For example, do the projections indicate that a company is likely to violate debt covenants in the future? What are the ramifications to the cash flow projections used in the impairment analysis? If growth rates used in the impairment analysis are lower than those used by outside analysts, has the company had discussions with the analysts regarding their overly optimistic projections? Has the company appropriately informed the market and its shareholders of its reduced expectations for the future that are sufficient to cause an impairment charge? The staff believes that cash flow projections used in the impairment analysis must be both internally consistent with the company's other projections and externally consistent with financial statement and other public disclosures.
The views in Question 1 apply to all loan commitments that are accounted for at fair value through earnings. However, for purposes of electing fair value accounting pursuant to FASB ASC Subtopic 825-10, the views in Question 1 are not intended to be applied by analogy to any other instrument that contains a nonfinancial element.
The view in Question 2 applies to all loan commitments that are accounted for at fair value through earnings.
Registrants and independent accountants are encouraged to consult with the staff if they believe that particular circumstances call for accounting and/or disclosure different from that which would result from application of a SAB addressing those same or analogous circumstances.
1. Disclosure of compensating balance arrangements.
2. Segregation of cash for compensating balance arrangements that are legal restrictions on the availability of cash.
1. A firm long-term mortgage commitment is obtained for each project.
2. Interest rates and terms are in line with the company's normal borrowing arrangements.
3. Amounts are equal to the expected full mortgage amount of all projects.
4. The company may draw down funds at its option up to the maximum amount of the agreement.
5. The company uses short-term interim construction financing (commercial paper, bank loans,
1. Disclosure of tax effect of timing differences comprising deferred income tax expense.
2. Disclosure of the components of income tax expense, including currently payable and the net tax effects of timing differences.
3. Disclosure of the components of income [loss] before income tax expense [benefit] as either domestic or foreign.
4. Reconciliation between the statutory Federal income tax rate and the effective tax rate.
It should also be noted that it is generally necessary to disclose the aggregate dollar and per-share effect of situations where temporary tax exemptions or “tax holidays” exist, and that such disclosures are also applicable to 50% or less owned persons. Such disclosures should include a brief description of the factual circumstances and give the date on which the special tax status will terminate.
The components of income tax expense are:
Income tax expense is included in the financial statements as follows:
Registrants with numerous subsidiaries and investees may wish to develop approaches to facilitate the determination of its parent company disclosure requirements. For example, if the parent company's adjusted net assets (excluding any interest in its subsidiaries) exceed 75% of consolidated net assets, or if the total of all of the registrant's consolidated and unconsolidated subsidiaries' restrictions and its equity in investees' earnings is less than 25% of consolidated net assets, then the allocation of consolidating adjustments to the subsidiaries to determine the amount of their adjusted net assets would not be necessary since no parent company disclosures would be required.
Net assets of the subsidiary are $75. Assume there are no consolidating adjustments to be allocated to the subsidiary. Restrictive covenants of the subsidiary's debt agreements provide that:
Net assets, excluding intercompany loans, cannot be less than $35
60% of accumulated earnings must be maintained
Restricted net assets for purposes of the test are $35. The maximum amount that can be loaned or advanced to the parent without violating the net asset covenant is $40 ($75 − 35). Alternatively, the subsidiary could pay a dividend of up to $20 ($50 − 30) without violating the dividend covenant, and loan or advance up to $20, without violating the net asset provision.
Assume that the registrant's consolidated net assets are $130 and there are no consolidating adjustments to be allocated to the subsidiary. The subsidiary's net assets are $75. The subsidiary's noncurrent assets are comprised of $40 in operating plant and equipment used in the subsidiary's business and a $50 investment in a 30% investee. The subsidiary's equity in this investee's undistributed earnings is $18. Restrictive covenants of the subsidiary's debt agreements are as follows:
1. Net assets, excluding intercompany balances, cannot be less than $20.
2. 80% of accumulated earnings must be reinvested in the subsidiary.
3. Current ratio of 2:1 must be maintained.
Restricted net assets for purposes of the test are $20. The amount computed from the dividend restriction ($36) and the current ratio requirement ($46) are not used because net assets may be transferred by the subsidiary up to the limitation imposed by the requirement to maintain net assets of at least $20, without violating the other restrictions. For example, a transfer to the parent of up to $55 of net assets could be accomplished by a combination of dividends of current assets of $9 ($45 − 36), and loans or advances of current assets of up to $20 and noncurrent assets of up to $26.
Parent company footnote disclosures are required in this example since the restricted net assets of the subsidiary and the registrant's equity in the earnings of its 100%-owned subsidiary's investee exceed 25% of consolidated net assets [($20 + 18)/$130 = 29%]. The parent company schedule information is not required since the restricted net assets of the subsidiary are only 15% of consolidated net assets ($20/$130 = 15%).
Although the subsidiary's noncurrent assets are not in a form which is readily transferable to the parent company, the illiquid nature of the assets is not relevant for purposes of the parent company tests. The objective of the tests is to require parent company disclosures when the parent company does not have control of its subsidiaries' funds because it does not have unrestricted access to their net assets. The tests trigger parent company disclosures only when there are significant third party restrictions on transfers by subsidiaries of net assets and the subsidiaries' net assets comprise a significant portion of consolidated net assets. Practical limitations, other than third party restrictions on transferability at the measurement date (most recent fiscal year-end), such as subsidiary illiquidity, are not considered in computing restricted net assets. However, the potential effect of any limitations other than those imposed by third parties should be considered for inclusion in Management's Discussion and Analysis of liquidity.
Subsidiaries A and B are 100% owned by the registrant. Assume there are no consolidating adjustments to be allocated to the subsidiaries. Subsidiary A has restrictions amounting to $200. Subsidiary B's restrictions are $1,000.
The registrant owns 80% of subsidiary A. Subsidiary A owns 100% of subsidiary B. Assume there are no consolidating adjustments to be allocated to the subsidiaries. A may not pay any dividends or make any affiliate loans or advances. B has no restrictions. A's net assets of $850 do not include its investment in B.
The acquisition of the 100%-owned subsidiary was consummated on the last day of the most recent fiscal year. Immediately preceding the acquisition, the registrant had net assets of $700, which included its equity in the undistributed earnings of its 30% investee of $75. Immediately after acquiring the subsidiary's net assets, which had an historical cost of $450 and a fair value of $350, the registrant's net assets were still $700 since debt and preferred stock totaling $350 were issued in the purchase. The subsidiary has debt covenants which permit dividends, loans or advances, to the extent, if any, that net assets exceed an amount which is determined by the sum of $100 plus 75% of the subsidiary's accumulated earnings.
The amount of the subsidiary's restrictions at year-end is $400 [$100 + (75% × $400)]. The subsidiary's adjusted net assets after the push down of the consolidation entry to the subsidiary to record the noncurrent assets acquired at their fair value is $350 ($450 − $100). Since the subsidiary's adjusted net assets ($350) are less than the amount of its restrictions ($400), restricted net assets are $350. The computed percentages applicable to each of the disclosure tests is in excess of 25%. Therefore, both parent company footnote and schedule information are required. The percentage applicable to the footnote disclosure test is 61% [($75 + 350)/$700]. The computed percentage for the schedule disclosure is 50% ($350/$700).
Further guidance for SEC registrants is provided by FRR 28, which added subsection (b), Procedural Discipline in Determining the Allowance and Provision for Loan Losses to be Reported, of Section 401.09, Accounting for Loan Losses by Registrants Engaged in Lending Activities, to the Codification of Financial Reporting Policies (hereafter referred to as FRR 28). Additionally, public companies are required to comply with the books and records provisions of the Securities Exchange Act of 1934 (Exchange Act). Under Sections 13(b)(2)—(7) of the Exchange Act, registrants must make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets of the registrant. Registrants also must maintain internal accounting controls that are sufficient to provide reasonable assurances that, among other things, transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP.
This staff interpretation applies to all registrants that are creditors in loan transactions that, individually or in the aggregate, have a material effect on the registrant's financial statements.
However, as indicated in the AICPA Audit and Accounting Guide, Depository and Lending Institutions with Conforming Changes as of June 1, 2009 (Audit Guide), while different institutions may use different methods, there are certain common elements that should be included in any [loan loss allowance] methodology for it to be effective.
• Include a detailed analysis of the loan portfolio, performed on a regular basis;
• Consider all loans (whether on an individual or group basis);
• Identify loans to be evaluated for impairment on an individual basis under FASB ASC Subtopic 310-10 and segment the remainder of the portfolio into groups of loans with similar risk characteristics for evaluation and analysis under FASB ASC Subtopic 450-20;
• Consider all known relevant internal and external factors that may affect loan collectibility;
• Be applied consistently but, when appropriate, be modified for new factors affecting collectibility;
• Consider the particular risks inherent in different kinds of lending;
• Consider current collateral values (less costs to sell), where applicable;
• Require that analyses, estimates, reviews and other loan loss allowance methodology functions be performed by competent and well-trained personnel;
• Be based on current and reliable data;
• Be well documented, in writing, with clear explanations of the supporting analyses and rationale (
• Include a systematic and logical method to consolidate the loss estimates and ensure the loan loss allowance balance is recorded in accordance with GAAP.
Therefore, the staff believes it is appropriate for an entity's management to review, on a periodic basis, its methodology for determining its allowance for loan losses.
1. Selection of new or changes to accounting policies
2. Estimates, judgments, and uncertainties
3. Unusual transactions
Accounting policies relating to significant financial statement items, including the timing or transactions and the period in which they are recorded.”
A systematic methodology that is properly designed and implemented should result in a registrant's best estimate of its allowance for loan losses.
The staff, therefore, normally would expect a registrant to document the relationship between the findings of its detailed review of the loan portfolio and the amount of the loan loss allowance and the provision for loan losses reported in each period.
The staff normally would expect to find that registrants maintain written supporting documentation for the following decisions, strategies, and processes:
• The roles and responsibilities of the registrant's departments and personnel (including the lending function, credit review, financial reporting, internal audit, senior management, audit committee, board of directors, and others, as applicable) who determine or review, as applicable, the loan loss allowance to be reported in the financial statements;
• The registrant's accounting policies for loans and loan losses, including the policies for charge-offs and recoveries and for estimating the fair value of collateral, where applicable;
• The description of the registrant's systematic methodology, which should be consistent with the registrant's accounting policies for determining its loan loss allowance (
• The system of internal controls used to ensure that the loan loss allowance process is maintained in accordance with GAAP.
• Include measures to provide assurance regarding the reliability
• Reasonably assure that the registrant's financial statements are prepared in accordance with GAAP; and
• Include a well-defined loan review process.
• An effective loan grading system that is consistently applied, identifies differing risk characteristics and loan quality problems accurately and in a timely manner, and prompts appropriate administrative actions;
• Sufficient internal controls to ensure that all relevant loan review information is appropriately considered in estimating losses. This includes maintaining appropriate reports, details of reviews performed, and identification of personnel involved;
• Clear formal communication and coordination between a registrant's credit administration function, financial reporting group, management, board of directors, and others who are involved in the loan loss allowance determination or review process, as applicable (
Upon review of the large balance loans, Registrant B determines that certain of the loans are impaired as defined by FASB ASC Subtopic 310-10.
The staff normally would expect Registrant B to maintain as sufficient, objective evidence
Registrant C believes that certain of the assumptions that were used to value the collateral eighteen months ago do not reflect current market conditions and, therefore, the appraiser's valuation does not approximate current fair value of the collateral.
Several buildings, which are comparable to the real estate collateral, were recently completed in the area, increasing vacancy rates, decreasing lease rates, and attracting several tenants away from the borrower. Accordingly, credit review personnel at Registrant C adjust certain of the valuation assumptions to better reflect the current market conditions as they relate to the loan's collateral.
Because Registrant C arrived at the valuation of $8 million by modifying an earlier appraisal, it should document its rationale and basis for the changes it made to the valuation assumptions that resulted in the collateral value declining from $12 million eighteen months ago to $8 million in the current period.
Registrant D's management summary of the loan loss allowance includes documentation indicating that, in accordance with its loan loss allowance policy, the collateral protection on these loans has been verified by the registrant, no probable loss has been incurred, and no loan loss allowance is necessary.
Documentation in Registrant D's loan files includes the two independent market quotes obtained each quarter for each loan's collateral amount, the documents evidencing the perfection of the security interest in the collateral, and other relevant supporting documents. Additionally, Registrant D's loan loss allowance policy includes a discussion of how to determine when a loan is considered “fully collateralized” and does not require a loan loss allowance. Registrant D's policy requires the following factors to be considered and its findings concerning these factors to be fully documented:
• Volatility of the market value of the collateral;
• Recency and reliability of the appraisal or other valuation;
• Recency of the registrant's or third party's inspection of the collateral;
• Historical losses on similar loans;
• Confidence in the registrant's lien or security position including appropriate:
○ Type of security perfection (
○ Filing of security perfection (
○ Relationship to other liens; and
• Other factors as appropriate for the loan type.
In the staff's view, Registrant D's documentation supporting its determination that certain of its loans are fully collateralized, and no loan loss allowance should be recorded for those loans, is acceptable under FRR 28.
Based on the segmentation of the loan portfolio, a registrant should estimate the FASB ASC Subtopic 450-20 portion of its loan loss allowance. For those segments that require an allowance for loan losses,
As indicated for Registrant E, one method of estimating loan losses for groups of loans is through the application of loss rates to the groups' aggregate loan balances. Such loss rates typically reflect the registrant's historical loan loss experience for each group of loans, adjusted for relevant environmental factors (
The staff normally would expect that, before employing a loss estimation model, a registrant would evaluate and modify, as needed, the model's assumptions to ensure that the resulting loss estimate is consistent with GAAP. In order to demonstrate consistency with GAAP, registrants that use loss estimation models should typically document the evaluation, the conclusions regarding the appropriateness of estimating loan losses with a model or other loss estimation tool, and the objective support for adjustments to the model or its results.
In developing loss measurements, registrants should consider the impact of current environmental factors and then document which factors were used in the analysis and how those factors affected the loss measurements. Factors that should be considered in developing loss measurements include the following:
• Levels of and trends in delinquencies and impaired loans;
• Levels of and trends in charge-offs and recoveries;
• Trends in volume and terms of loans;
• Effects of any changes in risk selection and underwriting standards, and other changes in lending policies, procedures, and practices;
• Experience, ability, and depth of lending management and other relevant staff;
• National and local economic trends and conditions;
• Industry conditions; and
• Effects of changes in credit concentrations.
For any adjustment of loss measurements for environmental factors, a registrant should maintain sufficient, objective evidence
Additionally, the cost of the rare metals used in the manufacturing process increased and has now stabilized at double last year's price. Due to these events, the manufacturing businesses are experiencing financial difficulties and have recently announced downsizing plans.
Although Registrant F has yet to confirm an increase in its loss experience as a result of these events, management knows that it lends to a significant number of businesses and individuals whose repayment ability depends upon the long-term viability of the manufacturing businesses. Registrant F's management has identified particular segments of its commercial and consumer customer bases that include borrowers highly dependent upon sales or salary from the manufacturing businesses. Registrant F's management performs an analysis of the affected portfolio segments to adjust its historical loss rates used to determine the loan loss allowance. In this particular case, Registrant F has experienced similar business and lending conditions in the past that it can compare to current conditions.
Because in this case Registrant F has experienced similar business and lending conditions in the past, it should consider including in its supporting documentation an analysis of how the current conditions compare to its previous loss experiences in similar circumstances. The staff normally would expect that, as part of Registrant F's effective loan loss allowance methodology, it would create a summary of the amount and rationale for the adjustment factor for review by management prior to the issuance of the financial statements.
Registrant G segments its loan portfolio to estimate loan losses under FASB ASC Subtopic 450-20. Two of its loan portfolio segments are Segment 1 and Segment 2. The loan to Company Y has risk characteristics similar to the loans included in Segment 1 and the loan to Company Z has risk characteristics similar to the loans included in Segment 2.
In its determination of its loan loss allowance under FASB ASC Subtopic 450-20, Registrant G includes its loans to Company Y and Company Z in the groups of loans with similar characteristics (
When measuring and documenting loan losses, Registrant G should take steps to prevent layering loan loss allowances. Layering is the inappropriate practice of recording in the allowance more than one amount for the same probable loan loss. Layering can happen when a registrant includes a loan in one segment, determines its best estimate of loss for that loan either individually or on a group basis (after taking into account all appropriate environmental factors, conditions, and events), and then includes the loan in another group, which receives an additional loan loss allowance amount.
• The estimate of the probable loss or range of loss incurred for each category evaluated (
• The aggregate probable loss estimated using the registrant's methodology;
• A summary of the current loan loss allowance balance;
• The amount, if any, by which the loan loss allowance balance is to be adjusted;
• Depending on the level of detail that supports the loan loss allowance analysis, detailed subschedules of loss estimates that reconcile to the summary schedule.
Generally, a registrant's review and approval process for the loan loss allowance relies upon the data provided in these consolidated summaries. There may be instances in which individuals or committees that review the loan loss allowance methodology and resulting allowance balance identify adjustments that need to be made to the loss estimates to provide a better estimate of loan losses. These changes may be due to information not known at the time of the initial loss estimate (
The staff also normally would expect this documentation to be provided to those among management making the final determination of the loan loss allowance amount.
In practice, registrants employ numerous procedures when validating the reasonableness of their loan loss allowance methodology and determining whether there may be deficiencies in their overall methodology or loan grading process. Examples are:
• A review of trends in loan volume, delinquencies, restructurings, and concentrations.
• A review of previous charge-off and recovery history, including an evaluation of the timeliness of the entries to record both the charge-offs and the recoveries.
• A review by a party that is independent of the loan loss allowance estimation process. This often involves the independent party reviewing, on a test basis, source documents and underlying assumptions to determine that the established methodology develops reasonable loss estimates.
• An evaluation of the appraisal process of the underlying collateral. This may be accomplished by periodically comparing the appraised value to the actual sales price on selected properties sold.
It is the staff's understanding that, in practice, management usually supports the validation process with the workpapers from the loan loss allowance review function. Additional documentation often includes the summary findings of the independent reviewer. The staff normally would expect that, if the methodology is changed based upon the findings of the validation process, documentation that describes and supports the changes would be maintained.
Consumer Credit Operations:
The results of the Consumer Credit Operations which are included in the Statement of Earnings as a separate line item are as follows for the fiscal year ended January 31, 20x0:
Service charges on retail credit accounts are netted against selling, general and administrative expense. The cost of administering retail credit program continued to exceed service charges on customer receivables as follows:
The above results do not reflect either “in store” costs related to credit operations or any allocation of corporate overhead expenses.
This SAB is not intended to change current guidance in the accounting literature. For this reason, adherence to the principles described in this SAB should not raise the costs associated with record-keeping or with audits of financial statements.
The amount of interest cost incurred and the respective amounts expensed or capitalized shall be disclosed for each period for which an income statement is presented. Consequently, capitalized interest included as part of an intermediary's construction work in progress on the balance sheet should be recognized on the current income statement as interest expense with a corresponding offset to allowance for borrowed funds used during construction. Income statements for
A note to the financial statements should describe briefly the organization and purpose of the intermediary and the nature of its authorization to incur debt to finance construction. The note should disclose the rate at which interest on this debt has been capitalized and the dollar amount for each period for which an income statement is presented.
During the construction period a participating utility finances its own share of a utility plant using its own financial resources and not the combined resources of the group. Allowance for funds used during construction is provided in the same manner and at the same rates as for plants constructed to be used entirely by the participant utility.
When a joint-owned plant becomes operational, one of the participant utilities acts as operator and bills the other participants for their proportionate share of the direct expenses incurred. Each individual participant incurs other expenses related to transmission, distribution, supervision and control which cannot be related to the energy generated or received from any particular source. Many companies maintain depreciation records on a composite basis for each class of property so that neither the accumulated allowance for depreciation nor the periodic expense can be allocated to specific generating units whether jointly or wholly owned.
The note should state that the participating utility's share of direct expenses of the joint plants is included in the corresponding operating expenses on its income statement (
Additional disclosure should be given if the contract provides, or is expected to provide, in excess of five percent of current or estimated future system capability. This additional disclosure may be in the form of separate financial statements of the vendor entity or inclusion of the amount of the obligation under the contract as a liability on the balance sheet with a corresponding amount as an asset representing the right to purchase power under the contract.
The note to the financial statements should disclose the allocable portion of interest included in charges under such contracts.
FASB ASC paragraph 225-20-45-2 indicates that to be unusual, an item must “possess a high degree of abnormality and be of a type clearly unrelated to, or only incidentally related to, the ordinary and typical activities of the entity, taking into account the environment in which the entity operates.” Similarly, that paragraph indicates that, to be infrequent, an event should “not reasonably be expected to recur in the foreseeable future.”
Electric utilities operate under a franchise that requires them to furnish adequate supplies of electricity for their service area. That undertaking requires utilities to continually forecast the future demand for electricity, and the costs to be incurred in constructing the plants necessary to meet that demand. Abandonments and disallowances result from the failure of demand to reach projected levels and/or plant construction costs that exceed anticipated amounts. Neither event qualifies as being both unusual and infrequent in the environment in which electric utilities operate.
Accordingly, the staff believes that charges for abandonments and disallowances under FASB ASC Subtopic 980-360 should not be presented as extraordinary items.
Because of differences among registrants in making the tax equivalency computation, a brief note should describe the extent of recognition of exemption from Federal, state and local taxes and the combined marginal or incremental rate used. Where net operating losses exist, the note should indicate the nature of the tax equivalency adjustment made.
Tax equivalent adjusted amounts should be clearly identified and related to the corresponding unadjusted amounts in the financial statements. A descriptive note similar to that suggested to accompany adjusted amounts included in selected financial data should be provided.
The staff believes, however, that the impact of deposit/relending arrangements covering significant amounts of outstandings to a foreign country should be disclosed pursuant to Guide 3, Item III.C.3., Instruction (6)(a).
Mexico will offer for sale bonds (“Bonds”), denominated in U.S. dollars, which will pay interest at a LIBOR-based floating rate and mature in twenty years. Mexico will undertake to list the Bonds on the Luxembourg Stock Exchange. The Bonds will be secured, as to their ultimate principal value only, by non-interest bearing securities of the U.S. Treasury (“Zero Coupon Treasury Securities”) which will be purchased by Mexico. The Zero Coupon Treasury Securities will be pledged to holders of the Bonds and held in custody at the Federal Reserve Bank of New York and will have a maturity date and ultimate principal value which match the maturity date and principal value of the Bonds. While the Bonds will have default and acceleration provisions, the holder of a Bond will not be permitted to have access to the collateral prior to the final scheduled maturity date, at which time the proceeds of the collateral will be available to pay the full principal amount of the Bonds. As such, the holder of a Bond ultimately will be secured as to principal at maturity; however, the interest payments will not be secured. The Bonds will not be subject to future restructurings of Mexico's Existing Obligations, and Mexico has indicated that neither the Bonds nor the Existing Obligations exchanged therefore will be considered part of a base amount with respect to any future requests by Mexico for new money.
The Mexican Debt Exchange will be structured in such a way that potential purchasers of the Bonds will submit bids on a voluntary basis to the auction agent. These bids will specify the face dollar amount of existing restructured commercial bank obligations of Mexico or of other Mexican public sector entities that the potential purchaser is willing to tender and the face dollar amount of Bonds that the purchaser is willing to accept in exchange for the Existing Obligations. Following the auction date, Mexico will determine the face dollar amount of Bonds to be issued and will exchange the Bonds for Existing Obligations taking first the offer of the largest face dollar amount of Existing Obligations per face dollar amount of Bonds, and so on, until all Bonds which Mexico is willing to issue have been subscribed. It is therefore possible that a greater amount of Existing Obligations could be tendered than Mexico is willing to accept.
The lender has appropriately accounted for the transaction as a troubled debt restructuring in accordance with the provisions of FASB ASC Subtopic 310-40, Receivables—Troubled Debt Restructurings by Creditors.
• Carrying value and terms of Existing Obligations exchanged;
• Face value, carrying value, market value and terms of Bonds received;
• The effect of the transaction on the allowance for loan losses and the provision for losses in the current period; and
• Annual interest income on Existing Obligations exchanged and annual interest income on Bonds received.
For registrants that adopt the alternative disclosure approach and whose Mexican cross-border outstandings (excluding the carrying value of the Bond principal) exceed 1% of total assets, appropriate footnote disclosure of the exclusions should be made. Such footnote should indicate the face amount and carrying value of the Bonds excluded, the market value of such Bonds, and the face amount and current fair value of the Zero Coupon Treasury Securities which secure the Bonds.
If the Mexican cross-border outstandings (excluding the carrying value of the Bond principal) are less than 1% of total assets but with the addition of the carrying value of the Bond principal would exceed 1%, the carrying value of the Mexican cross-border outstandings may be excluded from the list of countries whose cross-border outstandings exceed 1% of total assets provided that a footnote discloses the amount of Mexican cross-border outstandings (excluding the carrying value of the Bond principal) along with the footnote-type disclosure concerning the Bonds discussed in the previous paragraph. This disclosure and any other material disclosure specified by Item III.C.3. of Industry Guide 3 would continue to be made as long as Mexican exposure, including the carrying value of the Bond principal, exceeded 1%.
If the Mexican cross-border outstandings (excluding the carrying value of the Bond principal) are less than .75% of total assets but with the addition of the carrying value of the Mexican Bond principal would exceed .75% but be less than 1%, cross-border outstandings disclosed pursuant to Instruction (7) to Item III.C.3. of Industry Guide 3 may exclude Mexico provided a footnote is added to the aggregate disclosure which discloses the amount of Mexican cross-border outstandings and the fact that they have not been included. The carrying value of the Bond principal may be excluded from the amount of Mexican cross-border outstandings disclosed in the
In essence, the alternative discussed herein results in a change only in the method of presenting information, not in the total information required.
The appropriate disclosure would depend on the level of Mexican cross-border outstandings as follows:
A. Assuming that the remaining Mexican cross-border outstandings are in excess of 1% of total assets:
• Mexican cross-border outstandings (which excludes the total amount of the carrying value of Bond principal) would be disclosed in the table presenting all such outstandings in excess of 1%.
• Proposed footnote disclosure—
Not included in this amount is $__ million of Mexican Government Bonds maturing in 2008, with a carrying value of $__ million [if different from face value]. These Mexican Government Bonds had a market value of $__ million on [reporting date]. The principal amount of these bonds is fully secured, at maturity, by $__ million face value of U.S. zero coupon treasury securities that mature on the same date. The current fair value of these U.S. Government securities is $__ million at [reporting date]. This collateral is pledged to holders of the bonds and held in custody at the Federal Reserve Bank of New York. The details of the transaction in which these bonds were acquired was reported in the Corporation's Form (8-K, 10-Q or 10-K) for (date). Accrued interest on the bonds, which is not secured, is included in the outstandings reported [amount to be disclosed if material]. Future interest on the bonds remains a cross-border risk.
B. Assuming that remaining Mexican cross-border outstandings are less than 1% of total assets but with the addition of the carrying value of the Mexican Bond principal would exceed 1%:
• There would not be any disclosure included in any cross-border table.
• The total amount of remaining cross-border Mexican outstandings would be disclosed in a footnote to the table. Such footnote would also explain that the Mexican outstandings are excluded from the table.
• Additional footnote disclosure—(same disclosure in A above)
• The disclosure required under this paragraph (plus any other disclosure required by Item III.C.3. of Guide 3) would continue so long as Mexican exposure, including the carrying value of the Mexican Bond principal, exceeded 1%.
C. Assuming that the remaining Mexican cross-border outstandings is less than .75% of total assets but with the addition of the carrying value of the Mexican Bond principal is greater than .75% but less than 1%:
• Mexico would not be included in the list of names of countries required by Instruction 7 to Item III.C.3. of Industry Guide 3 and the amount of Mexican cross-border outstandings would not be included in the aggregate amount of outstandings attributable to all such countries.
• A footnote would be added to this disclosure of aggregate outstandings which discusses the Mexican outstandings and the Mexican Bonds. An example follows:
Not included in the above aggregate outstandings are the Corporation's cross-border outstandings to Mexico which totaled $__ million at (reporting date). This amount is less than .75% of total assets. (The remaining portion of this footnote is the same disclosure in A above.)
D. Assuming that the total of the Mexican cross-border outstanding plus the carrying value of the Bond principal is less than the .75% of total assets:
• No disclosure would be required.
• However, same disclosure as in A above would be provided if any other aspects of the financial statements are materially affected by this transaction (such as the allowance for loan losses).
• Relates primarily to the exchange of unsecured Mexican outstandings for Mexican bonds. The principal amount of these bonds is secured at maturity by $___ face U.S. Zero Coupon Treasury Securities which mature on the same date and have a current fair value of $___. Future interest on the bonds remains a cross-border risk.]
Registrants should recognize that the amount provided as an ATRR, or the write off of the requisite amount, represents the identification of an amount which those regulatory agencies have determined should not be included as a part of the institution's capital or surplus for purposes of administration of the regulatory and supervisory functions of those agencies. In this context, the staff believes that disclosure of the ATRR, as part of the footnote required to be presented in a registrant's financial statements by Item 7(d) of Rule 9-03 of Regulation S-X, may provide a more complete explanation of charge offs and provisions for loan losses. It should be noted, however, that the ATRR amount to be excluded from the institution's capital and surplus does not address the more general issue of the adequacy of allowances for any particular bank holding company's loans. It is still the responsibility of each registrant to determine whether GAAP require an additional provision for losses in excess of the amount required to be included in an ATRR (or the requisite amount written off).
For example, in accordance with Guide 3, bank holding companies disclose information about yields and costs of various assets and liabilities. Further, bank holding companies provide certain information about maturities and repricing characteristics of various assets and liabilities. Such companies also disclose risk elements, such as nonaccrual and past due items in the lending portfolio. The staff believes that this information and other relevant data would be material to a description of business of other registrants with material lending and deposit activities and accordingly, the specified information and/or comparable data (such as scheduled item disclosure for risk elements) should be provided.
In contrast, other requirements of Article 9 and Guide 3 may not be material or relevant to an understanding of the financial statements of some financial institutions. For example, bank holding companies present average balance sheet information, because period-end statements might not be representative of bank activity throughout the year. Some financial institutions other than bank holding companies may determine that average balance sheet disclosure does not provide significant additional information. Others may determine that assets and liabilities are subject to sufficient volatility that average balance information should be presented.
Pursuant to Article 9, the income statements of bank holding companies use a “net interest income” presentation. Similarly, bank holding companies present the aggregate market value, at the balance sheet date, of investment securities, on the face of the balance sheet. The staff believes that such disclosures and other relevant information should also be provided by other registrants with material lending and deposit activities.
The following disclosures should generally be considered by the registrant:
• A brief description of the new standard, the date that adoption is required and the date that the registrant plans to adopt, if earlier.
• A discussion of the methods of adoption allowed by the standard and the method expected to be utilized by the registrant, if determined.
• A discussion of the impact that adoption of the standard is expected to have on the financial statements of the registrant, unless not known or reasonably estimable. In that case, a statement to that effect may be made.
• Disclosure of the potential impact of other significant matters that the registrant believes might result from the adoption of the standard (such as technical violations of debt covenant agreements, planned or intended changes in business practices,
a. Removed by SAB 103
b. Removed by SAB 113
c. Limited Partnership 10-K Reports
Limited partnership agreements often contain buy-out provisions under which the general partner agrees to purchase limited partnership interests that are offered for sale, based upon a specified valuation formula. Because of these arrangements, the requirements for
The staff's general policy is that an enterprise should account for all its like operations in the same manner. However, Rule 4-10 of Regulation S-X provides that oil and gas companies with cost-of-service oil and gas properties may give effect to any differences resulting from the ratemaking process, including regulatory requirements that a certain accounting method be used for the cost-of-service properties.
It may often be difficult to allocate a net operating loss (NOL) carryforward between oil and gas assets and other assets. However, to the extent that the NOL is clearly attributable to oil and gas operations and is expected to be realized within the carryforward period, it should be added to tax basis.
Similarly, to the extent that investment tax credit (ITC) carryforwards and foreign tax credit carryforwards are attributable to oil and gas operations and are expected to be realized within the carryforward period, they should be considered as a deduction from the tax effect otherwise computed. Consideration of NOL and ITC or foreign tax credit carryforwards should not, of course, reduce the total tax effect below zero.
Once the determination of proved reserves has been made, there is no justification for continued exclusion from the full cost pool, regardless of whether other factors prevent immediate marketing. Moreover, at the same time that the costs are transferred into the amortization base, it is also necessary in accordance with FASB ASC Subtopic 932-835, Extractive Activities—Oil and Gas—Interest, and FASB ASC Subtopic 835-20, Interest—Capitalization of Interest, to terminate capitalization of interest on such properties.
In this regard, registrants are reminded of their responsibilities not to delay recognizing reserves as proved once they have met the engineering standards.
Therefore, to the extent that the excess carrying value relates to the purchased reserves, the registrant may seek a temporary waiver of the full-cost ceiling limitation from the staff of the Commission. Registrants requesting a waiver should be prepared to demonstrate that the additional value exists beyond reasonable doubt.
To the extent that the excess costs relate to properties other than the purchased reserves, however, a write-off should be recorded in the current period. In order to determine the portion of the total excess carrying value which is attributable to properties other than the purchased reserves, it is necessary to perform the ceiling computation on a “with and without” basis as shown in the example above. Thus in this case, the registrant must record a write-down of $200,000 applicable to other reserves. An additional $1,200,000 write-down would be necessary unless a waiver was obtained.
As of the reported balance sheet date, capitalized costs of an oil and gas producing company exceed the full cost limitation calculated under the above-described rule based on current prices, as defined in Rule 4-10(c)(8) of Regulation S-X, for oil and natural gas. However, prior to the balance sheet date, the company entered into certain hedging arrangements for a portion of its future natural gas and oil production, thereby enabling the company to receive future cash flows that are higher or lower than the estimated future cash flows indicated by use of the average price during the 12-month period prior to the balance sheet date, determined as
This interpretive response reflects the SEC staff's view that, assuming compliance with the prerequisite accounting requirements, hedge-adjusted prices represent the best measure of estimated cash flows from future production of the affected oil and gas reserves to use in calculating the ceiling limitation. Nonetheless, the staff expects that oil and gas producing companies subject to the full cost rules will clearly indicate the effects of using cash flow hedges in calculating ceiling limitations within their financial statement footnotes. The staff further expects that disclosures will indicate the portion of future oil and gas production being hedged. The dollar amount that would have been charged to income had the effects of the cash flow hedges not been considered in calculating the ceiling limitation also should be disclosed.
The use of hedge-adjusted prices should be consistently applied in all reporting periods, including periods in which the hedge-adjusted price is more or less than the average price during the 12-month period prior to the balance sheet date, determined as an unweighted arithmetic average of the first-day-of-the-month price for each month within such period. Oil and gas producers whose computation of the ceiling limitation includes hedge-adjusted prices because of the use of cash flow hedges also should consider the disclosure requirements under FASB ASC Section 275-10-50, Risks and Uncertainties—Overall—Disclosure. FASB ASC paragraph 275-10-50-9 calls for disclosure when it is at least reasonably possible that the effects of cash flow hedges on capitalized costs on the reported balance sheet date will change in the near term due to one or more confirming events, such as potential future changes in commodity prices.
In addition, the use of cash flow hedges in calculating the ceiling limitation may represent a type of critical accounting policy that oil and gas producers should consider disclosing consistent with the cautionary advice provided in Financial Reporting Release No. 60 (Release Nos. 33-8040; 34-45149), Cautionary Advice Regarding Disclosure about Critical Accounting Policies (December 12, 2001), and Financial Reporting Release No. 72 (Release Nos. 33-8350; 34-48960), Commission Guidance Regarding Management's Discussion and Analysis of Financial Condition and Results of Operations (December 29, 2003). Through these releases, the Commission has encouraged companies to include, within their MD&A disclosures, full explanations, in plain English, of the judgments and uncertainties affecting the application of critical accounting policies, and the likelihood that materially different amounts would be reported under different conditions or using different assumptions.
The staff's guidance on this issue would apply to calculations of ceiling limitations both in interim and annual reporting periods.
While the fact pattern described herein relates to annual periods, the guidance on the effects of subsequent events applies equally to interim period calculations of the ceiling limitation.
The registrant's financial statements should disclose that capitalized costs exceeded the limitation thereon at year-end and should explain why the excess was not charged against earnings. In addition, the registrant's supplemental disclosures of estimated proved reserve quantities and related future net revenues and costs should not give effect to the reserves proved up or the cost incurred after year-end. However, such quantities may be disclosed separately, with appropriate explanations.
Registrants should be aware that oil and gas reserves related to properties acquired after year-end would not justify avoiding a write-off indicated as of year-end. Similarly, the effects of cash flow hedging arrangements entered into after year-end cannot be factored into the calculation of the ceiling limitation at year-end. Such acquisitions and financial arrangements do not confirm situations existing at year-end.
A note to the financial statements should disclose the method used in determining distributable income and should also describe how distributable income as reported differs from income determined on the basis of GAAP.
“Amortization shall be computed on the basis of physical units, with oil and gas converted to a common unit of measure on the basis of their approximate relative energy content, unless economic circumstances (related to the effects of regulated prices) indicate that use of units of revenue is a more appropriate basis of computing amortization. In the latter case, amortization shall be computed on the basis of current gross revenues (excluding royalty payments and net profits disbursements) from production in relation to future gross revenues based on current prices (including consideration of changes in existing prices provided only by contractual arrangements), from estimated production of proved oil and gas reserves.”
The accounting literature on revenue recognition includes both broad conceptual discussions as well as certain industry-specific guidance.
Based on these guidelines, revenue should not be recognized until it is realized or realizable and earned.
The staff believes that revenue generally is realized or realizable and earned when all of the following criteria are met:
• Persuasive evidence of an arrangement exists,
• Delivery has occurred or services have been rendered,
• The seller's price to the buyer is fixed or determinable,
• Collectibility is reasonably assured.
Some revenue arrangements contain multiple revenue-generating activities. The staff believes that the determination of the units of accounting within an arrangement should be made prior to the application of the guidance in this SAB Topic by reference to the applicable accounting literature.
Customary business practices and processes for documenting sales transactions vary among companies and industries. Business practices and processes may also vary within individual companies (
The staff is aware that sometimes a customer and seller enter into “side” agreements to a master contract that effectively amend the master contract. Registrants should ensure that appropriate policies, procedures, and internal controls exist and are properly documented so as to provide reasonable assurances that sales transactions, including those affected by side agreements, are properly accounted for in accordance with GAAP and to ensure compliance with Section 13 of the Securities Exchange Act of 1934 (
Other situations may exist where title to delivered products passes to a buyer, but the substance of the transaction is that of a consignment or a financing. Such arrangements require a careful analysis of the facts and circumstances of the transaction, as well as an understanding of the rights and obligations of the parties, and the seller's customary business practices in such arrangements. The staff believes that the presence of one or more of the following characteristics in a transaction precludes revenue recognition even if title to the product has passed to the buyer:
1. The buyer has the right to return the product and:
(a) The buyer does not pay the seller at the time of sale, and the buyer is not obligated to pay the seller at a specified date or dates,
(b) The buyer does not pay the seller at the time of sale but rather is obligated to pay at a specified date or dates, and the buyer's obligation to pay is contractually or implicitly excused until the buyer resells the product or subsequently consumes or uses the product,
(c) The buyer's obligation to the seller would be changed (
(d) The buyer acquiring the product for resale does not have economic substance apart from that provided by the seller,
(e) The seller has significant obligations for future performance to directly bring about resale of the product by the buyer.
2. The seller is required to repurchase the product (or a substantially identical product or processed goods of which the product is a component) at specified prices that are not subject to change except for fluctuations due to finance and holding costs,
(a) The seller provides interest-free or significantly below market financing to the buyer beyond the seller's customary sales terms and until the products are resold,
(b) The seller pays interest costs on behalf of the buyer under a third-party financing arrangement, or
(c) The seller has a practice of refunding (or intends to refund) a portion of the original sales price representative of interest expense for the period from when the buyer paid the seller until the buyer resells the product.
3. The transaction possesses the characteristics set forth in FASB ASC paragraphs 840-10-55-12 through 840-10-55-21 (Leases Topic) and does not qualify for sales-type lease accounting.
4. The product is delivered for demonstration purposes.
This list is not meant to be a checklist of all characteristics of a consignment or financing arrangement, and other characteristics may exist. Accordingly, the staff believes that judgment is necessary in assessing whether the substance of a transaction is a consignment, a financing, or other arrangement for which revenue recognition is not appropriate. If title to the goods has passed but the substance of the arrangement is not a sale, the consigned inventory should be reported separately from other inventory in the consignor's financial statements as “inventory consigned to others” or another appropriate caption.
May Company A recognize revenue for the sale if it ships the products to a third-party warehouse but (1) Company A retains title to the product and (2) payment by the customer is dependent upon ultimate delivery to a customer-specified site?
The Commission has set forth criteria to be met in order to recognize revenue when delivery has not occurred.
1. The risks of ownership must have passed to the buyer;
2. The customer must have made a fixed commitment to purchase the goods, preferably in written documentation;
3. The buyer, not the seller, must request that the transaction be on a bill and hold basis.
4. There must be a fixed schedule for delivery of the goods. The date for delivery must be reasonable and must be consistent with the buyer's business purpose (
5. The seller must not have retained any specific performance obligations such that the earning process is not complete;
6. The ordered goods must have been segregated from the seller's inventory and not be subject to being used to fill other orders; and
7. The equipment [product] must be complete and ready for shipment.
The above listed conditions are the important conceptual criteria that should be used in evaluating any purported bill and hold sale. This listing is not intended as a checklist. In some circumstances, a transaction may meet all factors listed above but not meet the requirements for revenue recognition. The Commission also has noted that in applying the above criteria to a purported bill and hold sale, the individuals responsible for the preparation and filing of financial statements also should consider the following factors:
1. The date by which the seller expects payment, and whether the seller has modified its normal billing and credit terms for this buyer;
2. The seller's past experiences with and pattern of bill and hold transactions;
3. Whether the buyer has the expected risk of loss in the event of a decline in the market value of goods;
4. Whether the seller's custodial risks are insurable and insured;
5. Whether extended procedures are necessary in order to assure that there are no exceptions to the buyer's commitment to accept and pay for the goods sold (
Delivery generally is not considered to have occurred unless the product has been delivered to the customer's place of business or another site specified by the customer. If the customer specifies an intermediate site but a substantial portion of the sales price is not payable until delivery is made to a final site, then revenue should not be recognized until final delivery has occurred.
After delivery of a product or performance of a service, if uncertainty exists about customer acceptance, revenue should not be recognized until acceptance occurs.
(a)
In contrast, other arrangements do not purport to be for trial or evaluation purposes. In these instances, the seller delivers a specified product pursuant to a customer's order, establishes payment terms, and transfers title to the delivered product to the customer. However, customer acceptance provisions may be included in the arrangement to give the purchaser the ability to ensure the delivered product meets the criteria set forth in its order. The staff evaluates these provisions as follows:
(b)
(c)
(d)
Determining whether the delivered equipment meets all of a product's criteria and specifications is a matter of judgment that must be evaluated in light of the facts and circumstances of a particular transaction. Consultation with knowledgeable project managers or engineers may be necessary in such circumstances.
For example, if the customer acceptance provisions were based on meeting certain size and weight characteristics, it should be possible to determine whether those criteria have been met before shipment. Historical experience with the same specifications and functionality of a particular machine that demonstrates that the equipment meets the customer's specifications also may provide sufficient evidence that the currently shipped equipment satisfies the customer-specific acceptance provisions.
If an arrangement includes customer acceptance criteria or specifications that cannot be effectively tested before delivery or installation at the customer's site, the staff believes that revenue recognition should be deferred until it can be demonstrated that the criteria are met. This situation usually will exist when equipment performance can vary based on how the equipment works in combination with the customer's other equipment, software, or environmental conditions. In these situations, testing to determine whether the criteria are met cannot be reasonably performed until the products are installed or integrated at the customer's facility.
Although the following questions provide several examples illustrating how the staff evaluates customer acceptance, the determination of when customer-specific acceptance provisions of an arrangement are met in the absence of the customer's formal notification of acceptance depends on the weight of the evidence in the particular circumstances. Different conclusions could be reached in similar circumstances that vary only with respect to a single variable, such as complexity of the equipment, nature of the interface with the customer's environment, extent of the seller's experience with the same type of transactions, or a particular clause in the agreement. The staff believes management and auditors are uniquely positioned to evaluate the facts and arrive at a reasoned conclusion. The staff will not object to a determination that is well reasoned on the basis of this guidance.
Company E receives an order from a new customer for a standard model of its main product. Based on the customer's intended use of the product, location and other factors, there is no reason that the equipment would operate differently in the customer's environment than it does in Company E's facility.
A seller should substantially complete or fulfill the terms specified in the arrangement related to the unit of accounting at issue in order for delivery or performance to have occurred.
• The seller does not have a demonstrated history of completing the remaining tasks in a timely manner and reliably estimating their costs.
• The cost or time to perform the remaining obligations for similar contracts historically has varied significantly from one instance to another.
• The skills or equipment required to complete the remaining activity are specialized or are not readily available in the marketplace.
• The cost of completing the obligation, or the fair value of that obligation, is more than insignificant in relation to such items as the contract fee, gross profit, and operating income allocable to the unit of accounting.
• The period before the remaining obligation will be extinguished is lengthy. Registrants should consider whether reasonably possible variations in the period to complete performance affect the certainty that the remaining obligations will be completed successfully and on budget.
• The timing of payment of a portion of the sales price is coincident with completing performance of the remaining activity.
Registrants' determinations of whether remaining obligations are inconsequential or perfunctory should be consistently applied.
• The installation involves significant changes to the features or capabilities of the equipment or building complex interfaces or connections;
• The installation services are unavailable from other vendors.
Conversely, examples of indicators that installation is not essential to the functionality of the equipment include:
• The equipment is a standard product;
• Installation does not significantly alter the equipment's capabilities;
• Other companies are available to perform the installation.
If it is determined that the undelivered service is not essential to the functionality of the delivered product but a portion of the contract fee is not payable until the undelivered service is delivered, the staff would not consider that obligation to be inconsequential or perfunctory. Generally, the portion of the contract price that is withheld or refundable should be deferred until the outstanding service is delivered because that portion would not be realized or realizable.
• A registrant sells a lifetime membership in a health club. After paying a nonrefundable “initiation fee,” the customer is permitted to use the health club indefinitely, so long as the customer also pays an additional usage fee each month. The monthly usage fees collected from all customers are adequate to cover the operating costs of the health club.
• A registrant in the biotechnology industry agrees to provide research and development activities for a customer for a specified term. The customer needs to use certain technology owned by the registrant for use in the research and development activities. The technology is not sold or licensed separately without the research and development activities. Under the terms of the arrangement, the customer is required to pay a nonrefundable “technology access fee” in addition to periodic payments for research and development activities over the term of the contract.
• A registrant requires a customer to pay a nonrefundable “activation fee” when entering into an arrangement to provide telecommunications services. The terms of the arrangement require the customer to pay a monthly usage fee that is adequate to recover the registrant's operating costs. The costs incurred to activate the telecommunications service are nominal.
• A registrant charges users a fee for non-exclusive access to its Web site that contains proprietary databases. The fee allows access to the Web site for a one-year period. After the customer is provided with an identification number and trained in the use of the database, there are no incremental costs that will be incurred in serving this customer.
• A registrant charges a fee to users for advertising a product for sale or auction on certain pages of its Web site. The company agrees to maintain the listing for a period of time. The cost of maintaining the advertisement on the Web site for the stated period is minimal.
• A registrant charges a fee for hosting another company's Web site for one year. The arrangement does not involve exclusive use of any of the hosting company's servers or other equipment. Almost all of the projected costs to be incurred will be incurred in the initial loading of information on the host company's Internet server and setting up appropriate links and network connections.
In the situations described above, the staff does not view the activities completed by the registrants (
While the incurrence of nominal up-front costs helps make it clear that there is not a separate earnings event in the telecommunications example above, incurrence of substantive costs, such as in the Web hosting example above, does not necessarily indicate that there is a separate earnings event. Whether there is a separate earnings event should be evaluated on a case-by-case basis. Some have questioned whether revenue may be recognized in these transactions to the extent of the incremental direct costs incurred in the activation. Because there is no separable deliverable or earnings event, the staff would generally object to that approach, except where it is provided for in the authoritative literature (
Supply or service transactions may involve the charge of a nonrefundable initial fee with subsequent periodic payments for future products or services. The initial fees may, in substance, be wholly or partly an advance payment for future products or services. In the examples above, the on-going rights or services being provided or products being delivered are essential to the customers receiving the expected benefit of the up-front payment. Therefore, the up-front fee and the continuing performance obligation related to the services to be provided or products to be delivered are assessed as an integrated package. In such circumstances, the staff believes that up-front fees, even if nonrefundable, are earned as the products and/or services are delivered and/or performed over the term of the arrangement or the expected period of performance
Some propose that revenue should be recognized when the initial set-up is completed in cases where the on-going obligation involves minimal or no cost or effort and should, therefore, be considered perfunctory or inconsequential. However, the staff believes that the substance of each of these transactions indicates that the purchaser is paying for a service that is delivered over time. Therefore, revenue recognition should occur over time, reflecting the provision of service.
In this situation, the staff would object to Company A recognizing revenue in proportion to the costs incurred because the set-up costs incurred bear no direct relationship to the performance of services specified in the arrangement. The staff also believes that it is inappropriate to recognize the entire amount of the prepayment as revenue at the outset of the arrangement by accruing the remaining costs because the services required by the contract have not been performed.
The staff believes that the incremental direct costs (the FASB ASC Master Glossary provides a definition) incurred related to the acquisition or origination of a customer contract in a transaction that results in the deferral of revenue, unless specifically provided for in the authoritative literature, may be either expensed as incurred or accounted for in accordance with FASB ASC paragraph 605-20-25-4 or FASB ASC paragraph 310-20-25-2. The staff believes the accounting policy chosen for these costs should be disclosed and applied consistently.
A company's contracts may include customer cancellation or termination clauses. Cancellation or termination provisions may be indicative of a demonstration period or an otherwise incomplete transaction. Examples of transactions that financial management and auditors should be aware of and where such provisions may exist include “side” agreements and significant transactions with unusual terms and conditions. These contractual provisions raise questions as to whether the sales price is fixed or determinable. The sales price in arrangements that are cancelable by the customer is neither fixed nor determinable until the cancellation privileges lapse.
In addition, the ability of the member to receive a full refund of the membership fee up to the last day of the membership term raises an uncertainty as to whether the fee is fixed or determinable at any point before the end of the term. Generally, the staff believes that a sales price is not fixed or determinable when a customer has the unilateral right to terminate or cancel the contract and receive a cash refund. A sales price or fee that is variable until the occurrence of future events (other than product returns that are within the scope of FASB ASC Subtopic 605-15) generally is not fixed or determinable until the future event occurs. The revenue from such transactions should not be recognized in earnings until the sales price or fee becomes fixed or determinable. Moreover, revenue should not be recognized in earnings by assessing the probability that significant, but unfulfilled, terms of a contract will be fulfilled at some point in the future. Accordingly, the revenue from such transactions should not be recognized in earnings prior to the refund privileges expiring. The amounts received from customers or subscribers (
The staff believes that if a customer has the unilateral right to receive both (1) the seller's substantial performance under an arrangement (
Some have argued that there may be a limited exception to the general rule that revenue from membership or other service transaction fees should not be recognized in earnings prior to the refund privileges expiring. Despite the fact that FASB ASC Subtopic 605-15 expressly does not apply to the accounting for service revenue if part or all of the service fee is refundable under cancellation privileges granted to the buyer,
The staff believes that, because service arrangements are specifically excluded from the scope of FASB ASC Subtopic 605-15, the most direct authoritative literature to be applied to the extinguishment of obligations under such contracts is FASB ASC Topic 860. As noted above, because the refund privilege extends to the end of the contract term irrespective of the amount of the service performed, FASB ASC Topic 860 indicates that the liability would not be extinguished (and therefore no revenue would be recognized in earnings) until the cancellation or termination and related refund privileges expire. Nonetheless, the staff recognizes that over the years the accounting for membership refunds evolved based on analogy to FASB ASC Subtopic 605-15 and that practice did not change when FASB ASC Topic 860 became effective. Reasonable people held, and continue to hold, different views about the application of the accounting literature.
Pending further action in this area by the FASB, the staff will not object to the recognition of refundable membership fees, net of estimated refunds, as earned revenue over the membership term in the limited circumstances where all of the following criteria have been met:
The estimates of terminations or cancellations and refunded revenues are being made for a large pool of homogeneous items (
• Reliable estimates of the expected refunds can be made on a timely basis.
• There is a sufficient company-specific historical basis upon which to estimate the refunds,
• The amount of the membership fee specified in the agreement at the outset of the arrangement is fixed, other than the customer's right to request a refund.
If Company M does not meet all of the foregoing criteria, the staff believes that Company M should not recognize in earnings any revenue for the membership fee until the cancellation privileges and refund rights expire.
If revenue is recognized in earnings over the membership period pursuant to the above criteria, the initial amounts received from customer or subscribers (
If revenue is recognized in earnings over the membership period pursuant to the above criteria, the staff believes that adjustments for changes in estimated refunds should be recorded using a retrospective approach whereby the unearned revenue and refund obligations are remeasured and adjusted at each balance sheet date with the offset being recorded as earned revenue.
Companies offering memberships often distribute membership packets describing and discussing the terms, conditions, and benefits of membership. Packets may include vouchers, for example, that provide new members with discounts or other benefits from third parties. The costs associated with the vouchers should be expensed when distributed. Advertising costs to solicit members should be accounted for in accordance with FASB ASC Subtopic 720-35, Other Expenses—Advertising Costs. Incremental direct costs incurred in connection with enrolling customers (
• A leasing broker whose commission from the lessor upon a commercial tenant's signing of a lease agreement is refundable (or in some cases, is not due) under lessor cancellation privileges if the tenant fails to move into the leased premises by a specified date.
• A talent agent whose fee receivable from its principal (
• An insurance agent whose commission received from the insurer upon selling an insurance policy is refundable in whole for the 30-day period that state law permits the consumer to repudiate the contract and then refundable on a declining pro rata basis until the consumer has made six monthly payments.
In the first two of these cases, the staff advised the registrants that the portion of revenue subject to customer cancellation and refund must be deferred until no longer subject to that contingency because the registrants did not have an ability to make reliable estimates of customer cancellations due to the lack of a large pool of homogeneous transactions. In the case of the insurance agent, however, the particular registrant demonstrated that it had a sufficient history of homogeneous transactions with the same characteristics from which to reliably estimate contract cancellations and satisfy all the criteria specified in the previous question. Accordingly, the staff did not object to that registrant's policy of recognizing its sales commission as revenue when its performance was complete, with an appropriate allowance for estimated cancellations.
Accounting for revenues and costs of revenues requires estimates in many cases; those estimates sometimes change. Registrants should ensure that they have appropriate internal controls and adequate books and records that will result in timely identification of necessary changes in estimates that should be reflected in the financial statements and notes thereto.
The staff reminds registrants that if a transaction fails to meet all of the conditions of FASB ASC paragraphs 605-15-25-1 and 605-15-25-3, no revenue may be recognized until those conditions are subsequently met or the return privilege has substantially expired, whichever occurs first.
FASB ASC paragraph 840-20-25-1 states that “[r]ent shall be charged to expense by lessees (reported as income by lessors) over the lease term as it becomes payable (receivable). If rental payments are not made on a straight-line basis, rental expense nevertheless shall be recognized on a straight-line basis unless another systematic and rational basis is more representative of the time pattern in which use benefit is derived from the leased property, in which case that basis shall be used.”
FASB ASC paragraph 840-10-25-4 clarifies that “lease payments that depend on a factor that does not exist or is not measurable at the inception of the lease, such as future sales volume, would be contingent rentals in their entirety and, accordingly, would be excluded from minimum lease payments and included in the determination of income as they accrue.” FASB ASC paragraph 840-10-55-38 provides the following example of determining contingent rentals:
FASB ASC Section 840-20-25 addresses whether it is appropriate for lessors in operating leases to recognize scheduled rent increases on a basis other than as required in FASB ASC paragraph 840-20-25-1. FASB ASC subparagraph 840-20-25-2(a) states “using factors such as the time value of money, anticipated inflation, or
The example provided in FASB ASC paragraph 840-10-55-39 implies that contingent rental income in leases classified as sales-type or direct-financing leases becomes “accruable” when the changes in the factors on which the contingent lease payments are based actually occur. FASB ASC paragraph 840-20-25-2 indicates that contingent rental income in operating leases should not be recognized in a manner consistent with scheduled rent increases (
Because Company A's contingent rental income is based upon whether the customer achieves net sales of $25 million, the contingent rentals, which may not materialize, should not be recognized until the customer's net sales actually exceed $25 million. Once the $25 million threshold is met, Company A would recognize the contingent rental income as it becomes accruable, in this case, as the customer recognizes net sales. The staff does not believe that it is appropriate to recognize revenue based upon the probability of a factor being achieved. The contingent revenue should be recorded in the period in which the contingency is resolved.
Regulation S-X requires that revenue from the sales of products, services, and other products each be separately disclosed on the face of the income statement.
MD&A requires a discussion of liquidity, capital resources, results of operations and other information necessary to an understanding of a registrant's financial condition, changes in financial condition and results of operations.
• Shipments of product at the end of a reporting period that significantly reduce customer backlog and that reasonably might be expected to result in lower shipments and revenue in the next period.
• Granting of extended payment terms that will result in a longer collection period for accounts receivable (regardless of whether revenue has been recognized) and slower cash inflows from operations, and the effect on liquidity and capital resources. (The fair value of trade receivables should be disclosed in the footnotes to the financial statements when the fair value does not approximate the carrying amount.)
• Changing trends in shipments into, and sales from, a sales channel or separate class of customer that could be expected to have a significant effect on future sales or sales returns.
• An increasing trend toward sales to a different class of customer, such as a reseller distribution channel that has a lower gross profit margin than existing sales that are principally made to end users. Also, increasing service revenue that has a higher profit margin than product sales.
• Seasonal trends or variations in sales.
• A gain or loss from the sale of an asset(s).
The interpretations in this SAB express views of the staff regarding the interaction between FASB ASC Topic 718, Compensation—Stock Compensation, and certain SEC rules and regulations and provide the staff's views regarding the valuation of share-based payment arrangements for public companies. FASB ASC Topic 718 is based on the underlying accounting principle that compensation cost resulting from share-based payment transactions be recognized in financial statements at fair value.
FASB ASC Topic 718 addresses a wide range of share-based compensation arrangements including share options, restricted share plans, performance-based awards, share appreciation rights, and employee share purchase plans.
FASB ASC Topic 718 replaces guidance as originally issued in 1995, that established as preferable, but did not require, a fair-value-based method of accounting for share-based payment transactions with employees.
The staff believes the guidance in this SAB will assist issuers in their initial implementation of FASB ASC Topic 718 and enhance the information received by investors and other users of financial statements, thereby assisting them in making investment and other decisions. This SAB includes interpretive guidance related to share-based payment transactions with nonemployees, the transition from nonpublic to public entity
The staff recognizes that there is a range of conduct that a reasonable issuer might use to make estimates and valuations and otherwise implement FASB ASC Topic 718, and the interpretive guidance provided by this SAB, particularly during the period of the Topic's initial implementation. Thus, throughout this SAB the use of the terms “reasonable” and “reasonably” is not meant to imply a single conclusion or methodology, but to encompass the full range of potential conduct, conclusions or methodologies upon which an issuer may reasonably base its valuation decisions. Different conduct, conclusions or methodologies by different issuers in a given situation does not of itself raise an inference that any of those issuers is acting unreasonably. While the zone of reasonable conduct is not unlimited, the staff expects that it will be rare when there is only one acceptable choice in estimating the fair value of share-based payment arrangements under the provisions of FASB ASC Topic 718 and the interpretive guidance provided by this SAB in any given situation. In addition, as discussed in the Interpretive Response to Question 1 of Section C, Valuation Methods, estimates of fair value are not intended to predict actual future events, and subsequent events are not indicative of the reasonableness of the original estimates of fair value made under FASB ASC Topic 718. Over time, as issuers and accountants gain more experience in applying FASB ASC Topic 718 and the guidance provided in this SAB, the staff anticipates that particular approaches may begin to emerge as best practices and that the range of reasonable conduct, conclusions and methodologies will likely narrow.
• Establishes fair value as the measurement objective in accounting for all share-based payments;
• Requires that an entity record the value of a transaction with a
FASB ASC Topic 718 does not supersede any of the authoritative literature that specifically addresses accounting for share-based payments with nonemployees. For example, FASB ASC Topic 718 does not specify the measurement date for share-based payment transactions with nonemployees when the measurement of the transaction is based on the fair value of the equity instruments issued.
With respect to questions regarding nonemployee arrangements that are not specifically addressed in other authoritative literature, the staff believes that the application of guidance in FASB ASC Topic 718 would generally result in relevant and reliable financial statement information. As such, the staff believes it would generally be appropriate for entities to apply the guidance in FASB ASC Topic 718 by analogy to share-based payment transactions with nonemployees unless other authoritative accounting literature more clearly addresses the appropriate accounting, or the application of the guidance in FASB ASC Topic 718 would be inconsistent with the terms of the instrument issued to a nonemployee in a share-based payment arrangement.
FASB ASC paragraph 718-10-30-6 (Compensation—Stock Compensation Topic) indicates that the measurement objective for equity instruments awarded to employees is to estimate at the grant date the fair value of the equity instruments the entity is obligated to issue when employees have rendered the requisite service and satisfied any other conditions necessary to earn the right to benefit from the instruments. The Topic also states that observable market prices of identical or similar equity or liability instruments in active markets are the best evidence of fair value and, if available, should be used as the basis for the measurement for equity and liability instruments awarded in a share-based payment transaction with employees.
The chosen valuation technique or model must meet all three of the requirements stated above. In valuing a particular instrument, certain techniques or models may meet the first and second criteria but may not meet the third criterion because the techniques or models are not designed to reflect certain characteristics contained in the instrument. For example, for a share option in which the exercisability is conditional on a specified increase in the price of the underlying shares, the Black-Scholes-Merton closed-form model would not generally be an appropriate valuation model because, while it meets both the first and second criteria, it is not designed to take into account that type of market condition.
Further, the staff understands that a company may consider multiple techniques or models that meet the fair value measurement objective before making its selection as to the appropriate technique or model. The staff would not object to a company's choice of a technique or model as long as the technique or model meets the fair value measurement objective. For example, a company is not required to use a lattice model simply because that model was the most complex of the models the company considered.
FASB ASC Topic 718's (Compensation—Stock Compensation Topic) fair value measurement objective for equity instruments awarded to employees is to estimate the grant-date fair value of the equity instruments that the entity is obligated to issue when employees have rendered the requisite service and satisfied any other conditions necessary to earn the right to benefit from the instruments.
The staff understands that companies may refine their estimates of expected volatility and expected term as a result of the guidance provided in FASB ASC Topic 718 and in sections (1) and (2) below. Changes in assumptions during the periods presented in the financial statements should be disclosed in the footnotes.
FASB ASC paragraph 718-10-55-36 states, “Volatility is a measure of the amount by which a financial variable, such as share price, has fluctuated (historical volatility) or is expected to fluctuate (expected volatility) during a period. Option-pricing models require an estimate of expected volatility as an assumption because an option's value is dependent on potential share returns over the option's term. The higher the volatility, the more the returns on the share can be expected to vary—up or down. Because an option's value is unaffected by expected negative returns on the shares, other things [being] equal, an option on a share with higher volatility is worth more than an option on a share with lower volatility.”
The staff believes that companies should make good faith efforts to identify and use sufficient information in determining whether taking historical volatility, implied volatility or a combination of both into account will result in the best estimate of expected volatility. The staff believes companies that have appropriate traded financial instruments from which they can derive an implied volatility should generally consider this measure. The extent of the ultimate reliance on implied volatility will depend on a company's facts and circumstances; however, the staff believes that a company with actively traded options or other financial instruments with embedded options
The process used to gather and review available information to estimate expected volatility should be applied consistently from period to period. When circumstances indicate the availability of new or different information that would be useful in estimating expected volatility, a company should incorporate that information.
The staff believes the method selected by Company B to compute its historical volatility should produce an estimate that is representative of Company B's expectations about its future volatility over the expected (if using a Black-Scholes-Merton closed-form model) or contractual (if using a lattice model) term
FASB ASC subparagraph 718-10-55-37(a) indicates entities should consider historical volatility over a period generally commensurate with the expected or contractual term, as applicable, of the share option. The staff believes Company B could utilize a period of historical data longer than the expected or contractual term, as applicable, if it reasonably believes the additional historical information will improve the estimate. For example, assume Company B decided to utilize a Black-Scholes-Merton closed-form model to estimate the value of the share options granted on January 2, 20X6 and determined that the expected term was six years. Company B would not be precluded from using historical data longer than six years if it concludes that data would be relevant.
FASB ASC subparagraph 718-10-55-37(d) indicates an entity should use appropriate and regular intervals for price observations based on facts and circumstances that provide the basis for a reasonable fair value estimate. Accordingly, the staff believes Company B should consider the frequency of the trading of its shares and the length of its trading history in determining the appropriate frequency of price observations. The staff believes using daily, weekly or monthly price observations may provide a sufficient basis to estimate expected volatility if the history provides enough data points on which to base the estimate.
The objective in estimating expected volatility is to ascertain the assumptions that marketplace participants would likely use in determining an exchange price for an option.
In some instances, due to a company's particular business situations, a period of historical volatility data may not be relevant in evaluating expected volatility.
The staff believes Company B should consider the volume of trading in its underlying shares as well as the traded options. For example, prices for instruments in actively traded markets are more likely to reflect a marketplace participant's expectations regarding expected volatility.
Company B should synchronize the variables used to derive implied volatility. For example, to the extent reasonably practicable, Company B should use market prices (either traded prices or the average of bid and asked quotes) of the traded options and its shares measured at the same point in time. This measurement should also be synchronized with the grant of the employee share options; however, when this is not reasonably practicable, the staff believes Company B should derive implied volatility as of a point in time as close to the grant of the employee share options as reasonably practicable.
The staff believes that when valuing an at-the-money employee share option, the implied volatility derived from at- or near-the-money traded options generally would be most relevant.
The staff believes that when valuing an employee share option with a given expected or contractual term, as applicable, the implied volatility derived from a traded option with a similar term would be the most relevant. However, if there are no traded options with maturities that are similar to the share option's contractual or expected term, as applicable, then the staff believes Company B could consider traded options with a remaining maturity of six months or greater.
The staff believes Company B's evaluation of the factors above should assist in determining whether the implied volatility appropriately reflects the market's expectations of future volatility and thus the extent of reliance that Company B reasonably places on the implied volatility.
The staff would not object to Company B placing exclusive reliance on implied volatility when the following factors are present, as long as the methodology is consistently applied:
• Company B utilizes a valuation model that is based upon a constant volatility assumption to value its employee share options;
• The implied volatility is derived from options that are actively traded;
• The market prices (trades or quotes) of both the traded options and underlying shares are measured at a similar point in time to each other and on a date reasonably close to the grant date of the employee share options;
• The traded options have exercise prices that are both (a) near-the-money and (b) close to the exercise price of the employee share options;
• The remaining maturities of the traded options on which the estimate is based are at least one year.
The staff would not object to Company B placing exclusive reliance on historical volatility when the following factors are present, so long as the methodology is consistently applied:
• Company B has no reason to believe that its future volatility over the expected or contractual term, as applicable, is likely to differ from its past;
• The computation of historical volatility uses a simple average calculation method;
• A sequential period of historical data at least equal to the expected or contractual term of the share option, as applicable, is used; and
• A reasonably sufficient number of price observations are used, measured at a consistent point throughout the applicable historical period.
In addition, Company B should consider the applicability of SEC Release No. FR-60 and Section V, “Critical Accounting Estimates,” in SEC Release No. FR-72 regarding critical accounting policies and estimates in MD&A. The staff would expect such disclosures to include an explanation of the method used to estimate the expected volatility of its share price. This explanation generally should include a discussion of the basis for the company's conclusions regarding the extent to which it used historical volatility, implied volatility or a combination of both. A company could consider summarizing its evaluation of the factors listed in Questions 2 and 3 of this section as part of these disclosures in MD&A.
The staff would not object to Company C looking to an industry sector index (
After similar entities have been identified, Company C should continue to consider the volatilities of those entities unless circumstances change such that the identified entities are no longer similar to Company C. Until Company C has sufficient information available, the staff would not object to Company C basing its estimate of expected volatility on the volatility of similar entities for those periods for which it does not have sufficient information available.
FASB ASC paragraph 718-10-55-29 states “The fair value of a traded (or transferable) share option is based on its contractual term because rarely is it economically advantageous to exercise, rather than sell, a transferable share option before the end of its contractual term. Employee share options generally differ from transferable [or tradable] share options in that employees cannot sell (or hedge) their share options—they can only exercise them; because of this, employees generally exercise their options before the end of the options' contractual term. Thus, the inability to sell or hedge an employee share option effectively reduces the option's value [compared to a transferable option] because exercise prior to the option's expiration terminates its remaining life and thus its remaining time value.” Accordingly, FASB ASC Topic 718 requires that when valuing an employee share option under the Black-Scholes-Merton framework the fair value of employee share options be based on the share options' expected term rather than the contractual term.
The staff believes the estimate of expected term should be based on the facts and circumstances available in each particular case. Consistent with our guidance regarding reasonableness immediately preceding Topic 14.A, the fact that other possible estimates are later determined to have more accurately reflected the term does not necessarily mean that the particular choice was unreasonable. The staff reminds registrants of the expected term disclosure requirements described in FASB ASC subparagraph 718-10-50-2(f)(2)(i).
A company may also conclude that its historical share option exercise experience does not provide a reasonable basis upon which to estimate expected term. This may be the case for a variety of reasons, including, but not limited to, the life of the company and its relative stage of development, past or expected structural changes in the business, differences in terms of past equity-based share option grants,
FASB ASC Topic 718 describes other alternative sources of information that might be used in those cases when a company determines that its historical share option exercise experience does not provide a reasonable basis upon which to estimate expected term. For example, a lattice model (which by definition incorporates multiple price paths) can be used to estimate expected term as an input into a Black-Scholes-Merton closed-form model.
• The share options are granted at-the-money;
• Exercisability is conditional only on performing service through the vesting date;
• If an employee terminates service prior to vesting, the employee would forfeit the share options;
• If an employee terminates service after vesting, the employee would have a limited time to exercise the share options (typically 30-90 days); and
• The share options are nontransferable and nonhedgeable.
Company E utilizes the Black-Scholes-Merton closed-form model for valuing its employee share options.
Examples of situations in which the staff believes that it may be appropriate to use this simplified method include the following:
• A company does not have sufficient historical exercise data to provide a reasonable basis upon which to estimate expected term due to the limited period of time its equity shares have been publicly traded.
• A company significantly changes the terms of its share option grants or the types of employees that receive share option grants such that its historical exercise data may no longer provide a reasonable basis upon which to estimate expected term.
• A company has or expects to have significant structural changes in its business such that its historical exercise data may no longer provide a reasonable basis upon which to estimate expected term.
The staff understands that a company may have sufficient historical exercise data for some of its share option grants but not for others. In such cases, the staff will accept the use of the simplified method for only some but not all share option grants. The staff also does not believe that it is necessary for a company to consider using a lattice model before it decides that it is eligible to use this simplified method. Further, the staff will not object to the use of this simplified method in periods prior to the time a company's equity shares are traded in a public market.
If a company uses this simplified method, the company should disclose in the notes to its financial statements the use of the method, the reason why the method was used, the types of share option grants for which the method was used if the method was not used for all share option grants, and the periods for which the method was used if the method was not used in all periods. Companies that have sufficient historical share option exercise experience upon which to estimate expected term may not apply this simplified method. In addition, this simplified method is not intended to be applied as a benchmark in evaluating the appropriateness of more refined estimates of expected term.
Also, as noted above in Question 5, the staff believes that more detailed external information about exercise behavior will, over time, become readily available to companies. As such, the staff does not expect that such a simplified method would be used for share option grants when more relevant detailed information becomes widely available.
Certain financial instruments awarded in conjunction with share-based payment arrangements have redemption features that require settlement by cash or other assets upon the occurrence of events that are outside the control of the issuer.
When an instrument ceases to be subject to FASB ASC Topic 718 and becomes subject to the recognition and measurement requirements of other applicable GAAP, the staff believes that the company should reassess the classification of the instrument as a liability or equity at that time and consequently may need to reconsider the applicability of ASR 268.
Environmental Protection Agency (EPA).
Final rule; Reconsideration.
EPA is finalizing rule revisions that modify existing requirements for sources affected by the federally administered emission trading programs including the NO
EPA is amending its Protocol Gas Verification Program (PGVP) and the minimum competency requirements for air emission testing (formerly air emission testing body requirements) to improve the accuracy of emissions data. EPA is also amending other sections of the Acid Rain Program continuous emission monitoring system regulations by adding and clarifying certain recordkeeping and reporting requirements, removing the provisions pertaining to mercury monitoring and reporting, removing certain requirements associated with a class-approved alternative monitoring system, disallowing the use of a particular quality assurance option in EPA Reference Method 7E, adding two incorporation by references that were inadvertently left out of the January 24, 2008 final rule, adding two new definitions, revising certain compliance dates, and clarifying the language and applicability of certain provisions.
This final rule is effective on April 27, 2011. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of April 27, 2011.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2009-0837 (which includes Docket ID No. EPA-HQ-OAR-2005-0132, and Docket ID No. EPA-HQ-OAR-2008-0800). All documents in the docket are listed in the
John Schakenbach, U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone (202) 343-9158, e-mail at
This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities which EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability provisions in §§ 72.6, 72.7, and 72.8 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
On January 24, 2008, revisions to 40 CFR part 75, the Acid Rain Program continuous emission monitoring regulations, were published in the
The Administrator received a Petition for Review, and a Petition for Reconsideration, claiming that EPA had not properly promulgated the PGVP. The Agency also received a Petition for Review challenging the AETB requirements. Subsequently, EPA published a final rule in the
EPA is also finalizing amendments to other sections of Part 75 by adding several data elements associated with EPA's Emissions Collection and Monitoring Plan System (ECMPS) software, clarifying the requirements for including cover letters with monitoring plan submittals, certification applications, and recertification applications, removing the 90 unit operating days provision pertaining to the monitoring system certification deadline for new Acid Rain Program (ARP) units and newly-affected units that lose their ARP-exempt status, removing the provisions pertaining to mercury monitoring and reporting, removing certain requirements associated with a class-approved alternative monitoring system, disallowing the use of a particular quality assurance option in EPA Reference Method 7E, adding two incorporation by references that were inadvertently left out of the January 24, 2008 final rule and updating others, adding two new definitions, updating recordkeeping/reporting formats, and clarifying the language and applicability of certain provisions.
Today's preamble provides responses to the major comments received on the proposed rule and discusses any resulting rule changes. The response to comments document (
EPA encourages any EPA Protocol gas production site that is interested in participating in the PGVP to notify EPA as soon as possible after this final rule is published in the
EPA proposed to add § 75.21(g) to establish a refined EPA Protocol gas verification program to better ensure the accuracy of EPA Protocol gases.
Every recent audit of EPA Protocol gases has found cylinders that fail the part 75 required ± 2% performance specification. A 2003 EPA audit (see Document ID#s EPA-HQ-OAR-2009-0837-0011, -0074, -0075, and -0076 in the docket) of EPA Protocol gases found an unacceptably high failure rate (11% of all components analyzed, with 57% of the production sites failing at least one gaseous component) with respect to the ± 2% standard in Part 75. A 2009 EPA Inspector General (IG) audit (see Document ID# EPA-HQ-OAR-2009-0837-0064 in the docket) also found an 11% failure rate over all components analyzed, with 39% of the production sites failing at least one gaseous component. The IG recommended that EPA implement an ongoing PGVP. A 2010 audit of EPA Protocol gases found a 10% failure rate over all components analyzed, with 40% of the production sites failing at least one gaseous component.
These failures were found using a small blind sample of cylinders from each specialty gas company in the U.S. There is no reason to think these samples were not random. Therefore, it is likely that for the companies that had failed audited cylinders, other cylinders from those companies would fail.
EPA proposed several rule changes that added a small number of PGVP-related recordkeeping and reporting requirements. An information collection request (ICR) supporting statement was developed, as required by the Paperwork Reduction Act.
EPA Protocol gas production sites selling EPA Protocol gases to part 75 affected sources will be required to have a small number of their cylinders analyzed each year, and provide annual notification to EPA with basic information on their facility and other information relevant to the PGVP. EPA anticipates that these costs will be passed through to the customers, which are generally sources subject to part 75, including large electric utility and industrial companies.
EPA performed an audit of EPA Protocol gases in 2010 and the National Institute of Standards and Technology (NIST) analyzed the cylinders EPA collected in the audit. NIST provided an initial estimate of $2,000 per cylinder to analyze tri-blend gas mixtures in the 2010 audit. The following costs for the PGVP are based on assumptions similar to those made for the 2010 audit. These assumptions are: (a) That only NO, SO
The following costs are based on EPA's 2010 Protocol gas audit. If NIST analyzes 4 cylinders from each production site, the total annual cost due to the PGVP would be approximately $7,200 per production site (
EPA estimates that the average increased cost due to the PGVP will be approximately $2 per cylinder (
To maintain these costs, scheduling of the PGVP audit activity during the year must be strictly followed by all the companies involved in the audit. Economy of batching similar gas cylinders and receipt of all similar cylinders within a specific time frame will enable NIST to control costs. Those cylinders with the appropriate funding documents that arrive within that time frame will be part of the audit. Those that do not will be excluded. That is the only way NIST will be able to control costs.
The costs are minimized by the 4 cylinder limit per production site, and the cost containment measures implemented by NIST and described in the preamble to the proposed rule.
EPA proposed to add § 75.59(a)(9)(x)(A) to require that PGVP recordkeeping start on and after the date that is six months from the effective date of the final rule. The PGVP reporting would start prior to or concurrent with the submittal of the relevant quarterly electronic data report on and after January 1, 2011.
To provide more time for production sites to submit necessary information to participate in the PGVP and for the Agency to inform Part 75 sources of the PGVP participants, EPA has amended § 75.21(g)(6) to take effect 60 days from publication of the final rule in the
Section 75.59(a)(9)(x)(A) and § 75.64(a)(5) of the final rule require
EPA proposed to add § 75.59(a)(9)(x)(A) and to revise § 75.64(a)(5) to require Part 75 affected sources using EPA Protocol gas to record and report, respectively: (1) Gas level code; (2) a code for the type of EPA Protocol gas used; (3) start date and hour for EPA Protocol gas type code; (4) end date and hour (if applicable) for EPA Protocol gas type code; (5) the PGVP vendor ID issued by EPA for the EPA Protocol gas production site that supplied the gas cylinder; (6) start date and hour for PGVP vendor ID; and (7) end date and hour (if applicable) for PGVP vendor ID. EPA also proposed to revise § 75.59(a)(9)(x)(B) and § 75.64(a)(5) to require the recording and reporting, respectively, of the information in (1), (2) and (5) above for each usage of Reference Method 3A or Method 6C or 7E performed using EPA Protocol gas for the certification, recertification, routine quality assurance or diagnostic testing (reportable diagnostics only) of a Part 75 monitoring system.
The Agency proposed to add § 75.21(g) to establish a refined PGVP rather than relying on ISO 17025.
EPA has no objection to specialty gas companies certifying or accrediting to ISO 17025 “General Requirements for the Competence of Testing and Calibration Laboratories”, but encourages companies to participate in the PGVP. Certifying or accrediting to ISO 17025 can be beneficial. However, the purpose of the ISO standard is different from the purpose of the PGVP. The purpose of ISO 17025 is to better assure that a laboratory has proper quality assurance and quality control (QA/QC) practices in place. The idea is that if proper QA/QC practices are in place, better products will result. However, this may not always be the case. As a matter of fact, one manufacturer (Scott Specialty Gases, now a part of Air Liquide) pointed out that ISO 17025 certification is not only extremely expensive, but it does not guarantee that a better protocol product will be manufactured. For example, one gas manufacturer which held certification to the ISO standard registered at least 1 failure in a blind audit (see Document ID#s EPA-HQ-OAR-2009-0837-0069 and -0070_in the docket).
The only audits that ISO 17025 requires are internal audits of procedures, not products. The ISO standard states that these internal audits are to be conducted “periodically”, with no time frame specified. The results of these audits are to be provided to clients of the laboratory, but it is not clear that the results would be publicly available. Thus potential future clients may not be aware of how the laboratory was performing. The Agency believes that the PGVP audit results should be publicly available to allow potential EPA Protocol gas customers to make a more informed purchasing decision.
The accuracy of EPA Protocol gases is important because these gases are used to help ensure that the national emission reduction goals of the Clean Air Act are met. The Agency's goal is to implement a cylinder audit program to better ensure the quality of these gases. EPA believes the best way to do that is to implement a PGVP and have a blind sample of cylinders analyzed by an independent, nationally recognized laboratory such as the National Institute of Standards and Technology. A blind sample is necessary to ensure that the cylinders analyzed are more representative of routine production at each production site rather than representative of the best possible performance that would likely occur if the production site knew that its cylinder was being audited.
Small and large specialty gas companies commented that requiring conformance to ISO 17025 would be significantly more expensive than
We proposed to add § 75.21(g)(5)(ii) to require that EPA receive written proof of a credit receipt or of cancellation of the invoice for the cylinders being audited from the EPA Protocol gas production site within two weeks of notifying the EPA Protocol gas production site that its cylinders are being audited by EPA.
EPA proposed to include EPA Protocol gas type codes in the ECMPS electronic reporting instructions to inform cylinder selection for the annual PGVP audits.
EPA proposed to revise section 5.1.4 (EPA Protocol Gases) of Appendix A to Part 75 to remove the reference to the 95-percent confidence interval, and to revise sections 5.1.4 and 5.1.5 (Research Gas Mixtures) to remove the reference to calculating uncertainty using the statistical procedures (or equivalent statistical techniques) that are listed in Section 2.1.8 of the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards” (EPA Traceability Protocol), September 1997, as amended August 25, 1999, EPA-600/R-97/121.
Summary of Comments, Responses and Rule Changes
The Agency proposed to add § 75.21(g)(9)(ii) to require that the concentration of each audited cylinder be analyzed by NIST with an uncertainty of plus or minus 1.0 percent (inclusive) or better, unless otherwise approved by EPA. EPA also proposed to add a Figure 3 in Appendix B to part 75 with explanatory text at the bottom of the figure stating that “A gaseous component is said to fail only if all available analytical techniques used in the audit indicate greater than a 2.0% difference from the cylinder tag value.”
EPA proposed four implementation options for the PGVP in the preamble to the June 11, 2010 proposed rule regarding the number of production sites and cylinders that are audited each year and the length of time allotted to NIST to analyze the cylinders and to report the results.
The Agency proposed to add § 75.21(g)(6) and to revise section 6.5.10 in Appendix A to Part 75 to allow for the situation when an EPA Protocol gas production site is removed from the list of PGVP participants after their gases are procured, but before the gases have been consumed. In that event, the gas cylinders may continue to be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig. EPA also proposed to add Section 75.21(g)(7) and to revise section 6.5.10 in Appendix A to Part 75 to allow EPA Protocol gas cylinders purchased prior to the effective date of the final rule from a production site that is not participating in the PGVP to be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig.
Section 75.21(g)(7) and section 6.5.10 in Appendix A to part 75 have also been slightly revised to allow that in the event that an EPA Protocol gas production site is removed from the list of PGVP participants on the same date as or after the date on which a particular cylinder has been certified or ordered, that gas cylinder may continue to be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig.
As an example, a gas cylinder can be certified for two years and then be re-certified for another two years, if it has not been consumed and its pressure is still above 500 psig. EPA does not want cylinders obtained from production sites that are not participating in the PGVP to potentially be used for four years (or more) after the PGVP takes effect. To prevent this from occurring, statements have been added to § 75.21(g)(7) and section 6.5.10 of Appendix A, prohibiting a production site that is not participating in the PGVP from recertifying such cylinders to extend their useful life and providing those cylinders to a source subject to part 75.
In the unlikely event that the National Institute of Standards and Technology (NIST) withdraws from participation in the PGVP, EPA requests comments on how an analytical lab should be selected to analyze cylinders collected under the PGVP. Comments should be sent to Docket ID No. EPA-HQ-OAR-2009-0837. The Agency suggests that such an analytical lab should meet the following minimum criteria:
(A) Have no conflict of interest with any participating EPA Protocol gas production site;
(B) Be capable of analyzing EPA Protocol gas cylinders with an expanded uncertainty (coverage factor k=2) of plus or minus 1.0 percent (calculated combined standard uncertainty of plus or minus 0.5%) or better;
(C) Use NIST-certified analytical reference standards of appropriate mixtures;
(D) Have no analytical interferences or correct for them;
(E) Identify equipment and calibration procedures that will be used to conduct the testing;
(F) Provide credentials of key personnel conducting the testing and analysis;
(G) Provide assurances that the analytical lab will adhere to cost-containment provisions in any contract it signs, and a description of the cost containment provisions it would agree to; and
(H) Provide a date on which the analytical lab will be available to begin PGVP cylinder analyses.
EPA is interested in determining: (a) Whether the above acceptance criteria are sufficient; (b) how many labs could meet the above criteria or other suggested criteria; (c) how compliance with the acceptance criteria can be verified; and (d) contact information for the labs that could meet appropriate criteria.
Would use of multiple labs be appropriate under the PGVP? Please consider that use of multiple labs would mean: (a) Different analysts, reference material, equipment, and analytical techniques would be used by the different labs; (b) possible logistical problems with EPA contractors mistakenly shipping cylinders to the wrong lab, causing delays and possibly lost cylinders; (c) possible problem with intercomparison of results because there would not be a common reference standard, analyst, equipment, or analytical technique; and (d) possible increase in the chance of collusion between a lab and a production site that pays the lab.
EPA proposed to add § 75.21(f) and to revise section 6.1.2 of Appendix A to part 75 to replace the existing air emission testing body (AETB) requirements.
While EPA believes that meeting the requirements of ASTM D7036 and having a Qualified Individual on site during testing does not guarantee proper performance of any individual test, these actions will likely result in proper test execution and high quality data generation. EPA also believes that third party (
Voluntary compliance with any minimum competency standard has not worked for the past 30 years, which is how long EPA and other organizations have tried to develop an acceptable standard for stack testers. There are many reasons why voluntary compliance has not worked, including disagreement among stack test companies on a minimum competency standard, and the sources' often used practice of hiring the lowest bidder. The lack of voluntary compliance with a minimum competency standard is also why various States, including Louisiana, have developed their own stack testing regulatory standards. A driving force for the development of the ASTM standard was to prevent the patchwork of standards that was beginning to occur throughout the U.S. If each State were to develop its own standard for stack testing, testing costs would increase as stack testers performing work in multiple States would have to qualify in and abide by differing requirements in multiple jurisdictions. EPA notes that the Louisiana DEQ has agreed to cancel its stack testing accreditation program (
Many of the proposed rule provisions of § 75.21(f) and section 6.1.2 have been finalized as proposed. Significant changes to these sections are discussed below.
EPA proposed to add § 75.21(f) and to revise section 6.1.2 of Appendix A to part 75 to require AETBs that perform certain part 75 QA tests to provide a certification that they conform with ASTM D 7036-04. EPA also revised § 75.59 and § 75.64 to include a small number of AETB-related recordkeeping and reporting requirements. For these requirements, an information collection request (ICR) supporting statement was developed, as required by the Paperwork Reduction Act.
EPA proposed to add § 75.59(a)(9)(xi), § 75.59(a)(15), § 75.59(b)(6), and § 75.59(d)(4) to require that AETB-related recordkeeping start on and after the date that is six months from the effective date of the final rule. The Agency proposed to revise Section 75.64(a)(5) to require the AETB-related reporting to start prior to or concurrent with the submittal of the relevant quarterly electronic data report on and after January 1, 2011.
EPA proposed to revise section 6.1.2(b) in Appendix A to part 75 to require a part 75 source owner or operator to obtain from an AETB a certification that as of the time of testing the AETB is operating in conformance with ASTM D 7036-04. This certification must be provided in the form of either (1) a certificate of accreditation for the relevant test methods issued by a recognized, national accreditation body; or (2) a letter of certification for the relevant test methods signed by a member of the senior management staff of the AETB. EPA also requested comment on whether the Agency should require accreditation.
EPA proposed to add § 75.21(f) and to revise section 6.1.2(b) in Appendix A to Part 75, among other things, to limit the scope of testing required to be performed by AETBs, as defined in § 72.2 of this chapter. Section 75.21(f) and section 6.1.2(b) would require AETBs that perform relative accuracy testing under 75.74(c)(2)(ii), section 6.5 of Appendix A to Part 75, and section 2.3.1 of Appendix B to Part 75, and stack testing under § 75.19 and section 2.1 of Appendix E to Part 75 to provide a certification that they conform with ASTM D 7036-04. Conformance to the requirements of ASTM D 7036-04 would apply only to these tests performed on Part 75 affected sources.
EPA proposed to add section 6.1.2(f) in Appendix A to Part 75, which states that meeting two conditions (1) providing to the owner or operator of a part 75 source with a certificate of accreditation or letter of certification that an AETB is operating in conformance with ASTM D 7036-04; and (2) having at least one Qualified Individual on site conducting or overseeing the applicable tests would be sufficient proof of validity of test data that otherwise meet the requirements of part 75.
“(1) This section has no legal consequence and no benefit. Certification of testers and of a Qualified Individual on or leading the test team will not change evaluations and use of tests and test reports: with or without it, regulators should evaluate tests and test reports, and, if they find the work and records valid, accept the `validity of test data that otherwise meet the requirements of this part'. This rule accomplishes requiring certified people to do the test. Once such people have performed the test, it has no more legal effect.
“(2) This section will give the false impression to those who do not know that Part 75 requires correct test performance that review is superseded by tester accreditation and QI participation, that their testing must be accepted as valid.
“(a) It is unfair and a disservice to all to give this impression to facilities and testers. It will lead to substandard testing, which may get approved anyway and costs everyone involved extra effort, time, and expense.
“(b) Many regulatory agencies will have this impression and will not reject invalid testing performed by accredited testers with QIs on their teams because they will believe that this section says they have to accept the test results. Do not give this false impression. It will lead to worse testing and more acceptance of invalid testing.
“(3) Accreditation does not mean a test is valid. Some regulatory agencies will believe this section means this. This section then leads to lack of review and of enforcement of valid testing; the incentive for testers will be to get accreditation, then cut corners. We all know unplanned things happen while source testing that may require method modification. However, source testers seem to forget or not realize they are actually modifying the test method.”
As the commenter states, several sections of Part 75 require units subject to part 75 to meet certification and ongoing QA/QC requirements: § 75.4(f) requires sources using Appendix E to meet those requirements. Section 75.4(j) requires successful completion of certification tests or use of maximum potential concentration, maximum potential flow, maximum potential NO
EPA believes that the language in Appendix A, section 6.1.2(f) is clear that all part 75 testing requirements must be met. However, the Agency understands the concern of the commenter, and has amended 6.1.2(f) in the final rule to read as follows: “Except as provided in paragraph (e), no RATA performed pursuant to § 75.74(c)(2)(ii), section 6.5 of appendix A to this part or section 2.3.1 of appendix B to this part, and no stack test under § 75.19 or Appendix E to this part (or portion of such a RATA or stack test) conducted by an AETB (as defined in § 72.2) shall be invalidated under this part as a result of the failure of the AETB to conform to ASTM D 7036-04. Validation of such tests is determined based on the other part 75 testing requirements. EPA recommends that proper observation of tests and review of test results continue, regardless of whether an AETB fully conforms to ASTM D7036-04.”
The Agency also wishes to clarify that an AETB's failure to conform to ASTM D 7036-04 with respect to testing at a particular unit does not affect its ability to certify conformance prior to conducting testing at another unit as long as it is following the procedures in ASTM D 7036-04 for addressing nonconformance.
EPA proposed to add section 6.1.2(e) in Appendix A to Part 75 to require having at least one Qualified Individual (QI) on site conducting or overseeing applicable tests. A QI must pass appropriate exam(s), described in ASTM D 7036-04, covering the test methods the QI will perform.
No rule changes were required.
The interdependency of emissions testing methods is inherent in any emissions testing program. EPA and the SES membership, which includes large and small stack test companies, believe that an individual who can pass a multiple method group exam is one who understands emissions testing principles broadly enough to lead a test team and can be expected to address the myriad of complicating issues that arise during a source test.
It is EPA's understanding that the SES membership can and has evaluated and adjusted the qualifications approach from time to time. Commenters are welcome to work with SES to address concerns they may have. While
In section 6.1.2(g) of Appendix A to Part 75, EPA proposed that if the Administrator finds that the information submitted to an affected source by an AETB under this section or the information requested by an affected source under this section is either incomplete or inaccurate, the Administrator could post the name of the offending AETB on Agency Web sites, and provide the AETB a description of the failures to be remedied. The AETB name would be removed from the EPA Web sites once the failures were remedied.
If, upon request by the Administrator, the AETB or the owner or operator provides to the Administrator any information identified as confidential business information (CBI), the Administrator will treat the information according to the provisions of 40 CFR part 2, subpart B. Note that the modifications to section 6.1.2(g) make section 6.1.2(h) redundant and it has been removed.
Section 75.4(e)(2) only applies to
EPA also revised § 75.4(e) to address the reporting of CEMS data, in cases where only one compliance window is used, and where both windows are used. Section 75.4(e)(2), as revised, addresses how to report emissions or flow rate data after emissions first pass through the new stack or flue, or reagent is first injected into the flue gas desulfurization system or add-on NO
EPA believes that it is appropriate to allow temporary reporting of data on a certified high measurement scale in the case of installing and operating new add-on SO
Revised § 75.4(e)(2)(ii) allows conditional data validation procedures in § 75.20(b)(3) to be used for the entire 90 operating day/180 calendar day window associated with new stack construction or addition of a new emissions control device, rather than limiting the amount of time available to complete the required testing to the shorter timelines in § 75.20(b)(3)(iv). This is appropriate for new stack construction because the monitoring systems on the new stack are brand new systems that must undergo certification testing. The provisions of § 75.20(b)(3) and sections 6.3.1(a), 6.3.2(a), 6.6.4(a), and 6.5(f) of Appendix A to Part 75 clearly allow conditional data validation to be used for the entire window of time specified in § 75.4, for the initial certification of monitoring systems. For the installation and operation of add-on emissions controls, it is also appropriate to allow the use of conditional data validation for the entire 90 operating day/180 calendar day window, because instability during the shakedown period prevents the required RATAs associated with the control device addition from being done during that time period, and the shakedown period often extends beyond the shorter conditional data validation timelines provided in § 75.20(b)(3)(iv).
A new paragraph, (e)(4), has also been added to § 75.4(e) to address special requirements that apply, in addition to the requirements in paragraph (e)(2), to a project involving both a new stack and a new add-on SO
Of course, under § 75.4(e)(2), to the extent additional testing requirements are triggered by the installation of the new add-on SO
EPA proposed to add § 75.22(a)(5)(v) to disallow multiple sampling runs to be conducted before performing the post-run system bias check or system calibration error check described in section 8.5 of EPA Reference Method 7E (40 CFR part 60, Appendix A-4), when this method is used to perform testing on part 75 affected sources.
Two other commenters stated that Method 7E already requires all test runs conducted since the previous bias check to be invalidated if the subsequent bias check reveals drift in excess of the required specification. These commenters further stated that invalidation of multiple test runs would extend the duration of the test period, leading to additional expense and potential operational difficulties (
For typical compliance test applications of the method where the user is only concerned with showing compliance with an emissions limit, the accuracy of the individual test runs is not as essential as it is for Part 75 applications. The Agency does not object to the change made to Method 7E when the method is used for compliance test applications. Since the average of all test runs is used to assess compliance, the run-by-run percent inaccuracies due to changing bias and drift over the course of the testing will tend to cancel, resulting in acceptable overall average that is only slightly different from the average value that would have been obtained had the more stringent run-by-run quality assurance procedures been followed. Thus, for
However, under Part 75 the reference method measurements are generally used for a very different purpose and the inaccuracy that can be introduced by not following the run-by-run quality assurance is unacceptable. For Part 75, the reference methods are primarily used to directly assess the accuracy of a continuous emissions monitoring system on a run-by-run basis. The purpose of the relative accuracy test audits (RATA) is to conduct at least nine quality-assured independent reference measurements and compare those measurements to nine simultaneous measurements made by a continuous emissions monitoring system in its normal mode of operation. Since each run directly compares CEMS measurements to reference method measurements, any drift in the reference monitor during the course of the run must be assessed and accounted for. Method 7E provides a means of adjusting the reference method measurements for moderate drift (less than 3.0% of the span gas value over the course of a run). This correction is intended to tie the resulting reference value more closely to the EPA Protocol calibration gas standards which are traceable to the National Institute of Standards and Technology (NIST). The correction assumes that over the duration of the test run, the profile of any drift observed is linear. The longer the interval between bias/drift checks, the less likely it is that this linear approximation will hold true. Because the RATA is intended to compare nine independent, quality-assured reference measurements to nine simultaneous measurements from a CEMS, EPA finds that performing a bias and drift evaluation before and after a series of runs increases the uncertainty in the individual run measurements and has the potential to introduce error that would otherwise be eliminated by performing the bias and drift evaluation before and after each run. EPA believes that mass-based regulatory programs, such as the trading programs supported by Part 75 monitoring, need the added assurance of data quality provided by run-by-run bias and drift evaluations. The run-by-run quality assurance is consistent with Method 7E as it was originally written, and avoids the risk of adding bias and uncertainty to the CEMS data through the RATA process.
EPA does not collect the actual reference method test data for Method 7E electronically in a manner that can be further analyzed. Therefore, we cannot properly assess how reducing the number of required bias and drift checks will impact data quality. We have no way of knowing how many test runs that should be invalidated would be assumed to be valid if we were to allow bias and drift checks to be done only before and after a series of runs. However, we do know that we can avoid that issue entirely by requiring the quality assurance checks to be performed before and after each run for part 75 applications.
In summary, EPA maintains that in view of the way that Method 7E data are used in the part 75 programs, run-by-run system bias and drift checks are necessary to eliminate measurement error that would otherwise be introduced by not quality-assuring each run individually. This QA approach also applies to Method 6C (the instrumental reference method for SO
As a result of the Clean Air Mercury Rule (CAMR) having been vacated by the DC Circuit in
Finally, note that minor changes have been made to a few of the rule sections in which the Hg monitoring provisions were found. These changes were described under “Miscellaneous Corrections and Additions” in the preamble to the proposed rule, and have been finalized without modification.
EPA proposed to revise the Incorporation by Reference section 75.6(f)(3) to add Section 3—Small Volume Provers, First Edition, but inadvertently omitted the publication date, and failed to revise section 2.1.5.1
EPA has added definitions in section 72.2 for “Coverage Factor k” and “Expanded Uncertainty”. These definitions are consistent with the language used by the National Institute of Standards and Technology.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735 (Oct. 4, 1993)) and is therefore not subject to review under the Executive Order.
The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the
Basic information on the identity of EPA Protocol gas production sites and on the type of cylinders used by sources subject to part 75 will be collected by the Agency. These data will allow the Agency to verify that a source subject to part 75 is using EPA Protocol gases from EPA Protocol gas production sites that are participating in the Protocol Gas Verification Program (PGVP), and to inform the gas cylinder selection for the PGVP audits. This same type of information will be collected when EPA Protocol gases are used to perform certain EPA test methods. The Agency anticipates that this will help improve the quality of results when these test methods are used.
EPA has added simple recordkeeping and reporting requirements to enable the Agency to verify that Qualified Individuals and Air Emission Testing Bodies meet the requirements of this rule. EPA maintains that the main costs for air emission testing bodies to comply with the minimum competency requirements in ASTM D7036-04 are associated with taking qualified individual (QI) competency exams, and the development and revision of quality assurance manuals. The costs will be passed through to the customers (sources subject to part 75, primarily large electric utility and industrial companies), and the Agency notes that these costs will be partially offset by the savings generated by fewer failed or incorrectly performed relative accuracy test audits (RATAs), and fewer repeat tests required.
EPA is also requiring certain recordkeeping and reporting provisions for various data elements that were inadvertently left out of the August 22, 2006 proposed rule and the January 24, 2008 final rule. These data elements have already been incorporated in the data acquisition and handling systems of units subject to part 75, and are required to make EPA's new reporting software data requirements consistent with the regulatory requirements.
All of the above data collections are mandatory under 40 CFR part 75. None of the data are considered confidential business information under 40 CFR part 2, subpart B.
EPA received several comments that the costs were underestimated in the ICR and that more supporting detail was needed. The Agency has revised the ICR for the final rule to include (a) 600 hours of contractor time in Agency costs to account for ECMPS software changes, (b) additional one time DAHS upgrade respondent costs of $378,500, and (c) additional supporting detail.
The final rule does not significantly change the existing requirements in 40 CFR parts 72, and 75 and thus does not significantly change the existing information collection burden. The total annual respondent burden is estimated to be 2,254 hours, with total annual labor and O&M costs estimated to be $1,460,489. This estimate includes the burden associated with the increase in fees from AETBs and PGVP vendors resulting from their compliance with the new requirements in the rule as well as the small labor burden for sources to review the new requirements and comply with the modified recordkeeping and reporting requirements (
Most of these costs are expected to be borne by the private sector and will be passed through to the customers (sources subject to part 75, primarily large electric utility and industrial companies, or the rate payers). The Agency notes that some of the overall cost will be offset by the savings generated by fewer failed or incorrectly performed daily calibration error tests, quarterly linearity checks, and relative accuracy test audits (RATAs), and fewer repeat tests required.
Exhibits 1 and 2 summarize the respondent burden and cost estimates performed for the ICR (2203.04) supporting statement for revisions to 40 CFR parts 72 and 75. EPA estimates that: (a) 1,249 ARP sources and 253 additional CAIR sources will need to review the revised requirements and comply with the modified reporting requirements; and (b) 3,736 ARP sources and 777 additional CAIR sources will need to perform quality assurance testing and maintenance tasks. Low mass emissions units will not have to modify their DAHS, and sources with only new units already have their initial startup burdens and costs accounted for in the underlying program ICRs. Exhibit 1 shows the total burden and total cost based on this respondent universe.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
EPA conducted a screening analysis of today's rule on small entities in the following manner. The SBA defines small utilities as any entity and associated affiliates whose total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. The SBA 4 million megawatt hour threshold was applied to the Energy Information Administration (EIA) Annual Form EIA-923, “Power Plant Operations Report” 2008 net generation megawatt hour data and results in an estimated 1169 facilities. This data is
After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. All but one of the 620 small electric utilities directly affected by this final rule are expected to experience costs that are well under one percent of their estimated revenues.
The rule revisions represent minor changes to existing monitoring requirements under part 75. There will be some small level of annual costs to participate in a gas audit program, taking a qualified stack test individual competency exam and developing or revising a quality assurance manual, and a slight up-front cost to reprogram existing electronic data reporting software used under Part 75. The Agency notes that these costs will be partially offset by the savings generated by fewer failed or incorrectly performed daily calibration error tests, quarterly linearity checks, and relative accuracy test audits (RATAs), and fewer repeat tests required.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The total annual respondent burden is estimated to be 2,254 hours, with total annual labor and O&M costs estimated to be $1,460,489. This estimate includes the burden associated with the increase in fees from AETBs and PGVP vendors resulting from their compliance with the new requirements in the rule as well as the small labor burden for sources to review the new requirements and comply with the modified recordkeeping and reporting requirements (
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule would generally affect large electric utility or industrial companies.
This final rule does not have federalism implications. It 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. This final rule primarily amends the Protocol Gas Verification Program, and the minimum competency requirements for air emission testing (first promulgated on January 24, 2008 (
This final rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule primarily amends the Protocol Gas Verification Program, and the minimum competency requirements for air emission testing (first promulgated on January 24, 2008 (
EPA interprets EO 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 EO has the potential to influence the regulation. This final rule is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This rule is not subject to Executive Order 13211, entitled “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(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rulemaking involves technical standards. Therefore, the Agency conducted a search to identify
Executive Order (EO) 12898 (59 FR 7629 (Feb. 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.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This final rule primarily amends the Protocol Gas Verification Program, and the minimum competency requirements for air emission testing (first promulgated on January 24, 2008 (
The Congressional Review Act, 5 U.S.C. 801
Under Clean Air Act section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 27, 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 a rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Electric utilities, Carbon dioxide, Continuous emission monitoring, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur oxides, Reference test methods, Incorporation by reference.
Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Electric utilities, Carbon dioxide, Continuous emission monitoring, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur oxides, Reference test methods, Incorporation by reference.
For the reasons set forth in the preamble, parts 72 and 75 of chapter I of title 40 of the Code of Federal Regulations are amended as follows:
42 U.S.C. 7601 and 7651,
(a) The following materials are available for purchase from the following address: American Society for Testing and Material (ASTM) International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, Pennsylvania 19428-2959, phone: 610-832-9585,
(5) ASTM D 7036-04, Standard Practice for Competence of Air Emission Testing Bodies, for § 72.2.
(b) A copy of the following material is available from
42 U.S.C. 7601, 7651k, and 7651k note.
(b) * * *
(2) 180 calendar days after the date the unit commences commercial operation, notice of which date shall be provided under subpart G of this part.
(c) * * *
(2) 180 calendar days after the date on which the unit becomes subject to the requirements of the Acid Rain Program, notice of which date shall be provided under subpart G of this part.
(d) This paragraph (d) applies to affected units under the Acid Rain Program and to units subject to a State or Federal pollutant mass emissions reduction program that adopts the emission monitoring and reporting provisions of this part. In accordance with § 75.20, for an affected unit which, on the applicable compliance date, is either in long-term cold storage (as defined in § 72.2 of this chapter) or is shut down as the result of a planned outage or a forced outage, thereby preventing the required continuous monitoring system certification tests from being completed by the compliance date, the owner or operator shall provide notice of such unit storage or outage in accordance with § 75.61(a)(3) or § 75.61(a)(7), as applicable. For the planned and unplanned unit outages described in this paragraph (d), the owner or operator shall ensure that all of the continuous monitoring systems for SO
(1) The maximum potential concentration of SO
(e) In accordance with § 75.20, if the owner or operator of an affected unit completes construction of a new stack or flue, or a flue gas desulfurization system or add-on NO
(1) Except as otherwise provided in paragraph (e)(3) of this section, the owner or operator shall ensure that all required certification and/or recertification and/or diagnostic tests of the monitoring systems required under this part (
(i) For the event of construction of a new stack or flue, the date that emissions first exit to the atmosphere through the new stack or flue, notice of which date shall be provided under subpart G of this part; or
(ii) For the event of installation of a flue gas desulfurization system or add-on NO
(2) The owner or operator shall determine and report SO
(i) The applicable missing data substitution procedures under §§ 75.31 through 75.37;
(ii) The conditional data validation procedures of § 75.20(b)(3), except that conditional data validation may, if necessary, be used for the entire window of time provided under paragraph (e)(1) of this section in lieu of the periods specified in § 75.20(b)(3)(iv);
(iii) Reference methods under § 75.22(b);
(iv) Quality-assured data recorded on the high measurement scale of the monitor that measures the pollutant being removed by the add-on emission controls (
(v) Another procedure approved by the Administrator pursuant to a petition under § 75.66.
(3) If a particular project involves both the event of new stack or flue construction and the event of installation of a flue gas desulfurization system or add-on NO
(i) Complete all of the monitoring system certification and/or recertification and/or diagnostic testing requirements of both events within the window of time provided under paragraph (e)(1)(i) of this section; or
(ii) Complete all of the monitoring system certification and/or recertification and/or diagnostic testing requirements of each event within the separate window of time applicable to such event provided under paragraph (e)(1) of this section.
(4) For the project described in paragraph (e)(3) of this section, the emissions data from each CEMS installed on the new stack recorded in the interval of time starting on the date and hour on which emissions first exit to the atmosphere through the new stack and ending on the hour before the date and hour on which reagent is first injected into the control device may be reported as quality assured:
(i) For the CEMS that includes the monitor that measures the pollutant being removed by the add-on emission controls (
(A) Only if the relative accuracy test audit (RATA) of the high measurement scale of the monitor is successfully completed either prior to the date and hour of the first injection of reagent into the emission control device, or after that date and hour during a period when the control device is not operating, but still within the window of time provided under paragraph (e)(1)(i) of this section, and the rest of the certification tests required under § 75.20(c) and section 6 of appendix A to this part for the high measurement scale of the monitor are successfully completed within the window of time provided under paragraph (e)(1)(i) of this section;
(B) Beginning with:
(
(
(ii) For a CEMS other than one addressed in paragraph (e)(4)(i) of this section:
(A) Only if the relative accuracy test audit (RATA) of the CEMS is successfully completed either prior to the date and hour of the first injection of reagent into the emission control device, or after that date and hour during a period when the control device is not operating, but still within the window of time provided under paragraph (e)(1)(i) of this section, and the rest of the certification tests required under § 75.20(c) and section 6 of appendix A to this part for the CEMS are successfully completed within the window of time provided under paragraph (e)(1)(i) of this section;
(B) Beginning with:
(
(
(a) The following materials are available for purchase from the following address: American Society for Testing and Material (ASTM)
(38) [Reserved]
(43) [Reserved]
(44) [Reserved]
(48) ASTM D7036-04, Standard Practice for Competence of Air Emission Testing Bodies, for § 75.21, § 75.59, and appendix A to this part.
(f) * * *
(3) American Petroleum Institute (API) Manual of Petroleum Measurement Standards, Chapter 4—Proving Systems, Section 2—Pipe Provers (Provers Accumulating at Least 10,000 Pulses), Second Edition, March 2001, Section 3—Small Volume Provers, First Edition, July 1988, Reaffirmed Oct 1993, and Section 5—Master-Meter Provers, Second Edition, May 2000, for appendix D to this part.
(g) A copy of the following material is available from
(d) * * *
(1) * * * The owner or operator shall reduce all SO
(3) Failure of an SO
(a) * * *
(5) * * *
(i) Until such time, date, and hour as the continuous emission monitoring system can be adjusted, repaired, or replaced and certification tests successfully completed (or, if the conditional data validation procedures in paragraphs (b)(3)(ii) through (b)(3)(ix) of this section are used, until a probationary calibration error test is passed following corrective actions in accordance with paragraph (b)(3)(ii) of this section), the owner or operator shall substitute the following values, as applicable, for each hour of unit operation during the period of invalid data specified in paragraph (a)(4)(iii) of this section or in § 75.21: the maximum potential concentration of SO
(b)
(c) * * *
(1) For each SO
(ii) A linearity check, where, for the NO
(iii) A relative accuracy test audit. For the NO
(9) [Reserved]
(a) * * *
(3) The owner or operator shall perform quality assurance upon a reference method backup monitoring system according to the requirements of Method 2, 6C, 7E, or 3A in Appendices A-1, A-2 and A-4 to part 60 of this chapter (supplemented, as necessary, by guidance from the Administrator),
(f)
(g)
(1) A production site participating in the PGVP shall provide the following information in its initial and ongoing notifications to EPA in an electronic format prescribed by the Administrator (
(i) The specialty gas company name which owns or operates the participating production site;
(ii) The name, e-mail address, and telephone number of a contact person for that specialty gas company;
(iii) The name and address of that participating EPA Protocol gas production site, owned or operated by the specialty gas company; and
(iv) The name, e-mail address, and telephone number of a contact person for that participating EPA Protocol gas production site.
(2) An EPA Protocol gas production site that elects to continue participating in the PGVP in the next calendar year must notify the Administrator of its intent to continue in the program by December 31 of the current year by submitting to EPA the information described in paragraph (g)(1) of this section.
(3) A list of the names, contact information, and vendor IDs of EPA Protocol gas production sites participating in the PGVP will be made publicly available by posting on EPA Web sites (
(4) EPA may remove an EPA Protocol gas production site from the list of PGVP participants and give notice to the production site for any of the following reasons:
(i) If the EPA Protocol gas production site fails to provide all of the information required by paragraph (g)(1) of this section in accordance with paragraph (g)(2) of this section;
(ii) If, after being notified that its EPA Protocol gas cylinders are being audited by EPA, the EPA Protocol gas production site fails to cancel its invoice or to credit the purchaser's account for the cylinders within 45 calendar days of such notification; or
(iii) If, after being notified that its EPA Protocol gas cylinders are being audited by EPA, the EPA Protocol gas production site cannot provide to EPA upon demand proof of payment to the National Institute of Standards and Technology (NIST) and a valid contract with NIST;
(5) EPA may relist an EPA Protocol gas production site as follows:
(i) An EPA Protocol gas production site may be relisted immediately after its failure is remedied if the only reason for removal from the list of PGVP participants is failure to provide all of the information required by paragraph (g)(1) of this section;
(ii) If EPA does not receive hardcopy or electronic proof of a credit receipt or of cancellation of the invoice for the cylinders from the EPA Protocol gas production site within 45 calendar days of notifying the EPA Protocol gas production site that its cylinders are being audited by EPA, the cylinders shall be returned to the EPA Protocol gas production site free of any demurrage, and that EPA Protocol gas production site shall not be eligible for relisting for 180 calendar days from the date of notice that it was removed from the list and until it submits to EPA the information required by paragraph (g)(1) of this section;
(iii) For any EPA Protocol gas production site which is notified by EPA that its cylinders are being audited and cannot provide to EPA upon demand proof of payment to NIST and a valid contract with NIST, the cylinders may either be kept by NIST or returned to the EPA Protocol gas production site free of any demurrage and at no cost to NIST, and that EPA Protocol gas production site shall not be eligible for relisting for 180 calendar days from the date of notice that it was removed from the list and until it submits to EPA the information required by paragraph (g)(1) of this section.
(6) On and after May 27, 2011 for each unit subject to this part that uses EPA Protocol gases, the owner or operator must obtain such gases from either an EPA Protocol gas production site that is on the EPA list of sites participating in the PGVP on the date the owner or operator procures such gases or from a reseller that sells to the owner or operator unaltered EPA Protocol gases produced by an EPA Protocol gas production site that was on the EPA list of participating sites on the date the reseller procured such gases.
(7) An EPA Protocol gas cylinder certified by or ordered from any non-participating EPA Protocol gas production site no later than May 27, 2011 may be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig. In the event that an EPA Protocol gas production site is removed from the list of PGVP participants on the same date as or after the date on which a particular cylinder has been certified or ordered, that gas cylinder may continue to be used for the purposes of this part until the earlier of the cylinder's expiration date or the date on which the cylinder gas pressure reaches 150 psig. However, in no case shall a cylinder described in this paragraph (g)(7) be recertified by a non-participating EPA Protocol gas production site to extend its useful life and be used by a source subject to this part.
(8) If EPA notifies a participating EPA Protocol gas production site that its EPA Protocol gas cylinders are being audited and identifies the purchaser as an EPA representative or contractor participating in the audit process, the production site shall:
(i) Either cancel that purchaser's invoice or credit that purchaser's account for the purchase of those EPA Protocol gas cylinders;
(ii) Not charge for demurrage for those EPA Protocol gas cylinders;
(iii) Arrange for and pay for the return shipment of its cylinders from NIST; and
(iv) Provide sufficient funding to NIST for:
(A) The analysis of those EPA Protocol gas cylinders by NIST;
(B) The production site's pro rata share of draft and final NIST electronic audit reports as specified in paragraphs (g)(9)(ii) through (g)(9)(v) of this section on all cylinders in the current audit; and
(C) The full cost of a draft redacted electronic audit report containing just that production site's results and the information as specified in paragraphs (g)(9)(ii) through (g)(9)(v) of this section;
(9) If EPA notifies a participating EPA Protocol gas production site that its EPA Protocol gas cylinders are being audited then:
(i) Each participating EPA Protocol gas production site must have NIST analyze its EPA Protocol gas cylinders provided for audit as soon after NIST receives the batch containing those cylinders as possible, preferably within two weeks of NIST's receipt, using analytical procedures consistent with metrology institute practices and at least as rigorous as the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards” (Traceability Protocol), September 1997, as amended August 25, 1999, EPA-600/R-97/121, (incorporated by reference, see § 75.6) or equivalent written cylinder analysis protocol that has been approved by EPA.
(ii) Each cylinder's concentration must be determined by NIST and the results compared to each cylinder's certification documentation and tag value to establish conformance with section 5.1 of appendix A to this part. After NIST analysis, each cylinder must be provided with a NIST analyzed concentration with an expanded uncertainty, as defined in § 72.2, (coverage factor, as defined in § 72.2, k=2) of plus or minus 1.0 percent (calculated combined standard uncertainty of plus or minus 0.5%), inclusive, or better, unless otherwise approved by EPA.
(iii) The certification documentation accompanying each cylinder must be verified in the audit report as meeting the requirements of “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” September 1997, as amended August 25, 1999, EPA-600/R-97/121 (incorporated by reference,
(iv) Each participating EPA Protocol gas production site shall have NIST provide all of the information required by paragraphs (g)(9)(ii) through (g)(9)(v) of this section in draft and final electronic audit reports on all cylinders in the current audit, and in a draft redacted electronic audit report containing just that production site's information. The draft audit report on all cylinders in the current audit and each draft redacted version of the audit report shall be submitted electronically by NIST to
(A) A table with the information and in the format specified by Figure 3 (or the Note below Figure 3, as applicable) of appendix B to this part or such revised format as approved by the Administrator; and
(B) Complete documentation of the NIST procedures used to analyze the cylinders, including the analytical reference standards, analytical method, analytical method uncertainty, analytical instrumentation, and instrument calibration procedures.
(v) For EPA Protocol gas production sites that produce EPA Protocol gas cylinders claiming NIST traceability for both NO and NO
(10) An EPA Protocol gas production site shall continue to be on the EPA list of sites participating in the PGVP and may continue to sell EPA Protocol gases to sources subject to part 75 if it is not notified by EPA that its cylinders are being audited under the PGVP if it provides the information described in paragraph (g)(1) of this section in accordance with paragraph (g)(2) of this section.
(11) The data validation procedures under §§ 2.1.4, 2.2.3, and 2.3.2 of appendix B to this part apply.
(a) The owner or operator shall use the following methods, which are found in appendices A-1 through A-4 to part 60 of this chapter, to conduct the following tests: Monitoring system tests for certification or recertification of continuous emission monitoring Systems; NO
(5) * * *
(iv) Section 8.6 of the method allowing for the use of “Dynamic Spiking” as an alternative to the interference and system bias checks of the method. Dynamic spiking may be conducted (optionally) as an additional quality assurance check; and
(v) That portion of Section 8.5 of the method allowing multiple sampling runs to be conducted before performing the post-run system bias check or system calibration error check.
(b) The owner or operator may use any of the following methods, which are found in appendices A-1 through A-4 to part 60 of this chapter, as a reference method backup monitoring system to provide quality-assured monitor data:
(d) When the bias test indicates that an SO
(a) During the first 720 quality-assured monitor operating hours following initial certification of the required SO
(b) SO
(1) Whenever prior quality-assured data exist, the owner or operator shall substitute, by means of the data acquisition and handling system, for each hour of missing data, the average of the hourly SO
(2) Whenever no prior quality assured SO
(a) Following initial certification of the required SO
(a) * * *
(2) * * *
(ii) For the purposes of the missing data lookback periods described under §§ 75.33 (c)(1), (c)(2), (c)(3) and (c)(5) of this section, the substitute data values shall be taken from the appropriate database, depending on the date(s) and hour(s) of the missing data period. That is, if the missing data period occurs inside the ozone season, the ozone season data shall be used to provide substitute data. If the missing data period occurs outside the ozone season, data from outside the ozone season shall be used to provide substitute data.
(d) In order to implement the options in paragraphs (a)(1), (a)(3) and (a)(5) of this section; and §§ 75.31(c)(3) and 75.72(c)(3), the owner or operator shall keep records of information as described in § 75.58(b)(3) to verify the proper operation of all add-on SO
(b) * * *
(2) A description of the class of affected units, including data describing all of the affected units that will comprise the class.
(e) * * *
(1) * * *
(i) * * *
(E) Type(s) of emission controls for SO
(iv) Identification and description of each monitoring system component (including each monitor and its identifiable components, such as analyzer and/or probe) in the CEMS (
(x) For each parameter monitored: Scale, maximum potential concentration (and method of calculation), maximum expected concentration (if applicable) (and method of calculation), maximum potential flow rate (and method of calculation), maximum potential NO
(g) * * *
(1) * * *
(i) * * *
(A) A representation of the exhaust configuration for the units in the monitoring plan. On and after April 27, 2011, provide the activation date and deactivation date (if applicable) of the configuration. Provide the ID number of each unit and assign a unique ID number to each common stack, common pipe multiple stack and/or multiple pipe associated with the unit(s)
(C) The stack exit height (ft) above ground level and ground level elevation above sea level, and the inside cross-sectional area (ft
(E) The type(s) of emission controls that are used to reduce SO
(F) Maximum hourly heat input capacity of each unit. On and after April 27, 2011, provide the activation date and deactivation date (if applicable) for this parameter; and
(iii) For each required continuous emission monitoring system, each fuel flowmeter system, and each continuous opacity monitoring system, identify and describe the major monitoring components in the monitoring system (
(v) * * *
(F) Effective date/hour, and (if applicable) inactivation date/hour of each span value. On and after April 27, 2011, provide the activation date and deactivation date (if applicable) for the measurement scale and dual span information in paragraphs (g)(1)(v)(A), (g)(1)(v)(G), and (g)(1)(v)(H) of this section;
(G) An indication of whether dual spans are required. If two span values are required, then, on and after April 27, 2011, indicate whether an autoranging analyzer is used to represent the two measurement scales; and
(vi) * * *
(H) Date and hour that the value is no longer effective (if applicable);
(I) For units using the excepted methodology under § 75.19, the applicable SO
(J) On and after April 27, 2011, group identification code.
(h) * * *
(2) * * *
(i)
(5) For qualification as a gas-fired unit, as defined in § 72.2 of this part, the designated representative shall include in the monitoring plan, in electronic format, the following: current calendar year, fuel usage data for three calendar years (or ozone seasons) as specified in the definition of gas-fired in § 72.2 of this chapter, the method of qualification used, and an indication of whether the data are actual or projected data. On and after April 27, 2011, provide the activation date and deactivation date (if applicable) for the gas-fired unit qualification information in this paragraph (h)(5).
(a) * * *
(5) The current monitoring plan as specified in § 75.53, beginning with the initial submission required by § 75.62;
(6) The quality control plan as described in section 1 of appendix B to this part, beginning with the date of provisional certification; and
(7) The information required by sections 6.1.2(b) and (c) of appendix A to this part.
(b) * * *
(3) Except as otherwise provided in § 75.34(d), for units with add-on SO
(i) Parametric data which demonstrate, for each hour of missing SO
(ii) A flag indicating, for each hour of missing SO
(d) * * *
(4) * * *
(ii) For boilers, hourly average boiler O
(iii) On and after April 27, 2011, operating condition codes for the following:
(A) Unit operated on emergency fuel;
(B) Correlation curve for the fuel mixture has expired;
(C) Operating parameter is outside of normal limits;
(D) Uncontrolled hour;
(E) Operation above highest tested heat input rate point on the curve;
(F) Operating parameter data missing or invalid;
(G) Designated operational and control equipment parameters within normal limits; and
(H) Operation below lowest tested heat input rate point on the curve.
(a) * * *
(1) For each SO
(iii) On and after April 27, 2011, date, hour, and minute;
(3) For each SO
(5) For each SO
(ii) Individual test run data from the relative accuracy test audit for the SO
(L) Average gross unit load, expressed as a total gross unit load, rounded to the nearest MWe, or as steam load, rounded to the nearest thousand lb/hr; on and after April 27, 2011, for units that do not produce electrical or thermal output, record, instead, the average stack gas velocity at the operating level being tested; and
(iii) * * *
(F) Bias test results as specified in section 7.6.4 of appendix A to this part;
(G) Bias adjustment factor from Equation A-12 in appendix A to this part for any monitoring system that failed the bias test (except as otherwise provided in section 7.6.5 of appendix A to this part) and 1.000 for any monitoring system that passed the bias test; and
(H) On and after April 27, 2011, RATA frequency code.
(6) For each SO
(7) * * *
(vii) [Reserved]
(viii) [Reserved]
(9) When hardcopy relative accuracy test reports, certification reports, recertification reports, or semiannual or annual reports for gas or flow rate CEMS are required or requested under § 75.60(b)(6) or § 75.63, the reports shall include, at a minimum, the following elements (as applicable to the type(s) of test(s) performed):
(vi) Laboratory calibrations of the source sampling equipment.
(x) For testing involving use of EPA Protocol gases, the owner or operator shall record in electronic and hardcopy format the following information, as applicable:
(A) On and after September 26, 2011, for each gas monitor, for both low and high measurement ranges, record the following information for the mid-level or high-level EPA Protocol gas (as applicable) that is used for daily calibration error tests, and the low-, mid-, and high-level gases used for quarterly linearity checks. For O
(
(
(
(
(
(B) On and after September 26, 2011, for each usage of Reference Method 3A in appendix A-2 to part 60 of this chapter, or Method 6C or 7E in appendix A-4 to part 60 of this chapter
(xi) On and after March 27, 2012, for all RATAs performed pursuant to § 75.74(c)(2)(ii), section 6.5 of appendix A to this part and section 2.3.1 of appendix B to this part, and for all NO
(A) The name, telephone number and e-mail address of the Air Emission Testing Body;
(B) The name of each on-site Qualified Individual, as defined in § 72.2 of this chapter;
(C) For the reference method(s) that were performed, the date(s) that each on-site Qualified Individual took and passed the relevant qualification exam(s) required by ASTM D7036-04 (incorporated by reference,
(D) The name and e-mail address of each qualification exam provider.
(12) * * *
(iv) * * *
(E) Type of extension;
(F) Quarter and year; and
(G) On and after April 27, 2011, fuel code for Ozone Season Only reporters under § 75.74(c).
(14) [Reserved]
(15) On and after March 27, 2012, for all RATAs performed pursuant to § 75.74(c)(2)(ii), section 6.5 of appendix A to this part or section 2.3.1 of appendix B to this part, the owner or operator shall record in electronic format the following information as provided by the AETB:
(i) The name, telephone number and e-mail address of the Air Emission Testing Body;
(ii) The name of each on-site Qualified Individual, as defined in § 72.2 of this chapter;
(iii) For the reference method(s) that were performed, the date(s) that each on-site Qualified Individual took and passed the relevant qualification exam(s) required by ASTM D7036-04 (incorporated by reference,
(iv) The name and e-mail address of each qualification exam provider.
(b) * * *
(6) On and after March 27, 2012, for all stack testing performed pursuant to section 2.1 of appendix E to this part, the owner or operator shall record in electronic format the following information as provided by the AETB:
(i) The name, telephone number and e-mail address of the Air Emission Testing Body;
(ii) The name of each on-site Qualified Individual, as defined in § 72.2 of this chapter;
(iii) For the reference method(s) that were performed, the date(s) that each on-site Qualified Individual took and passed the relevant qualification exam(s) required by ASTM D7036-04 (incorporated by reference,
(iv) The name and e-mail address of each qualification exam provider.
(c) Except as otherwise provided in § 75.58(b)(3)(i), for units with add-on SO
(d) * * *
(3) * * *
(x) Documentation supporting the qualification of all units in the group for reduced testing, in accordance with the criteria established in § 75.19(c)(1)(iv)(B)(
(xi) Purpose of group tests;
(xii) On and after April 27, 2011, the number of tests for group; and
(xiii) On and after April 27, 2011, the number of units in group.
(4) On and after March 27, 2012, for all NO
(i) The name, telephone number and e-mail address of the Air Emission Testing Body;
(ii) The name of each on-site Qualified Individual, as defined in § 72.2 of this chapter;
(iii) For the reference method(s) that were performed, the date(s) that each on-site Qualified Individual took and passed the relevant qualification exam(s) required by ASTM D7036-04 (incorporated by reference,
(iv) The name and e-mail address of each qualification exam provider.
(a) * * *
(1)
(5)
(8)
(d) On and after April 27, 2011, consistent with § 72.21 of this chapter, a hardcopy cover letter signed by the Designated Representative (DR) shall accompany each hardcopy monitoring plan submittal. The cover letter shall include the certification statement described in § 72.21(b) of this chapter, and shall be submitted to the applicable EPA Regional Office and to the appropriate State or local air pollution control agency. For electronic monitoring plan submittals to the Administrator, a cover letter is not required. However, at his or her discretion, the DR may include important explanatory text or comments with an electronic monitoring plan submittal, so long as the information is provided in an electronic format that is compatible with the other data required to be reported under this section.
(d) Consistent with § 72.21 of this chapter, a hardcopy cover letter signed by the Designated Representative (DR) shall accompany the hardcopy portion of each certification or recertification application. The cover letter shall include the certification statement described in § 72.21(b) of this chapter, and shall be submitted to the applicable EPA Regional Office and to the appropriate State or local air pollution control agency. For the electronic portion of a certification or recertification application submitted to the Administrator, a cover letter is not required. However, at his or her discretion, the DR may include important explanatory text or comments with the electronic portion of a certification or recertification application, so long as the information is provided in an electronic format compatible with the other data required to be reported under this section.
(a) * * *
(5) The daily calibration error test and daily interference check information required in § 75.59(a)(1) and (a)(2) must always be included in the electronic quarterly emissions report. All other certification, quality assurance, and quality control information in § 75.59 that is not excluded from electronic reporting under paragraph (a)(2) or (a)(7) of this section shall be submitted separately, either prior to or concurrent with the submittal of the relevant electronic quarterly emissions report. However, reporting of the information in § 75.59(a)(9)(x) is not required until September 26, 2011, and reporting of the information in § 75.59(a)(15), (b)(6), and (d)(4) is not required until March 27, 2012.
(7) * * *
(xi) Data and results of RATAs that are aborted or invalidated due to problems with the reference method or operational problems with the unit and data and results of linearity checks that are aborted or invalidated due to problems unrelated to monitor performance;
(xii) * * *
(D) The data under § 75.59(a)(7)(ix)(A) through (F) shall be reported for all flow RATAs at rectangular stacks or ducts in which Method 2 in appendices A-1 and A-2 to part 60 of this chapter is used and a wall effects adjustment factor is applied; and
(xiii) The certification required by section 6.1.2(b) of appendix A to this part and recorded under § 75.57(a)(7).
(g) At his or her discretion, the DR may include important explanatory text or comments with an electronic quarterly report submittal, so long as the information is provided in a format that is compatible with the other data required to be reported under this section.
(a) Following the procedures in section 8.1.1 of Performance Specification 2 in appendix B to part 60 of this chapter, install the pollutant concentration monitor or monitoring system at a location where the pollutant concentration and emission rate measurements are directly representative of the total emissions from the affected unit. Select a representative measurement point or path for the monitor probe(s) (or for the path from the transmitter to the receiver) such that the SO
(b) It is recommended that monitor measurements be made at locations where the exhaust gas temperature is above the dew-point temperature. If the cause of failure to meet the relative accuracy tests is determined to be the measurement location, relocate the monitor probe(s).
(a) Automated data acquisition and handling systems shall read and record the entire range of pollutant concentrations and volumetric flow from zero through full-scale and provide a continuous, permanent record of all measurements and required information in an electronic format. These systems also shall have the capability of interpreting and converting the individual output signals from an SO
(b) Data acquisition and handling systems shall also compute and record: Monitor calibration error; any bias adjustments to SO
(c) For an excepted monitoring system under appendix D or E of this part, data acquisition and handling systems shall:
(6) Provide a continuous, permanent record of all measurements and required information in an electronic format.
(a) An EPA Protocol gas is a calibration gas mixture prepared and analyzed according to Section 2 of the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” September 1997, as amended on August 25, 1999, EPA-600/R-97/121 (incorporated by reference,
(b) EPA Protocol gas concentrations must be certified by an EPA Protocol gas production site to have an analytical uncertainty (95-percent confidence interval) to be not more than plus or minus 2.0 percent (inclusive) of the certified concentration (tag value) of the gas mixture. The uncertainty must be calculated using the statistical procedures (or equivalent statistical techniques) that are listed in Section 2.1.8 of the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” September 1997, as amended on August 25, 1999, EPA-600/R-97/121 (incorporated by reference,
Concentrations of research gas mixtures, as defined in § 72.2 of this chapter, must be certified by the National Institute of Standards and Technology to have an analytical uncertainty (95-percent confidence interval) calculated using the statistical procedures (or equivalent statistical techniques) that are listed in Section 2.1.8 of the “EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards,” September 1997, as amended on August 25, 1999, EPA-600/R-97/121 (incorporated by reference,
(a) On and after March 27, 2012, all relative accuracy test audits (RATAs) of CEMS under this part, and stack testing under § 75.19 and Appendix E to this part shall be conducted by an Air Emission Testing Body (AETB) which has provided to the owner or operator of a unit subject to this part the documentation required in paragraph (b) of this section, demonstrating its conformance to ASTM D7036-04 (incorporated by reference,
(b) The owner or operator shall obtain from the AETB a certification that as of the time of testing the AETB is operating in conformance with ASTM D7036-04 (incorporated by reference,
(1) A certificate of accreditation or interim accreditation for the relevant test methods issued by a recognized, national accreditation body; or
(2) A letter of certification for the relevant test methods signed by a member of the senior management staff of the AETB.
(c) The owner or operator shall obtain from the AETB the information required under §§ 75.59(a)(15), (b)(6), and (d)(4), as applicable.
(d) While under no obligation to request the following information from an AETB, to review the information provided by the AETB in response to such a request, or to take any other action related to the response, the owner or operator may find it useful to request that AETBs complying with paragraph (b)(2) of this section provide a copy of the following:
(1) The AETB's quality manual. For the purpose of application of 40 CFR part 2, subpart B, AETB's concerned about the potential for public access to confidential business information (CBI) may identify any information subject to such a claim in the copy provided;
(2) The results of any internal audits performed by the AETB and any external audits of the AETB during the 12 month period through the previous calendar quarter;
(3) Performance data (as defined in ASTM D7036-04 (incorporated by reference,
(4) Training records for all on-site technical personnel, including any Qualified Individuals, for the 12 month period through the previous calendar quarter.
(e) All relative accuracy testing performed pursuant to § 75.74(c)(2)(ii), section 6.5 of appendix A to this part or section 2.3.1 of appendix B to this part, and stack testing under § 75.19 and Appendix E to this part shall be overseen and supervised on site by at least one Qualified Individual, as defined in § 72.2 of this chapter with respect to the methods employed in the test project. If the source owner or operator, or a State, local, or EPA observer, discovers while the test team is still on site, that at least one QI did not oversee and supervise the entire test (as qualified by this paragraph (e)), only those portions of the test that were overseen and supervised by at least one QI as described above may be used under this part. However, allowance is made for normal activities of a QI who is overseeing and supervising a test,
(f) Except as provided in paragraph (e), no RATA performed pursuant to § 75.74(c)(2)(ii), section 6.5 of appendix A to this part or section 2.3.1 of appendix B to this part, and no stack test under § 75.19 or Appendix E to this part (or portion of such a RATA or stack test) conducted by an AETB (as defined in § 72.2) shall be invalidated under this part as a result of the failure of the AETB to conform to ASTM D7036-04 (incorporated by reference,
(g) An owner or operator who has requested information from an AETB under paragraph (d) of this part who believes that the information provided by the AETB was either incomplete or inaccurate may request the Administrator's assistance in remedying the alleged deficiencies. Upon such a request, if the Administrator concurs that the information submitted to a source subject to part 75 by an AETB under this section is either incomplete or inaccurate, the Administrator will provide the AETB a description of the deficiencies to be remedied. The Administrator's determination of completeness and accuracy of information will be solely based on the provisions of ASTM D7036-04 (incorporated by reference,
Check the linearity of each SO
The following monitors and ranges are exempted from the 7-day calibration error test requirements of this part: the SO
Perform cycle time tests for each pollutant concentration monitor and continuous emission monitoring system while the unit is operating, according to the following procedures. Use a zero-level and a high-level calibration gas (as defined in section 5.2 of this appendix) alternately. To determine the downscale cycle time, measure the concentration of the flue gas emissions until the response stabilizes. Record the stable emissions value. Inject a zero-level concentration calibration gas into the probe tip (or injection port leading to the calibration cell, for in situ systems with no probe). Record the time of the zero gas injection, using the data acquisition and handling system (DAHS). Next, allow the monitor to measure the concentration of the zero gas until the response stabilizes. Record the stable ending calibration gas reading. Determine the downscale cycle time as the time it takes for 95.0 percent of the step change to be achieved between the stable stack emissions value and the stable ending zero gas reading. Then repeat the procedure, starting with stable stack emissions and injecting the high-level gas, to determine the upscale cycle time, which is the time it takes for 95.0 percent of the step change to be achieved between the stable stack emissions value and the stable ending high-level gas reading. Use the following criteria to assess when a stable reading of stack emissions or calibration gas concentration has been attained. A stable value is equivalent to a reading with a change of less than 2.0 percent of the span value for 2 minutes, or a reading with a change of less than 6.0 percent from the measured average concentration over 6 minutes. Alternatively, the reading is considered stable if it changes by no more than 0.5 ppm or 0.2% CO
Perform the required relative accuracy test audits (RATAs) as follows for each CO
(c) For monitoring systems with dual ranges, perform the relative accuracy test on the range normally used for measuring emissions. For units with add-on SO
(e) Complete each single-load relative accuracy test audit within a period of 168 consecutive unit operating hours, as defined in § 72.2 of this chapter (or, for CEMS installed on common stacks or bypass stacks, 168 consecutive stack operating hours, as
(g) For each SO
(a) Perform the required relative accuracy test audits for each SO
(b) For the initial certification of a gas monitoring system and for recertifications in which, in addition to a RATA, one or more other tests are required (
(a) Conduct the reference method tests allowed in section 6.5.10 of this appendix so they will yield results representative of the pollutant concentration, emission rate, moisture, temperature, and flue gas flow rate from the unit and can be correlated with the pollutant concentration monitor, CO
(b) To properly correlate individual SO
The following methods are from appendix A to part 60 of this chapter, and are the reference methods for performing relative accuracy test audits under this part: Method 1 or 1A in appendix A-1 to part 60 of this chapter for siting; Method 2 in appendix A-1 to part 60 of this chapter or its allowable alternatives in appendices A-1 and A-2 to part 60 of this chapter (except for Methods 2B and 2E in appendix A-1 to part 60 of this chapter) for stack gas velocity and volumetric flow rate; Methods 3, 3A or 3B in appendix A-2 to part 60 of this chapter for O
Analyze the relative accuracy test audit data from the reference method tests for SO
Calculate the arithmetic mean of the differences of a data set as follows:
Test the following relative accuracy test audit data sets for bias: SO
Calculate the arithmetic mean of the differences of the data set using Equation A-7 of this appendix. To calculate bias for an SO
(b) For single-load RATAs of SO
(f) Use the bias-adjusted values in computing substitution values in the missing data procedure, as specified in subpart D of this part, and in reporting the concentration of SO
1.1.4 The provisions in section 6.1.2 of appendix A to this part shall apply to the annual RATAs described in § 75.74(c)(2)(ii) and to the semiannual and annual RATAs described in section 2.3 of this appendix.
(a) An out-of-control period occurs when the calibration error of an SO
(c) The results of any certification, recertification, diagnostic, or quality assurance test required under this part may not be used to validate the emissions data required under this part, if the test is performed using EPA Protocol gas from a production site that is not participating in the PGVP, except as provided in § 75.21(g)(7) or if the cylinder(s) are analyzed by an independent laboratory and shown to meet the requirements of section 5.1.4(b) of appendix A to this part.
Unless a particular monitor (or monitoring range) is exempted under this paragraph or under section 6.2 of appendix A to this part, perform a linearity check, in accordance with the procedures in section 6.2 of appendix A to this part, for each primary and redundant backup SO
(i) The results of any certification, recertification, diagnostic, or quality assurance test required under this part may not be used to validate the emissions data required under this part, if the test is performed using EPA Protocol gas that was not from an EPA Protocol gas production site participating in the PGVP on the date the gas was procured either by the tester or by a reseller that sold to the tester the unaltered EPA Protocol gas, except as provided in § 75.21(g)(7) or if the cylinder(s) are analyzed by an independent laboratory and shown to meet the requirements of section 5.1.4(b) of appendix A to this part.
(a) Except as otherwise specified in § 75.21(a)(6) or (a)(7) or in section 2.3.1.2 of this appendix, perform relative accuracy test audits semiannually,
(a) For SO
(d) For single-load (or single-level) RATAs, if a daily calibration error test is failed during a RATA test period, prior to completing the test, the RATA must be repeated. Data from the monitor are invalidated prospectively from the hour of the failed calibration error test until the hour of completion of a subsequent successful calibration error test. The subsequent RATA shall not be commenced until the monitor has successfully passed a calibration error test in accordance with section 2.1.3 of this appendix. For multiple-load (or multiple-level) flow RATAs, each load level (or operating level) is treated as a separate RATA (
(i) Each time that a hands-off RATA of an SO
(k) The results of any certification, recertification, diagnostic, or quality assurance test required under this part may not be used to validate the emissions data required under this part, if the test is performed using EPA Protocol gas from a production site that is not participating in the PGVP, except as provided in § 75.21(g)(7) or if the cylinder(s) are analyzed by an independent laboratory and shown to meet the requirements of section 5.1.4(b) of appendix A to this part.
Except as otherwise specified in section 7.6.5 of appendix A to this part, if an SO
2.1.5.1 Use the procedures in the following standards to verify flowmeter accuracy or design, as appropriate to the type of flowmeter: ASME MFC-3M-2004, Measurement of Fluid Flow in Pipes Using Orifice, Nozzle, and Venturi; ASME MFC-4M-1986 (Reaffirmed 1997), Measurement of Gas Flow by Turbine Meters; American Gas Association Report No. 3, Orifice Metering of Natural Gas and Other Related Hydrocarbon Fluids Part 1: General Equations and Uncertainty Guidelines (October 1990 Edition), Part 2: Specification and Installation Requirements (February 1991 Edition), and Part 3: Natural Gas Applications (August 1992 edition) (excluding the modified flow-calculation method in part 3); Section 8, Calibration from American Gas Association Transmission Measurement Committee Report No. 7: Measurement of Gas by Turbine Meters (Second Revision, April 1996); ASME-MFC-5M-1985 (Reaffirmed 1994), Measurement of Liquid Flow in Closed Conduits Using Transit-Time Ultrasonic Flowmeters; ASME MFC-6M-1998, Measurement of Fluid Flow in Pipes Using Vortex Flowmeters; ASME
* * * The requirements in section 6.1.2 of appendix A to this part shall apply to any stack testing performed to obtain O
9. [Reserved]