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Department of Energy.
Final rule.
This final rule establishes standards and procedures by which the Department of Energy (DOE) may require that certain contracts or orders that promote the national defense be given priority over other contracts or orders. This rule also sets new standards and procedures by which DOE may allocate materials, services and facilities to promote the national defense. DOE is publishing this rule to comply with a requirement of the Defense Production Act Reauthorization of 2009 to publish regulations providing standards and procedures for prioritization of contracts and orders and for allocation of materials, services and facilities to promote the national defense.
This rule is effective on July 11, 2011.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to Dr. Kenneth Friedman, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, Room 1E-256, 1000 Independence Avenue, SW., Washington, DC 20585 and to Christine Kymn at
Dr. Kenneth Friedman, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; (202) 536-0379 (
This rule expands upon 10 CFR part 216, the Department of Energy's (DOE) Energy Priorities and Allocations System (EPAS) regulations.
10 CFR Part 216 implements DOE's administration of priorities and allocations actions in order to maximize domestic energy supplies pursuant to its authority under Section 101(c) of the Defense Production Act (50 U.S.C. app. Section 2071
On September 30, 2009, the Defense Production Act Reauthorization of 2009 (Pub. L. 111-67, 123 Stat. 2006, September 30, 2009) (DPAR) was enacted. The DPAR requires all agencies to which the President has delegated priorities and allocations authority under Title I of the DPA to publish final rules establishing standards and procedures by which that authority will be used to promote the national defense in both emergency and nonemergency situations. The DPAR also requires all such agencies to consult “as appropriate and to the extent practicable to develop a consistent and unified Federal priorities and allocations system.” (123 Stat. 2006, at 2009). This rule is one of several rules to be published to implement the provisions of the DPAR. The final rules of the agencies with DPAR authorities, which are the Departments of Commerce, Energy, Transportation, Health and Human Services, Defense, and Agriculture, will comprise the Federal Priorities and Allocations System.
DOE published its proposed EPAS rule on July 16, 2010 (75 FR 41405). DOE solicited public comment on the proposed rule, but no comments were received. DOE now publishes this final rule pursuant to the provision of the DPAR noted above. DOE believes that its existing rules at 10 CFR part 216 satisfy the DPAR's requirement that agencies have standards and procedures in place to implement the DPA's 101(c) authorities. However, in the interest of promoting a unified priorities and allocations system, and to implement DOE's DPA authorities other than those set forth in section 101(c), DOE sets forth this EPAS rule. DOE's EPAS provisions are consistent with the Federal Priorities and Allocations System regulations being issued by other agencies. The specific proposals in this rule are more fully described below.
Subpart A sets forth the purpose of the regulation.
Section 217.1 states the purpose of the EPAS, which provides guidance and procedures for use of the DPA priorities and allocations authority (other than the authorities set forth in section 101(c)) with respect to all forms of energy necessary or appropriate to promote the national defense.
Section 217.2 provides an overview of the EPAS program. This section describes briefly all aspects of the EPAS, including the resource jurisdiction of other agencies delegated priorities and allocations authority under the DPA.
The “Definitions” section appears in section 217.20 in Subpart B and provides definitions for the relevant regulatory terms.
Subpart C, titled “Placement of Rated Orders,” reflects the fact that the subpart
Section 217.30, “Delegation of Authority,” describes fully the President's delegations to the Department of Energy. It also describes the items subject to DOE's jurisdiction and notes that the Department of Commerce has delegated certain authorities to DOE. This provision facilitates public understanding of the role that each delegate agency plays in the overall priorities and allocations system.
Section 217.31, “Priority ratings,” describes the different levels of priority and program symbols used when rating an order.
Section 217.32, “Elements of a rated order,” describes in detail what each rated order must include, consisting of the appropriate priority rating, delivery date information, signatures and required language.
Language in section 217.33, “Acceptance and rejection of rated orders,” details when orders placed by DOE may or must be accepted or rejected, and what the procedures are for both, including customer notification requirements and certain exceptions for emergency preparedness conditions.
Specifically, persons must accept or reject rated orders for emergency response-related approved programs within two days of receipt of the order. DOE establishes the shorter time limit in which the recipient must respond to a rated order issued in connection with an emergency response related program because such programs would involve disaster assistance, emergency response or similar activities. DOE believes that the exigent circumstances inherent in such activities justify requiring a shorter response time.
Section 217.34, “Preferential scheduling,” details procedures in cases where a person receives two or more conflicting rated orders. If a person is unable to resolve such a conflict, this section refers them to special priorities assistance as provided in sections 217.40 through 217.44.
Language in section 217.35, “Extension of priority ratings,” requires a person to use rated orders with suppliers to obtain items or services needed to fill a rated order. This allows the priority rating to “extend” from contractor to subcontractor to supplier throughout the entire procurement chain.
Section 217.36, “Changes or cancellations of priority ratings and rated orders,” provides procedures for changing or cancelling a rated order, both by DOE or other persons who placed the order.
Section 217.37, “Use of rated orders,” lists what items must be rated. It also introduces the use of certain program identification symbols used when rated orders may be combined, and details the procedures for combining two or more rated orders, as well as rated and unrated orders.
Section 217.38, “Limitations on placing rated orders,” prohibits the use of rated orders in a list of specific circumstances. This section also specifically excludes the use of rated orders for resources within the resource jurisdiction of agencies other than DOE with DPA priorities and allocations authority.
Subpart D “Special Priorities Assistance” describes instances in which DOE can provide assistance in resolving matters related to priority rated contracts and orders.
Section 217.40 “General provisions” illustrates when and how DOE can provide special priorities assistance, and provides specific DOE points of contact and the form to be used for requesting such assistance. Special priorities assistance may generally be requested for any reason.
Section 217.41, “Requests for priority rating authority,” directs persons to the Department of Energy or Department of Commerce (DOC), as appropriate, to request priority rating authority in the event a rated order is likely to be delayed. This section also identifies circumstances in which DOE or DOC, as appropriate, may authorize a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract, and lists factors the agencies will consider in deciding whether to grant this authority.
Section 217.42, “Examples of assistance,” provides a number of examples of when special priorities assistance may be provided, although it may generally be provided for any reason.
Section 217.43 lists the criteria for granting assistance, and section 217.44 lists instances in which assistance may not be provided (
Subpart E, “Allocation Actions,” provides the public with detailed information on the procedures governing allocations actions. Allocations actions would most likely be used in extreme circumstances, such as in response to a national emergency.
Sections 217.50 through 217.52 describe allocations and when and how allocation orders may be used. Specifically, allocation orders may be used only if priorities authority would not provide a sufficient supply of material, services or facilities for national defense requirements, or when use of priorities authority would cause a severe and prolonged disruption in the supply of resources available to support normal U.S. economic activities. Allocation orders would not be used to ration materials or services at the retail level. Allocation orders will be distributed equitably among the suppliers of the resource(s) being allocated and will not require any person to relinquish a disproportionate share of the civilian market. The standards set forth in sections 217.50 through 217.52 to ensure that allocation orders will be used only in situations where the circumstances justify such orders.
Section 217.53 describes the three types of allocation orders that DOE might issue, which are a set-aside, an allocation directive, and an allotment. A set-aside is an official action that requires a person to reserve resource capacity in anticipation of receipt of rated orders. An allocation directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions (an allocation directive can require a person to stop or reduce production of an item, prohibit the use of selected items, divert supply of one type of product to another, or to supply a specific quantity, size, shape, and type of an item within a specific time period). An allotment is an official action that specifies the maximum quantity of an item authorized for use in a specific program or application. DOE establishes these three types of allocation orders because it believes that, collectively they describe the types of actions that might be taken in any situation in which allocation is justified.
Section 217.54, “Elements of an allocation order,” sets forth the minimum elements of an allocation order. Those elements are:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required allocation action;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this regulation and that the
(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR part 217), which is part of the Federal Priorities and Allocations System”; and
(e) A current copy of the Energy Priorities and Allocations System (10 CFR part 217).
DOE establishes these elements because it believes that they provide a proper balance between the need for standards to permit the public to recognize and understand an allocation order if one is issued, and the expectation that any actual allocation orders will have to be tailored to meet unforeseeable circumstances. The language of section 217.54 does not preclude DOE from including additional information in an allocation order if circumstances warrant doing so.
Section 217.55, “Mandatory acceptance of allocation orders,” requires that an allocation order must be accepted if a person is capable of fulfilling the order. If a person is unable to comply fully with the required actions specific in an allocation order, the person must notify DOE immediately, explain the extent to which compliance is possible, and give reasons why full compliance is not possible. This section also states that a person may not discriminate against an allocation order in any manner, such as by charging higher prices or imposing terms and conditions different than what the person imposed on contracts or orders for the same resource(s) that were received prior to receiving the allocation order. DOE establishes section 217.55 to clarify that the limited circumstances and emergency situations that trigger issuance of an allocation order require immediate response to address the situation in an expedient fashion.
Section 217.56, “Changes or cancellations of an allocation order” provides that an allocation order may be changed or cancelled by the Department of Energy.
Subpart F, “Official Actions,” provides the specific official actions the DOE may take to implement the provisions of this regulation. These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.
Section 217.61, “Rating Authorizations,” defines a rating authorization as an official action granting specific priority rating authority, and refers persons to section 217.21 to request such priority rating authority.
Section 217.62, “Directives,” defines a directive as an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. This section details directive compliance for the public.
Section 217.63, “Letters and Memoranda of Understanding,” defines a letter or memorandum of understanding as an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties, and explains its use.
Subpart G, “Compliance,” provides DOE authority to enforce the administration of the DPA and other applicable statutes, this regulation, or an official action. This subpart provides that willful violations of the provisions of title I or section 705 of the DPA, this regulation, or a DOE official action, are criminal acts, punishable as provided in the DPA, and as set forth below in section 217.74.
Section 217.71, “Audits and investigations,” details the procedures for official examinations of books, records, documents, and other writings and information to ensure that the provisions of the DPA and other applicable statutes, this regulation, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this regulation.
Section 217.72, “Compulsory process,” provides that if a person refuses to permit a duly authorized DOE representative to have access to necessary information, DOE may seek the institution of appropriate legal action, including ex parte application for an inspection warrant, in any forum of appropriate jurisdiction.
Sections 217.73 and 217.74 both provide procedures for notification of failure to comply with the DPA, these regulations, or DOE official actions, and the violations, penalties and remedies that may result.
Section 217.75, “Compliance Conflicts,” requires that persons immediately contact DOE should compliance with the DPA, these regulations, or an official action prevent a person from filling a rated order or from complying with another provision of the DPA and other applicable statutes, this regulation, or an official action.
Section 217.80, “Adjustments, Exceptions, and Appeals,” sets forth the procedures to request an adjustment or exception to the provisions of these regulations on the grounds of exceptional hardship or compliance would be contrary to the intent of the DPA. These requests must be submitted in writing to the DOE contact provided in this section.
Section 217.81, “Appeals,” provides the procedures, timing and contact information for appealing a decision made on a request for relief in the previous section.
Subpart I, “Miscellaneous Provisions,” addresses a number of remaining issues, including protection against claims, records and reports, applicability issues, and communications.
Section 217.90, “Protection against claims,” provides that a person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any part of this regulation, or an official action.
Section 217.91, “Records and reports,” requires that persons make and preserve for at least three years, accurate and complete records of any transaction covered by this regulation or an official action. Various requirements and procedures regarding such records are provided in this section. The confidentiality provisions of the DPA governing the submission of information pursuant to the DPA and these regulations are also set forth.
Section 217.92, “Applicability of this regulation and official actions,” provides the jurisdictional applicability of this regulation and official actions.
Section 217.93, “Communications,” provides a DOE point of contact for all communications regarding this regulation.
DOE received no comments on its proposed EPAS regulation. DOE finalizes its proposed regulation without change.
This rule has been determined to be significant for purposes of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003.
Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, a small business, as described in the Small Business Administration's Table of Small Business Size Standards Matched to North American Industry Classification System Codes (August 2008 Edition), has a maximum annual revenue of $ 33.5 million and a maximum of 1,500 employees (for some business categories, these number are lower). A small governmental jurisdiction is a government of a city, town, school district or special district with a population of less than 50,000. A small organization is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This rule sets criteria under which DOE (or agencies to which DOE delegates authority) will authorize prioritization of certain orders or contracts as well as criteria under which DOE would issue orders allocating resources or production facilities. Because the rule affects commercial transactions, DOE believes that small organizations and small governmental jurisdictions are unlikely to be affected by this rule. To date, DOE has not exercised its existing allocations authority. As such, DOE has no basis on which to estimate the number of small businesses that may be affected by this rule.
The final rule has two principle components: Prioritization and allocation. Under prioritization, DOE or its Delegate Agency designates certain orders as one of two possible priority levels. Once so designated, such orders are referred to as “rated orders.” The recipient of a rated order must give it priority over an unrated order or an order with a lower priority rating. A recipient of a rated order may place orders at the same priority level with suppliers and subcontractors for supplies and services necessary to fulfill the recipient's rated order and the suppliers and subcontractors must treat the request from the rated order recipient as a rated order with the same priority level as the original rated order. The rule does not require recipients to fulfill rated orders if the price or terms of sale are not consistent with the price or terms of sale of similar non-rated orders. The rule provides a defense from any liability for damages or penalties for actions taken in, or inactions required for, compliance with the rule.
Although rated orders could require a firm to fill one order prior to filling another, they would not necessarily require a reduction in the total volume of orders. The regulations would also not require the recipient of a rated order to reduce prices or provide rated orders with more favorable terms than a similar non-rated order. Under these circumstances, the economic effects on the rated order recipient of substituting one order for another are likely to be mutually offsetting, resulting in no net economic impact.
Allocations could be used to control the general distribution of materials or services in the civilian market. Specific allocation actions that DOE might take are as follows:
Set-aside: An official action that requires a person to reserve resource capacity in anticipation of receipt of rated orders.
Allocations directive: An official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. An allocation directive can require a person to stop or reduce production of an item, prohibit the use of selected items, or divert supply of one type of product to another, or to supply a specific quantity, size, shape, and type of an item within a specific time period.
Allotment: An official action that specifies the maximum quantity of an item authorized for use in a specific program or application.
Any allocation actions taken by DOE would also have to comply with Section 701(e) of the DPA (50 U.S.C. app. section 2151(e)), which provides that “small business concerns shall be accorded, to the extent practicable, a fair share of the such material [including services] in proportion to the share received by such business concerns under normal conditions, giving such special consideration as may be possible to emerging business concerns.” Such a provision may even provide an economic benefit to small businesses.
Although DOE cannot determine precisely the number of small entities that would be affected by this rule, DOE believes that the overall impact on such entities would not be significant. In most instances, rated contracts would be fulfilled in addition to other (unrated) contracts and could actually increase the total amount of business of the firm that receives a rated contract.
Because allocations can be imposed only after an agency determination confirmed by the President, and because DOE has not yet used its allocations authority that has existed since passage of the Defense Production Act in 1950, one can expect allocations will be ordered only in particular circumstances. However, DOE believes that the requirement for a Presidential determination and the provisions of section 701 of the DPA indicate that any
DOE received no comments on the certification or economic impacts of the rule at the proposed rule stage.
Therefore, for the reasons set forth above, the Assistant General Counsel for Legislation, Regulation, and Energy Efficiency certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 1910-5159. This requirement has been submitted to OMB for approval. Public reporting burden for submission of Form DOE F 544 (05-11) is estimated to average 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Send comments on this burden estimate or any other aspects of the collection of information to Dr. Kenneth Friedman (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA) a Statement of Energy Effects for any proposed significant energy action. DOE determined that today's rule, which sets forth procedures for compliance with the Defense Production Act (separate from the procedures set forth at 10 CFR part 216), is not a “significant energy action” within the meaning of Executive Order 13211. The Administrator of the Office of Information and Regulatory Affairs at OMB also did not designate this action as a significant energy action. Therefore, DOE concludes that today's rule is not a significant energy action within the meaning of Executive Order 13211 and has not prepared a Statement of Energy Effects.
DOE reviewed this rule pursuant to Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), which imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. DOE also reviewed this rule pursuant to DOE's statement of policy describing the intergovernmental consultation process it will follow in the development of regulations that have federalism implications, 65 FR 13735 (March 14, 2000). DOE determined that the rule would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government.
As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is a “major rule” as defined by 5 U.S.C. 804(2). DOE also will submit the supporting analyses to the Comptroller General in the U.S. Government Accountability Office (GAO) and make them available to each House of Congress.
The Secretary of Energy has approved publication of this notice of final rulemaking.
Administrative practice and procedure, Business and industry, Government contracts, National defense, Reporting and recordkeeping requirements, Strategic and critical materials.
For the reasons stated in the preamble, DOE amends chapter II of title 10 of the Code of Federal Regulations, by adding a new part 217 to read as set forth below:
Defense Production Act of 1950, as amended, 50 U.S.C. App. 2061-2171; E.O. 12919, as amended, (59 FR 29525, June 7, 1994).
This part provides guidance and procedures for use of the Defense Production Act section 101(a) priorities and allocations authority with respect to all forms of energy necessary or appropriate to promote the national defense. (The guidance and procedures in this part are consistent with the guidance and procedures provided in other regulations that, as a whole, form the Federal Priorities and Allocations System. Guidance and procedures for use of the Defense Production Act priorities and allocations authority with respect to other types of resources are provided for: Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; health resources; all forms of civil transportation (49 CFR Part 33); water resources; and all other materials, services, and facilities, including construction materials in the Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 700).) Department of Energy (DOE) regulations at 10 CFR Part 216 describe and establish the procedures to be used by DOE in considering and making certain findings required by section 101(c)(2)(A) of the Defense Production Act of 1950, as amended.
(a) Section 201 of E.O. 12919 (59 FR 29525) delegates the President's authority under section 101 of the Defense Production Act to require acceptance and priority performance of contracts and orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense to:
(1) The Secretary of Agriculture with respect to food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to health resources;
(4) The Secretary of Transportation with respect to all forms of civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.
(b) Section 202 of E.O. 12919 states that the priorities and allocations authority delegated in section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense:
(1) By the Secretary of Defense with respect to military production and construction, military assistance to foreign nations, stockpiling, outer space, and directly related activities;
(2) By the Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; and
(3) By the Secretary of Homeland Security with respect to essential civilian needs supporting national defense, including civil defense and continuity of government and directly related activities.
Certain programs to promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, deploying and sustaining military forces, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195
The following definitions pertain to all sections of this part:
(1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems,
(2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).
(3) Measures to be undertaken following a hazard (including activities for fire fighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).
(1) A natural disaster; or
(2) An accidental or human-caused event.
(1) To prevent terrorist attacks within the United States;
(2) To reduce the vulnerability of the United States to terrorism;
(3) To minimize damage from a terrorist attack in the United States; and
(4) To recover from a terrorist attack in the United States.
(1) “Maintenance” is the upkeep necessary to continue any plant, facility, or equipment in working condition.
(2) “Repair” is the restoration of any plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by wear and tear, damage, or failure of parts.
(3) “Operating supplies” are any resources carried as operating supplies according to a person's established accounting practice. Operating supplies may include hand tools and expendable tools, jigs, dies, fixtures used on production equipment, lubricants, cleaners, chemicals and other expendable items.
(4) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.
(1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.
(3) Natural resources such as oil and gas.
(1) The development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;
(2) The construction of facilities;
(3) The movement of individuals and property by all modes of civil transportation; or
(4) Other national defense programs and activities.
(a) The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to all forms of energy have been delegated to the Secretary of Energy under E.O. 12919 of June 3, 1994 (59 FR 29525).
(b) The Department of Commerce has delegated authority to the Department of Energy to provide for extension of priority ratings for “industrial resources,” as provided in § 261.35 of this part, to support rated orders for all forms of energy.
(a) Levels of priority.
(1) There are two levels of priority established by the Energy Priorities and Allocations System regulations, identified by the rating symbols “DO” and “DX”.
(2) All DO-rated orders have equal priority with each other and take precedence over unrated orders. All DX-rated orders have equal priority with each other and take precedence over DO-rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 217.34(c).)
(3) In addition, a Directive regarding priority treatment for a given item issued by the Department of Energy for that item takes precedence over any DX-rated order, DO-rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 217.62.)
(b) Program identification symbols. Program identification symbols indicate which approved program is being supported by a rated order. The list of currently approved programs and their identification symbols are listed in Schedule 1, set forth as an Appendix to 15 CFR part 700. For example, DO-F3 identifies a domestic energy construction program. Additional programs may be approved under the procedures of E.O. 12919 at any time. Program identification symbols do not connote any priority.
(c) Priority ratings. A priority rating consists of the rating symbol—DO or DX—and the program identification symbol, such as F1, F2, or F3. Thus, a contract for a domestic energy construction program will contain a DO-F3 or DX-F3 priority rating.
Each rated order must include:
(a) The appropriate priority rating (
(b) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. A “requirements contract”, “basic ordering agreement”, “prime vendor contract”, or similar procurement document bearing a priority rating may contain no specific delivery date or dates and may provide for the furnishing of items or service from time to time or within a stated period against specific purchase orders, such as “calls”, “requisitions”, and “delivery orders”. These purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature or use of the name certifies that the rated order is authorized under this part and that the requirements of this part are being followed; and
(d)(1) A statement that reads in substance:
This is a rated order certified for national defense use, and you are required to follow all the provisions of the Energy Priorities and Allocations System regulation at 10 CFR part 217.
(2) If the rated order is placed in support of emergency preparedness requirements and expedited action is necessary and appropriate to meet these requirements, the following sentences should be added following the statement set forth in paragraph (d)(1) of this section:
This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within 2 days after receipt of the order if (1) The order is issued in response to a hazard that has occurred; or
(2) If the order is issued to prepare for an imminent hazard, as specified in EPAS Section 217.33(e), 10 CFR 217.33(e).
(a)
(2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.
(b)
(1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO-rated order for delivery on a date which would interfere with delivery of any previously accepted DO- or DX-rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX-rated order for delivery on a date which would interfere with delivery of any previously accepted DX-rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.
(4) If a person is unable to fill all of the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.
(c)
(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not capable of being performed;
(3) If the order is for an item or service produced, acquired, or provided only for the supplier's own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items or provided similar services, the supplier is obligated to accept rated orders up to that quantity or portion of production or service, whichever is greater, sold or provided within the past two years;
(4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Energy, issued under the authority of the Defense Production Act or another relevant statute.
(d)
(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days.
(e)
(1) The order is issued in response to a hazard that has occurred; or
(2) The order is issued to prepare for an imminent hazard.
(a) A person must schedule operations, including the acquisition of all needed production items or services, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.
(b) DO-rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery or services being performed against unrated orders. Similarly, DX-rated orders must be given preference over DO-rated orders and unrated orders. (Examples: If a person receives a DO-rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX-rated order is received calling for delivery on July 15 and a person has a DO-rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX-rated order.)
(c) Conflicting rated orders.
(1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person shall give precedence to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person shall give precedence to those orders that have the earliest receipt dates.
(2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. If the person's customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 217.33.
(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 217.37(b).
(a) A person must use rated orders with suppliers to obtain items or services needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by the Department of Energy. For example, if a person is in receipt of a DO-F1 rated order for an electric power sub-station, and needs to purchase a transformer for its manufacture, that person must use a DO-F1 rated order to obtain the needed transformer.
(b) The priority rating must be included on each successive order placed to obtain items or services needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain.
(a) The priority rating on a rated order may be changed or canceled by:
(1) An official action of the Department of Energy; or
(2) Written notification from the person who placed the rated order.
(b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.
(c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 217.33.
(d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design; or a change which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items or services to fill a rated order, any rated orders placed with suppliers for the items or services, or the priority rating on those orders, must be canceled.
(f) When a priority rating is added to an unrated order, or is changed or canceled, all suppliers must be promptly notified in writing.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed or converted into scrap or by-products in the course of processing;
(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:
(1) The order must be placed within 90 days of the date of use of the inventory.
(2) A DO rating and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating may not be used even if the inventory was used to fill a DX-rated order.
(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol “H1” must be used (
(c) A person may combine DX- and DO-rated orders from one customer or several customers if the items or services covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol “H1” (
(d) Combining rated and unrated orders.
(1) A person may combine rated and unrated order quantities on one purchase order provided that:
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by § 217.32, are included on the order with the statement required in § 217.32(d) modified to read in substance:
This purchase order contains rated order quantities certified for national defense use, and you are required to follow all applicable provisions of the Energy Priorities and Allocations System regulations at 10 CFR part 217 only as it pertains to the rated quantities.
(2) A supplier must accept or reject the rated portion of the purchase order as provided in § 217.33 and give preferential treatment only to the rated quantities as required by this part. This part may not be used to require preferential treatment for the unrated portion of the order.
(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this part or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 217.80.
(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.
(f) A person is not required to place a priority rating on an order for less than $50,000, or one-half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR) (see FAR section 2.101) or in other authorized acquisition regulatory or management systems) whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating.
(a) General limitations.
(1) A person may not place a DO- or DX-rated order unless entitled to do so under this part.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item or services than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;
(iii) Items or services in advance of the receipt of a rated order, except as specifically authorized by the Department of Energy (see § 217.41(c) for information on obtaining authorization for a priority rating in advance of a rated order);
(iv) Items that are not needed to fill a rated order, except as specifically authorized by the Department of Energy, or as otherwise permitted by this part; or
(v) Any of the following items unless specific priority rating authority has been obtained from the Department of Energy, a Delegate Agency, or the Department of Commerce, as appropriate:
(A) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see § 217.21.]
(vi) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.
(b) Jurisdictional limitations.
(1) Unless authorized by the resource agency with jurisdiction, the provisions of this part are not applicable to the following resources:
(i) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Resource agency with jurisdiction—Department of Agriculture);
(ii) Health resources (Resource agency with jurisdiction—Department of Health and Human Services);
(iii) All forms of civil transportation (Resource agency with jurisdiction—Department of Transportation);
(iv) Water resources (Resource agency with jurisdiction—Department of Defense/U.S. Army Corps of Engineers); and
(v) Communications services (Resource agency with jurisdiction—National Communications System under E. O. 12472 of April 3, 1984).
(a) The EPAS is designed to be largely self-executing. However, from time-to-time production or delivery problems will arise. In this event, a person should immediately contact the Office of Infrastructure Security and Energy Restoration, for guidance or assistance (Contact the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93). If the problem(s) cannot otherwise be resolved, special priorities assistance should be sought from the Department of Energy through the Office of Infrastructure Security and Energy Restoration (Contact the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93). If the Department of Energy is unable to resolve the problem
(b) Special priorities assistance is available for any reason consistent with this part. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or to verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment.
(c) A request for special priorities assistance or priority rating authority must be submitted on Form DOE F 544 (05-11) (OMB control number 1910-5159) to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. Form DOE F 544 (05-11) may be obtained from the Department of Energy or a Delegate Agency. A sample Form DOE F 544 (05-11) is attached at Appendix I to this part.
(a) If a rated order is likely to be delayed because a person is unable to obtain items or services not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items or services.
(b) Rating authority for production or construction equipment.
(1) A request for priority rating authority for production or construction equipment must be submitted to the U.S. Department of Commerce on Form BIS-999.
(2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.
(c) Rating authority in advance of a rated prime contract. (1) In certain cases and upon specific request, the Department of Energy, in order to promote the national defense, may authorize or request the Department of Commerce to authorize, as appropriate, a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from the Department of Energy or the appropriate Delegate Agency. The person shall also assume any business risk associated with the placing of rated orders in the event the rated prime contract is not issued.
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from the Department of Energy and our use of that priority rating with our suppliers in no way commits the Department of Energy, the Department of Commerce, or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated prime contract, the Department of Energy or the Department of Commerce, as appropriate, will consider, among other things, the following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The time period for which the rating is being requested.
(4) The Department of Energy or the Department of Commerce, as appropriate, may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled.
(a) While special priorities assistance may be provided for any reason in support of this part, it is usually provided in situations where:
(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item or service needed to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by suppliers;
(2) Resolving production or delivery conflicts between various rated orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
Requests for special priorities assistance should be timely,
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the problem.
Special priorities assistance is provided at the discretion of the Department of Energy, the Delegate Agencies, or the Department of Commerce when it is determined that such assistance is warranted to meet the objectives of this part. Examples where assistance may not be provided include situations when a person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier's regularly established terms of sale or conditions of doing business.
(a) It is the policy of the Federal Government that the allocations authority under title I of the Defense Production Act may:
(1) Only be used when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and
(2) Not be used to ration materials or services at the retail level.
(b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market.
When the Department of Energy plans to execute its allocations authority to address a supply problem within its resource jurisdiction, the Department shall develop a plan that includes the following information:
(a) A copy of the written determination made, in accordance with section 202 of E.O. 12919, that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense;
(b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action;
(c) A statement of the specific objective(s) of the allocation action;
(d) A list of the materials, services, or facilities to be allocated;
(e) A list of the sources of the materials, services, or facilities that will be subject to the allocation action;
(f) A detailed description of the provisions that will be included in the allocation orders, including the type(s) of allocation orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocation action (
(g) An evaluation of the impact of the proposed allocation action on the civilian market; and
(h) Proposed actions, if any, to mitigate disruptions to civilian market operations.
No allocation action by the Department of Energy may be used to control the general distribution of a material in the civilian market, unless the Secretary of the Department of Energy has:
(a) Made a written finding that:
(1) Such material is a scarce and critical material essential to the national defense, and
(2) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;
(b) Submitted the finding for the President's approval through the Assistant to the President for National Security Affairs; and
(c) The President has approved the finding.
There are three types of allocation orders available for communicating allocation actions. These are:
(a)
(b)
(c)
Each allocation order must include:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required allocation action;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this part and that the requirements of this part are being followed;
(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR part 217), which is part of the Federal Priorities and Allocations System”; and
(e) A current copy of the Energy Priorities and Allocations System regulation (10 CFR part 217).
(a) Except as otherwise specified in this section, a person shall accept and comply with every allocation order received.
(b) A person shall not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person's terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order.
(c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify the Department of Energy immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by the Department of Energy that the order has been changed or cancelled.
An allocation order may be changed or canceled by an official action of the Department of Energy.
(a) The Department of Energy may take specific official actions to implement the provisions of this part.
(b) These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.
(a) A Rating Authorization is an official action granting specific priority rating authority that:
(1) Permits a person to place a priority rating on an order for an item or service not normally ratable under this part; or
(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.
(b) To request priority rating authority, see § 217.41.
(a) A Directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.
(b) A person must comply with each Directive issued. However, a person may not use or extend a Directive to obtain any items from a supplier, unless expressly authorized to do so in the Directive.
(c) A Priorities Directive takes precedence over all DX-rated orders,
(d) An Allocations Directive takes precedence over all Priorities Directives, DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
(a) A Letter or Memorandum of Understanding is an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (the Department of Energy, the Department of Commerce (if applicable), a Delegate Agency (if applicable), the supplier, and the customer).
(b) A Letter or Memorandum of Understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part. Rather, Letters or Memoranda of Understanding are used to confirm production or shipping schedules that do not require modifications to other rated orders.
(a) The Department of Energy may take specific official actions for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or an official action. Such actions include Administrative Subpoenas, Demands for Information, and Inspection Authorizations.
(b) Any person who places or receives a rated order or an allocation order must comply with the provisions of this part.
(c) Willful violation of the provisions of title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of the Department of Energy is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as set forth in § 217.74 of this part.
(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act and other applicable statutes, this part, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.
(b) When undertaking an audit or investigation, the Department of Energy shall:
(1) Define the scope and purpose in the official action given to the person under investigation, and
(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.
(c) In administering this part, the Department of Energy may issue the following documents that constitute official actions:
(1) Administrative Subpoenas. An Administrative Subpoena requires a person to appear as a witness before an official designated by the Department of Energy to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions. An Administrative Subpoena may also require the production of books, papers, records, documents and physical objects or property.
(2) Demands for Information. A Demand for Information requires a person to furnish to a duly authorized representative of the Department of Energy any information necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions.
(3) Inspection Authorizations. An Inspection Authorization requires a person to permit a duly authorized representative of the Department of Energy to interview the person's employees or agents, to inspect books, records, documents, other writings, and information, including electronically-stored information, in the person's possession or control at the place where that person usually keeps them or otherwise, and to inspect a person's property when such interviews and inspections are necessary or appropriate to the enforcement or the administration of the Defense Production Act and related statutes, this part, or official actions.
(d) The production of books, records, documents, other writings, and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of the Department of Energy is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Department of Energy as to the content of the material.
(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title, or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand for Information, or Inspection Authorization will describe them with particularity.
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail-Return Receipt Requested at the person's last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone at least 18 years old at the person's last known dwelling or place of business.
(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.
(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.
(a) If a person refuses to permit a duly authorized representative of the Department of Energy to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act and other applicable statutes, this part, or official actions, the Department of Energy representative may seek compulsory process. Compulsory process means the institution of
(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.
(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, the Department of Energy may inform the person in writing where compliance with the requirements of the Defense Production Act and other applicable statutes, this part, or an official action were not met.
(b) In cases where the Department of Energy determines that failure to comply with the provisions of the Defense Production Act and other applicable statutes, this part, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable statutes, this part, or an official action.
(a) Willful violation of the provisions of title I or sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes (when applicable), this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalties provided by the Defense Production Act are a $10,000 fine, or one year in prison, or both. The maximum penalties provided by the Selective Service Act and related statutes are a $50,000 fine, or three years in prison, or both.
(b) The Government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.
(c) In order to secure the effective enforcement of the Defense Production Act and other applicable statutes, this part, and official actions, the following are prohibited:
(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable statutes, this part, or an official action. In such instances, the person must immediately notify the Department of Energy that, in accordance with this provision, delivery has not been made.
If compliance with any provision of the Defense Production Act and other applicable statutes, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act and other applicable statutes, this part, or an official action, the person must immediately notify the Department of Energy for resolution of the conflict.
(a) A person may submit a request to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, for an adjustment or exception on the ground that:
(1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or
(2) The consequences of following a provision of this part or an official action is contrary to the intent of the Defense Production Act and other applicable statutes, or this part.
(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.
(c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93.
(d) A decision of the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, under this section may be appealed to the Office of Infrastructure Security and Energy Restoration (For information on the appeal procedure, see § 217.81.)
(a) Any person who has had a request for adjustment or exception denied by the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in section 217.93, under § 217.80, may appeal to the Office of Infrastructure Security and Energy Restoration who shall review and reconsider the denial.
(b)(1) Except as provided in this paragraph (b)(2), an appeal must be received by the Office of Infrastructure Security and Energy Restoration no later than 45 days after receipt of a written notice of denial from the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. After this 45-day period, an appeal may be accepted at the discretion of the Office of Infrastructure Security and Energy Restoration for good cause shown.
(2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness (see 217.14(d)), an appeal must be received by the Office of Infrastructure Security and Energy Restoration, no later than 15 days after receipt of a written notice of denial from the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. Contract performance under the order shall not be stayed pending resolution of the appeal.
(c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.
(d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Office of Infrastructure Security and Energy Restoration.
(e) When a hearing is granted, the Office of Infrastructure Security and
(f) When determining an appeal, the Office of Infrastructure Security and Energy Restoration may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Energy or consult with any other persons or groups.
(g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the appeal is being considered unless such relief is granted in writing by the Office of Infrastructure Security and Energy Restoration.
(h) The decision of the Office of Infrastructure Security and Energy Restoration shall be made within five (5) days after receipt of the appeal, or within one (1) day for appeals pertaining to emergency preparedness and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision.
A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority.
(a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part or an official action.
(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.
(c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of the Department of Energy as provided in § 217.71.
(d) In addition, persons must develop, maintain, and submit any other records and reports to the Department of Energy that may be required for the administration of the Defense Production Act and other applicable statutes, and this part.
(e) Section 705(d) of the Defense Production Act, as implemented by E.O. 12919, provides that information obtained under this section which the Secretary deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the Secretary determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Energy in connection with the enforcement or administration of the Defense Production Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and shall be handled in accordance with applicable Federal law.
(a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.
(b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.
(c) This part and its schedules shall not be construed to affect any administrative actions taken by the Department of Energy, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules or delegations of authority previously issued by the Department of Energy pursuant to authority granted to the President in the Defense Production Act. Such actions, contracts, or orders shall continue in full force and effect under this part unless modified or terminated by proper authority.
All communications concerning this part, including requests for copies of the regulation and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; (202) 536-0379 (
In rule document 2011-8690 appearing on pages 21579-21612 in the issue of Friday, April 15, 2011, the regulatory text is being republished below in its entirety due to errors in the equations.
On page 21604, in the third column, in the third paragraph from the top, the regulatory text should read as set forth below:
42 U.S.C. 6291-6317.
(1) The portion of a walk-in cooler or walk-in freezer that isolates the interior, refrigerated environment from the ambient, external environment; and
(2) All energy-consuming components of the walk-in cooler or walk-in freezer that are not part of its refrigeration system.
(1) A packaged dedicated system where the unit cooler and condensing unit are integrated into a single piece of equipment; or
(2) A split dedicated system with separate unit cooler and condensing unit sections; or
(3) A unit cooler that is connected to a multiplex condensing system.
(b)
(1) AHRI 1250 (I-P)-2009, (“AHRI 1250”), 2009 Standard for Performance Rating of Walk-In Coolers and Freezers, approved 2009, IBR approved for § 431.304.
(2) [Reserved]
(c) * * *
(2) ASTM C1363-05, (“ASTM C1363”), Standard Test Method for Thermal Performance of Building Materials and Envelope Assemblies by Means of a Hot Box Apparatus, approved May 1, 2005, IBR approved for Appendix A to Subpart R of part 431.
(d) CEN. European Committee for Standardization (French: Norme or German: Norm), Avenue Marnix 17, B-1000 Brussels, Belgium, Tel: + 32 2 550 08 11, Fax: + 32 2 550 08 19 or
(1) DIN EN 13164:2009-02, (“DIN EN 13164”), Thermal insulation products for buildings—Factory made products of extruded polystyrene foam (XPS)—Specification, approved February 2009, IBR approved for Appendix A to Subpart R of part 431.
(2) DIN EN 13165:2009-02, (“DIN EN 13165”), Thermal insulation products for buildings—Factory made rigid polyurethane foam (PUR) products—Specification, approved February 2009, IBR approved for Appendix A to Subpart R of part 431.
(e)
(1) NFRC 100-2010[E0A1], (“NFRC 100”), Procedure for Determining Fenestration Product U-factors, approved June 2010, IBR approved for Appendix A to Subpart R of part 431.
(2) [Reserved]
(b) * * *
(5) Determine the U-factor, conduction load, and energy use of walk-in cooler and walk-in freezer display panels, floor panels, and non-floor panels by conducting the test procedure set forth in Appendix A to this subpart, sections 4.1, 4.2, and 4.3, respectively.
(6) Determine the energy use of walk-in cooler and walk-in freezer display doors and non-display doors by conducting the test procedure set forth in Appendix A to this subpart, sections 4.4 and 4.5, respectively.
(7) Determine the Annual Walk-in Energy Factor of walk-in cooler and walk-in freezer refrigeration systems by conducting the test procedure set forth in AHRI 1250 (incorporated by reference; see § 431.303).
(8) Determine the annual energy consumption of walk-in cooler and walk-in freezer refrigeration systems:
(i) For systems consisting of a packaged dedicated system or a split dedicated system, where the condensing unit is located outdoors, by conducting the test procedure set forth in AHRI 1250 and recording the annual energy consumption term in the equation for annual walk-in energy factor in section 7 of AHRI 1250:
(ii) For systems consisting of a packaged dedicated system or a split dedicated system where the condensing unit is located in a conditioned space, by performing the following calculation:
(iii) For systems consisting of a single unit cooler or a set of multiple unit coolers serving a single piece of equipment and connected to a multiplex condensing system, by performing the following calculation:
This appendix covers the test requirements used to measure the energy consumption of the components that make up the envelope of a walk-in cooler or walk-in freezer.
The definitions contained in § 431.302 are applicable to this appendix.
(a) Calculate the U-factor of the display panel in accordance with section 5.3 of this appendix, Btu/h-ft
(b) Calculate the display panel surface area, as defined in section 3.4 of this appendix, A
(c) Calculate the temperature differential, ΔT
(d) Calculate the conduction load through the display panel, Q
(e) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(f) Calculate the total daily energy consumption, E
(a) Calculate the surface area, as defined in section 3.4 of this appendix, of the floor panel edge, as defined in section 3.3, A
(b) Calculate the surface area, as defined in section 3.4 of this appendix, of the floor panel core, as defined in section 3.2, A
(c) Calculate the total area of the floor panel, A
(d) Calculate the temperature differential of the floor panel, ΔΤ
(e) Calculate the floor foam degradation factor, DF
(f) Calculate the U-factor for panel core region modified by the long term thermal transmittance of foam, U
(g) Calculate the overall U-factor of the floor panel, U
(h) Calculate the conduction load through floor panels, Q
(i) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(j) Calculate the total daily energy consumption, E
(a) Calculate the surface area, as defined in section 3.4, of the non-floor panel edge, as defined in section 3.3, A
(b) Calculate the surface area, as defined in section 3.4, of the non-floor panel core, as defined in section 3.2, A
(c) Calculate total non-floor panel area, A
(d) Calculate temperature differential, ΔT
(e) Calculate the non-floor foam degradation factor, DF
(f) Calculate the U-factor, U
(g) Calculate the overall U-factor of the non-floor panel, U
(h) Calculate the conduction load through non-floor panels, Q
(i) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(j) Calculate the total daily energy consumption, E
(a) Calculate the U-factor of the door in accordance with section 5.3 of this appendix, Btu/h-ft
(b) Calculate the surface area, as defined in section 3.4 of this appendix, of the display door, A
(c) Calculate the temperature differential, ΔT
(d) Calculate the conduction load through the display doors, Q
Electrical components associated with display doors could include, but are not limited to: heater wire (for anti-sweat or anti-freeze application); lights (including display door lighting systems); control system units; and sensors.
(a) Select the required value for percent time off (PTO) for each type of electricity consuming device, PTO
(1) For lights without timers, control system or other demand-based control, PTO = 25 percent. For lighting with timers, control system or other demand-based control, PTO = 50 percent.
(2) For anti-sweat heaters on coolers (if included): Without timers, control system or other demand-based control, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 75 percent. For anti-sweat heaters on freezers (if included): Without timers, control system or other auto-shut-off systems, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 50 percent.
(3) For all other electricity consuming devices: Without timers, control system, or other auto-shut-off systems, PTO = 0 percent. If it can be demonstrated that the device is controlled by a preinstalled timer, control system or other auto-shut-off system, PTO = 25 percent.
(b) Calculate the power usage for each type of electricity consuming device, P
(c) Calculate the total electrical energy consumption for interior and exterior power, P
(d) Calculate the total electrical energy consumption, P
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/Wh
(2) For freezers, use EER = 6.3 Btu/Wh
(b) Calculate the additional refrigeration energy consumption due to thermal output from electrical components sited inside the display door, C
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(b) Calculate the total daily energy consumption due to conduction thermal load, E
(c) Calculate the total energy, E
(a) Calculate the surface area, as defined in section 3.4 of this appendix, of the non-display door, A
(b) Calculate the temperature differential of the non-display door, ΔT
(c) Calculate the conduction load through the non-display door: Q
Electrical components associated with a walk-in non-display door comprise any components that are on the non-display door and that directly consume electrical energy. This includes, but is not limited to, heater wire (for anti-sweat or anti-freeze application), control system units, and sensors.
(a) Select the required value for percent time off for each type of electricity consuming device, PTO
(1) For lighting without timers, control system or other demand-based control, PTO = 25 percent. For lighting with timers, control system or other demand-based control, PTO = 50 percent.
(2) For anti-sweat heaters on coolers (if included): Without timers, control system or other demand-based control, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 75 percent. For anti-sweat heaters on freezers (if included): Without timers, control system or other auto-shut-off systems, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 50 percent.
(3) For all other electricity consuming devices: Without timers, control system, or other auto-shut-off systems, PTO = 0 percent. If it can be demonstrated that the device is controlled by a preinstalled timer, control system or other auto-shut-off system, PTO = 25 percent.
(b) Calculate the power usage for each type of electricity consuming device, P
(c) Calculate the total electrical energy consumption for interior and exterior power, P
(d) Calculate the total electrical energy consumption, P
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/Wh
(2) For freezers, use EER = 6.3 Btu/Wh
(b) Calculate the additional refrigeration energy consumption due to thermal output from electrical components associated with the non-display door, C
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(b) Calculate the total daily energy consumption due to thermal load, E
(c) Calculate the total energy, E
Follow the test procedure in ASTM C1363, (incorporated by reference; see § 431.303), exactly, with these exceptions:
(i) Two (2) panels, 8 ft. ± 1 ft. long and 4 ft. ± 1 ft. wide must be used.
(ii) The panel edges must be joined using the manufacturer's panel interface joining system (e.g., camlocks, standard gasketing, etc.).
(iii) The Panel Edge Test Region, see figure 1, must be cut using the following dimensions:
1. If the panel contains framing members (e.g. a wood frame), then the width of edge (W) must be as wide as any framing member plus 2 in. ± 0.25 in. For example, if the face of the panel contains 1.5 in. thick framing members around the edge of the panel, then width of edge (W) = 3.5 in. ± 0.25 in and the Panel Edge Test Region would be 7 in. ± 0.5 in. wide.
2. If the panel does not contain framing members, then the width of edge (W) must be 4 in ± 0. 25 in.
3. Walk-in panels that utilize vacuum insulated panels (VIP) for insulation, width of edge (W) = the lesser of 4.5 in. ± 1 in. or the maximum width that does not cause the VIP to be pierced by the cutting device when the edge region is cut.
(iv) Panel Core Test Region of length Y and height Z, see Figure 1, must also be cut from one of the two panels such that panel length = Y + X, panel height = Z +X where X=2W.
(i) The air temperature on the “hot side”, as denoted in ASTM C1363, of the non-floor panel should be maintained at 75 °F ± 1 °F.
1. Exception: When testing floor panels, the air temperature should be maintained at 55 °F ± 1 °F.
(ii) The temperature on the “cold side”, as denoted in ASTM C1363, of the panel should be maintained at 35 °F ± 1 °F for the panels used for walk-in coolers and −10 °F ± 1 °F for panels used for walk-in freezers.
(iii) The air velocity must be maintained as natural convection conditions as described in ASTM C1363. The test must be completed using the masked method and with surround panel in place as described in ASTM C1363.
(i) Non-floor Panels
1. Panel Edge Region U-factor: U
2. Panel Core Region U-factor: U
(ii) Floor Panels
1. Floor Panel Edge Region U-factor: U
2. Floor Panel Core Region U-factor: U
Follow the test procedure in Annex C of DIN EN 13164 or Annex C of DIN EN 13165 (as applicable), (incorporated by reference; see § 431.303), exactly, with these exceptions:
(i) For freezers: 20 °F ± 1 °F must be used.
(ii) For coolers: 55 °F ± 1 °F must be used.
(i) A 800mm × 800mm square (× thickness of the panel) section cut from the geometric center of the panel that is being tested must be used as the sample for completing DIN EN 13165.
(ii) A 500mm × 500mm square (× thickness of the panel) section cut from the geometric center of the panel that is being tested must be used as the sample for completing DIN EN 13164.
(i) Non-floor Panels
1. Long Term Thermal Resistance: R
(ii) Floor Panels
1. Long Term Thermal Resistance: R
(a) Follow the procedure in NFRC 100, (incorporated by reference; see § 431.303), exactly, with these exceptions:
(1) The average convective heat transfer coefficient on both interior and exterior surfaces of the door should be based on the coefficients described in section 4.3 of NFRC 100.
(2) Internal conditions:
(i) Air temperature of 35 °F (1.7 °C) for cooler doors and −10 °F (−23.3 °C) for freezer doors
(ii) Mean inside radiant temperature must be the same as shown in section 5.3(a)(2)(i), above.
(3) External conditions
(i) Air temperature of 75 °F (23.9 °C)
(ii) Mean outside radiant temperature must be the same as section 5.3(a)(3)(i), above.
(4) Direct solar irradiance = 0 W/m
(b) Required Test Measurements
(i) Display Doors and Display Panels
1. Thermal Transmittance: U
(ii) Non-Display Door
1. Thermal Transmittance: U
Coast Guard, DHS.
Temporary Final rule.
The Coast Guard is establishing a temporary safety zone in the Captain of the Port (COTP) Zone New York on the navigable waters of the Upper New York Bay in the vicinity of Red Hook, New York for a fireworks display. This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. Persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within the temporary safety zone unless authorized by the COTP New York or the designated on-scene representative.
This rule is effective from 8:30 p.m. until 10 p.m. on June 21, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0222 and are available online by going to
If you have questions on this temporary rule, call or e-mail LTJG Eunice James, Coast Guard Sector New York Waterways Management Division; 718-354-4163, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive information regarding the dates and scope of the event in time to publish a NPRM followed by a final rule before the effective date. The sponsor was not aware of the requirements for submitting an application for a marine event 135 days in advance, resulting in a late notification. The sponsor is now aware of this requirement for all future events. Nevertheless, the sponsor is unable to reschedule this event due to other activities being held in conjunction with the fireworks display. The safety zone is necessary to provide for the safety of event participants, spectator craft, and other vessels operating near the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The fireworks event was planned by a private party to celebrate the 10th Anniversary of New York Water Taxi. The fireworks will commence at 9 p.m. on June 21, 2011 and will last approximately 10 minutes. This event poses significant risk to participants, spectators and the maritime public because of hazardous conditions associated with a fireworks display. This temporary safety zone is necessary to ensure the safety of these participants, spectators and vessels.
This rule establishes a temporary safety zone on the waters of the Upper New York Bay. The temporary safety zone will encompass all waters of the Upper New York Bay in the vicinity of Red Hook, Brooklyn, NY, within a 180 yards radius around position 40°40′52″ N, 074°01′39″ W (NAD 83) approximately 400 yards south of Governors Island. All persons and vessels shall comply with the instructions of the COTP New York or the designated representative. Entry into, transiting, or anchoring within the temporary safety zone is prohibited unless authorized by the COTP New York or the designated on-scene representative. The COTP New York or the designated representative may be reached on VFH Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, as supplemented by Executive Order 13563, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
The Coast Guard's implementation of this temporary safety zone will be of short duration and designed to minimize the impact to vessel traffic on navigable waters. This safety zone will only be enforced for 90 minutes. Furthermore, vessels may be authorized to transit the zone with permission of the COTP New York or the designated on-scene representative.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of the Upper New York Bay in the vicinity of Governors Island and Red Hook, NY. The fireworks will commence at 9 p.m. on June 21, 2011 and will last approximately 10 minutes.
This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic can safely transit around the zone. Before the effective period, we will issue maritime advisories widely available to users of the waterway. This rule will be in effect for only 90 minutes.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply,
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a temporary safety zone on a portion of the Upper New York Bay during the launching of fireworks. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(1) Entry into, transit through, mooring or anchoring within this safety zone is prohibited unless authorized by the COTP New York or the designated on-scene representative.
(2) Persons desiring to operate within the safety zone established in this section may contact the COTP New York at telephone number 718-354-4398 or via on-scene patrol personnel on VHF channel 16 to seek permission to do so. If permission is granted, all persons and vessels must still comply with the instructions of the COTP New York or the designated on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of Monterey Bay, off of Lovers Point, in Pacific Grove, California in support of the Pacific Grove Feast of Lanterns Fireworks Display. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or a designated representative.
This rule is effective from 9 p.m. through 9:45 p.m. on July 30, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0159 and are available online by going to
If you have questions on this temporary rule, call Lieutenant Junior Grade Allison Natcher at (415) 399-7442, or e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to
Pacific Grove Feast of Lanterns will sponsor the Pacific Grove Feast of Lanterns Fireworks Display on July 30, 2011, on the navigable waters of Monterey Bay, off of Lovers Point, in Pacific Grove, California. The fireworks display is meant for entertainment purposes. This safety zone establishes a temporary restricted area on the waters surrounding the fireworks launch site during the fireworks displays. This restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics over the water. The Coast Guard has granted the event sponsor a marine event permit for the fireworks displays.
From 9 p.m. until 9:45 p.m. the area to which the temporary safety zone applies will encompass the navigable waters around the fireworks launch site off of Lovers Point within a radius of 1,000 feet. At 9:45 p.m., the safety zone shall terminate. The fireworks launch site will be located in positions: 36°37′26.42″ N, 121° 54′54.03″ W (NAD 83).
The effect of the temporary safety zones will be to restrict navigation in the vicinity of the fireworks sites while the fireworks are set up, and until the conclusion of the scheduled displays. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance away from the launch site to ensure the safety of participants, spectators, and transiting vessels.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant. The entities most likely to be affected are pleasure craft engaged in recreational activities. In addition, the rule will only restrict access for a limited time. Finally, the Public Broadcast Notice to Mariners will notify the users of local waterway to ensure that the safety zone will result in minimum impact.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
Although this rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing, it will not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time; (ii) vessel traffic can pass safely around the area; (iii) vessels engaged in recreational activities and sightseeing have ample space outside of the affected areas of Monterey Bay, CA to engage in these activities; and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 0023.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone.
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
From 9 p.m. until 9:45 p.m. the area to which the temporary safety zone applies will encompass the navigable waters around the fireworks launch site off of Lovers Point within a radius of 1,000 feet. At 9:45 p.m., the safety zone shall terminate.
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the designated representative. Persons and vessels may request permission to enter the safety zones on VHF-16 or through the 24-hour Command Center at telephone (415) 399-3547.
(d) Effective period. This section is effective from 9 p.m. through 9:45 p.m. on July 30, 2011.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Detroit River, Detroit, MI. This zone is intended to restrict vessels from a portion of the Detroit River during the Nicole Cerrito Birthday Fireworks. This temporary safety zone is necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless
This rule is effective from 10 p.m. through 11:15 p.m. on June 11, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0416 and are available online by going to
If you have questions on this temporary rule, call or e-mail LT Katie Stanko, Prevention Department, Sector Detroit, Coast Guard; telephone (313) 568-9508, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the hazards associated with maritime fireworks displays.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On June 11, 2011, a private party is holding a land-based birthday celebration that will include fireworks launched from a point on the Detroit River. The fireworks display will occur between 10 p.m. and 11:15 p.m., June 11, 2011. The Captain of the Port has determined that waterborne fireworks displays present significant hazards to vessels and spectators in the vicinity of the launch site.
Because of the aforesaid hazards, the Captain of the Port has determined that the temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of the Nicole Cerrito Birthday Fireworks Display. Accordingly, the safety zone will encompass all waters on the Detroit River within a 300 foot radius of the fireworks barge launch site located off the shore of Detroit, MI at position 42°21′04″ N, 082°58′32″ W from 10 p.m. until 11:15 p.m. on June 11, 2011. All geographic coordinates are North American Datum of 1983 (NAD 83).
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. The Captain of the Port or his designated representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone around the launch platform will be relatively small and exist for only a minimal time. Thus, restrictions on vessel movement within any particular area of the Detroit River are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in this portion of the Detroit River between 10 p.m. through 11:15 p.m. on June 11, 2011.
This safety zone will not have a significant economic impact on a substantial number of small entities because vessels can easily transit around the zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction because it involves the establishment of a temporary safety zone. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated representative.
(3) The “designated representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his designated representative to obtain permission to do so.
(5) Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his designated representative.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zones for annual firework displays in the Captain of the Port, Puget Sound area of responsibility during the dates and times noted below. This action is necessary to prevent injury and to protect life and property of the maritime public from the hazards associated with the firework displays. During the enforcement periods, entry into, transit through, mooring, or anchoring within these zones is prohibited unless authorized by the Captain of the Port, Puget Sound or Designated Representative.
The regulations in 33 CFR 165.1332 will be enforced during the dates and times noted below.
If you have questions on this notice, call or e-mail ENS Anthony P. LaBoy, Sector Puget Sound Waterways Management, Coast Guard; telephone 206-217-6323,
The Coast Guard is providing notice of enforcement of the safety zones established for Annual Fireworks Displays within the Captain of the Port, Puget Sound Area of Responsibility in 33 CFR 165.1332 during the dates and times noted below.
The following safety zone will be enforced from 5 p.m. on July 1, 2011 through 1 a.m. on July 2, 2011:
The following safety zone will be enforced from 5 p.m. on July 2, 2011 through 1 a.m. on July 3, 2011:
The following safety zones will be enforced from 5 p.m. on July 3, 2011 through 1 a.m. on July 4, 2011:
The following safety zones will be enforced from 5 p.m. on July 4, 2011 through 1 a.m. on July 5, 2011.
The following safety zone will be enforced from 5 p.m. on July 09, 2011 through 1 a.m. on July 10, 2011:
The following safety zone will be enforced from 5 p.m. on July 29, 2011 through 1 a.m. on July 30, 2011:
The following safety zone will be enforced from 5 p.m. on August 13, 2011 through 1 a.m. on August 14, 2011:
The special requirements listed in 33 CFR 165.1332, which can be found in the
All vessel operators who desire to enter the safety zone must obtain permission from the Captain of the Port or Designated Representative by contacting either the on-scene patrol craft on VHF Ch 13 or Ch 16 or the Coast Guard Sector Puget Sound Joint Harbor Operations Center (JHOC) via telephone at (206) 217-6002.
The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 165.1332 and 33 CFR 165 and 5 U.S.C. 552(a). In addition to this notice, the Coast Guard will provide the maritime community with extensive advanced notification of the safety zones via the Local Notice to Mariners and marine information broadcasts on the day of the events.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to determine that the St. Louis (MO-IL) metropolitan nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. The St. Louis metropolitan ozone nonattainment area includes the counties of Franklin, Jefferson, St. Charles, and St. Louis as well as St. Louis City in Missouri; and the counties of Madison, Monroe, St. Clair, and Jersey in Illinois. This final determination is based on three years of complete, quality assured ambient air quality monitoring data for Missouri and Illinois for the 2008 through 2010 ozone seasons showing attainment of the NAAQS at all ozone monitoring sites in the nonattainment area. Based on this final determination, the obligation to submit certain ozone attainment demonstration requirements, along with other requirements related to the attainment of the 1997 8-hour ozone standard are suspended.
This rule is effective on July 11, 2011.
EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2010-0416. All documents in the docket are listed on the
In Region 7 contact Lachala Kemp, Air Planning and Development Branch, 901 N. 5th Street, Kansas City, Kansas 66101 at 913-551-7214, or by e-mail at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:
EPA is making a final determination that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. EPA published in the
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 ppm. On January 6, 2010, EPA again addressed this 2008 revised standard and proposed to set the primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm, rather than at 0.075 ppm. EPA is working to complete reconsideration of the standard and thereafter will proceed with designations. Today's rulemaking relates only to a final determination of attainment for the 1997 8-hour ozone standard and is not affected by the ongoing process of reconsidering the revised 2008 standard.
The monitors and design values are displayed in Table 1. The table summarizes the annual fourth-high daily maximum 8-hour ozone concentrations and their 3-year (2008-2010) averages for all monitors in the St. Louis (MO-IL) metropolitan nonattainment area. These data reflect peak ozone concentrations quality assured and reported by the States of Illinois and Missouri.
Review of the 2008-2010 ozone monitoring data in the nonattainment area shows that all sites were attaining the 1997 8-hour ozone NAAQS during this period. Therefore, based on the most recent three years of complete, quality assured ozone monitoring data, EPA is determining that the 1997 8-hour ozone standard has been attained in the St. Louis (MO-IL) metropolitan ozone nonattainment area.
EPA is taking final action to determine that the St. Louis metropolitan 8-hour ozone nonattainment area consisting of both the Missouri and Illinois portions of the area has attained the 1997 8-hour ozone standard. As provided in 40 CFR 51.918, based on this determination, certain attainment demonstration requirements and associated reasonably available control measures, reasonable further progress plans, contingency measures, and other planning SIP requirements related to attainment of the 8-hour ozone NAAQS shall be suspended as to the St. Louis nonattainment area. Under 40 CFR 51.918, a final determination that the area has met the 1997 8-hour ozone standard suspends the state's obligation to submit requirements related to attainment, for so long as the area continues to attain the standard. This action does not constitute a redesignation to attainment under CAA section 107(d)(3), because Missouri and Illinois do not have approved maintenance plans as required under section 175A of the CAA, nor has EPA made a determination that the area has met the other requirements for redesignation. The ozone classification and designation status of the area remains moderate nonattainment for the 1997 8-hour ozone NAAQS until such time as a redesignation request and maintenance plan are submitted to EPA and EPA determines that it meets the CAA requirements for redesignation to attainment.
If EPA subsequently determines, after notice-and-comment rulemaking in the
EPA is taking final action to determine that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone standard based on three years of complete, quality assured ambient air quality monitoring data for Missouri and Illinois for the 2008-2010 ozone seasons. As provided in 40 CFR 51.918, based on this determination, the requirements for Missouri and Illinois to submit an attainment demonstration and associated reasonably available control measures, a reasonable further progress plan, and contingency measures under section 172(c)(9), and any other planning SIP related to attainment of the 1997 8-hour ozone NAAQS for the St. Louis Metropolitan area would be suspended. This suspension of requirements would be effective as long as the area continues to attain the 1997 8-hour ozone standard. This action addresses only the 1997 8-hour ozone standard of 0.08 ppm, and does not address any subsequent revisions to the standard.
This final determination of attainment is based on air quality data and would result in the suspension of certain Federal Requirements. Accordingly, this action does not impose additional requirements beyond those imposed by state law. Therefore this final action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this 8-hour ozone clean NAAQS data final determination for the St. Louis (MO-IL) metropolitan area does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
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 August 8, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(jj) Determination of Attainment. EPA has determined, as of June 9, 2011, that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. This determination, in accordance with 40 CFR 51.918, suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, reasonable further progress, contingency measures, and other plan elements related to attainment of the standards for as long as the area continues to meet the 1997 Ozone NAAQS.
2. Section 52.1342 is added to subpart AA to read as follows:
Determination of Attainment. EPA has determined, as of June 9, 2011, that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. This determination, in accordance with 40 CFR 51.918, suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, reasonable further progress, contingency measures, and other plan elements related to attainment of the standards for as long as the area continues to meet the 1997 Ozone NAAQS.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a portion of the State Implementation Plan (SIP) revision submitted by the State of Oregon for the purpose of addressing certain provisions of the interstate transport provisions of Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS or standards) and the 1997 fine particulate matter (PM
Copies of the State's SIP revision and other information supporting this action are available for inspection at EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101.
Donna Deneen, EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101, or at (206) 553-6706.
Throughout this notice, the words “we”, “us”, or “our” means the Environmental Protection Agency (EPA).
EPA is approving a portion of Oregon's Interstate Transport State Implementation Plan (SIP) revision for the 1997 8-hour ozone NAAQS and 1997 PM
On July 18, 1997, EPA promulgated new standards for 8-hour ozone and fine particulate matter (PM
On June 23, 2010, the State of Oregon submitted a SIP revision addressing the requirements of section 110(a)(2)(D)(i) for both the 1997 8-hour ozone NAAQS and 1997 PM
EPA provided a 30-day review and comment period and solicited comments on our proposal published on April 7, 2011. 76 FR 19292. EPA received no comments on this proposed action.
EPA is approving the revisions to the Oregon SIP as discussed in our proposed action and concludes that for the 1997 8-hour ozone NAAQS and 1997 PM
As noted previously, EPA will address element (3) interference with any other state's required measures to prevent significant deterioration of its
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 8, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a) On June 23, 2010 and December 23, 2010, the Oregon Department of Environmental Quality submitted a SIP revision, adopted by the Oregon Environmental Quality Commission on April 30, 2010, to meet the requirements of Clean Air Act section 110(a)(2)(D)(i). EPA approves the portion of this submittal relating to significant contribution to nonattainment of the NAAQS in any other state and interference with maintenance of the NAAQS by any other state.
(b) [Reserved.]
Environmental Protection Agency (EPA).
Final rule.
EPA is approving revisions to the Idaho State Implementation Plan (SIP) that were submitted to EPA by the State of Idaho on April 16, 2007. This SIP submittal includes new and revised rules which provide the Idaho Department of Environmental Quality (IDEQ) the regulatory authority to address regional haze and to implement Best Available Retrofit Technology (BART) requirements.
This action is effective on July 11, 2011.
EPA has established a docket for this action under Docket Identification No. EPA-R10-OAR-2007-0406. All documents in the docket are listed on the
Steve Body at telephone number: (206) 553-0782, e-mail address:
Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA.
Information is organized as follows:
On January 5, 2011, EPA published in the
The rule revisions were submitted in accordance with the requirements of section 110 and part D of the Clean Air Act.
EPA provided a 30-day review and comment period and solicited comments on our proposal published in the January 5, 2011,
Pursuant to section 110 of the CAA, EPA is approving as a SIP revision Idaho rules: IDAPA58.01.01.006.04.a,b,c; 006.14.a through z; 006.16; 006.28; 006.42; 006.63.d; 006.65; 006.67; 006.81; 006.91; 006.92.b; 006.99; 006.101.b; 006.124; 006.125; 007.02a.iv; 007.02.d; 651; 665; 666; 667; and 668, that provide the State of Idaho authority to impose the BART provisions of 40 CFR 51.308(e). These revisions are described in detail in EPA's proposed action, published in the
Idaho has not demonstrated authority to implement and enforce IDAPA chapter 58 within “Indian Country” as defined in 18 U.S.C. 1151.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and the EPA notes
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 8, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission or FCC) denies a petition for reconsideration of the period in which inland VPCSA incumbents must vacate Channel 87B, and declines to extend this period generally to non-AIS operations because such an extension would undermine the primary goal of this proceeding. Further, the Commission determines that rechannelizing the VPC frequency band
Effective July 11, 2011.
Jeffrey Tobias,
This is a summary of the Federal Communications Commission's
1. AIS, which is used to monitor and track maritime traffic for purposes of both navigational safety and homeland security, is a global maritime navigation safety communications system through which marine vessels automatically transmit navigational data to appropriately equipped shore stations, other ships, and aircraft. The International Telecommunication Union has designated VHF maritime Channel 87B for AIS use in international waters. In the
2. Two duplex VPC channels had been set aside for public safety interoperability in each inland VPCSA. Specifically, Channel 25 (157.250/161.850 MHz) was set aside in each inland VPCSA, and either Channel 84 (157.225/161.825 MHz) or Channel 85 (157.275/161.875 MHz) was also set aside in each inland VPCSA. The Commission determined in the
3. PacifiCorp argues that allowing public safety incumbents to remain on Channels 84 and 85 for up to fifteen years while mandating that inland VPCSA licensees migrate to those channels within two years significantly undermines the ability of certain geographic area licensees on VPC Channel 87, such as PacifiCorp, to make a seamless transition to replacement Channels 84 and 85. It requests that the Commission extend the grandfathering period for inland VPCSA licensees to remain on Channel 87B to six months after the public safety incumbent(s) in that VPCSA vacate Channel 84 or 85. In the alternative, PacifiCorp requests that affected inland VPCSA licensees be given the right to apply for an unlicensed exclusive-use channel in the VHF band, such as a part 22 VHF channel, to use until six months after Channel 84 or 85 is vacated.
4. The Commission declines to extend the grandfathering period for inland VPCSA licensees to remain on Channel 87B. The paramount goal of this proceeding is to ensure that AIS is deployed widely, quickly, reliably, and cost-effectively, and in a manner that will maximize its capabilities. In the
5. PacifiCorp also asserts that, even where Channels 84 and 85 are not encumbered by public safety incumbents, the designation of those channels as VPC spectrum does not fully offset inland VPCSA licensees' loss of Channel 87B. VPC channels are 25 kilohertz wide, but, under § 80.371(c)(1)(iii) of the Commission's rules, VPC licensees may also operate on 12.5 kHz offset frequencies in areas where the licensee is authorized on both frequencies adjacent to the offset frequency, and in areas where the licensee on the other side of the offset frequency consents to the licensee's use of the adjacent offset frequency. Thus, an inland VPCSA incumbent licensed on Channels 27 (157.350/161.950 MHz), 87 (157.375/161.975 MHz), and 28 (157.400/162.000 MHz) can operate on the interstitial channel between Channels 27 and 87 and the interstitial channel between Channels 87 and 28. After the licensee replaces Channel 87B with Channel 84 or 85, however, it loses those two interstitial channels and gains only one interstitial channel (
6. To address both this particular issue and what PacifiCorp views more broadly as the current inefficient use of the VPC spectrum, PacifiCorp recommends that the Commission revise the channel plan for the inland VPCSAs. Specifically, PacifiCorp proposes that the Commission split the 25 kHz VPC channels into adjacent 12.5 kHz channels, and permit inland VPC licensees to use two 12.5 kHz channels with channel centers offset 6.25 kHz from the center frequency of each existing 25 kHz channel. In the alternative, PacifiCorp suggests that the Commission retain the existing VPC band plan, but shift the twenty-five kilohertz of spectrum that is designated for public safety interoperability in order to make an additional interstitial channel available for VPC use. Such action, PacifiCorp says, will allow for more intensive use of VPC spectrum by avoiding the stranding of spectrum where a licensee chooses to deploy more spectrally-efficient 12.5 kHz equipment but does not control both of the adjacent 25 kHz channels.
7. The Commission concludes that PacifiCorp's proposals to modify the VPC channel plan are beyond the scope of this rulemaking proceeding. The
8. PacifiCorp argues that its proposed alternative channel plans are a natural and logical outgrowth of actions already contemplated and taken by the Commission, and would merely complete the prior efforts by the Commission to ‘restore the operating capacity’ of inland VPCSA licensees. The Commission disagrees. In determining whether an agency's adopted rule can be deemed a logical outgrowth of a proposed rule, the focus of the inquiry is on whether the purposes underlying the APA notice-and-comment requirements have been served. In furtherance of this inquiry, the agency should consider whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule, and whether the final rule could have been anticipated by persons with knowledge of the proposed rule. The Commission concludes that interested parties who potentially may have objected to, or wished to comment on, the rule changes now proposed by PacifiCorp did not have meaningful notice that such rule changes might be adopted, and could not have anticipated that, in this proceeding focused on domestic implementation of AIS, the Commission might broadly revise the VPC channel plan. The primary objective of the rulemaking proceeding is to ensure that the United States can take full advantage of the navigational safety and homeland security benefits of AIS, but PacifCorp's proposals address matters regarding the VPC frequency band that are at best ancillary to this objective. Nothing in the
9. Having determined to affirm its decisions regarding the grandfathering provisions adopted in the
10. Finally, the Commission also corrects a typographical error in § 2.106 of its rules, note US228, and § 90.20(g)(2)(ii) of its rules, which state that incumbent site-based Channel 87B licensees in the inland VPCSAs are grandfathered until March 4, 2024, rather than March 2, 2024 (fifteen years after the effective date of the rule amendments adopted in the
11. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
12. The Commission will send a copy of this
13. Accordingly, pursuant to section 405(a) of the Communications Act of 1934, as amended, 47 U.S.C. 405(a), and § 1.429 of the Commission's rules, 47 CFR 1.429, that the petition for
14. Pursuant to the authority of sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, that parts 2 and 80 of the Commission's rules
15. The proceeding WT Docket No. 04-344
Communications equipment, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2, 80 and 90 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
US228 The use of the bands 161.9625-161.9875 MHz (AIS 1 with center frequency 161.975 MHz) and 162.0125-162.0375 MHz (AIS 2 with center frequency 162.025 MHz) by the maritime mobile service is restricted to Automatic Identification Systems (AIS), except that non-Federal stations in the band 161.9625-161.9875 MHz may continue to operate on a primary basis according to the following schedule:
(a) In VHF Public Coast Service Areas (VPCSAs) 1-9, site-based stations licensed prior to November 13, 2006 may continue to operate until expiration of the license term for licenses in active status as of November 13, 2006;
(b) In VPCSAs 10-42, site-based stations licensed prior to March 2, 2009 may continue to operate until March 2, 2024; and
(c) In VPCSAs 10-42, geographical stations licensed prior to March 2, 2009 may continue to operate until March 2, 2011.
Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377.
(c)(1)(i) * * *
Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
(g) * * *
(2) * * *
(ii) The channel pairs 157.225 MHz/161.825 MHz and 157.275 MHz/161.875 MHz were formerly allocated and assigned under this section as public safety interoperability channels but were reallocated for assignment as VHF public coast station channels under § 80.371(c) of this chapter. Public safety operations licensed on these channels as of March 2, 2009 or licensed pursuant to an application filed prior to September 19, 2008, may remain authorized to operate on the channels on a primary basis until March 2, 2024.
Federal Communications Commission.
Final rule.
The Commission grants a petition for rulemaking filed by NewsChannel 5 Network, LLC (“NewsChannel 5”), the licensee of WTVF(TV), requesting the substitution of channel 25 for channel 5 at Nashville. According to NewsChannel 5, after WTVF(TV) transitioned from its pre-transition digital channel 56 to its post-transition digital channel 5, thousands of calls were received from viewers that could no longer view the station's digital signal.
This rule is effective July 11, 2011.
Joyce L. Bernstein,
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
The Commission will send a copy of this
Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
There have been several in-service reports of airspeed mismatch between the pilot and co-pilot's airspeed indicators. It was discovered that during or after heavy rain, the pitot-static tubing may become partially or completely blocked by water, which fails to enter the drain bottles. Investigation revealed that drain bottles used in the primary pitot-static system include check valves, which impede the entry of water into the drain bottle. This condition, if not corrected, may result in erroneous airspeed and altitude indications.
We must receive comments on this proposed AD by July 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; phone: 514-855-5000; fax: 514-855-7401; e-mail:
You may examine the AD docket on the Internet at
Christopher Alfano, Aerospace Engineer, Airframe & Mechanical Systems Branch, ANE-171, New York Aircraft Certification Office (ACO), FAA, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone: 516-228-7340; fax: 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, has issued Canadian Airworthiness Directive CF-2010-37, dated October 28, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several in-service reports of airspeed mismatch between the pilot and co-pilot's airspeed indicators. It was discovered that during or after heavy rain, the pitot-static tubing may become partially or completely blocked by water, which fails to enter the drain bottles. Investigation revealed that drain bottles used in the primary pitot-static system include check valves, which impede the entry of water into the drain bottle. This condition, if not corrected, may result in erroneous airspeed and altitude indications.
This directive mandates replacement of the [certain] Water Accumulator Assemblies [with new water accumulator assemblies] to improve drainage of the pitot-static tubing.
You may obtain further information by examining the MCAI in the AD docket.
Bombardier Inc., has issued Service Bulletin 601R-34-147, Revision B, dated March 8, 2011; and Service Bulletin 670BA-34-030, Revision B, dated March 23, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 1,041 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $1,200 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,426,170, or $1,370 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by July 25, 2011.
(b) None.
(c) This AD applies to all Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, serial numbers 7003 thru 7067, 7069 thru 7990, 8000 thru 8107, and subsequent; Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; and Model CL-600-2D24 (Regional Jet Series 900) airplanes; certificated in any category.
(d) Air Transport Association (ATA) of America Code 34: Navigation.
(e) The mandatory continuing airworthiness information (MCAI) states:
There have been several in-service reports of airspeed mismatch between the pilot and co-pilot's airspeed indicators. It was discovered that during or after heavy rain, the pitot-static tubing may become partially or completely blocked by water, which fails to enter the drain bottles. Investigation revealed that drain bottles used in the primary pitot-static system include check valves, which impede the entry of water into the drain bottle. This condition, if not corrected, may result in erroneous airspeed and altitude indications.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 9 months after the effective date of this AD, do the actions specified in paragraphs (g)(1) and (g)(2) of this AD, as applicable.
(1) For Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes identified in Bombardier Service Bulletin 601R-34-147, Revision B, dated March 8, 2011: Replace water accumulator assemblies having part numbers (P/N) 50029-001, 9435015, 50030-001, and 9435014 installed on the pitot and static lines of the air data computer (ADC) with new or serviceable water accumulator assemblies having P/N 50036-001, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601R-34-147, Revision B, dated March 8, 2011.
(2) For Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), CL-600-2D15 (Regional Jet Series 705), and CL-600-2D24 (Regional Jet Series 900) airplanes: Replace water accumulator assemblies having P/N 50033-001 installed on the pitot and static lines of the ADC with new or serviceable water accumulator assemblies having P/N 50036-001, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-34-030, Revision B, dated March 23, 2010.
(h) As of the effective date of this AD, no person may install a water accumulator assembly P/N 50029-001, 9435015, 50030-001, or 9435014 for Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, or P/N 50033-001 for Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and
(i) Replacing water accumulator assemblies in accordance with Bombardier Service Bulletin 670BA-34-147, dated April 1, 2009; or Revision A, dated November 3, 2009; before the effective date of this AD is acceptable for compliance with the corresponding replacement required by paragraph (g)(1) of this AD.
(j) Replacing water accumulator assemblies in accordance with Bombardier Service Bulletin 670BA-34-030, dated April 1, 2009; or Revision A, dated November 3, 2009; (for Model CL-600-2C10, CL-600-2D15, and CL-600-2D24 airplanes), before the effective date of this AD, is acceptable for compliance with the corresponding replacement required by paragraph (g)(2) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(k) The following provisions also apply to this AD:
(1)
(2)
(l) Refer to MCAI Transport Canada Civil Aviation Airworthiness Directive CF-2010-37, dated October 28, 2010; Bombardier Service Bulletin 601R-34-147, Revision B, dated March 8, 2011; and Bombardier Service Bulletin 670BA-34-030, Revision B, dated March 23, 2010; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to the products listed above. The existing AD currently requires frequent inspections of the fuel pressure supply for excessive oscillations to determine if high-pressure fuel pumps have been exposed to damaging pressure oscillations. Pumps that have been exposed require replacement before further flight. Since we issued that AD, Austro Engine, the manufacturer of the pump, introduced a new part number (P/N) fuel pump as mandatory terminating action to the repetitive inspections. This proposed AD would require the initial and repetitive inspections of AD 2010-23-09, but would also require installing HP fuel pump P/N E4A-30-200-000, as mandatory terminating action to the repetitive inspections. We are proposing this AD to prevent engine power loss or in-flight shutdown, which could result in loss of control of the airplane.
We must receive comments on this proposed AD by July 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A-2700 Weiner Neustadt, Austria, phone: +43 2622 23000; fax: +43 2622 23000-2711, or go to:
You may examine the AD docket on the Internet at
James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7176; fax: 781-238-7199; e-mail:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On October 27, 2010, we issued AD 2010-23-09, Amendment 39-16498 (75 FR 68179, November 5, 2010), for Austro Engine GmbH model E4 diesel
Since we issued AD 2010-23-09, EASA issued AD 2011-0039, dated March 8, 2011, adding a terminating action on Austro Engine GmbH model E4 diesel piston engines.
We reviewed Austro Engine GmbH Work Instruction No. WI-MSB-E4-009, dated October 7, 2010, and Austro Engine GmbH Mandatory Service Bulletin No. MSB-E4-009/2, dated March 4, 2011. The actions described in this service information are intended to prevent engine power loss or in-flight shutdown, which could result in loss of control of the airplane.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all the requirements of AD 2010-23-09, and require installing HP fuel pump P/N E4A-30-200-000, as mandatory terminating action to the repetitive inspections.
Based on the service information, we estimate that this proposed AD will affect about 32 model E4 diesel piston engines, installed on airplanes of U.S. registry. We also estimate that it will take about 1 work-hour per engine to perform one inspection, and about 2 work-hours per engine to replace the HP fuel pump. The average labor rate is $85 per work-hour. Required parts will cost about $2,325 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $82,560.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2010-23-09, Amendment 39-16498 (75 FR 68179, November 5, 2010), and adding the following new AD:
(a) The FAA must receive comments on this AD action by July 25, 2011.
(b) This AD supersedes AD 2010-23-09, Amendment 39-16498.
(c) This AD applies to Austro Engine GmbH model E4 diesel piston engines, with high-pressure (HP) fuel pump, part number (P/N) E4A-30-100-000, installed.
(d) This AD was prompted by Austro Engine GmbH introducing a new P/N fuel pump as mandatory terminating action to the repetitive inspections required by AD 2010-23-09, Amendment 39-16498. We are issuing this AD to prevent engine power loss or in-flight shutdown, which could result in loss of control of the airplane.
(e) Comply with this AD within the compliance times specified, unless already done.
(1) Inspect the fuel pressure supply for excessive oscillations using the inspection schedule in Table 1 of this AD.
(2) Use Austro Engine GmbH Work Instruction No. WI-MSB-E4-009, dated October 7, 2010, to do the inspections.
(3) Replace the HP fuel pump before further flight with a new HP fuel pump, P/N E4A-30-200-000, if the oscillations exceed 300mV (750hPa).
(4) As mandatory terminating action to the repetitive inspections, within 120 flight hours after the effective date of this AD, replace the HP fuel pump, P/N E4A-30-100-000, with an HP fuel pump, P/N E4A-30-200-000. Austro Engine GmbH Mandatory Service Bulletin (MSB) No. MSB-E4-009/2 contains guidance on replacing the HP fuel pump.
(f) After the effective date of this AD, do not install any HP fuel pump P/N E4A-30-100-000, onto any engine.
(g) After the effective date of this AD, do not install any engine equipped with HP fuel pump P/N E4A-30-100-000, onto any airplane.
(h) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(i) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2011-0039, dated March 8, 2011, Austro Engine GmbH Work Instruction No. WI-MSB-E4-009, dated October 7, 2010, and Austro Engine GmbH MSB No. MSB-E4-009/2, dated March 4, 2011, for related information. For a copy of this service information, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A-2700 Weiner Neustadt, Austria, phone: +43 2622 23000; fax: +43 2622 23000-2711, or go to:
(j) For more information about this AD, contact James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: (781) 238-7176; fax: (781) 238-7199; e-mail:
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a limited approval and a limited disapproval of a revision to the Tennessee State Implementation Plan (SIP) submitted by the State of Tennessee through the Tennessee Department of Environment and Conservation (TDEC) on April 4, 2008, that addresses regional haze for the first implementation period. This revision addresses the requirements of the Clean Air Act (CAA) and EPA's rules that require states to prevent any future and remedy any existing anthropogenic impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is proposing a limited approval of this SIP revision to implement the regional haze requirements for Tennessee on the basis that the revision, as a whole, strengthens the Tennessee SIP. Also in this action, EPA is proposing a limited disapproval of this same SIP revision because of the deficiencies in the State's April 2008 regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia (DC Circuit) to EPA of the Clean Air Interstate Rule (CAIR).
Comments must be received on or before July 11, 2011.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2009-0786, by one of the following methods:
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Sara Waterson or Michele Notarianni, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency,
EPA is proposing a limited approval of Tennessee's April 4, 2008, SIP revision addressing regional haze under CAA sections 301(a) and 110(k)(3) because the revision as a whole strengthens the Tennessee SIP. However, the Tennessee SIP relies on CAIR, an EPA rule, to satisfy key elements of the regional haze requirements. Due to the remand of CAIR,
Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing guidance, a limited approval results in approval of the entire SIP submittal, even of those parts that are deficient and prevent EPA from granting a full approval of the SIP revision.
While CAIR will not remain in effect indefinitely, it is currently in force.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713), the RHR. The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section III of this preamble. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands.
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various Federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and Tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and Tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
The Visibility Improvement State and Tribal Association of the Southeast (VISTAS) RPO is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues in the Southeastern United States. Member state and tribal governments include: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia, and the Eastern Band of the Cherokee Indians.
Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview as the principal metric or unit for expressing visibility. This visibility metric expresses uniform changes in haziness in terms of common
The deciview is used in expressing RPGs (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions,
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents titled, EPA's
For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline period is considered the time from which improvement in visibility is measured.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two RPGs (
States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciview.
In their SIPs, states must identify potential BART sources, described as “BART-eligible sources” in the RHR, and document their BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor.
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP.
As noted above, the RHR allows states to implement an alternative program in lieu of BART so long as the alternative program can be demonstrated to achieve greater reasonable progress toward the national visibility goal than would BART. Under regulations issued in 2005 revising the regional haze program, EPA made just such a demonstration for CAIR.
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state.
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS.
As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated LTS for
Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network,
The SIP must also provide for the following:
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;
• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
The RHR requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with FLMs before adopting and submitting their SIPs.
CAIR, as originally promulgated, requires 28 states and the District of Columbia to reduce emissions of SO
On July 11, 2008, the DC Circuit issued its decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety.
The following is a summary of the elements of the regional haze SIPs that are potentially affected by the remand of CAIR. Many states relied on CAIR as an alternative to BART for SO
EPA is intending to propose to issue limited approvals of those regional haze SIP revisions that rely on CAIR to address the impact of emissions from a state's own EGUs. Limited approval results in approval of the entire regional haze submission and all its elements. EPA is taking this approach because an affected state's SIP will be stronger and more protective of the environment with the implementation of those measures by the state and having Federal approval and enforceability than it would without those measures being included in the state's SIP.
EPA also intends to propose to issue limited disapprovals for regional haze SIP revisions that rely on CAIR concurrently with the proposals for limited approval. As explained in the 1992 Calcagni Memorandum, “[t]hrough a limited approval, EPA [will] concurrently, or within a reasonable period of time thereafter, disapprove the rule * * * for not meeting all of the applicable requirements of the Act. * * * [T]he limited disapproval is a rulemaking action, and it is subject to notice and comment.” Final limited disapproval of a SIP submittal does not affect the Federal enforceability of the measures in the subject SIP revision nor prevent state implementation of these measures. The legal effects of the final limited disapproval are to provide EPA the authority to issue a FIP at any time, and to obligate the Agency to take such action no more than two years after the effective date of the final limited disapproval action.
On April 4, 2008, TDEC's Division of Air Pollution Control submitted revisions to the Tennessee SIP to address regional haze in the State's Class I areas as required by EPA's RHR.
Tennessee has two Class I areas within its borders: Great Smoky Mountains National Park and Joyce-Kilmer Slickrock Wilderness Area. These Class I areas also fall within the geographic boundaries of North Carolina. Therefore, both Tennessee and North Carolina are responsible for developing their own regional haze SIPs that address these Class I areas. The two states worked together to determine appropriate RPGs, including consulting with other states that impact the two Class I areas, as discussed in V.F.1. In addition, both Tennessee and North Carolina are responsible for describing their own long-term emission strategies, their role in the consultation processes, and how their particular state SIP meets the other requirements in EPA's regional haze regulations.
The Tennessee regional haze SIP establishes RPGs for visibility improvement at each of these Class I areas and a LTS to achieve those RPGs within the first regional haze implementation period ending in 2018. In developing the LTS for each area, Tennessee considered both emission sources inside and outside of Tennessee that may cause or contribute to visibility impairment in Tennessee's Class I areas. The State also identified and considered emission sources within Tennessee that may cause or contribute to visibility impairment in Class I areas in neighboring states as required by 40 CFR 51.308(d)(3). The VISTAS RPO worked with the State in developing the technical analyses used to make these determinations, including state-by-state contributions to visibility impairment in specific Class I areas, which included the two areas in Tennessee and those areas affected by emissions from Tennessee.
As required by the RHR and in accordance with EPA's 2003 Natural Visibility Guidance, Tennessee calculated baseline/current and natural visibility conditions for each of its Class I areas, as summarized below (and as further described in sections III.B.1 and III.B.2. of EPA's TSD to this
Natural background visibility, as defined in EPA's 2003 Natural Visibility Guidance, is estimated by calculating the expected light extinction using default estimates of natural concentrations of fine particle components adjusted by site-specific estimates of humidity. This calculation uses the IMPROVE equation, which is a formula for estimating light extinction from the estimated natural concentrations of fine particle components (or from components measured by the IMPROVE monitors). As documented in EPA's 2003 Natural Visibility Guidance, EPA allows states to use “refined” or alternative approaches to 2003 EPA guidance to estimate the values that characterize the natural visibility conditions of the Class I areas. One alternative approach is to develop and justify the use of alternative estimates of natural concentrations of fine particle components. Another alternative is to use the “new IMPROVE equation” that was adopted for use by the IMPROVE Steering Committee in December 2005.
The new IMPROVE equation takes into account the most recent review of the science
The Joyce Kilmer-Slickrock Wilderness Area does not contain an IMPROVE monitor. In cases where onsite monitoring is not available, 40 CFR 51.308(d)(2)(i) requires states to use the most representative monitoring available for the 2000-2004 period to establish baseline visibility conditions, in consultation with EPA. Tennessee used and EPA concurs with the use of 2000-2004 data from the IMPROVE monitor at Great Smoky Mountains National Park for the Joyce Kilmer-Slickrock Wilderness Area. The Great Smoky Mountains National Park is nearest and contiguous to the Joyce Kilmer-Slickrock Wilderness Area, and the areas possess similar characteristics, such as meteorology and topography.
TDEC estimated baseline visibility conditions at both Tennessee Class I areas using available monitoring data from a single IMPROVE monitoring site in the Great Smoky Mountains National Park. As explained in section III.B, for the first regional haze SIP, baseline visibility conditions are the same as current conditions. A five-year average of the 2000 to 2004 monitoring data was calculated for each of the 20 percent worst and 20 percent best visibility days at each Tennessee Class I area. IMPROVE data records for Great Smoky Mountains National Park for the period 2000 to 2004 meet the EPA requirements for data completeness. See page 2-8 of EPA's 2003 Tracking Progress Guidance. Table 3.3-1 from Appendix G of the Tennessee regional haze SIP, also provided in section III.B.3 of EPA's TSD to this action, lists the 20 percent best and worst days for the baseline period of 2000-2004 for Great Smoky Mountains National Park. This data is also provided at the following Web site:
For the Tennessee Class I areas, baseline visibility conditions on the 20 percent worst days are approximately 30 deciviews. Natural visibility in these areas is predicted to be approximately 11 deciviews on the 20 percent worst days. The natural and baseline conditions for Tennessee's Class I areas for both the 20 percent worst and best days are presented in Table 1 below.
In setting the RPGs, Tennessee considered the uniform rate of progress needed to reach natural visibility conditions by 2064 (“glidepath”) and the emission reduction measures needed to achieve that rate of progress over the period of the SIP to meet the requirements of 40 CFR 51.308(d)(1)(i)(B). As explained in EPA's Reasonable Progress Guidance document, the uniform rate of progress is not a presumptive target, and RPGs may be greater, lesser, or equivalent to the glidepath.
The State's implementation plan presents two sets of graphs, one for the 20 percent best days, and one for the 20 percent worst days, for its two Class I areas. Tennessee constructed the graph for the worst days (
For the Tennessee Class I areas, the overall visibility improvement necessary to reach natural conditions is the difference between baseline visibility of 30.28 deciviews for the 20 percent worst days and natural conditions of 11.05 deciviews,
As described in section III.E of this action, the LTS is a compilation of state-specific control measures relied on by the state for achieving its RPGs. Tennessee's LTS for the first implementation period addresses the emissions reductions from Federal, state, and local controls that take effect in the State from the end of the baseline period starting in 2004 until 2018. The Tennessee LTS was developed by the State, in coordination with the VISTAS RPO, through an evaluation of the following components: (1) Identification of the emission units within Tennessee and in surrounding states that likely have the largest impacts currently on visibility at the State's two Class I areas; (2) estimation of emissions reductions for 2018 based on all controls required or expected under Federal and state regulations for the 2004-2018 period (including BART); (3) comparison of projected visibility improvement with the uniform rate of progress for the State's Class I areas; and (4) application of the four statutory factors in the reasonable progress analysis for the identified emission units to determine if additional reasonable controls were required.
CAIR is also an element of Tennessee's LTS. CAIR rule revisions were approved into the Tennessee SIP in 2007 and 2009.
The emissions inventory used in the regional haze technical analyses was developed by VISTAS with assistance from Tennessee. The 2018 emissions inventory was developed by projecting 2002 emissions and applying reductions expected from Federal and state regulations affecting the emissions of VOC and the visibility-impairing pollutants NO
VISTAS developed emissions for five inventory source classifications: Stationary point and area sources, off-road and on-road mobile sources, and biogenic sources. Stationary point sources are those sources that emit greater than a specified tonnage per year, depending on the pollutant, with data provided at the facility level. Stationary area sources are those sources whose individual emissions are relatively small, but due to the large number of these sources, the collective emissions from the source category could be significant. VISTAS estimated emissions on a countywide level for the inventory categories of: (a) stationary area sources; (b) off-road (or non-road) mobile sources (
There are many Federal and state control programs being implemented that VISTAS and Tennessee anticipate will reduce emissions between the end of the baseline period and 2018. Emission reductions from these control programs are projected to achieve substantial visibility improvement by 2018 in the Tennessee Class I areas. The control programs relied upon by Tennessee include CAIR; EPA's NO
On July 30, 2007, the U.S. District Court of Appeals mandated the vacatur and remand of the Industrial Boiler MACT Rule.
Below in Tables 2 and 3 are summaries of the 2002 baseline and 2018 estimated emission inventories for Tennessee.
VISTAS performed modeling for the regional haze LTS for the 10 southeastern states, including Tennessee. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. VISTAS used the following modeling system:
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CMAQ modeling of regional haze in the VISTAS region for 2002 and 2018 was carried out on a grid of 12x12 kilometer cells that covers the 10 VISTAS states (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia) and states adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36x36 kilometer grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. VISTAS conducted an in-depth analysis which resulted in the selection of the entire year of 2002 (January 1-December 31) as the best period of meteorology available for conducting the CMAQ modeling. The VISTAS states modeling was developed consistent with EPA's
VISTAS examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the LTS and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the LTS and to compare predicted, modeled visibility levels with those on the uniform rate of progress. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. VISTAS used a diverse set of statistical parameters from the EPA's Modeling Guidance to stress and examine the model and modeling inputs. Once VISTAS determined the model performance to be acceptable, VISTAS used the model to assess the 2018 RPGs using the current and future year air quality modeling predictions, and compared the RPGs to the uniform rate of progress.
In accordance with 40 CFR 51.308(d)(3), the State of Tennessee provided the appropriate supporting documentation for all required analyses used to determine the State's LTS. The technical analyses and modeling used to develop the glidepath and to support the LTS are consistent with EPA's RHR, and interim and final EPA Modeling Guidance. EPA accepts the VISTAS technical modeling to support the LTS and determine visibility improvement for the uniform rate of progress because the modeling system was chosen and simulated according to EPA Modeling Guidance. EPA agrees with the VISTAS model performance procedures and results, and that the CMAQ is an appropriate tool for the regional haze assessments for the Tennessee LTS and regional haze SIP.
An important step toward identifying reasonable progress measures is to identify the key pollutants contributing to visibility impairment at each Class I area. To understand the relative benefit of further reducing emissions from different pollutants, source sectors, and geographic areas, VISTAS developed emission sensitivity model runs using CMAQ to evaluate visibility and air quality impacts from various groups of emissions and pollutant scenarios in the Class I areas on the 20 percent worst visibility days.
Regarding which pollutants are most significantly impacting visibility in the VISTAS region, VISTAS' contribution assessment, based on IMPROVE monitoring data, demonstrated that ammonium sulfate is the major contributor to PM
VISTAS grouped its 18 Class I areas into two types, either “coastal” or “inland” (sometimes referred to as “mountain”) sites, based on common/similar characteristics (
Results from VISTAS' emission sensitivity analyses indicate that sulfate particles resulting from SO
The VISTAS sensitivity analyses show that VOC emissions from biogenic sources such as vegetation also contribute to visibility impairment. However, control of these biogenic sources of VOC would be extremely difficult, if not impossible. The anthropogenic sources of VOC emissions are minor compared to the biogenic sources. Therefore, controlling anthropogenic sources of VOC emissions would have little if any visibility benefits at the Class I areas in the VISTAS region, including Tennessee. The sensitivity analyses also show that reducing primary carbon from point sources, ground level sources, or fires is projected to have small to no visibility benefit at the VISTAS Class I areas.
Tennessee considered the factors listed in under 40 CFR 51.308(d)(3)(v) and in section III.E. of this action to develop its LTS as described below. Tennessee, in conjunction with VISTAS, demonstrated in its SIP that elemental carbon (a product of highway and non-road diesel engines, agricultural burning, prescribed fires, and wildfires), fine soils (a product of construction activities and activities that generate fugitive dust), and ammonia are relatively minor contributors to visibility impairment at the Class I areas in Tennessee. Tennessee considered agricultural and forestry smoke management techniques to address visibility impacts from elemental carbon. TDEC is currently working with the Tennessee Division of Forestry to develop a smoke management program that utilizes basic smoke management practices and addresses the issues laid out in the EPA's 1998
The emissions sensitivity analyses conducted by VISTAS predict that reductions in SO
Taking the VISTAS sensitivity analyses results into consideration, Tennessee concluded that reducing SO
SO
As discussed in section V.C.3. of this notice, through comprehensive evaluations by VISTAS and the Southern Appalachian Mountains Initiative (SAMI),
Tennessee's SO
TDEC identified 15 emission units at 10 facilities in Tennessee (see Table 4) with SO
TDEC analyzed whether SO
Bowater is a Kraft pulp mill with three coal-fired boilers burning 1.1 percent sulfur coal. Bowater presented information and data in its reasonable progress control analysis that led TDEC to conclude that Bowater should not be required to install SO
INVISTA produces polymers and fibers and operates three coal-fired boilers. SO
A wet FGD system was determined to be a technically feasible option for control of SO
Similarly, an SDA system was determined to be a technically feasible control option but also cost prohibitive. The cost-effectiveness of applying SDA to this unit is estimated to be at least $4,000 per ton of SO
As was the case for FGD and SDA, TDEC determined that the DSI system was also technically feasible but cost prohibitive as a control option. The cost-effectiveness of applying DSI was estimated to be at least $4,037 per ton of SO
Finally, INVISTA evaluated switching to a lower sulfur (0.75 percent) western sub-bituminous coal, and determined that this is both a technologically feasible and cost effective control technology option. The cost-effectiveness was calculated to be approximately $1,225 per ton of SO
As noted in EPA's Reasonable Progress Guidance, the states have wide latitude to determine appropriate additional control requirements for ensuring reasonable progress, and there are many ways for a state to approach identification of additional reasonable measures. In determining reasonable progress, states must consider, at a minimum, the four statutory factors, but states have flexibility in how to take these factors into consideration.
Tennessee applied the methodology developed by VISTAS for identifying appropriate sources to be considered for additional controls under reasonable progress for the implementation period addressed by this SIP, which ends in 2018. Using this methodology, TDEC first identified those emissions and emissions units most likely to have an impact on visibility in the State's Class I areas. Units with emissions of SO
Having reviewed TDEC's methodology and analyses presented in the SIP materials prepared by TDEC, EPA is proposing to approve Tennessee's conclusion that no further controls are reasonable for this implementation period for the reviewed sources. EPA agrees with the State's approach of identifying the key pollutants contributing to visibility impairment at its Class I areas, and consider their methodology to identify sources of SO
EPA also finds that TDEC's conclusion regarding the fuel switching option evaluated for INVISTA acceptable. Although the $1,225 per ton of SO
Three of the 15 emission units identified for a reasonable progress control analysis are EGUs. These three EGUs are subject to CAIR and were also found to be subject to BART, as discussed in section V.C.6. These three EGUs, located at two facilities, are Tennessee Valley Authority
To determine whether any additional controls beyond those required by CAIR would be considered reasonable for Tennessee's EGUs for this first implementation period, TDEC evaluated the SO
To further evaluate whether CAIR requirements will satisfy reasonable progress for SO
Since EPA made the determination in CAIR that the earliest reasonable deadline for compliance for reducing emissions was 2015, TDEC concluded that the emission reductions required by CAIR constitute reasonable measures for Tennessee EGUs during this first assessment period (between baseline and 2018). In addition, TDEC notes that while the reasonable progress evaluation only applies to existing sources, the State will continue to follow the visibility analysis requirements as part of all new major source review (NSR) and prevention of significant deterioration (PSD) permitting actions.
Prior to the CAIR remand by the DC Circuit, EPA believed the State's demonstration that no additional controls beyond CAIR are reasonable for SO
Six of the 15 non-EGU emission units in Tennessee falling within the sulfate AOI of a Class I area are industrial facilities that TDEC found to be also subject to BART: Aluminum Company of America (Alcoa)—South Plant, units 09, 16, 17, and Eastman Chemical Company, units 021520, 020101, 261501. TDEC has concluded that, for this implementation period, the application of BART constitutes reasonable progress for these six units and thus, is not requiring any additional controls for reasonable progress. As discussed in EPA's Reasonable Progress Guidance, since the BART analysis is based, in part, on an assessment of many of the same factors that must be addressed in establishing the RPG, EPA believes it is reasonable to conclude that any control requirements imposed in the BART determination also satisfy the RPG-related requirements for source review in the first implementation period.
Four other facilities have emission units that were later determined to be exempt from preparing a reasonable progress control analysis. The emission unit 001 at Intertrade Holdings, Inc. that was to be considered for evaluation for reasonable progress shut down prior to analysis. In addition, TDEC identified three emission units that should not have been included on the list of sources to evaluate because updated information showed they did not meet Tennessee's minimum threshold for evaluation for reasonable progress control. A.E. Staley Manufacturing (now Tate & Lyle) Company, unit 005, was already subject to emission limits contained in a construction permit issued March 9, 2007, that reduces SO
BART is an element of Tennessee's LTS for the first implementation period. The BART evaluation process consists of three components: (a) An identification of all the BART-eligible sources, (b) an assessment of whether the BART-eligible sources are subject to BART and (c) a determination of the BART controls. These components, as addressed by TDEC and TDEC's findings, are discussed as follows.
The first phase of a BART evaluation is to identify all the BART-eligible sources within the state's boundaries. TDEC identified the BART-eligible sources in Tennessee by utilizing the three eligibility criteria in the BART Guidelines (70 FR 39158) and EPA's regulations (40 CFR 51.301): (1) One or more emission units at the facility fit within one of the 26 categories listed in the BART Guidelines; (2) emission unit(s) was constructed on or after August 6, 1962, and was in existence prior to August 6, 1977; and (3) potential emissions of any visibility-impairing pollutant from subject units are 250 tons or more per year.
The BART Guidelines also direct states to address SO
The second phase of the BART evaluation is to identify those BART-eligible sources that may reasonably be anticipated to cause or contribute to visibility impairment at any Class I area,
The BART Guidelines allow states to use the CALPUFF
The BART Guidelines also recommend that states develop a modeling protocol for making individual source attributions, and suggest that states may want to consult with EPA and their RPO to address any issues prior to modeling. The VISTAS states, including Tennessee, developed a “Protocol for the Application of CALPUFF for BART Analyses.” Stakeholders, including EPA, FLMs, industrial sources, trade groups, and other interested parties, actively participated in the development and review of the VISTAS protocol.
VISTAS developed a post-processing approach to use the new IMPROVE equation with the CALPUFF model results so that the BART analyses could consider both the old and new IMPROVE equations. TDEC sent a letter to EPA justifying the need for this post-processing approach, and the EPA Region 4 Regional Administrator sent the State a letter of approval dated October 5, 2007. Tennessee's justification included a method to process the CALPUFF output and a rationale on the benefits of using the new IMPROVE equation. The State's description of the new post-processing methodology and the State and Region 4 letters are located in the Tennessee regional haze SIP submittal and the docket for this action.
For states using modeling to determine the applicability of BART to single sources, the BART Guidelines note that the first step is to set a contribution threshold to assess whether the impact of a single source is sufficient to cause or contribute to visibility impairment at a Class I area. The BART Guidelines state that, “A single source that is responsible for a 1.0 deciview change or more should be considered to `cause' visibility impairment.” The BART Guidelines also state that “the appropriate threshold for determining whether a source `contributes to visibility impairment' may reasonably differ across states,” but, “[a]s a general matter, any threshold that you use for determining whether a source `contributes' to visibility impairment should not be higher than 0.5 deciviews.” The Guidelines affirm that states are free to use a lower threshold if they conclude that the location of a large number of BART-eligible sources in proximity of a Class I area justifies this approach.
Tennessee used a contribution threshold of 0.5 deciview for determining which sources are subject to BART. EPA agrees with the State's rationale for choosing this threshold value. There are a limited number of BART-eligible sources in close proximity to each of the State's Class I areas, and the overall impact of the BART-eligible sources on visibility near Class I areas is relatively minimal. In addition, the results of the visibility impacts modeling demonstrated that the majority of the individual BART-eligible sources had visibility impacts well below 0.5 deciview.
TDEC demonstrated that there is a clear spatial separation of sources across the State and little risk of multiple source interactions. For example, there are no clusters of Tennessee BART-eligible sources near the Great Smoky Mountains and Joyce Kilmer Class I areas. In addition, only two sources, TVA-Bull Run and Alcoa, are located within 32 kilometers from each other and the remainder of the State's BART-eligible sources are over 100 kilometers from one another with respect to these Class I areas. Similarly, with regard to Class I areas in nearby states, Tennessee's BART sources are all located greater than 180 kilometers from the Class I areas of Mingo Wilderness (MO), Sipsey Wilderness (AL), and Mammoth Cave (KY).
Tennessee initially identified 16 facilities with BART-eligible sources. The State subsequently determined that four sources are exempt from being considered BART-eligible. Liberty Fibers Corporation has permanently shut down, and the BART-eligible boilers located at the facility have been dismantled. Intertrade Holdings, Inc. has permanently shut down the acid plant that was determined to be BART-eligible. Similarly, the power boiler at the Weyerhaeuser facility (formerly Willamette Industries) in Sullivan County has been retired and is no longer BART-eligible. Finally, Holston Army Ammunition Plant requested and was issued an operating permit (February 25, 2008) with a 249 tons per year Federally enforceable emission limit for NO
Tennessee
The remaining eight sources demonstrated that they are exempt from being subject to BART by modeling less than a 0.5 deciview visibility impact at the affected Class I areas. The two Tennessee EGU sources, TVA—Cumberland and TVA—Bull Run, only modeled PM
Four BART-eligible sources (
In accordance with the BART Guidelines, to determine the level of control that represents BART for each source, the State first reviewed existing controls on these units to assess whether these constituted the best controls currently available, then identified what other technically feasible controls are available, and finally, evaluated the technically feasible controls using the five BART statutory factors. The State's evaluations and conclusions, and EPA's assessment, are summarized below.
The Alcoa facility, located in Alcoa, Tennessee, is a BART-eligible source containing 24 BART-eligible emission units. Potlines 1 and 2 emit SO
TDEC determined that NO
The remaining 21 BART-eligible emission units at Alcoa are material handling and transfer operations that support the potlines and the anode bake furnace. Two of these support operations are negligible sources of VOC. TDEC has determined that controlling anthropogenic sources of VOC emissions would have little, if any, visibility benefits at the Class I areas in or nearby Tennessee, and, thus, as noted in section V.C.1 of this action, Tennessee did not further evaluate VOC emissions sources for potential controls under BART or reasonable progress.
EPA agrees with Tennessee's analyses and conclusions for the BART emission units located at this Alcoa facility. EPA has reviewed the Tennessee analyses and concluded they were conducted in a manner that is consistent with EPA's BART Guidelines and EPA's
The Eastman Chemical facility located in Kingsport, Tennessee (“Kingsport plant”) is a BART-eligible source with nine emission units including: Five tangentially fired 655 million British Thermal Units per hour (MMBtu/hr), pulverized coal boilers (boilers 25-29), two cracking furnaces, a batch chemical manufacturing operation, and a 500 MMBtu/hr stoker boiler (boiler 24).
Boilers 25-29 are used for co-production of steam and electricity in support of manufacturing operations at the Kingsport plant.
For NO
The environmental factors include: (a) disposal of fly ash rather than sales to the concrete industry would increase use of aggregate by the cement manufacturing industry and increase waste being sent to landfills, and (b) an increase in emissions associated with burning coal (
The two cracking furnaces are used to fire natural gas to provide heat to drive a cracking reaction of acetic acid that occurs inside the tube assemblies of the furnaces. The furnaces also burn a fuel gas which is off-gassed from the manufacturing process. SO
The NO
The batch chemical manufacturing operation has an operating permit to emit NO
SO
Boiler 24 burns bituminous coal along with wastewater treatment biosludge and liquid chemical wastes. This unit is used for co-production of steam and electricity in support of manufacturing operations at the Kingsport plant as well as the destruction of biosludge from Eastman's wastewater treatment facility and waste chemicals.
Boiler 24 is equipped with an ESP for PM, and an overfire air system is built into the stoker design for NO
Eastman Chemical evaluated several SO
EPA reviewed the TDEC BART determinations summarized above and agrees with Tennessee's analyses and conclusions for BART for Eastman Chemical, because the analyses were conducted consistent with EPA's BART Guidelines and EPA's
The TVA Cumberland Fossil Plant has two pulverized-coal-fired steam generators that are considered BART-eligible. Units 1 and 2 are nominally rated at about 1,325 megawatts each.
EGU Units 1 and 2 are both equipped with FGD for SO
TDEC determined that for the TVA Cumberland Fossil Plant, no additional controls for PM will be required. Since the facility is currently well controlled for SO
EPA agrees with Tennessee's analyses and conclusions for BART for the TVA Cumberland facility for PM. EPA notes that while TVA Cumberland presently operates a sorbent injection system on each unit to reduce SO
Prior to the CAIR remand by the, EPA believed the State's demonstration that CAIR satisfies BART for SO
The DuPont-Old Hickory Plant operates two BART-eligible units, boilers 20 and 24. Boiler 20 is a tangentially-fired coal unit with a rated capacity of 445 MMBtu/hr. Boiler 24 is a tangentially fired coal unit with a rated capacity of 315 MMBtu/hr. Boiler 24 is presently operated only during periods of peak demand, which typically occur in the winter, when boiler 20 has insufficient capacity to meet both the process and space heating demands of the facility.
TDEC evaluated nine control strategies for reducing SO
The emission limits adopted by TDEC, and incorporated into DuPont's title V operating permit, reduce the combined allowable SO
EPA agrees with Tennessee's analyses and conclusions for BART for the DuPont-Old Hickory Plant because the analyses were conducted in a manner that is consistent with EPA's BART Guidelines and EPA's
The BART determinations for each of the facilities discussed above and the resulting BART emission limits were adopted by Tennessee into the State's regional haze SIP. TDEC incorporated the BART emission limits into state operating permits, and submitted these permits as part the State's regional haze SIP. The BART limits will also be added to the facilities' title V permits according to the procedures established in 40 CFR part 70 or 40 CFR part 71. The BART limits adopted in the SIP are as follows: (a) for Alcoa, a limitation of three percent sulfur in the petroleum coke used in the facility's electrode production operations; (b) for Eastman Chemical, a condition requiring compliance with more stringent SO
Tennessee is requiring Eastman Chemical, DuPont-Old Hickory and Alcoa to comply with these BART emission limits as follows: “
The RHR at 40 CFR 51.308(d)(1) requires states to establish RPGs for each Class I area within the state
As shown in Table 6 below, Tennessee's RPGs for the 20 percent worst days provide greater visibility improvement by 2018 than the uniform rate of progress for the State's Class I areas (
The RPGs for the Class I areas in Tennessee are based on modeled projections of future conditions that were developed using the best available information at the time the analysis was done. These projections can be expected to change as additional information regarding future conditions becomes available. For example, new sources may be built, existing sources may shut down or modify production in response to changed economic circumstances, and facilities may change their emission characteristics as they install control equipment to comply with new rules. It would be both impractical and resource-intensive to require a state to continually adjust the RPG every time an event affecting these future projections changed.
EPA recognized the problems of a rigid requirement to meet a long-term goal based on modeled projections of future visibility conditions, and addressed the uncertainties associated with RPGs in several ways. EPA made clear in the RHR that the RPG is not a mandatory goal.
EPA anticipates that the Transport Rule will result in similar or better improvements in visibility than predicted from CAIR. Because the Transport Rule is not final, however, EPA does not know at this time how it will affect any individual Class I area and cannot accurately model future conditions based on its implementation. By the time Tennessee is required to undertake its five year progress review, however, it is likely that the impact of the Transport Rule and other measures can be meaningfully assessed. If, in particular Class I areas, the Transport Rule does not provide similar or greater benefits than CAIR and meeting the RPGs at one of its Class I Federal areas is in jeopardy, the State will be required to address this circumstance in its five year review. Accordingly, EPA proposes to approve Tennessee's RPGs for the Great Smoky Mountains National Park and the Joyce Kilmer-Slickrock Wilderness Area.
EPA's visibility regulations direct states to coordinate their RAVI LTS and monitoring provisions with those for regional haze, as explained in sections III.F and III.G. of this action. Under EPA's RAVI regulations, the RAVI portion of a state SIP must address any integral vistas identified by the FLMs pursuant to 40 CFR 51.304. An
In the April 4, 2008, submittal, TDEC updated its visibility monitoring program and developed a LTS to address regional haze. Also in this submittal, TDEC affirmed its commitment to complete items required in the future under EPA's RHR. Specifically, TDEC made a commitment to review and revise its regional haze implementation plan and submit a plan revision to EPA by July 31, 2018, and every 10 years thereafter.
The primary monitoring network for regional haze in Tennessee is the IMPROVE network. As discussed in section V.B.2. of this notice, there is currently one IMPROVE site in Tennessee, which serves as the monitoring site for both the Great Smoky Mountains National Park and Joyce Kilmer-Slickrock Wilderness Area, both of which lie partly in Tennessee and partly in North Carolina.
IMPROVE monitoring data from 2000-2004 serves as the baseline for the regional haze program, and is relied upon in the April 4, 2008, regional haze submittal. In the submittal, Tennessee states its intention to rely on the IMPROVE network for complying with the regional haze monitoring requirement in EPA's RHR for the current and future regional haze implementation periods.
Data produced by the IMPROVE monitoring network will be used nearly continuously for preparing the five-year progress reports and the 10-year SIP revisions, each of which relies on analysis of the preceding five years of data. The Visibility Information Exchange Web System (VIEWS) Web site has been maintained by VISTAS and the other RPOs to provide ready access to the IMPROVE data and data analysis tools. Tennessee is encouraging VISTAS and the other RPOs to maintain the VIEWS or a similar data management system to facilitate analysis of the IMPROVE data.
In addition to the IMPROVE measurements, there is long-term limited monitoring by FLMs which provides additional insight into progress toward regional haze goals. Such measurements include:
• Web cameras operated by the National Park Service at Look Rock, Tennessee at the Great Smoky Mountains National Park
• An integrating nephelometer for continuously measuring light scattering, operated by the National Park Service at Look Rock, Tennessee
• A Tapered Element Oscillating Microbalance for continuously measuring PM
In addition, Tennessee and the local air agencies in the State operate a comprehensive PM
In December 2006 and in May 2007, the State Air Directors from the VISTAS states held formal interstate consultation meetings. The purpose of the meetings was to discuss the methodology proposed by VISTAS for identifying sources to evaluate for reasonable progress. The states invited FLM and EPA representatives to participate and to provide additional feedback. The Directors discussed the results of analyses showing contributions to visibility impairment from states to each of the Class I areas in the VISTAS region.
TDEC has evaluated the impact of Tennessee sources on Class I areas in neighboring states. The state in which a Class I area is located is responsible for determining which sources, both inside and outside of that state, to evaluate for reasonable progress controls. Because many of these states had not yet defined their criteria for identifying sources to evaluate for reasonable progress, Tennessee applied its AOI methodology to identify sources in the State that have emission units with impacts large enough to potentially warrant further evaluation and analysis. The State identified 13 emission units in Tennessee with a contribution of one percent or more to the visibility impairment at the following four Class I areas in three neighboring states: Cohutta Wilderness area, Georgia; Mammoth Cave National Park, Kentucky; and Linville Gorge and Shining Rock Wilderness areas, North Carolina. Based on an evaluation of the four reasonable progress statutory factors, Tennessee determined that there are no additional control measures for these Tennessee emission units that would be reasonable to implement to mitigate visibility impacts in Class I areas in these neighboring states. TDEC has consulted with these states regarding its reasonable progress control evaluations showing no cost-effective controls available for those emission units in Tennessee contributing at least one percent to visibility impairment at Class I areas in the states. Additionally, TDEC sent letters to the other states in the VISTAS region documenting its
Regarding the impact of sources outside of the State on Class I areas in Tennessee, TDEC sent letters to Alabama, Arkansas, Georgia, Kentucky, Missouri, Mississippi, North Carolina, South Carolina, Virginia and West Virginia pertaining to emission units within these states that the State believes contributed one percent or higher to visibility impairment in the Tennessee Class I areas. At that time, these neighboring states were still in the process of evaluating BART and reasonable progress for their sources. Any controls resulting from those determinations will provide additional emissions reductions and resulting visibility improvement, which gives further assurances that Tennessee will achieve its RPGs. Therefore, to be conservative, Tennessee opted not to rely on any additional emission reductions from sources located outside the State's boundaries beyond those already identified in the State's regional haze SIP submittal and as discussed in section V.C.1. (Federal and state controls in place by 2018) of this action.
Tennessee received letters from the Mid-Atlantic/Northeast Visibility Union (MANE-VU) RPO States of Maine, New Jersey, New Hampshire, and Vermont in the spring of 2007, stating that based on MANE-VU's analysis of 2002 emissions data, Tennessee contributed to visibility impairment to Class I areas in those states. The MANE-VU states identified five TVA EGU stacks
EPA finds that Tennessee has adequately addressed the consultation requirements in the RHR and appropriately documented its consultation with other states in its SIP submittal.
Through the VISTAS RPO, Tennessee and the nine other member states worked extensively with the FLMs from the U.S. Departments of the Interior and Agriculture to develop technical analyses that support the regional haze SIPs for the VISTAS states. The proposed regional haze plan for Tennessee was out for public comment and FLM discussions in the November to December 2007 period. Tennessee subsequently modified the plan to address comments received on this initial version and reissued it for a second round of public participation in the February to March 2008 period. The FLMs submitted no significant adverse comments regarding the State's regional haze SIP. The FLMs requested that Tennessee add more details to support the State's conclusions. Additionally, some of the FLM staff had difficulty in navigating through the compact disc of electronic support materials. Improvements were made to improve navigability. To address the requirement for continuing consultation procedures with the FLMs under 40 CFR 51.308(i)(4), TDEC made a commitment in the SIP to ongoing consultation with the FLMs on regional haze issues throughout implementation of its plan, including annual discussions. TDEC also affirms in the SIP that FLM consultation is required for those sources subject to the State's NSR regulations.
As also summarized in section V.D. of this action, consistent with 40 CFR 51.308(g), TDEC affirmed its commitment to submitting a progress report in the form of a SIP revision to EPA every five years following this initial submittal of the Tennessee regional haze SIP. The report will evaluate the progress made towards the RPGs for each mandatory Class I area located within Tennessee and in each mandatory Class I area located outside Tennessee which may be affected by emissions from within Tennessee. Tennessee also offered recommendations for several technical improvements that, as funding allows, can support the State's next LTS. These recommendations are discussed in detail in the Tennessee submittal in Appendix K.
If another state's regional haze SIP identifies that Tennessee's SIP needs to be supplemented or modified, and if, after appropriate consultation Tennessee agrees, today's action may be revisited, or additional information and/or changes will be addressed in the five-year progress report SIP revision.
EPA is proposing a limited approval and a limited disapproval of a revision to the Tennessee SIP submitted by the State of Tennessee on April 4, 2008, as meeting some of the applicable regional haze requirements as set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-308, as described previously in this action.
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
Under the Paperwork Reduction Act, 44 U.S.C. 3501
The RFA generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new
Moreover, due to the nature of the Federal-state relationship under the CAA, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds.
Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that today's proposal does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
42 U.S.C. 7401
Federal Communications Commission.
Notice of proposed rulemaking.
The purpose of this document is to seek comment on a proposal to extend the Commission's communications outage reporting requirements to interconnected Voice over Internet Protocol (VoIP) service providers and broadband Internet Service Providers (ISPs). This action will help ensure that our current and future 9-1-1 systems are as reliable and resilient as possible and assist our Nation's preparedness for man-made or natural disasters, such as Hurricane Katrina.
Submit comments on or before August 8, 2011. Submit reply comments on or before October 7, 2011. 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 August 8, 2011.
You may submit comments, identified by PS Docket No. 11-82, by any of the following methods:
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•
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Gregory Intoccia, Public Safety and Homeland Security Bureau, at (202) 418-1300, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554; or via the Internet to
For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an e-mail to
1. Broadband technologies delivering communications services to end users have changed behaviors and revolutionized expectations in American life and are fast becoming substitutes for communications services provided by older, legacy communications technologies. In 2010, 28 percent of the more than 89 million residential telephone subscriptions were provided by interconnected VoIP providers. Broadband networks now carry a substantial volume of 9-1-1 traffic. They are also a significant form of communications in times of crisis. Communications outages to broadband facilities threaten the public's ability to summon in emergency situations. The National Security and Emergency Preparedness posture of the United States depends on the availability of broadband communications during times of emergencies, and it is one of the core responsibilities of the Commission. In 2010 alone, there were a number of significant outages to broadband networks and services in various parts of the Nation.
2. The resilience of the broadband communications infrastructure directly impacts the emergency preparedness and readiness posture of the United States. Outages to broadband networks can have a significant impact on emergency services, consumers, businesses, and governments. The most practical, effective way to maintain emergency preparedness and readiness is to work continuously to minimize the incidence of routine outages.
3. Since 2005, the Commission has required providers of interconnected VoIP services to supply 9-1-1 emergency calling capabilities to their customers as a mandatory feature of the service. “Interconnected” VoIP services allow a user generally to receive calls from and make calls to the legacy telephone network. Under the Commission's rules, interconnected VoIP providers must deliver all 9-1-1 calls to the local emergency call center; deliver the customer's call-back number and location information where the emergency call center is capable of receiving it; and inform their customers of the capabilities and limitations of their VoIP 9-1-1 service. By Presidential Directives and Executive Orders the FCC has been assigned a critical role in the Nation's emergency preparedness and response efforts. Presidential Directives and Executive Orders and their implementing documents charge the FCC with ensuring the resiliency and reliability of the Nation's commercial and public safety communications infrastructure.
4. The Commission has many years of experience working with communications providers to improve communications resiliency and emergency readiness. The Commission's current outage reporting rules, applicable to legacy communications systems, allows the Commission staff to collect and analyze key outage data that has helped to reduce outages. With the percent of VoIP-only households and businesses increasing, it is essential for safety reasons that we extend outage reporting to VoIP.
5. The Commission's existing approach includes the analysis and response to information received during an emergency. During Hurricane Katrina, the Commission's outage reporting data was the Federal government's primary and best source of information about the condition of critical communications infrastructure in the disaster area. Using this information the Commission was able to contact affected reporting providers to establish an
6. Currently, only providers of legacy circuit-switched voice and/or paging communications over wireline, wireless, cable, and satellite communications services must report communications outages. Commission analysis of industry-wide outage reports has led to improvements in the engineering, provisioning, and deployment of communications infrastructure and services. The Commission has been able to share its analysis with members of industry, providing an understanding of recurring problems nationwide that an individual provider cannot know by itself. This process has also made communications networks more robust
7. In this proceeding, we seek to extend these benefits to the broadband communications networks frequently used for emergency response today. We propose to extend the Commission's Part 4 communications outage reporting requirements to include both interconnected VoIP service providers and broadband ISPs. This change would allow the Commission, and other Federal agencies, to track and analyze information on outages affecting broadband networks. The availability of this information would also help the Commission determine the extent of the problem nationwide, identify recurring problems, determine whether action can be taken immediately to help providers recover or prevent future outages, and ensure to the extent possible that broadband networks are prepared for disasters. Our proposed action will allow the Commission to use the same successful process it currently uses with wireline and wireless providers to refine best practices to prepare broadband communications networks better for emergency situations.
8. In this
9. We encourage comments on the thresholds or circumstances that should be included to improve our ability to address communication system vulnerabilities and to help prevent future outages through the development and refinement of best practices. We encourage interested parties to address these issues in the contexts of interconnected VoIP service and broadband Internet service. We also encourage commenters to address how the proposed information collection would facilitate best practices development and increased network security, reliability and resiliency throughout the United States and its Territories. We also seek comment on sources of authority.
10. 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. Public and agency comments are due August 8, 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, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
11. In this section, we review the key prior Commission policies and results of those policies leading up to the present rules and the current proposal for extending the Commission's outage reporting requirements to interconnected VoIP service providers and broadband Internet service providers. In its initial 1992
12. The Commission uses outage information submitted pursuant to Part 4 of its rules to, among other things, address communication system vulnerabilities and help prevent future outages. The Commission staff accomplishes this objective by using statistically meaningful trends in data as well as associated technical analysis to gather communications providers together in coordinated efforts to improve security, reliability and resiliency. Where necessary, the Commission also recommends policy changes to address persistent problems. The Commission works with each individual reporting service provider to monitor and address specific communications vulnerabilities identified in outage reports.
13. As a result of reporting pursuant to the Commission's Part 4 outage reporting rules, positive results have been achieved. For example, the frequency of wireline outages, which had spiked in 2008, has dramatically decreased since the issue was identified through the Commission's ongoing analyses of monthly wireline outages. Estimated lost 9-1-1 calls due to wireline outages were reduced by more than 50 percent from peak when the Commission worked with the Network Reliability Steering Committee (NRSC) to reduce wireline outages. As a result of the conclusions drawn and the additional work of the NRSC, providers were able to take corrective action. These reductions occurred because of the Commission's analysis of outage reporting data and the sharing of data among Commission and industry network experts. Thus the Commission's existing outage reporting has increased the resiliency of the communications infrastructure and increased the availability of public safety communication services.
14. On March 16, 2010, the Commission delivered to Congress the National Broadband Plan, which recommended that the Commission extend its Part 4 outage reporting rules to broadband ISPs and interconnected VoIP service providers as “the lack of data limits our understanding of network operations and of how to prevent future outages.”
15. In July 2010, the Public Safety and Homeland Security Bureau released a
16. Interconnected VoIP services increasingly are viewed by consumers as a substitute for traditional telephone service. This is also reflected in our 9-1-1 emergency call system today, where we estimate that approximately 28 percent of residential wireline 9-1-1 calls are made using VoIP service. In keeping with increased public reliance on interconnected VoIP services, we propose to extend our outage reporting rules to interconnected VoIP service providers. In 2010, there were 29 million interconnected residential and business VoIP subscriptions in the United States. Between June 2009 and June 2010, interconnected residential and business VoIP subscriptions increased from 24 million to 29 million and retail switched access lines decreased from 133 million to 122 million. Unlike wireline service, currently the Commission has no mechanism to identify outages of VoIP service that impact end users and cannot address the cause of 9-1-1 outages relating to VoIP service. Applying outage reporting requirements to these services brings the reporting requirements into line with existing E9-1-1 obligations.
17. We propose to apply our outage reporting requirements to both facilities-based and non-facilities-based interconnected VoIP service providers. Both groups are subject to our E9-1-1 obligation. A reporting requirement that extends only to facilities-based interconnected VoIP service providers would not result in reporting of all significant VoIP service outages experienced by end users and may put in jeopardy the ability to receive 9-1-1 calls. Our current rules require communications providers to report on service outages that affect their customers even if they do not own or operate the facilities that failed. We seek comment on this proposal.
18. Currently, under the Commission's Part 4 outage reporting rules, an “outage” is defined to include “a significant degradation in the ability of an end user to establish and maintain a channel of communications as a result of failure or degradation in the performance of a communications provider's network.” Our rules tailor the definition of a reportable significant degradation to communications over cable, telephony carrier tandem, satellite, System Signaling 7 (“SS7”), wireless, or wireline facilities. Broadband networks operate differently than legacy networks, so the impact of outages is likely to be different. We seek comment on the definition of “outage” as applicable to these providers. We believe that a complete loss of the ability to complete calls should be included. We seek comment on whether there should also be a threshold based on lost or delayed packets. Should the Commission use a concept such as “loss of generally-useful availability or connectivity” and if so, how should we define it? Should we adopt the metrics used by the Internet Engineering Task Force (IETF), such as packet loss, round-trip latency, and jitter? The Commission recognizes that wireless and satellite networks include specific latency challenges not found in wireline-only networks. Should the thresholds be altered to address the unique architectural characteristics and challenges of wireless, satellite, cable, and wireline systems used by interconnected VoIP service providers? If the thresholds need to be altered, what values should be used to represent the loss of generally-useful availability and connectivity? How should the concept itself be revised to provide more useful information for analysis purposes? What voice quality-related network metrics are routinely reported to operations support systems in carrier-operated VoIP architectures? Do the Real-time Transport Control Protocol (RTCP) round-trip and Session Initiation Protocol (SIP) Event Package for Voice Quality Reporting provide guidance for suitable metrics that are already being collected for purposes other than outage reporting? How should the number of potentially affected users be counted for interconnected VoIP service providers? Can the number of assigned telephone numbers for non-mobile VoIP service users be used in a manner similar to what is used for wireline service providers? We recognize the difficulty of distinguishing precisely when a VoIP end system cannot place a call as opposed to when it is simply temporarily disconnected from the network due to user choice or home network failure. Can statistical measures that compare typical to current device registration counts (
19. For wireless service providers, the current rules require the service provider to estimate the simultaneous call capacity lost and then multiply the result by a concentration ratio of eight (to convert the number of users affected to the number of potentially affected users). Should a similar construct be used for mobile VoIP service users? Is there a direct estimate of the number of potentially affected users that would be preferable? For both wireline and wireless service providers, should the failure of core routers, network servers, SIP proxy servers, Serving General Packet Radio Service (GPRS) and Gateway GPRS support nodes, call session control function (CSCF), home subscriber servers (HSS), root name servers, provider-operated Domain Name System (DNS) servers, Dynamic Host Control Protocol (DHCP) servers, Call Agents, Session Border Controllers, Signaling Gateways, or some other type of communications equipment be reportable similar to the current reporting requirement for Mobile Switching Center failures? Should special considerations be given to services provided via VoIP to PSAPs? How should outages that are observable by end users as performance degradations (
20. Based on how interconnected VoIP service is typically configured and provided, we propose that a significant degradation of interconnected VoIP service exists and must be reported when an interconnected VoIP service provider has experienced an outage or service degradation for at least 30 minutes: (a) On any major facility (
21. Interconnected VoIP services ride over broadband networks. If the underlying communications network fails, the VoIP service, including its Commission-mandated 9-1-1
22. We seek comment on whether both facilities-based and non-facilities based broadband ISPs should be required to report outages that meet a certain threshold. Inclusion of both of these types of providers we believe would ensure outage reporting covers Internet consumers and businesses that purchase Internet access through less traditional access arrangements (
23. Some broadband ISPs provide Internet access directly connecting to end users, while others provide the connectivity and related services needed to establish and maintain end-to-end IP communications among independently-operated networks. While we identify two broad categories of broadband ISPs, we seek comment on whether there are other categories of ISPs the Commission should consider for outage reporting purposes.
24. A broadband Internet access service provider aggregates end-user communications, usually within a specific geographic region. For this proceeding, we propose to define a “broadband Internet access service provider” as a provider of mass-market retail service by wire or radio that is able to support interconnected VoIP service as defined in our E11 rules. Alternatively, we could define a “broadband Internet access service provider” as a provider of mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term would also encompass providers of any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence. We seek comment on this alternative approach and any other alternative definitions.
25. We propose to define a “broadband backbone ISP” to be one that provides long-haul transmission for one or more broadband Internet access service providers (
26. We distinguish between broadband Internet access service providers and broadband backbone ISPs because of the different roles that they perform. Often a single organization may fulfill both types of broadband ISP roles, providing roles as broadband Internet access service provider and as broadband backbone ISP. We seek comment on the definitions that we should use for purposes of outage reporting.
27.
28. Broadband Internet access service providers are the conduit for delivering broadband services to the American public and business community. When outages occur that severely degrade the delivery of the broadband services, end users are negatively affected, which can include 9-1-1 services. Without a reporting requirement, however, it is nearly impossible to determine the extent, the effect, and the consequences of broadband outages.
29. Broadband Internet access service providers continue to show significant growth in subscribership. Between 1999 and 2009, the number of fixed-location business and residential connections grew at an annual compound rate of 42 percent, increasing from 2 million to 81 million connections. This growth reflects the American public's increasing reliance on broadband Internet access service to conduct important daily communications.
30. We therefore propose to extend the outage reporting requirements in Part 4 of our rules to broadband Internet access service providers. Consistent with the current definition of “outage” in Part 4 of the Commission's rules, which places emphasis on a “significant degradation” of communications, we propose that an outage in the context of broadband Internet access service provider be defined as “the loss to the end user of generally-useful availability and Internet connectivity.”
31. Should we measure “generally-useful availability and connectivity” of broadband Internet service as it relates to a broadband Internet access service provider as the operational state in which the transmission from the end user to the broadband ISP Point of Presence (PoP) is operating as designed for normal use, the logical functions and relay systems required from ISPs are operating as designed for normal use, and the end user is not prevented by the broadband Internet access service provider from establishing communications with any destination device on the global Internet that has an assigned Internet Protocol address?
32. We seek comment on whether for broadband Internet access service providers the “loss of generally-useful availability and connectivity” can be measured using the metrics defined by the IETF, such as packet loss, round-trip latency, or jitter from the source to the destination host? Are there additional metrics that should be used to trigger outage reporting? There are differences in the various architectures of different types of communications systems employed by broadband Internet access service providers that may affect the delivery of Internet services. We seek comment on the applicability of the IETF metrics and their values for these types of service providers. Based on an examination of commercial practices, and considering the apparent lack of standardized values for the metrics presented here, we believe that the appropriate values should be packet loss of one percent or more, round-trip latency of 100 ms or more, or jitter of 4 ms or more from the source to the destination host in order to trigger outage reporting. Are these values appropriate for all types of broadband Internet access service providers? Are there more appropriate values? What are they and why are they better? How should the number of potentially affected users be counted for broadband Internet access service providers? For non-mobile users, can the number of IP addresses be used as a direct estimate of the number of potentially affected non-mobile users? In the cases where Dynamic Host Configuration Protocol (DHCP) is used to assign IP addresses by Internet access service providers, how does its use affect the estimate of the number of potentially affected users given the dynamic re-use of IP addresses? Should there be a multiplier introduced to improve the estimate? For wireless service providers, the current rules require the service provider to
33. Should we require a broadband Internet access service provider to submit reports in cases similar to the current reporting requirements for voice service providers? We seek comment on requiring a report when the provider has experienced an outage or service degradation for at least 30 minutes: (a) On any major facility (
34.
35. Based on the role that they serve, we believe it possible that an outage suffered by a broadband backbone ISP could cause greater impact, as measured by the number of affected users, than a similar outage experienced by an access ISP. Such outages could severely impact the ability of users to reach 9-1-1 during an emergency. We therefore propose to require that broadband backbone ISPs report outages whenever the broadband backbone ISP experiences an outage or service degradation affecting other ISPs or end users. Reporting of these types of service disruptions would serve as a foundation for the development of network best practices to guard against future disruptions of this magnitude that have the potential to compromise public safety and have a widespread negative effect on consumers.
36. We seek comment on what threshold of disruption should constitute a reportable broadband backbone ISP service outage. Consistent with the current definition of “outage” in Part 4 of our rules that places emphasis on a “significant degradation” of communications, we propose that an outage in the context of a broadband backbone ISP be defined as the loss of “generally-useful availability and Internet connectivity.”
37. Should we define “generally-useful availability and Internet connectivity” of broadband Internet service as it relates to a broadband backbone ISP as: (a) The operational state in which the transmission between ISP PoPs is operating as designed for normal use; (b) the logical functions and relay systems required from ISPs are operating as designed for normal use; and/or (c) the connected access ISP networks are not prevented from establishing communications with any destination device on the global Internet that has an assigned Internet Protocol address. Can the “loss of generally-useful availability and connectivity” for broadband backbone ISPs be measured using the metrics defined by the IETF, including packet loss, round-trip latency, or jitter as measured from source to destination PoP? Are there additional metrics that should be used to trigger outage reporting? We seek comment on these metrics and the values in this proposal. Based on commercial practices, and considering the lack of standardized values for the metrics presented here, we believe that the appropriate values should be packet loss of one percent or more, round-trip latency of 100 ms or more, or jitter of 4 ms or more as measured from source to destination PoP in order to trigger outage reporting. Are these values appropriate for all types of broadband backbone ISPs? Are there more appropriate values? What are they and why are they better?
38. Due to the Nation's growing dependence on ISPs to deliver critical IP communication services, we seek comment on requiring a broadband backbone ISP to submit outage reports when it experiences an outage or service degradation for at least 30 minutes: (a) On any major facility (
39. In the 2004
40. For the Commission to obtain as complete a picture of service outages from interconnected VoIP service providers and broadband ISPs, and to allow the Commission to assist in facilitating a resolution of outages and preventing future outages, we propose that the outage reporting described herein be mandatory, just as it is today for services covered under our Part 4 rules. Because of the importance of the reliability and resiliency of broadband communications for the Nation's 9-1-1 system and overall emergency response, we believe mandatory reporting is appropriate. We note that a voluntary outage reporting trial was attempted, without success, prior to the imposition of our original Part 4 rules. Hence, mandatory outage reporting was adopted to ensure timely, accurate reporting.
41. We note that Japan requires outage reporting from broadband communications providers. We seek comment on what role the Japanese outage reporting requirements played in restoring communications during the recent earthquake-related events. We seek comment also on current proposals in other countries to require outage reporting by broadband communications providers and, specifically, how those proposals are tailored to ensure valuable data is collected while imposing the least amount of burden on reporting providers.
42. We seek comment on whether mandatory reporting is necessary to obtain a comprehensive view of outages experienced by customers that may impact 9-1-1 and other services. Alternatively, if we were to adopt a voluntary reporting scheme, how could the Commission be confident that it is not missing important information? What other regulatory alternatives should the Commission consider for interconnected VoIP service provider and broadband ISP outage reporting? What aspects of the information that providers share, as part of their voluntary ongoing public-private coordination, should we adopt?
43. Under our Part 4 rules, communications providers are required to submit a Notification within two hours of discovering a reportable outage. An Initial Report is due within 72 hours after discovering the outage, and a Final Report is due within 30 days after discovering the outage. Final Reports must be submitted by a person authorized by the provider to submit such reports to the Commission and to bind the provider legally to the truth, completeness, and accuracy of the information contained in the report. The Final Communications Outage Report must contain all potentially significant information known about the outage after a good faith effort has been made to obtain it, including any information that was not contained in, or that has changed from that provided in, the Initial Report. We propose to follow the same reporting process for the reporting of outages experienced by interconnected VoIP service providers and broadband ISPs. We seek comment on this proposal.
44. We currently provide an electronic reporting template to facilitate outage reporting by those types of providers currently subject to our Part 4 rules. We believe that this approach to collecting data has ensured that the Commission learns of major outages in a timely fashion and, at the same time, minimizes the amount of time and effort required to comply with the reporting requirements. We propose to utilize a very similar electronic reporting template to collect outage reports from interconnected VoIP service providers and broadband ISPs. We seek comment on this proposal.
45. We believe this process is reasonable in light of the significant benefits conferred by the ability to analyze and address network outages. In addition, we believe that interconnected VoIP service providers and broadband ISPs are currently collecting in the ordinary course of their business much of the information, and perhaps even a broader range of information, than we propose be reported. Therefore, we believe that, in the usual case, complying with our proposed reporting requirements would not result in an undue administrative burden. We seek comment on the reasonableness of the reporting process proposed herein, and we request comment on relevant types of outage information already being collected by interconnected VoIP service providers and broadband ISPs so that we could align our metrics with what is already available to them.
46. We seek comment on whether collecting and reporting as proposed would be no more burdensome for interconnected VoIP service providers and broadband ISPs than current Part 4 reporting requirements are for traditional providers. Is the burden greater on smaller VoIP service providers and smaller broadband ISPs? If so, to what degree? Are there alternative ways to accomplish the aims of this proceeding in a less burdensome manner? For example, what alternatives processes, if any, could be followed which would enable the Commission to collect the types of data specified in this proceeding without requiring a direct interface between the Commission and VoIP service providers and broadband ISPs? Analysis of outage reports by both Commission staff and reporting providers has led to a significant reduction in the frequency and scope of outages on the providers' networks. Is the burden of reporting outweighed by the benefits from the ability to analyze reported outages to help prevent future outages and assist better responses to actual outages?
47. Data collected pursuant to the Commission's outage reporting requirements is presumptively confidential. Currently, to the extent that the Commission shares the outage information it receives, sharing is done on a presumptively confidential basis pursuant to the procedures in Part 0 of our rules for sharing information not generally available for inspection. We seek comment on whether the outage information collected from broadband ISPs and interconnected VoIP service providers should also be treated as presumptively confidential. We seek comment on publicly reporting aggregated information across companies,
48. We believe the Commission has authority under the Communications Act to promulgate the reporting rules proposed here. In section 615a-1 of the Communications Act, Congress imposed a “duty” on “each IP-enabled voice
49. In addition, we believe that the Commission has authority to ensure both that interconnected VoIP providers fulfill their duty to provide 9-1-1 services and to address obstacles, such as failures in underlying communications networks, to their doing so. Under the definition of ancillary authority recently adopted by the U.S. Court of Appeals for the District of Columbia Circuit, the Commission may exercise ancillary authority when “(1) The Commission's general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities.” Both prongs are met here with respect to interconnected VoIP providers. The provision of interconnected VoIP is “communication by wire or radio” within the general jurisdictional grant of section 2 of the Act. Second, as explained above, collecting outage information from interconnected VoIP providers as proposed in this Notice is “reasonably ancillary” to ensuring that interconnected VoIP providers are able to satisfy their 9-1-1 obligations under the Act as implemented in our Part 9 rules, and to enable the Commission to assist in improving the reliability of these mandated services. We seek comment on this analysis.
50. We believe that the Commission has authority, under the test stated by the DC Circuit, to collect outage information from broadband Internet service providers. We believe that broadband services fall within the Commission's general jurisdictional grant as “communication by wire or radio.” The network outage reporting proposals for broadband Internet service providers are reasonably ancillary to ensuring that interconnected VoIP providers are able to satisfy their 9-1-1 duties under the Act. This is because Interconnected VoIP services by definition depend on broadband networks. If a broadband network fails, interconnected VoIP traffic—including calls to 9-1-1—cannot travel over that network. A broadband failure would potentially prevent interconnected VoIP providers from satisfying their duty under the Act and our rules to provide 9-1-1 services. For these reasons, and as authorized by section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), we believe we have ancillary authority to collect outage information from broadband Internet service providers. We seek comment on this analysis. We also ask commenters to address other potentially relevant sources of authority, or to otherwise explain why they believe that the Commission has no legal authority to extend outage reporting requirements in the manner proposed.
51. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed pursuant to the Commission's rules.
52. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
53. Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
54. Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. 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. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
55. People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to
56. The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page:
57. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in the
58. In 2005, the Commission adopted rules requiring providers of interconnected Voice over Internet Protocol (VoIP) service to supply E9-1-1 capabilities to their customers as a standard feature from wherever the customer is using the service. In 2008, Congress enacted the New and Emerging Technologies 9-1-1 Improvement Act of 2008 that amended the 9-1-1 Act to codify the Commission's E9-1-1 rules for interconnected VoIP providers. Interconnected VoIP service providers generally must transmit all 9-1-1 calls, including Automatic Number Identification (ANI) and the caller's Registered Location for each call, to the PSAP, designated statewide default answering point, or appropriate local emergency authority. Currently, however, the Commission's outage reporting rules covering legacy circuit-switched voice and/or paging communications over wireline, wireless, cable and satellite communications services do not also cover interconnected VoIP service providers or the broadband Internet Service Providers (ISPs) on whose networks interconnected VoIP services are carried. As a result, the Commission currently cannot monitor the reliability and availability of 9-1-1 and E9-1-1 communications that depend on these systems.
59. With the objective of ensuring reliability of related networks and services, the
60. The proposed reporting to the Commission would use the Commission-approved Web-based outage reporting templates. The proposed reporting process for outages experienced by interconnected VoIP service providers and broadband ISPs would follow the existing reporting process for legacy communications providers, such as wireline communications providers.
61. The Commission traditionally has addressed reliability issues by helping to develop and promote best practices that address vulnerabilities in the communications network, and by measuring the effectiveness of best practices through outage reporting. Under the Commission's current rules, the outage reporting process has been effective in improving the reliability, resiliency and security of the legacy services. Collaborating with providers and industry bodies, the Commission staff has been able to achieve dramatic reductions in outages affecting legacy services. The aim of extending outage reporting process to cover interconnected VoIP service providers and broadband ISPs is to achieve a similar result: Improve the reliability, resiliency and security of their services.
62.
63. 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 adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
64.
65.
66. The most current Economic Census data for all such firms are 2007 data. For the first category, the data show that 396 firms operated for the entire year, of which only 2 operated with more than 1,000 employees. For the second category, the data show that 2,383 firms operated for the entire year. Of those, only 37 had annual receipts of more than $25,499,999 per year. We estimate that the majority of ISP firms are small entities. To ensure that this IRFA describes the universe of small entities that our action might affect, we discuss below several different types of entities that might be currently providing interconnected VoIP service, Internet access service, or broadband backbone Internet service.
67.
68. The Commission has included small incumbent LECs in this present RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent LECs in this RFA analysis.
69.
70. Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 33 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500 or fewer employees and 2 have more than 1,500 employees. Consequently, the Commission estimates that the majority of operator service providers are small entities that may be affected by our proposed action.
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77. On January 26, 2001, the Commission completed the auction of 422 C- and F-Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.
78.
79. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small businesses.
80. There are numerous incumbent site-by-site SMR licenses and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. In addition, we do not know how many of these firms have 1,500 or fewer employees, which is the SBA-determined size standard. We assume that all of the remaining extended implementation authorizations are held by small entities, as defined by the SBA.
81.
82. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
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91. 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. 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.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services we must, however, use the most current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: All such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.
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99. The rules proposed in this
100. We expect that the outage reporting and analysis that would follow could lead to the development and refinement of best practices. There may be additional thresholds that should also be included to improve the process of developing and improving best practices. We encourage interested parties to address these issues in the context of the applicable technologies and to develop their comments in the context of the ways in which the proposed information collection would facilitate best practices development and increased communications security, reliability and resiliency throughout the United States and its Territories.
101. 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: (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.
102. Over the past decade, the proportion of communications services provided over a broadband platform has increased substantially, and our Nation increasingly relies on broadband-based services not only for day-to-day consumer use but also for Homeland Defense and National Security. Over the past three years, the number of outages reported each year has remained relatively steady at about 11,000. We believe that the proposed outage reporting requirements are the minimum necessary to assure that we receive adequate information to perform our statutory responsibilities with respect to 9-1-1 services and ensure the reliability of communications and critical infrastructures. Also, we believe that the magnitude of the outages needed to trigger the proposed reporting requirements are sufficiently high as to make it unlikely that small businesses would be impacted significantly by the proposed rules. We also believe the choice of performance-based, as opposed to design-based, degradation characteristics and the corresponding thresholds chosen to trigger the outage reporting will not unduly burden smaller entities. We have also carefully considered the notion of a waiver for small entities from coverage of the proposed rules, but declined to propose one, as a waiver of this type would unduly frustrate the purpose of the proposed requirements and run counter to the objectives of the
103. The proposed rules in the
104. We ask parties to include comments on possible alternatives that could satisfy the aims of the proceeding in a less costly, less burdensome, and/or more effective manner, and to comment on the sources of legal authority for the proposal assuming the Commission were to decide to adopt the proposal. We also seek comments on an analysis of the costs, burdens, and benefits of the various proposed rules set forth in this proceeding. We ask commenters to address particularly the following concerns: What are the costs, burdens, and benefits associated with any proposed rule? Entities, especially small businesses and small entities, more generally, are encouraged to quantify the costs and benefits of the proposed reporting requirements. How could any proposed rule be tailored to impose the least cost and the least amount of burden on those affected? What potential regulatory approaches would maximize the potential benefits to society? To the extent feasible, what explicit performance objectives should the Commission specify? How can the Commission best identify alternatives to regulation, including fees, permits, or other non-regulatory approaches?
105. Comments are sought on all aspects of this proposal, including the proposed extension of such requirements, the definitions and proposed reporting thresholds, and the proposed reporting process that would follow essentially the same approach that currently applies to outage reporting on legacy services. Parties should include in their comments whether the proposed rules would satisfy the Commission's intended aims, described herein, and would promote the reliability, resiliency and security of interconnected VoIP, broadband Internet access, and broadband backbone Internet services that support 9-1-1 communications. Commenters are asked to address our tentative conclusions that: Expanding Part 4 outage reporting requirements to interconnected VoIP service providers and broadband ISPs would allow the Commission to analyze outages of the services that they provide; would provide an important tool for network operators to prevent future outages; and would help to ensure the reliability of critical communications networks and services.
106. We welcome comments on: the proposal itself; whether it would achieve the intended objectives; whether there are performance objectives not mentioned that we should address; whether better alternatives exist that would accomplish the proceeding's objectives; the legal authority to take the contemplated actions described herein; and the costs, burdens and benefits of our proposal.
107. None.
108. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002.
Pursuant to the Federal Advisory Committee Act, notice is hereby given of the public meeting of the Board for International Food and Agricultural Development (BIFAD). The meeting will be held from 9 a.m. to 1 p.m. on June 24, 2011 at the National Press Club located at 529 14th St., NW., Washington, DC. “The Role of Higher Education in the Feed the Future Initiative” will be the central theme of the meeting.
Dr. Brady Deaton, the new Chair of BIFAD, will preside over the proceedings. Dr. Deaton is the Chancellor of the University of Missouri at Columbia.
The announcement of the 2011 World Food Prize Laureate at the State Department on June 21 and the “Feed the Future” Research Forum from June 21 to 23 provide the backdrop for the BIFAD public meeting on June 24. The meeting will include the participation of five new BIFAD presidential appointments. Including Dr. Deaton, those new members are Jo Luck, President of Heifer International, Marty McVey of McVey & Company Investments Inc., Gebisa Ejeta, Distinguished Professor, Department of Agronomy, Purdue University and Catherine Bertini, Chair, International Relations Program and Professor, Maxwell School of Citizenship and Public Affairs, Syracuse University. Board members with continuing service include Elsa Murano, Professor and President Emerita of Texas A&M University and William DeLauder, President Emeritus of Delaware State University. After opening remarks by Dr. Deaton, USAID Administrator Rajiv Shah will formally swear in the new Board members and make a short presentation. At the conclusion of Dr. Shah's remarks, Dr. Deaton will acknowledge immediate past Chair Robert Easter and the other outgoing Board members for their service.
The BIFAD Spring public meeting will focus heavily on the USAID Feed the Future (FtF) Initiative. The first session will offer USAID and USDA perspectives on progress to date, taking into account specifically Title XII university perspectives. The panel of speakers will include Paul Weisenfeld, Assistant to the Administrator of the Bureau for Food Security; Julie Howard, Deputy Coordinator of the Feed the Future Initiative, and a USDA representative. Deanna Behring, Director of International Agriculture Programs at Penn State University will serve as respondent and provide university perspectives.
The second FtF session will review outcomes of the Association of Public and Land-grant Universities (APLU)-led consultative process in response to the FTF research strategy. Dr. Montague Demment, Professor of Ecology at University of California-Davis and Associate Vice President for International Development of APLU, will provide an overview of the consultative process for the Board. USAID staff will provide an overview of the research priority outcomes. Because the Collaborative Research Support Programs (CRSPs) are among the major Title XII university-based research programs, a member of the CRSP Council will serve as a respondent to address additional issues.
The Board meeting is open to the public, and time will be allotted for a public comment period. The Board benefits greatly in hearing from the stakeholder community and others. To ensure that as many people as possible have the opportunity to contribute to the morning's discussions, comments will be restricted to 3 minutes for each commenter. At the conclusion of the public comment period, the Board will adjourn the meeting to proceed to a luncheon and executive meeting (closed to the public).
Those wishing to attend the meeting or obtain additional information about BIFAD should contact Susan Owens, Executive Director and Designated Federal Officer for BIFAD. Interested persons may write her in care of the U.S. Agency for International Development, Ronald Reagan Building, Bureau for Food Security, 1300 Pennsylvania Avenue, NW., Room 7.8-061, Washington, DC 20523-2110 or telephone her at (202) 712-0218 or fax (202) 216-3124.
Foreign Agricultural Service, USDA.
Notice.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the Secretary of Agriculture (Secretary), in coordination with the United States Trade Representative (USTR), has renewed the Agricultural Policy Advisory Committee for Trade (APAC).
Inquiries or comments regarding the renewal of this committee may be sent by electronic mail to:
The APAC is authorized by sections 135(c)(1) and (2) of the Trade Act of 1974, as amended (Pub. L. 93-618, 19 U.S.C. 2155). The purpose of this committee is to advise the Secretary and the USTR concerning agricultural trade policy. The committee is intended to ensure that representative elements of the private sector have an opportunity to express their views to the U.S. Government.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. Appendix), FAS gives notice that the Secretary and the USTR have renewed the APAC.
In 1974, Congress established a private sector advisory committee system to ensure that U.S. trade policy and negotiation objectives adequately reflect U.S. commercial and economic interests. The private sector advisory committee system currently consists of the following three tiers:
• The President's Advisory Committee on Trade and Policy Negotiations;
• Five general policy advisory committees, including the APAC; and
• Twenty-two technical advisory committees, including the Agricultural Technical Advisory Committees for Trade (ATACs).
The renewal of the APAC is in the public interest in connection with USDA's performance of duties imposed on USDA by the Trade Act of 1974, as amended.
Foreign Agricultural Service, USDA.
Notice.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the Secretary of Agriculture (Secretary), in coordination with the United States Trade Representative (USTR), has renewed the six Agricultural Technical Advisory Committees for Trade (ATACs).
Inquiries or comments regarding the renewal of these committees may be sent by electronic mail to:
The ATACs are authorized by sections 135(c)(1) and (2) of the Trade Act of 1974, as amended (Pub. L. 93-618, 19 U.S.C. 2155). The purpose of these committees is to advise the Secretary and the USTR concerning agricultural trade policy. The committees are intended to ensure that representative elements of the private sector have an opportunity to express their views to the U.S. Government.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. Appendix), FAS gives notice that the Secretary and the USTR have renewed the following four ATACs:
• Animals and Animal Products;
• Fruits and Vegetables;
• Processed Foods, and;
• Sweeteners and Sweetener Products.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. App. II), FAS gives notice that the Secretary and the USTR are reorganizing and then renewing the following two ATACs:
• Grains, Feed, Oilseeds and Planting Seeds.
• Tobacco, Cotton and Peanuts.
These ATACs are being reorganized by removing representation of the planting seeds industry from the Tobacco, Cotton, Peanuts and Planting Seeds (TCPPS) ATAC and adding representation of the planting seeds sector to the Grains, Feed and Oilseeds (GFO) ATAC. The justification for this structural change is that many of the issues that the GFO committee addresses, such as genetically modified organisms, new technologies and international negotiations, are common within the U.S. planting seeds industry. The proposed changes will result in the Tobacco, Cotton and Peanuts (TCP) ATAC and the Grains, Feed, Oilseeds, and Planting Seeds (GFOPS) ATAC.
In 1974, Congress established a private sector advisory committee system to ensure that U.S. trade policy and negotiation objectives adequately reflect U.S. commercial and economic interests. The private sector advisory committee system currently consists of the following three tiers:
• The President's Advisory Committee on Trade and Policy Negotiations;
• Five general policy advisory committees, including the Agricultural Policy Advisory Committee for Trade, and;
• Twenty-two technical advisory committees, including the ATACs.
The reorganizing and renewal of such committees is in the public interest in connection with USDA's performance of duties imposed on USDA by the Trade Act of 1974, as amended.
Forest Service, USDA.
Request for comment; notice.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the revision of a currently approved information collection, Perceptions of Risk, Trust, Responsibility, and Management Preferences among Fire-Prone Communities in the Western United States.
Comments must be received in writing on or before August 8, 2011 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Patricia L. Winter, Pacific Southwest Research Station, Forest Service, USDA, 4955 Canyon Crest Drive, Riverside, CA 92507.
Comments also may be submitted via facsimile to 951 680-1501 or by e-mail to:
The public may inspect comments received at Building One Reception, 4955 Canyon Crest Drive, Riverside, CA 92507, during normal business hours. Visitors are encouraged to call ahead to (951) 680-1500 to facilitate entry to the building.
Patricia L. Winter, Pacific Southwest Research Station, USDA FS, 951-680-1557. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.
The results will help researchers improve ability to provide information to natural resource managers on public perceptions of fire and fire management. To gather the information, residents within or adjacent to national forests in the Western United States will be contacted through mailed or e-mail correspondence, or by telephone, inviting their participation in a focus group study. Willing or interested parties will contact the researcher and be scheduled into sessions in their community. Those agreeing to participate will be involved in a focus group discussion and complete a self-administered survey.
A Forest Service researcher and analyst/technician will collect and analyze the information with the assistance of a cooperating university researcher. The primary researcher is an expert in applied social psychology and survey research. The cooperator will be experienced in conducting community based focus groups.
Participants will first complete a questionnaire focused on concern about fire, knowledge about fire, values similarity with the Forest Service, trust, objectives for fire management, personal experience with fire, stressors of fire and fire risk, responsibility for risk reduction, accomplishment of risk reduction, sources of concern about fire, future orientation, and sociodemographics. Participants will then participate in a discussion on the following topics: objectives, values, and concerns in fire management; alternatives for accomplishing objectives; values/goals and trust; and information needs and interests.
Invitations are sent by mail, e-mail, or via telephone to individuals aged 18 or older residing in the selected communities. When possible, multiple sessions will be held in each community to accommodate as many participants as are interested. Responses will be voluntary and anonymous.
Responses will be used to evaluate the values linked to fire and fire management among forest community residents; personal experiences with fire and how participants have addressed fire risk; perceived responsibility and accomplishments in addressing fire risk; and personal characteristics that might influence these responses. The data collected will assist researchers in determining public perception and expectations regarding fire management and risk, as well as providing information on how residents address these issues. Such data is valuable to forest resource managers, who use the information when selecting long and short-term fire management strategies, and in developing public information strategies on fire and fire management.
Without this information, managers will have to rely on the scant information otherwise available on current and changing public views regarding fire and fire management, and the anecdotal information collected through direct experiences with the public regarding impacts of fire and fire risk. The intent is to share the collected data with other researchers studying fire management, and other natural resource management values and objectives.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
Forest Service, USDA.
Notice of meeting.
The Wrangell-Petersburg Resource Advisory Committee will meet by video-teleconference in Petersburg, Alaska and Wrangell, Alaska. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review project proposals and make project funding recommendations.
The meeting will be held on Saturday, June 25, 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 Petersburg Ranger District office at 12 North Nordic Drive in Petersburg, Alaska. Written comments may be submitted as described under
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
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. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed for further information.
The following business will be conducted: Evaluation of project proposals and recommendation of projects for funding. Anyone who would like 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. Individuals wishing to make an oral statement should request in writing by June 20 to be scheduled on the agenda.
Written comments and requests for time for oral comments should be sent to Christopher Savage, Petersburg District Ranger, P.O. Box 1328, Petersburg, Alaska 99833, or Robert Dalrymple, Wrangell District Ranger, P.O. Box 51, Wrangell, AK 99929. Comments may also be sent via e-mail to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
In line with the President's National Export Initiative, ITA is interested in gathering information from U.S. companies that use the U.S.-EU and U.S.-Swiss Safe Harbor Frameworks to better evaluate the programs and how they support U.S. exports. The information will be obtained via a survey using the questions in 76 FR 8337.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Wendy Liberante, OMB Desk Officer, number (202) 395-5167, or via the Internet at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that the New York State Department of Environmental Conservation, 21 South Putt Corners Rd., New Paltz, NY 12561 [Responsible Party: Kathryn Hattala] has applied in due form to take shortnose sturgeon (
Written, telefaxed, or e-mail comments must be received on or before July 11, 2011.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are available upon written request or by appointment in the following offices:
• Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376; and
• Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281-9328; fax (978) 281-9394.
Written comments on this application should be submitted to the Chief, Permits, Conservation and Education Division.
• By e-mail to
• By facsimile to (301) 713-0376, or
• At the address listed above.
Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Malcolm Mohead or Colette Cairns, (301) 713-2289.
The subject permit is requested under the
The applicant proposes a five-year scientific research permit characterizing the habitat use, population abundance, reproduction, juvenile recruitment, age and growth, temporal and spatial distribution, diet selectivity, and contaminant load of shortnose sturgeon captured from the Hudson River Estuary from New York Harbor to Troy Dam. Anchored and drift gill nets and trawl nets would be used to capture up to 240 and 2,340 shortnose sturgeon in year one through three and year four and five, respectively. Other research activities would include: measuring, weighing; tagging unmarked individuals with passive integrated transponder tags, and dart tags; and genetic tissue sampling. A first subset of fish would be anesthetized and tagged with acoustic transmitters; a second subset would have fin rays sampled for ageing; and a third subset of fish would be gastrically lavaged for diet analysis, as well as have blood samples taken for contaminant testing. A total of nine unintended mortalities are requested over the life of the permit.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of letters of authorization.
In accordance with the Marine Mammal Protection Act (MMPA) and implementing regulations, notification is hereby given that NMFS has issued one-year Letters of Authorization (LOA) to take marine mammals incidental to the explosive removal of offshore oil and gas structures (EROS) in the Gulf of Mexico.
These authorizations are effective from July 1, 2011 through June 30, 2012, and September 3, 2011 through September 2, 2012.
The application and LOAs are available for review by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3235 or by telephoning the contact listed here (see
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-713-2289.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Authorization for incidental taking, in the form of annual LOAs, may be granted by NMFS for periods up to five years if NMFS finds, after notice and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). In addition, NMFS must prescribe regulations that include permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat (
Regulations governing the taking of marine mammals incidental to EROS were published on June 19, 2008 (73 FR 34875), and remain in effect through July 19, 2013. For detailed information on this action, please refer to that
NMFS regulations require timely receipt of reports for activities conducted under the previously issued LOA and a determination that the required mitigation, monitoring and reporting were undertaken. NMFS Galveston Laboratory's Platform Removal Observer Program (PROP) has provided reports for El Paso and EOG Resources removal of offshore structures in 2010. NMFS PROP observers reported the following during El Paso and EOG Resources' EROS operations in 2010 to 2011:
Pursuant to these regulations, NMFS has issued an LOA to El Paso and EOG Resources. Issuance of the LOAs is based on a finding made in the preamble to the final rule that the total taking by these activities (with monitoring, mitigation, and reporting measures) will result in no more than a negligible impact on the affected species or stock(s) of marine mammals and will not have an unmitigable adverse impact on subsistence uses. NMFS will review reports to ensure that the applicants are in compliance with meeting the requirements contained in the implementing regulations and LOA, including monitoring, mitigation, and reporting requirements.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Pacific Council) Tule Chinook Workgroup (TCW) will hold a meeting to review work products and develop an abundance-based harvest management approach for Columbia River natural tule Chinook. This meeting of the TCW is open to the public.
The meeting will be held Thursday, July 14, 2011, from 9 a.m. to 4 p.m.
The meeting will be held at the Pacific Fishery Management Council, 7700 NE. Ambassador Place, Suite 101, Portland, OR 97220-1384; telephone: (503) 820-2280.
Mr. Chuck Tracy, Salmon Management Staff Officer, Pacific Fishery Management Council; telephone: (503) 820-2280.
This meeting of the TCW will involve review of initial work products and refining future work plans. Eventually, TCW work products will be reviewed by the Pacific Council, and if approved, would be submitted to NMFS for possible consideration in the next Lower Columbia River tule biological opinion for ocean salmon seasons in 2012 and beyond, and distributed to State and Federal recovery planning processes. In the event that a usable approach emerges from this process, the Pacific Council may consider a fishery management plan (FMP) amendment process beginning after November 2011 to adopt the approach as a formal conservation objective in the Salmon FMP.
Although non-emergency issues not contained in the meeting agenda may come before the TCW for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental take authorization (ITA).
In accordance with the Marine Mammal Protection Act (MMPA) regulation, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the U.S. Geological Survey (USGS) to take marine mammals, by Level B harassment, incidental to conducting a marine geophysical survey in the central Gulf of Alaska (GOA), June 2011.
Effective June 5 through July 25, 2011.
A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 or by telephoning the contacts listed here.
A copy of the application containing a list of the references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-713-2289, ext. 172.
Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs the Secretary of Commerce (Secretary) to authorize, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.
Authorization for the incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS's review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
16 U.S.C. 1362(18)
NMFS received an application on January 21, 2011, from USGS for the taking by harassment, of marine mammals, incidental to conducting a marine geophysical survey in the central GOA within the U.S. Exclusive Economic Zone (EEZ) and adjacent international waters in depths from approximately 2,000 meters (m) (6,561.7 feet [ft]) to greater than 6,000 m (19,685 ft). USGS plans to conduct the survey from approximately June 5 to 25, 2011. On April 1, 2011, NMFS published a notice in the
USGS plans to use one source vessel, the R/V
Acoustic stimuli (
USGS's planned seismic survey in the central GOA is between approximately 200 to 650 kilometers (km) (108 to 351 nautical miles [nmi]) offshore in the area 53 to 57° North, 135 to 148° West (see Figure 1 of the IHA application). Water depths in the survey area range from approximately 2,000 m (6,561.7 ft) to greater than 6,000 m (19,685 ft). The project is scheduled to occur from approximately June 5 to 25, 2011. Some minor deviation from these dates is possible, depending on logistics and weather.
The seismic survey will collect seismic reflection and refraction profiles to be used to delineate the U.S. ECS in the GOA. The ECS is the region beyond 200 nmi where a nation can show that it satisfies the conditions of Article 76 of the United Nations Convention on the Law of the Sea. One of the conditions in Article 76 is a function of sediment thickness. The seismic profiles are designed to identify the stratigraphic “basement” and to map the thickness of the overlying sediments. Acoustic velocities (required to convert measured travel times to true depth) will be measured directly using sonobuoys and ocean-bottom seismometers (OBSs), as well as by analysis of hydrophone streamer data. Acoustic velocity refers to the velocity of sound through sediments or crust.
The survey will involve one source vessel, the
The planned seismic survey (
All planned geophysical data acquisition activities will be conducted by Lamont-Doherty Earth Observatory (L-DEO), the
The survey will occur in the central GOA, between approximately 200 and 650 km offshore, in the area 53 to 57° North, 135 to 148° West. The seismic survey will take place in water depths of 2,000 to greater than 6,000 m. The exact dates of the activities depend on logistics and weather conditions. The
NMFS outlined the purpose of the program in a previous notice for the proposed IHA (76 FR 18167, April 1, 2011). The activities to be conducted have not changed between the proposed IHA notice and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including vessel and acoustic source specifications, the reader should refer to the proposed IHA notice (76 FR 18167, April 1, 2011), the IHA application and associated documents referenced above this section.
A notice of receipt of the USGS application and proposed IHA was published in the
Should the action agency endeavor to undertake a sound source verification study, confidence in the results is necessary in order to ensure for conservation purposes that appropriate monitoring and mitigation measures are implemented; therefore inappropriate or poorly executed efforts should be avoided and discouraged.
Based on these reasons, and the information provided by USGS in their IHA application and EA, NMFS is satisfied that the data supplied are sufficient for NMFS to conduct its analysis and make any determinations and therefore no further effort is needed by the applicant. While exposures of marine mammals to acoustic stimuli are difficult to estimate, NMFS is confident that the levels of take authorized herein are estimated based upon the best available scientific information and estimation methodology. The 160 dB zone used to estimate exposure is appropriate and sufficient for purposes of supporting NMFS's analysis and determinations required under section 101(a)(5)(D) of the MMPA and its implementing regulations. See NMFS's response to Comment 2 (below) for additional details.
At present, the L-DEO model does not account for site-specific environmental conditions. The calibration study of the L-DEO model predicted that using site-specific information may actually provide less conservative EZ radii at greater distances. The Draft Programmatic Environmental Impact Statement for Marine Seismic Research Funded by the National Science Foundation or Conducted by the U.S. Geological Survey (DPEIS) prepared pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
The IHA issued to USGS, under section 101(a)(5)(D) of the MMPA provides monitoring and mitigation requirements that will protect marine mammals from injury, serious injury, or mortality. USGS is required to comply with the IHA's requirements. These analyses are supported by extensive scientific research and data. NMFS is
Based on NMFS's analysis of the likely effects of the specified activity on marine mammals and their habitat, NMFS has determined that the EZs identified in the IHA are appropriate for the survey and that additional field measurement is not necessary at this time. While exposures of marine mammals to acoustic stimuli are difficult to estimate, NMFS is confident that the levels of take authorized herein are estimated based upon the best available scientific information and estimation methodology. The 160 dB zone used to estimate exposure are appropriate and sufficient for purposes of supporting NMFS's analysis and determinations required under section 101(a)(5)(D) of the MMPA and its implementing regulations.
Should the airguns be inactive or powered-down for more than 8 min, and the PSVO does not observe the marine mammal leaving the EZ, then USGS must wait 15 min (for small odontocetes and pinnipeds) or 30 min (for mysticetes and large odontocetes) after the last sighting before USGS can initiate ramp-up procedures. However, ramp-up will not occur as long as a marine mammal is detected within the EZ, which provides more time for animals to leave the EZ, and accounts for the position, swim speed, and heading for marine mammals within the EZ.
Finally, USGS may need to temporarily perform a shut-down due to equipment failure or maintenance. In this instance, USGS will restart the airgun array to the full source level within an 8 min period of the shut down only if the PSVOs do not observe marine mammals within the EZ for the full source level. If the airguns are inactive or powered-down for more than 8 min, then USGS would follow the ramp-up procedures required by the IHA. USGS would restart the airguns beginning with the smallest airgun in the array and add airguns in a sequence such that the source level of the array does not exceed approximately 6 decibels (dB) per 5 min period over a total duration of approximately 30 min. Again, the PSVOs would monitor the EZs for marine mammals during this time and would initiate a power-down or a shut-down, as required by the IHA.
(1) Because the
(2) In many cases PSVOs are observing during times when USGS is not operating the seismic airguns and would observe the area prior to the 30 min observation period;
(3) The majority of the species that may be exposed do not stay underwater more than 30 min; and
(4) All else being equal and if deep-diving individuals happened to be in the area in the short time immediately prior to the pre-ramp-up monitoring, if an animal's maximum underwater dive time is 45 min, then there is only a one in three chance that the last random surfacing would occur prior to the beginning of the required 30 min monitoring period and that the animal would not be seen during that 30 min period.
Finally, seismic vessels are moving continuously (because of the long, towed array and streamer) and NMFS believes that unless the animal submerges and follows at the speed of the vessel (highly unlikely, especially when considering that a significant part of their movements is vertical [deep-diving]), the vessel will be far beyond the length of the EZ radii within 30 min, and therefore it will be safe to start the airguns again.
The effectiveness of monitoring is science-based and the requirement is that monitoring and mitigation measures be “practicable.” NMFS believes that the framework for visual monitoring will: (1) Be effective at spotting almost all species for which take is requested; and (2) that imposing additional requirements, such as those suggested by the Commission, would not meaningfully increase the effectiveness of observing marine mammals approaching or entering the EZs and thus further minimize the potential for take.
(1) Identify those species that it believes can be detected with a high degree of confidence using visual monitoring only;
(2) Describe detection probability as a function of distance from the vessel;
(3) Describe changes in detection probability under various sea state and weather conditions and light levels; and
(4) Explain how close to the vessel marine mammals must be for Protected Species Observers (PSOs) to achieve high nighttime detection rates.
NMFS acknowledges that the detection probability for certain species of marine mammals varies depending on animal size and behavior as well as sea state and weather conditions and light levels. The detectability of marine mammals likely decreases in low light (
USGS (the Federal funding agency for this survey), NSF, and L-DEO are receptive to incorporating proven technologies and techniques to enhance the current monitoring and mitigation program. Until proven technological advances are made, nighttime mitigation measures during operations include combinations of the use of Protected Species Visual Observers (PSVOs) for ramp-ups, PAM, night vision devices (NVDs), and continuous shooting of a mitigation airgun. Should the airgun array be powered-down, the operation of a single airgun would continue to serve as a sound source deterrent to marine mammals. In the event of a complete shut-down of the airgun array at night for mitigation or repairs, USGS suspends the data collection until one-half hour after nautical twilight-dawn (when PSVOs are able to clear the EZ). USGS will not activate the airguns until the entire EZ is visible for at least 30 min.
In cooperation with NMFS, L-DEO will be conducting efficacy experiments of NVDs during a future
There will be significant amounts of transit time during the cruise, and PSVOs will be on watch prior to and after the seismic portions of the survey, in addition to during the survey. The collection of this visual observational data by PSVOs may contribute to baseline data on marine mammals (presence/absence) and provide some generalized support for estimated take numbers, but it is unlikely that the information gathered from this single cruise alone would result in any statistically robust conclusions for any particular species because of the small number of animals typically observed.
NMFS acknowledges the Commission's recommendations and is open to further coordination with the Commission, USGS (the Federal research funding agency for this cruise), NSF (the vessel owner), and L-DEO (the ship operator on behalf of NSF), to develop, validate, and implement a monitoring program that will provide or contribute towards a more scientifically sound and reasonably accurate assessment of the types of marine mammal taking and the number of marine mammals taken. However, the cruise's primary focus is marine geophysical research and the survey may be operationally limited due to considerations such as location, time, fuel, services, and other resources.
(1) To report on the number of marine mammals that were detected acoustically and for which a power-down or shut-down of the airguns was initiated;
(2) Specify if such animals also were detected visually; and
(3) Compare the results from the two monitoring methods (visual versus acoustic) to help identify their respective strengths and weaknesses.
(i) Notify the on-duty PSVO(s) immediately of a vocalizing marine mammal so a power-down or shut-down can be initiated, if required;
(ii) Enter the information regarding the vocalization into a database. The data to be entered include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position, and water depth when first detected, bearing if determinable, species or species group (
USGS reports on the number of acoustic detections made by the PAM system within the post-cruise monitoring reports as required by the IHA. The report also includes a description of any acoustic detections that were concurrent with visual sightings, which allows for a comparison of acoustic and visual detection methods for each cruise.
The post-cruise monitoring reports also include the following information: the total operational effort in daylight (hrs), the total operation effort at night (hrs), the total number of hours of visual observations conducted, the total number of sightings, and the total number of hours of acoustic detections conducted.
LGL Ltd., Environmental Research Associates (LGL), a contractor for USGS, has processed sighting and density data, and their publications can be viewed online at:
(i) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction of the airguns or vessel (
(ii) Time, location, heading, speed, activity of the vessel (including number of airguns operating and whether in state of ramp-up or power-down), Beaufort wind force and sea state, visibility, and sun glare.
Twenty-five marine mammal species (18 cetacean, 6 pinniped, and the sea otter) are known to or could occur in the GOA. Several of these species are listed as endangered under the U.S. Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
The marine mammals that occur in the survey area belong to four taxonomic groups: odontocetes (toothed cetaceans, such as dolphins), mysticetes (baleen whales), pinnipeds (seals, sea lions, and walrus), and fissipeds (sea otter). Cetaceans and pinnipeds are the subject of the IHA application to NMFS. Walrus sightings are rare in the GOA. Sea otters generally inhabit nearshore areas inside the 40 m (131.2 ft) depth contour (Riedman and Estes, 1990) and likely would not be encountered in the deep, offshore waters of the study area. The sea otter and Pacific walrus are two marine mammal species mentioned in this document that are managed by the U.S. Fish and Wildlife Service (USFWS) and are not considered further in this analysis; all others are managed by NMFS. Coastal cetacean species (gray whales, beluga whales, and harbor porpoises) and pinniped species (California sea lions and harbor seals) likely would not be encountered in the deep, offshore waters of the survey area.
Table 1 presents information on the abundance, distribution, population status, conservation status, and density of the marine mammals that may occur in the survey area during June, 2011.
Refer to Section III of USGS's application for detailed information regarding the abundance and distribution, population status, and life history and behavior of these species and their occurrence in the project area. The application also presents how USGS calculated the estimated densities for the marine mammals in the survey area. NMFS has reviewed these data and determined them to be the best available scientific information for the purposes of the IHA.
Acoustic stimuli generated by the operation of the airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the survey area. The effects of sounds from airgun operations might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent hearing impairment, or non-auditory physical or physiological effects (Richardson
Permanent hearing impairment, in the unlikely event that it occurred, would constitute injury, but temporary threshold shift (TTS) is not an injury (Southall
The notice of the proposed IHA (76 FR 18167, April 1, 2011) included a discussion of the effects of sounds from airguns on mysticetes, odontocetes, and pinnipeds including tolerance, masking, behavioral disturbance, hearing impairment, and other non-auditory physical effects. NMFS refers the reader to USGS's application, and EA for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels.
NMFS included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine fish and invertebrates in the notice of the proposed IHA (76 FR 18167, April 1, 2011). While NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat is temporary and reversible which NMFS considered in further detail in the notice of the proposed IHA (76 FR 18167, April 1, 2011) as behavioral modification. The main impact associated with the activity would be temporarily elevated noise levels and the associated direct effects on marine mammals.
Recent work by Andre
In order to issue an ITA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
USGS has based the mitigation measures described herein, to be implemented for the seismic survey, on the following:
(1) Protocols used during previous USGS and L-DEO seismic research cruises as approved by NMFS;
(2) Previous IHA applications and IHAs approved and authorized by NMFS; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, USGS and/or its designees will implement the following mitigation measures for marine mammals:
(1) EZs;
(2) Power-down procedures;
(3) Shut-down procedures;
(4) Ramp-up procedures; and
(5) Special procedures for situations and species of concern.
If the PSVO detects marine mammal(s) within or about to enter the appropriate EZ, the airguns will be powered-down (or shut-down, if necessary) immediately.
Table 2 summarizes the predicted distances at which sound levels (160, 180, and 190 dB [rms]) are expected to be received from the 36 airgun array and a single airgun operating in deep water depths.
If the PSVO detects a marine mammal outside the EZ, but it is likely to enter the EZ, USGS will power-down the airguns before the animal is within the EZ. Likewise, if a mammal is already within the EZ, when first detected USGS will power-down the airguns immediately. During a power-down of the airgun array, USGS will also operate the 40 in
Following a power-down, USGS will not resume airgun activity until the marine mammal has cleared the EZ. USGS will consider the animal to have cleared the EZ if:
• A PSVO has visually observed the animal leave the EZ, or
• A PSVO has not sighted the animal within the EZ for 15 min for species with shorter dive durations (
During airgun operations following a power-down (or shut-down) whose duration has exceeded the time limits specified previously, USGS will ramp-up the airgun array gradually (see Shut-down and Ramp-up Procedures).
(1) If an animal enters the EZ of the single airgun after USGS has initiated a power-down; or
(2) If an animal is initially seen within the EZ of the single airgun when more than one airgun (typically the full airgun array) is operating.
USGS will not resume airgun activity until the marine mammal has cleared the EZ, or until the PSVO is confident that the animal has left the vicinity of the vessel. Criteria for judging that the animal has cleared the EZ will be as described in the preceding section.
Ramp-up will begin with the smallest airgun in the array (40 in
If the complete EZ has not been visible for at least 30 min prior to the start of operations in either daylight or nighttime, USGS will not commence the ramp-up unless at least one airgun (40 in
• The airguns will be shut-down immediately if ESA-listed species for which no takes are being requested (
• Concentrations of humpback, fin, and/or killer whales will be avoided if possible, and the array will be powered-down if necessary. For purposes of this survey, a concentration or group of whales will consist of three or more individuals visually sighted that do not appear to be traveling (
NMFS has carefully evaluated the applicant's mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. NMFS's evaluation of potential measures included consideration of the following factors in relation to one another:
(1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2) The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
(3) The practicability of the measure for applicant implementation.
Based on NMFS's evaluation of the applicant's measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
USGS would sponsor marine mammal monitoring during the present project, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the anticipated monitoring requirements of the IHA. USGS's Monitoring Plan is described below this section. The monitoring work described here has been planned as a self-contained project independent of any other related monitoring projects that may be occurring simultaneously in the same regions. USGS is prepared to discuss coordination of its monitoring program with any related work that might be done by other groups insofar as this is practical and desirable.
USGS's PSVOs will be based aboard the seismic source vessel and will watch for marine mammals near the vessel during daytime airgun operations and during any ramp-ups at night. PSVOs will also watch for marine mammals near the seismic vessel for at least 30 min prior to the start of airgun operations after an extended shut-down.
PSVOs will conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on PSVO observations, the airguns will be powered-down or shut-down when marine mammals are observed within or about to enter a designated EZ.
During seismic operations in the central GOA, at least four PSOs will be based aboard the
Two PSVOs will also be on visual watch during all nighttime ramp-ups of the seismic airguns. A third PSO (
The
When marine mammals are detected within or about to enter the designated EZ, the airguns will immediately be powered-down or shut-down if necessary. The PSVO(s) will continue to maintain watch to determine when the animal(s) are outside the EZ by visual confirmation. Airgun operations will not resume until the animal is confirmed to have left the EZ, or if not observed after 15 min for species with shorter dive durations (small odontocetes and pinnipeds) or 30 min for species with longer dive durations (mysticetes and large odontocetes, including sperm, killer, and beaked whales).
PAM will complement the visual monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range.
Besides the three PSVOs, an additional PSAO with primary responsibility for PAM will also be aboard the vessel. USGS can use acoustic monitoring in addition to visual observations to improve detection, identification, and localization of cetaceans. The acoustic monitoring will serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. It will be monitored in real time so that the PSVOs can be advised when cetaceans are detected. When bearings (primary and mirror-image) to calling cetacean(s) are determined, the bearings will be relayed to the visual observer to help him/her sight the calling animal(s).
The PAM system consists of hardware (
Ideally, the PSAO will monitor the towed hydrophones 24 hr per day at the seismic survey area during airgun operations, and during most periods when the
One PSAO will monitor the acoustic detection system at any one time, by listening to the signals from two channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. PSAOs monitoring the acoustical data will be on shift for one to six hours at a time. Besides the PSVO, an additional PSAO with primary responsibility for PAM will also be aboard the source vessel. All PSVOs are expected to rotate through the PAM position, although the most experienced with acoustics will be on PAM duty more frequently.
When a vocalization is detected while visual observations are in progress, the PSAO will contact the PSVO immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), and to allow a power-down or shut-down to be initiated, if required. The information regarding the call will be entered into a database. Data entry will include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (
PSVOs will record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data will be used to estimate numbers of animals potentially “taken” by harassment (as defined in the MMPA). They will also provide information needed to order a power-down or shut-down of the airguns when a marine mammal is within or near the EZ. Observations will also be made during daytime periods when the
When a sighting is made, the following information about the sighting will be recorded:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (
2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.
The data listed under (2) will also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
All observations and power-downs or shut-downs will be recorded in a standardized format. Data will be entered into an electronic database. The accuracy of the data entry will be verified by computerized data validity checks as the data are entered and by subsequent manual checking of the database. These procedures will allow initial summaries of data to be prepared during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.
Results from the vessel-based observations will provide:
1. The basis for real-time mitigation (airgun power-down or shut-down).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS.
3. Data on the occurrence, distribution, and activities of marine mammals in the area where the seismic study is conducted.
4. Information to compare the distance and distribution of marine mammals relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals seen at times with and without seismic activity.
USGS will submit a report to NMFS and NSF within 90 days after the end of the cruise. The report will describe the operations that were conducted and sightings of marine mammals near the operations. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report will summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report will also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities will not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with USGS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. USGS may not resume their activities until notified by NMFS via letter or e-mail, or telephone.
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Only take by Level B harassment is anticipated and authorized as a result of the marine seismic survey in the central GOA. Acoustic stimuli (
The following sections describe USGS's methods to estimate take by incidental harassment and present the applicant's estimates of the numbers of marine mammals that could be affected during the seismic program. The
USGS assumes that, during simultaneous operations of the airgun array and the other sources, any marine mammals close enough to be affected by the MBES and SBP would already be affected by the airguns. However, whether or not the airguns are operating simultaneously with the other sources, marine mammals are expected to exhibit no more than short-term and inconsequential responses to the MBES and SBP given their characteristics (
There are several sources of systematic data on the numbers and distributions of marine mammals in the coastal and nearshore areas of the GOA, but there are fewer data for offshore areas. Vessel-based surveys in the northern and western GOA from the Kenai Peninsula to the central Aleutian Islands during July to August, 2001 to 2003 (Zerbini
Deeper water was included in several surveys. In a report on a seismic cruise in southeast Alaska from Dixon Entrance to Kodiak Island during August to September, 2004, MacLean and Koski (2005) included density estimates of cetaceans and pinnipeds for each of three depth ranges (less than 100 m, 100 to 1,000 m, and greater than 1,000 m) during non-seismic periods. Hauser and Holst (2009) reported density estimates during non-seismic periods for all marine mammals sighted during a September to early October seismic cruise in southeast Alaska for each of the same three depth ranges as MacLean and Koski (2005). Rone
Table 2 (Table 3 of the IHA application) gives the estimated average (best) and maximum densities of marine mammals expected to occur in the deep, offshore waters of the survey area. USGS used the densities reported by MacLean and Koski (2005) and Hauser and Holst (2009) for greater than 1,000 m, which were corrected for both trackline detection probability and availability biases. USGS calculated density estimates from effort and sightings in water depths greater than 1,000 m in Rone
There is some uncertainty about the representativeness of the data and the assumptions used in the calculations below for two main reasons: (1) the surveys from which densities were derived were at different times of year: April (Rone
Also, to provide some allowance for these uncertainties, “maximum estimates” as well as “best estimates” of the densities present and numbers potentially affected have been derived. Best estimates of cetacean density are effort-weighted mean densities from the various surveys, whereas maximum estimates of density come from the individual survey that provided the highest density. For marine mammals where only one density estimate was available, the maximum is 1.5 times the best estimate.
For one species, the Dall's porpoise, density estimates in the original reports are much higher than densities expected during the survey, because this porpoise is attracted to vessels. USGS estimates for Dall's porpoises are from vessel-based surveys without seismic activity; they are overestimates possibly by a factor of 5 times, given the tendency of this species to approach vessels (Turnock and Quinn, 1991). Noise from the airgun array during the survey is expected to at least reduce and possibly eliminate the tendency of this porpoise to approach the vessel. Dall's porpoises are tolerant of small airgun sources (MacLean and Koski, 2005) and tolerated higher sound levels than other species during a large-array survey (Bain and Williams, 2006); however, they did respond to that and another large airgun array by moving away (Calambokidis and Osmek, 1998; Bain and Williams, 2006). Because of the probable overestimates, the best and maximum estimates for Dall's porpoises shown in Table 2 (Table 3 of the IHA application) are one-quarter of the reported densities. In fact, actual densities are probably slightly lower than that.
USGS's estimates of exposures to various sound levels assume that the surveys will be fully completed including the contingency line; in fact, the ensonified areas calculated using the planned number of line-km have been increased by 25% to accommodate lines that may need to be repeated, equipment testing,
USGS estimated the number of different individuals that may be exposed to airgun sounds with received levels greater than or equal to 160 dB re 1 μPa (rms) on one or more occasions by considering the total marine area that would be within the 160 dB radius around the operating airgun array on at least one occasion and the expected density of marine mammals. The number of possible exposures (including repeated exposures of the
(1) The expected species density, either “mean” (
(2) The anticipated area to be ensonified to that level during airgun operations excluding overlap.
The area expected to be ensonified was determined by entering the planned survey lines into a MapInfo GIS, using the GIS to identify the relevant areas by “drawing” the applicable 160 dB buffer (see Table 1 of the IHA application) around each seismic line, and then calculating the total area within the buffers. Areas of overlap (because of lines being closer together than the 160 dB radius) were limited and included only once when estimating the number of individuals exposed. Before calculating numbers of individuals exposed, the areas were increased by 25% as a precautionary measure.
Table 2 (Table 4 of the IHA application) shows the best and maximum estimates of the number of different individual marine mammals that potentially could be exposed to greater than or equal to 160 dB re 1 μPa (rms) during the seismic survey if no animals moved away from the survey vessel. The requested take authorization, given in Table 3 (the far right column of Table 4 of the IHA application), is based on the maximum estimates rather than the best estimates of the numbers of individuals exposed, because of uncertainties about the representativeness of the density data discussed previously. For cetacean species not listed under the ESA that could occur in the study area but were not sighted in the surveys from which density estimates were calculated—Pacific white-sided dolphins, Risso's dolphins, short-finned pilot whales, and Stejneger's beaked whales—the average group size has been used to request take authorization. For ESA-listed cetacean species unlikely to be encountered during the study (
Applying the approach described above, approximately 20,933 km
The “best estimate” of the number of individual cetaceans that could be exposed to seismic sounds with greater than or equal to 160 dB re 1 μPa (rms) during the survey is 973 (see Table 4 of the IHA application). That total includes 68 humpback, 76 fin, 10 sperm, 37 Cuvier's beaked, 11 Baird's beaked, and 99 killer whales, which would represent 0.3%, 0.5%, less than 0.1%, 0.2%, 0.2%, and 1.2% of the regional populations, respectively. Dall's porpoises are expected to be the most common species in the study area; the best estimate of the number of Dall's porpoises that could be exposed is 672 or less than 0.1% of the regional population. This may be a slight overestimate because the estimated densities are slight overestimates. Estimates for other species are lower. The “maximum estimates” total 2,539 cetaceans. “Best estimates” of 256 Steller sea lions and 2,771 northern fur seals could be exposed to airgun sounds with received levels greater than or equal to 160 dB re 1 μPa (rms). These estimates represent 0.6% of the Steller sea lion regional population and less than 0.1% of the northern fur seal regional population. The estimated numbers of pinnipeds that could be exposed to received levels greater than or equal to 160 dB re 1 μPa (rms) are probably overestimates of the actual numbers that will be affected. During the June survey period, the Steller sea lion is in its breeding season, with males staying on land and females with pups generally staying close to the rookeries in shallow water. Male northern fur seals are at their rookeries in June, and adult females are either there or migrating there, possibly through the survey area. No take has been requested for North Pacific right, minke, sei, and blue whales, beluga whales, harbor porpoises, Northern elephant and harbor seals, and California sea lions.
USGS will coordinate the planned marine mammal monitoring program associated with the seismic survey in the central GOA with other parties that may have an interest in the area and/or be conducting marine mammal studies in the same region during the seismic survey. USGS will coordinate with applicable U.S. agencies (
NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS evaluated factors such as:
(1) The number of anticipated injuries, serious injuries, or mortalities;
(2) The number, nature, intensity, and duration of Level B harassment (all relatively limited); and
(3) The context in which the takes occur (
(4) The status of stock or species of marine mammals (
(5) Impacts on habitat affecting rates of recruitment or survival; and
(6) The effectiveness of monitoring and mitigation measures (
For reasons stated previously in this document, and in the proposed notice of an IHA (76 FR 18167, April 1, 2011), the specified activities associated with the marine seismic survey are not likely to cause PTS, or other non-auditory injury, serious injury, or death because:
(1) The likelihood that, given sufficient notice through relatively slow ship speed, marine mammals are expected to move away from a noise source that is annoying prior to its becoming potentially injurious;
(2) The potential for temporary or permanent hearing impairment is very low and would likely be avoided through the incorporation of the monitoring and mitigation measures;
(3) The fact that pinnipeds and cetaceans would have to be closer than 400 m (1,312.3 ft) and 940 m (3,084 ft) in deep water when the 36 airgun array and 12 m (39.4 ft) and 40 m (131.2 ft) when the single airgun is in use at 9 m (29.5 ft) tow depth from the vessel to be exposed to levels of sound believed to have even a minimal chance of causing permanent threshold shift; and
(4) The likelihood that marine mammal detection ability by trained PSOs is high at close proximity to the vessel.
No injuries, serious injuries, or mortalities are anticipated to occur as a result of the USGS's planned marine seismic survey, and none are authorized. Only short-term behavioral disturbance is anticipated to occur due to the brief and sporadic duration of the survey activities. Due to the nature, degree, and context of behavioral harassment anticipated, the activity is not expected to impact rates of recruitment or survival for any affected species or stock.
As mentioned previously, NMFS estimates that nine species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (each, one percent or less) relative to the population size. NMFS has determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting a marine seismic survey in the central GOA, June 2011, may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of small numbers of certain species of marine mammals.
While behavioral modifications, including temporarily vacating the area during the operation of the airgun(s), may be made by these species to avoid the resultant acoustic disturbance, the availability of alternate areas within these areas and the short and sporadic duration of the research activities, have led NMFS to determine that this action
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that USGS's planned research activities will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the marine seismic survey will have a negligible impact on the affected species or stocks of marine mammals; and that impacts to affected species or stocks of marine mammals have been mitigated to the lowest level practicable.
Section 101(a)(5)(D) also requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals in the study area (deep, offshore waters of the central GOA) that implicate MMPA section 101(a)(5)(D).
Of the species of marine mammals that may occur in the survey area, several are listed as endangered under the ESA, including the North Pacific right, humpback, sei, fin, blue, and sperm whales, as well as the Cook Inlet DPS of beluga whales and the western stock of Steller sea lions. The eastern stock of Steller sea lions is listed as threatened, as is the southwest Alaska DPS of the sea otter. Under section 7 of the ESA, USGS initiated formal consultation with the NMFS, Office of Protected Resources, Endangered Species Division, on this seismic survey. NMFS's Office of Protected Resources, Permits, Conservation and Education Division, also initiated formal consultation under section 7 of the ESA with NMFS's Office of Protected Resources, Endangered Species Division, to obtain a Biological Opinion (BiOp) evaluating the effects of issuing the IHA on threatened and endangered marine mammals and, if appropriate, authorizing incidental take. In June 2011, NMFS issued a BiOp and concluded that the action and issuance of the IHA are not likely to jeopardize the continued existence of the North Pacific right, humpback, sei, fin, blue, and sperm whales, Cook Inlet DPS of beluga whales, and Steller sea lions. The BiOp also concluded that designated critical habitat for these species does not occur in the action area and would not be affected by the survey. USGS must comply with the Relevant Terms and Conditions of the Incidental Take Statement (ITS) corresponding to NMFS's BiOp issued to both USGS and NMFS's Office of Protected Resources. USGS must also comply with the mitigation and monitoring requirements included in the IHA in order to be exempt under the ITS in the BiOp from the prohibition on take of listed endangered marine mammal species otherwise prohibited by section 9 of the ESA.
With its complete application, USGS provided NMFS an EA analyzing the direct, indirect, and cumulative environmental impacts of the specified activities on marine mammals including those listed as threatened or endangered under the ESA. The EA, prepared by LGL on behalf of USGS, is entitled “Environmental Assessment of a Marine Geophysical Survey by the R/V
NMFS has issued an IHA to USGS for the take, by Level B harassment, of small numbers of marine mammals incidental to conducting a marine geophysical survey in the central GOA, June 2011, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to United Launch Alliance (ULA), to take marine mammals, by Level B harassment, incidental to conducting
Effective June 7, 2011, through June 6, 2012.
A copy of the authorization, application, and associated Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910, telephoning the contact listed below (see
Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.
Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 713-2289.
Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs the Secretary of Commerce to authorize, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who
Authorization for incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. NMFS must publish a notice in the
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
NMFS received an application on August 4, 2010, from ULA requesting the taking by harassment, of small numbers of marine mammals, incidental to conducting
These activities (
Acoustic and visual stimuli generated by the use of heavy equipment during the
The activities will take place in or near the VAFB harbor located on the central coast of California at 34° 33′ N, 120° 36′ W in the northeast Pacific Ocean. The harbor is approximately 2.5 miles (mi) (4.02 kilometers (km)) south of Point Arguello, CA, and approximately 1 mi (1.61 km) south of the nearest marine mammal rookery.
ULA proposes to conduct Delta IV/EELV activities (transport vessel operations, harbor maintenance dredging, and cargo movement activities) between June 8, 2011, and June 7, 2012.
To date, NMFS has issued eight, 1-year IHAs to ULA for the conduct of the same activities from 2002 to 2010, with the last IHA expiring on September 3, 2010 (74 FR 46742, September 11, 2009).
The Delta IV/EELV launch vehicle is comprised of a common booster core (CBC), an upper stage, and a payload fairing. The size of the CBC requires it to be transported to the VAFB launch site by a specially designed vessel, the
The
ULA must perform maintenance dredging annually or twice per year, depending on the hardware delivery schedule. To accommodate the
ULA provides a more detailed description of the work proposed for 2011-2012 in the application and the Final U.S. Air Force EA for Harbor Activities Associated with the Delta IV Program at Vandenberg Air Force Base (ENSR International, 2001) which are available upon request (see
Removal of the CBC from the vessel requires the use of an elevating platform transporter (EPT). The EPT is powered by a diesel engine manufactured by Daimler-Chrysler AG (Mercedes), model OM442A, 340HP. ULA would limit cargo unloading activities to periods of
NMFS outlined the purpose of the program in the Notice of Proposed IHA (76 FR 21862, April 19, 2011). The activities to be conducted have not changed between the Notice of Proposed IHA (76 FR 21862, April 19, 2011) and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including a discussion of associated noise sources from the harbor operations, NMFS refers the reader to the Notice of Proposed IHA (76 FR 21862, April 19, 2011), the application, and associated documents referenced earlier in this document.
NMFS published a notice of receipt of the ULA application and proposed IHA in the
The marine mammal species most likely to be harassed incidental to conducting
Other cetaceans that have the potential to transit in the vicinity of the VAFB harbor include the short-beaked common dolphin (
Acoustic and visual stimuli generated by: The use of heavy equipment during the
The effects of the harbor activities would be limited to short-term startle responses and localized behavioral changes and have the potential to temporarily displace the animals from a haul out site. NMFS would expect the pinnipeds to return to a haulout site within 60 minutes of the disturbance (Allen
Finally, no operations would occur on pinniped rookeries; therefore, NMFS does not expect mother and pup separation or crushing of pups to occur. For a more detailed discussion of the sound levels produced by the equipment, behavioral reactions of marine mammals to loud noises or looming visual stimuli, and some specific observations of the response of marine mammals to this activity gathered during previous monitoring, NMFS refers the reader to the Notice of Proposed IHA (76 FR 21862, April 19, 2011), the application, and associated documents.
NMFS does not anticipate that the operations would result in any temporary or permanent effects on the habitats used by the marine mammals in the VAFB harbor, including the food sources they use (
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
ULA has based the mitigation measures described herein, to be implemented for the habor operations, on the following:
(1) Protocols used during previous operations as approved by NMFS; and
(2) Previous IHA applications and IHAs approved and authorized by NMFS.
To reduce the potential for disturbance from visual and acoustic stimuli associated with the activities, ULA/and or its designees shall implement the following mitigating measures for marine mammals: (1) If activities occur during nighttime hours, ULA will turn on lighting equipment before dusk and the lights shall remain on for the entire night to avoid startling pinnipeds; (2) initiate operations before dusk; (3) keep construction noises at a constant level (i.e., not interrupted by periods of quiet in excess of 30 minutes) while pinnipeds are present; (4) if activities cease for longer than 30 minutes and pinnipeds are in the area, ULA shall initiate a gradual start-up of activities to ensure a gradual increase in noise levels; (5) a NMFS-qualified marine mammal observer shall visually monitor the harbor seals on the beach adjacent to the harbor and on rocks for any flushing or other behaviors as a result of ULA's activities (see Monitoring); (6) the
NMFS has carefully evaluated the applicant's proposed mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize impacts as planned; and (3) the practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
ULA will sponsor a marine mammal monitor during the present project, in order to implement the mitigation measures thus satisfying the monitoring requirements of the IHA. ULA's monitoring activities will consist of:
(1) A NMFS-qualified and VAFB-designated biologically trained observer monitoring the area for pinnipeds during all harbor activities. During nighttime activities, the monitor would use a night vision scope.
(2) Conducting baseline observations of pinnipeds in the project area prior to initiating project activities.
(3) Conducting and recording observations on pinnipeds in the vicinity of the harbor for the duration of the activity occurring when tides are low enough (less than or equal to 2 ft (0.61 m) for pinnipeds to haul out.
(4) Conducting post-construction observations of pinniped haul-outs in the project area to determine whether animals disturbed by the project activities return to the haul-out.
ULA will notify NMFS two weeks prior to initiation of each activity. After the completion of each activity, ULA will submit a draft final monitoring report to NMFS within 120 days to the Director of Office of Protected Resources at NMFS Headquarters. If ULA receives no comments from NMFS on the draft Final Monitoring Report, NMFS would consider the draft Final Monitoring Report to be the Final Monitoring Report.
The final report shall provide dates, times, durations, and locations of specific activities, details of pinniped behavioral observations, and estimates of numbers of affected pinnipeds and impacts (behavioral or other). In addition, the report would include information on the weather, tidal state, horizontal visibility, and composition (species, gender, and age class) and locations of haul-out group(s).
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A Harassment), serious injury or mortality (
ULA shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with ULA to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA
In the event that ULA discovers an injured or dead marine mammal, and the NMFS-qualified marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), ULA will immediately report the incident to the Chief of the Permits Conservation, and Education Division, Office of Protected Resources, NMFS, and to the NMFS Southwest Stranding Coordinators. The report must include the same information identified in Condition (a). ULA may continue its activities while NMFS reviews the circumstances of the incident. NMFS will work with ULA to determine whether modifications in the activities are appropriate.
In the event that ULA discovers an injured or dead marine mammal, and the NMFS-qualified marine mammal observer determines that the injury or death is not associated with or related to the activities authorized in Condition 2 of this Authorization (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
NMFS anticipates take by Level B harassment only as a result of the harbor maintenance and
For this IHA, NMFS has authorized the take of 1,075 Pacific harbor seals, 86 California sea lions, and 43 northern elephant seals. Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area due to wave inundation of the haulout area, NMFS expects no injury, serious injury, or mortality to occur, and no takes by injury or mortality are authorized.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to:
(1) The number of anticipated mortalities;
(2) The number and nature of anticipated injuries;
(3) The number, nature, and intensity, and duration of Level B harassment; and
(4) The context in which the takes occur.
As mentioned previously, NMFS estimates that three species of marine mammals could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (each, less than two percent) relative to the population size.
NMFS does not anticipate takes by Level A harassment, serious injury, or mortality to occur as a result of ULA's activities, and none are authorized. These species may exhibit behavioral modifications, including temporarily vacating the area during the proposed harbor maintenance and
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the impact of conducting harbor maintenance and vessel operations from June, 2011, through June, 2012, will result in the incidental take of small numbers of marine mammals, by Level B behavioral harassment only, and that the total taking from the ULA's activities will have a negligible impact on the affected species or stocks; and that impacts to affected species or stocks of marine mammals would be mitigated to the lowest level practicable.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
This action will not affect species listed under the ESA that are under NMFS' jurisdiction. VAFB formally consulted with the U.S. Fish and Wildlife Service in 1998 on the possible take of southern sea otters during ULA's harbor activities at south VAFB. A Biological Opinion was issued in August 2001, which concluded that the EELV Program is not likely to jeopardize the continued existence of the southern sea otter, and no injury or mortality is expected. The activities covered by this IHA are analyzed in that Biological Opinion, and this IHA does not modify the action in a manner that was not previously analyzed.
In 2001, the USAF prepared an Environmental Assessment (EA) for Harbor Activities Associated with the Delta IV Program at VAFB. In 2005, NMFS prepared an EA augmenting the information contained in the USAF EA and issued a Finding of No Significant Impact (FONSI) on the issuance of an IHA for ULA's harbor activities in accordance with section 6.01 of the NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999). ULA's activities and impacts for 2011-2012 are within the scope of NMFS' 2005 EA and FONSI. NMFS has again reviewed the 2005 EA and determined that there are no new direct,
As a result of these determinations, NMFS has issued an IHA to ULA to take marine mammals, by Level B harassment only, incidental to conducting
Wednesday, June 15, 2011; 10 a.m.-11 a.m.
Hearing Room 420, Bethesda Towers, 4330 East-West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters.
For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814, (301) 504-7923.
Council on Environmental Quality.
Notice of Availability, Strategic Action Plan Content Outlines; Request for Comments.
On July 19, 2010, President Obama signed Executive Order 13547 establishing a National Policy for the Stewardship of the Ocean, our Coasts, and the Great Lakes (“National Ocean Policy”). The National Ocean Policy provides an implementation strategy, which describes nine priority objectives that seek to address some of the most pressing challenges facing the ocean, our coasts, and the Great Lakes. The National Ocean Council is responsible for developing strategic action plans for each of the nine priority objectives. As a first step, Federal interagency writing teams have developed content outlines for each draft strategic action plan. The NOC is seeking public review and comment of these content outlines.
The purpose of the draft content outlines (outlines) is to provide the public with an initial view of potential actions that could be taken to further the national priority objectives. As such, they are an interim step toward development of the first full draft of each strategic action plan. In developing the outlines, the writing teams were informed by the comments received during an initial public scoping period that closed on April 29.
Each outline presents in bulleted form potential actions to further the particular priority objective. It describes the reasons for taking the action, expected outcomes and milestones, gaps and needs in science and technology, and the timeframe for completing the action. The outlines also provide an overview of the priority objective, greater context for the strategic action plan in implementing the National Ocean Policy, and an overview of the preparation of the plan .
Public comments received on the outlines will be collated and posted on the NOC Web site. The comments on the outlines will inform the preparation of full draft strategic action plans, which will be released for public review in the fall of 2011, allowing additional opportunity for the public to provide comments. Final strategic action plans are expected to be completed by early 2012.
Comments should be submitted on or before July 2, 2011.
Content outlines can be downloaded here:
Michael Weiss, Deputy Associate Director for Ocean and Coastal Policy, at (202) 456-3892.
On July 19, 2010, President Obama signed Executive Order 13547 establishing a National Policy for the Stewardship of the Ocean, our Coasts, and the Great Lakes (“National Ocean Policy”). That Executive Order adopts the Final Recommendations of the Interagency Ocean Policy Task Force and directs Federal agencies to take the appropriate steps to implement them. The Executive Order creates an interagency National Ocean Council (NOC) to strengthen ocean governance and coordination, identifies nine priority actions for the NOC to pursue, and adopts a flexible framework for effective coastal and marine spatial planning to address conservation, economic activity, user conflict, and sustainable use of the ocean, our coasts, and the Great Lakes.
The National Ocean Policy provides a comprehensive approach, based on science and technology, to uphold our stewardship responsibilities and ensure accountability for our actions to present and future generations. The Obama Administration intends, through the National Ocean Policy, to provide a model of balanced, productive, efficient, sustainable, and informed ocean, coastal, and Great Lakes use, management, and conservation. The Final Recommendations provide an implementation strategy that describes a clear set of priority objectives that our Nation should pursue to further the National Policy.
The nine priority objectives seek to address some of the most pressing challenges facing the ocean, our coasts, and the Great Lakes. The nine priority objectives are identified below. Additional information about each priority may be found at
These priority objectives are meant to provide a bridge between the National Ocean Policy and action on the ground and in the water, but they do not prescribe specific actions or responsibilities. The NOC is responsible for developing strategic action plans to achieve the priority objectives. As envisioned, the plans will:
• Identify specific and measurable near-term, mid-term, and long-term actions, with appropriate milestones, performance measures, and outcomes to fulfill each objective;
• Consider smaller-scale, incremental, and opportunistic efforts that could build upon existing activities, as well as more complex, larger-scale actions that have the potential to be truly transformative;
• Identify key lead and participating agencies;
• Identify gaps and needs in science and technology; and
• Identify potential resource requirements and efficiencies; and steps for integrating or coordinating current and out-year budgets.
The plans will be adaptive to allow for modification and addition of new actions based on new information or changing conditions. Their effective implementation will also require clear and easily understood requirements and regulations, where appropriate, that include enforcement as a critical component. Implementation of the National Ocean Policy for the stewardship of the ocean, our coasts, and the Great Lakes will recognize that different legal regimes, with their associated freedoms, rights, and duties, apply in different maritime zones. The plans will be implemented in a manner consistent with applicable international conventions and agreements and with customary international law as reflected in the Law of the Sea Convention. The plans and their implementation will be assessed and reviewed annually by the NOC and modified as needed based on the success or failure of the agreed upon actions.
The NOC is committed to transparency in developing strategic action plans and implementing the National Ocean Policy. As the NOC develops and revises the plans, it will ensure substantial opportunity for public participation. The NOC will also actively engage interested parties, including, as appropriate, State, Tribal, and local authorities, regional governance structures, academic institutions, nongovernmental organizations, recreational interests, and private enterprise.
Public comments are requested on or before July 1, 2011.
National Security Agency/Central Security Service, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by August 8, 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
Respondents are Gulf War veterans who served in the 1991 Gulf War. Information collected is dates of service in the Gulf, and answers to questions about health after obtaining informed consent approved by both the DoD institutional review board (IRB) and the East Carolina University IRB.
Department of the Army, DoD.
Notice to add a system of records.
The Department of the Army proposes to add a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action would be effective without further notice on July 11, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Mr. Leroy Jones, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905, or by phone at (703) 428-6185.
The Department of the Army notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on June 2, 2011 to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Integrated Personnel and Pay System—Army (IPPS-A) Records.
Primary Location: Radford Army Ammunitions Plant, Radford, VA 24143-0004.
Decentralized segments are located at Army Processing Centers (APCs) worldwide.
Members of the United States Army to include Active Duty, National Guard, Reserve, select Army retired and former Army military personnel.
10 U.S.C. 113, Secretary of Defense; 10 U.S.C. 3013, Secretary of the Army; 37 U.S.C., Pay and Allowances of the Uniformed Services; 10 U.S.C., Armed Forces: Under Secretary of Defense for Personnel and Readiness; and E.O. 9397 (SSN), as amended.
A Web-based, integrated personnel and pay system to support all components of the United States Army to include Active Duty, National Guard, Reserve, select Army retired and former Army military personnel. This system is intended to support peacetime and wartime readiness requirements across a range of personnel, financial and related matters.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To officials and employees of the Department of Health and Human Services, and Selective Service Administration in the performance of their official duties related to eligibility, notification, and assistance in obtaining benefits for which members, former members or retiree may be eligible.
To officials and employees of the Department of Veterans Affairs in the performance of their official duties related to approved research projects, and for processing and adjudicating claims, determining eligibility, notification, and assistance in obtaining benefits and medical care for which members, former members, retiree and family members/annuitants may be eligible.
To the Department of Veterans Affairs to provide information regarding a service-member's record or family member for the purposes of supporting eligibility processing for the Service-member's Group Life Insurance program.
To state and local agencies in the performance of their official duties related to verification of status for determination of eligibility for Veterans bonuses and other benefits and entitlements.
To officials and employees of the American Red Cross in the performance of their duties relating to the assistance of the members and their dependents and relatives, or related to assistance previously furnished such individuals, without regard to whether the individual assisted or his/her sponsor continues to be a member of the Military Service. Access will be limited to those portions of the member's record required to effectively assist the member.
To the U.S. Citizenship and Immigration Services for use in making alien admission and naturalization inquiries.
To the Social Security Administration to obtain or verify Social Security Numbers or to substantiate applicant's credit for social security compensation.
To officials and employees of the Office of the Sergeant at Arms of the United States House of Representatives in the performance of their official duties related to the verification of the active duty military service of Members of Congress. Access is limited to those portions of the member's record required to verify time in service.
To the widow or widower, dependent, or next-of-kin of deceased members to settle the affairs of the deceased member. The individuals will have to verify relationship by providing a birth certificate, marriage license, death certificate, or court document as requested/required to prove identity.
To governmental agencies for the conduct of computer matching agreements for the purpose(s) of determining eligibility for Federal benefit programs, to determine compliance with benefit program requirements and to recover improper payments or delinquent debts under a Federal benefit program.
To Federal and state licensing authorities and civilian certification boards, committees and/or ecclesiastical endorsing organizations for the purposes of professional credentialing (licensing and certification) of lawyers, chaplains and health professionals.
To Federal agencies such as the National Academy of Sciences, for the purposes of conducting personnel and/or health-related research in the interest of the Federal government and the public. When not considered mandatory, the names and other identifying data will be eliminated from records used for such research studies.
To the officials and employees of the Department of Labor in the performance of their official duties related to employment and compensation.
Disclosure to consumer reporting agencies.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to `consumer reporting agencies' as defined in the Fair Credit Reporting Act (14 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)). The purpose of this disclosure is to aid in the collection of outstanding debts owed to the Federal government, typically to provide an incentive for debtors to repay delinquent Federal government debts by making these debts part of their credit records.
The disclosure is limited to information necessary to establish the identity of the individual, including name, address, and taxpayer identification number (Social Security Number (SSN)); the amount, status and history of the claim, and the agency or program under which the claim arose for the sole purpose of allowing the consumer reporting agency to prepare a commercial credit report.
The DoD `Blanket Routine Uses' set forth at the beginning of the Army's compilation of System of Records Notices apply to this system.
Electronic storage media.
Individual's name, Social Security Number (SSN), and date of birth.
Physical entry will be restricted by the use of locks, guards, and will be accessible only to authorized personnel with a need-to-know. Access to personal data will be limited to person(s) responsible for maintaining and servicing IPPS-A data in performance of their official duties and who are properly trained, screened and cleared for a need-to-know. Access to personal data will be further restricted by encryption and the use of Common Access Card (CAC) and/or strong password, which are changed periodically according to DoD and Army security policies.
Personnel and education records: Keep in current files area until transfer or separation of individual and then until no longer needed for conducting business, but not longer than 6 years after the event, then destroy.
IPPS-A System Manager, PEO EIS, Project Directorate IPPS-A, Hoffman II, 200 Stovall St., Alexandria, VA 22332-0010.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to Army Records, U.S. Army Human Resources Command, Attn: AHRC-PAV-V, 1 Reserve Way, St. Louis, MO 63132-5200.
For verification purposes, individuals should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
Individuals seeking written access to information about themselves contained in this system of records should address written inquiries to Army Records, U.S. Army Human Resources Command, Attn: AHRC-PAV-V, 1 Reserve Way, St. Louis, MO 63132-5200.
For verification purposes, individuals should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
The Army's rules for accessing records and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21, The Army Privacy Program; Title 32 CFR National Defense, part 505, Army Privacy Act Program; or may be obtained from the system manager.
Data contained in this system is collected from the individuals and current Army Human Resource Offices and integrated pay systems.
None.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Dates:
An applicant for assistance under this program must demonstrate in its application how it will address, in whole or in part, the needs of individuals with disabilities from minority backgrounds (34 CFR 350.40(a)). The approaches an applicant may take to meet this requirement are found in 34 CFR 350.40(b).
Additional information on the DRRP program can be found at:
For FY 2011 and any subsequent year in which we make awards from the list
These priorities are:
The full text of these priorities is included in the pertinent notices of final priority or priorities published in the
29 U.S.C. 762(g) and 764(a).
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2012 from the list of approved but unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
1.
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program as follows: CFDA number 84.133A-9.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
The application package will provide instructions for completing all components to be included in the application. Each application must include a cover sheet (Standard Form 424); budget requirements (ED Form 524) and narrative budget justification; other required forms; an abstract, Human Subjects narrative, Part III project narrative; resumes of staff; and other related materials, if applicable.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) Be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (see
7.
Applications for grants under the DRRP on Disability in the Family, CFDA number 84.133A-9, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the DRRP on Disability in the Family at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW., room 5133, PCP, Washington, DC 20202-2700. Fax: (202) 245-7323.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133A-9), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133A-9), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the program under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
• The number of accomplishments (
• The average number of publications per award based on NIDRR-funded research and development activities in refereed journals.
• The percentage of new NIDRR grants that assess the effectiveness of interventions, programs, and devices using rigorous methods.
NIDRR uses information submitted by grantees as part of their Annual Performance Reports (APRs) for these reviews.
Department of Education program performance reports, which include information on NIDRR programs, are available on the Department's Web site:
5.
Lynn Medley or Marlene Spencer as follows:
Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., room 5140, PCP, Washington, DC 20202-2700. Telephone: (202) 245-7338 or by e-mail:
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW., room 5133, PCP, Washington, DC 20202-2700. Telephone: (202) 245-7532 or by e-mail:
If you use a TDD call the FRS, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
This notice invites applications for the first of two related competitions and announces key information for both competitions. For key dates and funding information regarding each competition, see the chart in the
The SCIMS centers program is funded through the Special Projects and Demonstrations for Spinal Cord Injuries Program. This program provides assistance for projects that provide comprehensive rehabilitation services to individuals with spinal cord injuries and conducts spinal cord research, as specified in 34 CFR 359.10 and 359.11.
The SCIMS Multi-Site Collaborative Research Projects are funded under the DRRP program. DRRPs are designed to improve the effectiveness of services authorized under the Rehabilitation Act of 1973, as amended (Rehabilitation Act) by developing methods, procedures, and rehabilitation technologies that advance a wide range of independent living and employment outcomes for individuals with disabilities, especially individuals with the most severe disabilities. DRRPs carry out one or more of the following types of activities, as specified and defined in 34 CFR 350.13 through 350.19: Research, training, demonstration, development, dissemination, utilization, and technical assistance. An applicant for assistance under this program must demonstrate in its application how it will address, in whole or in part, the needs of individuals with disabilities from minority backgrounds (34 CFR 350.40(a)). The approaches an applicant may take to meet this requirement are found in 34 CFR 350.40(b). Additional information on the DRRP program can be found at:
The SCIMS Centers and SCIMS Multi-Site Collaborative Research Projects priorities are from the notice of final priorities and selection criterion published elsewhere in this issue of the
These priorities are:
1.
2.
3.
The full text of these priorities are included in the pertinent notices of final priority or priorities published in the
29 U.S.C. 760 and 764(a) and 764(b)(4).
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
1.
(a)
(b)
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA numbers 84.133N-1 and 84.133A-15.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
The application package for each of the competitions announced in this notice will provide instructions for completing all components to be included in the application. Each application must include a cover sheet (Standard Form 424); budget requirements (ED Form 524) and narrative budget justification; other required forms; an abstract, Human Subjects narrative, Part III project narrative; resumes of staff; and other related materials, if applicable.
3.
For further information or to make arrangements to attend by conference call, or for an individual consultation, contact Lynn Medley, U.S. Department of Education, Potomac Center Plaza, room 5040, 550 12th Street, SW., Washington, DC 20202. Telephone (202) 245-7338 or by e-mail:
Applications for grants under each of the competitions announced in this notice must be submitted electronically using the Grants.gov Apply site (
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) Be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (see
7.
a.
Applications for grants under the Spinal Cord Injury Model Systems (SCIMS) Centers and SCIMS Multi-Site Collaborative Research Projects, CFDA number 84.133N-1 and 84.133A-15, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for Spinal Cord Injury Model Systems (SCIMS) Centers and SCIMS Multi-Site Collaborative Research Projects at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., room 5140, PCP, Washington, DC 20202-2700. Fax: (202) 245-7323.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133N-1 or 84.133A-15), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133N-1 or 83.133A-15), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number,
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The Secretary is interested in hypothesis-driven research and development projects. To address this interest it is expected that applicants will articulate goals, objectives, and expected outcomes for the proposed research and development activities. It is critical that proposals describe expected public benefits, especially benefits for individuals with disabilities, and propose projects that are optimally designed to demonstrate outcomes that are consistent with the proposed goals. Applicants are encouraged to include information describing how they will measure outcomes, including the indicators that will represent the end-result, the mechanisms that will be used to evaluate outcomes associated with specific problems or issues, and how the proposed activities will support new intervention approaches and strategies, including a discussion of measures of effectiveness.
Submission of this information is voluntary except where required by the selection criteria listed in the application package.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
• The number of accomplishments (
• The average number of publications per award based on NIDRR-funded research and development activities in refereed journals.
• The percentage of new NIDRR grants that assess the effectiveness of interventions, programs, and devices using rigorous methods.
NIDRR uses information submitted by grantees as part of their Annual Performance Reports (APRs) for these reviews.
Department of Education program performance reports, which include information on NIDRR programs, are available on the Department's Web site:
5.
Either Lynn Medley or Marlene Spencer as follows:
Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5140, PCP, Washington, DC 20202-2700. Telephone: (202) 245-7338 or by e-mail:
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW.,
If you use a TDD call the FRS, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of final priorities and selection criterion.
The Assistant Secretary for Special Education and Rehabilitative Services announces (1) a priority under the Special Projects and Demonstrations for Spinal Cord Injuries Program for SCIMS Centers (priority 1), and (2) a priority and selection criterion for Disability and Rehabilitation Research Projects (DRRPs) that will serve as the SCIMS Multi-Site Collaborative Research Projects (priority 2). The Assistant Secretary may use one or more of these priorities and selection criterion for competitions in fiscal year (FY) 2011 and later years. We take this action to focus attention on areas of national need.
Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., room 5140, Potomac Center Plaza (PCP), Washington, DC 20202-2700. Telephone: (202) 245-7338 or by e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service, toll free, at 1-800-877-8339.
This notice of final priorities and selection criterion (NFP) is in concert with NIDRR's currently approved Long-Range Plan (Plan). The Plan, which was published in the
Through the implementation of the Plan, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of expertise, information, and training to facilitate the advancement of knowledge and understanding of the unique needs of traditionally underserved populations; (3) determine the best strategies and programs to improve rehabilitation outcomes for underserved populations; (4) identify research gaps; (5) identify mechanisms of integrating research and practice; and (6) disseminate findings.
This notice proposes priorities and a selection criterion that NIDRR intends to use for competitions in FY 2011 and possibly later years. However, nothing precludes NIDRR from publishing additional priorities if needed. Furthermore, NIDRR is under no obligation to make an award using either of the priorities or the selection criterion. The decision to make an award will be based on the quality of applications received and available funding.
The SCIMS centers program is funded through the Special Projects and Demonstrations for Spinal Cord Injuries Program. This program provides assistance for projects that provide comprehensive rehabilitation services to individuals with spinal cord injuries, and conducts spinal cord research, as specified in 34 CFR 359.10 and 359.11.
The SCIMS Multi-Site Collaborative Research Projects are funded as DRRPs. DRRPs are designed to improve the effectiveness of services authorized under the Rehabilitation Act by developing methods, procedures, and rehabilitation technologies that advance a wide range of independent living and employment outcomes for individuals with disabilities, especially individuals with the most severe disabilities. DRRPs carry out one or more of the following types of activities, as specified and defined in 34 CFR 350.13 through 350.19: research, training, demonstration, development, dissemination, utilization, and technical assistance.
29 U.S.C. 760 and 764(a) and 764(b)(4).
We published a notice of proposed priorities and selection criterion (NPP) for NIDRR's Disability and Rehabilitation Research Projects and Centers Program in the
Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not
Following the announcement of new awards under this priority, SCIMS Centers that are interested in developing module projects may identify module topics, identify potential collaborators from among the other new SCIMS Centers, and develop research protocols for the potential modules. At the first SCIMS Project Directors' meeting, Project Directors will review, discuss, and decide upon specific module projects to implement. NIDRR staff will facilitate this post-award discussion and selection of module topics for implementation among new SCIMS Center grantees. Once these module projects are agreed upon by the Project Directors, each SCIMS Center will be required to participate in at least one of the module projects.
In response to the second point raised by the commenter, NIDRR would like to maintain focus on the testing of interventions or the development of new outcomes measures and assessments. Through sustained funding of its SCIMS program, NIDRR has created a mature research infrastructure that will support the testing of interventions. NIDRR's emphasis on the testing of interventions and the development of measures to support that testing is intended to build upon this infrastructure to improve the outcomes of individuals with spinal cord injury. For this reason, we decline to revise this requirement to broaden the types of research that can be supported under this priority.
The Assistant Secretary for Special Education and Rehabilitative Services establishes a priority for the funding of Spinal Cord Injury Model Systems (SCIMS) centers of care (SCIMS Centers). The SCIMS Centers must provide comprehensive, multidisciplinary services to individuals with spinal cord injury (SCI) as a basis for conducting research that contributes to evidence-based rehabilitation interventions and clinical and practice guidelines. The SCIMS program is designed to generate new knowledge that can be used to improve outcomes of individuals with SCI in one or more domains identified in NIDRR's currently approved Long Range Plan, published in the
(a) Providing a multidisciplinary system of rehabilitation care specifically designed to meet the needs of individuals with SCI. The system must encompass a continuum of care, including emergency medical services, acute care services, acute medical rehabilitation services, and post-acute services;
(b) Continuing the assessment of long-term outcomes of individuals with SCI by enrolling at least 30 subjects per year into the SCIMS database, following established protocols for the collection of enrollment and follow-up data on subjects;
(c) Proposing and conducting at least one, but no more than two, site-specific research projects to test innovative approaches to treating SCI or to assessing outcomes of individuals with SCI in one or more domains identified in the Plan: health and function, participation and community living, technology, and employment.
Applicants who propose more than two site-specific research projects will be disqualified.
(d) Participating as research collaborators in at least one module project. Module projects are research collaborations with one or more other SCIMS Centers on topics of mutual interest and expertise. These module projects are carried out as part of the SCIMS Centers' activities. They are not part of the SCIMS Multi-Site Collaborative Projects, which are funded under a separate priority.
Applicants should not propose a specific module project in their application. While all SCIMS Center grantees are required to participate as research collaborators in at least one module project, they are not required to develop any module project on their own. Immediately following the announcement of new awards under this priority, those SCIMS Centers that are interested in developing module projects may identify module topics, identify potential collaborators from among the other new SCIMS Centers, and develop research protocols for the potential modules. At the first SCIMS Project Directors' meeting, Project Directors will review, discuss, and decide upon specific module projects to implement. NIDRR staff will facilitate this post-award discussion and negotiation among new SCIMS grantees. Once these module projects are agreed upon by the Project Directors, each SCIMS Center will be required to participate in at least one of them.
Each applicant under this priority must—
(1) Demonstrate, in its application, its capacity to successfully engage in multi-site collaborative research. This capacity includes access to research participants, the ability to maintain data quality, and the ability to adhere to research protocols; and
(2) Propose to spend at least 15 percent of its annual budget on participating in a module project, as described in paragraph (d) of this priority;
(e) Addressing the needs of persons with disabilities including individuals
(f) Coordinating with the NIDRR-funded Model Systems Knowledge Translation Center (MSKTC) to provide scientific results and information for dissemination to clinical and consumer audiences; and
(g) Ensuring participation of persons with disabilities in conducting SCIMS research.
The Assistant Secretary for Special Education and Rehabilitative Services establishes a priority for the funding of Disability and Rehabilitation Research Projects (DRRPs) to serve as Spinal Cord Injury Model Systems (SCIMS) multi-site collaborative research projects. To be eligible under this priority, an applicant must have received a grant under the SCIMS Centers priority (Proposed Priority 1 in this notice). Following completion of a competition using the SCIMS Centers priority, the Department will invite successful applicants under that competition to apply for funding under this SCIMS Multi-Site Collaborative Research Projects priority.
Each SCIMS multi-site collaborative research project must be designed to contribute to evidence-based rehabilitation interventions and clinical practice guidelines that improve the lives of individuals with spinal cord injury (SCI) through research, including the testing of approaches to treating SCI or the assessment of the outcomes of individuals with SCI. Each SCIMS multi-site collaborative research project must contribute to this outcome by—
(a) Collaborating with three or more of the NIDRR-funded SCIMS centers (for a minimum of four SCIMS sites). Applicants may also propose to include as part of their multi-site collaborative research project other SCI research sites that are not participating in a NIDRR-funded program;
(b) Conducting multi-site research on questions of significance to SCI rehabilitation, using clearly identified research designs. The research must focus on outcomes in one or more domains identified in NIDRR's currently approved Long Range Plan, published in the
(c) Demonstrating the capacity to carry out multi-site collaborative research projects, including administrative capabilities, experience with management of multi-site research protocols, and demonstrated ability to maintain standards for quality and confidentiality of data gathered from multiple sites;
(d) Addressing the needs of people with disabilities, including individuals from traditionally underserved populations;
(e) Coordinating with the NIDRR-funded Model Systems Knowledge Translation Center (MSKTC) to provide scientific results and information for dissemination to clinical and consumer audiences; and
(f) Ensuring participation of individuals with disabilities in conducting SCIMS research.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
In accordance with the provisions of 34 CFR 350.53 and 350.54 and in addition to the selection criteria specified in those sections, the Secretary will consider the following factor in evaluating applications submitted under the SCIMS Multi-Site Collaborative Research Projects priority:
The extent to which the applicant clearly documents its capacity to carry out a multi-site research project, including demonstrated administrative capabilities, experience with managing and following multi-site research protocols, and ability to maintain and meet standards for quality and confidentiality of data gathered from multiple sites.
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does
The potential costs associated with this final regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this final regulatory action, we have determined that the benefits of the final priorities justify the costs.
The benefits of the Disability and Rehabilitation Research Projects and Centers and the Special Projects and Demonstrations for Spinal Cord Injuries Programs have been well established over the years in that similar projects have been completed successfully. These final priorities and selection criterion will generate new knowledge through research and development. Another benefit of these final priorities and selection criterion is that the establishment of new SCIMS Centers and the DRRPs conducting SCIMS multi-site research projects will generate new knowledge to improve the lives of individuals with disabilities. The new SCIMS Centers and the SCIMS multi-site research projects will generate, disseminate, and promote the use of new information that will improve the options for individuals with spinal cord injury to perform activities of their choice in the community.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of final priority.
The Assistant Secretary for Special Education and Rehabilitative Services announces a funding priority for the Disability and Rehabilitation Research Projects and Centers Program administered by NIDRR. Specifically, this notice announces a priority for a center on disability in the family. The Assistant Secretary may use this priority for competitions in fiscal year (FY) 2011 and later years. We take this action to focus research attention on areas of national need. We intend this priority to contribute to increased participation and community living within the context of family life for individuals with disabilities and their families.
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW., room 5133, Potomac Center Plaza (PCP), Washington, DC 20202-2700. Telephone: (202) 245-7532 or by e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service, toll free, at 1-800-877-8339.
This notice of final priority (NFP) is in concert with NIDRR's currently approved Long-Range Plan (Plan). The Plan, which was published in the
Through the implementation of the Plan, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of expertise, information, and training to facilitate the advancement of knowledge and understanding of the unique needs of traditionally underserved populations; (3) determine the best strategies and programs to improve rehabilitation outcomes for underserved populations; (4) identify research gaps; (5) identify mechanisms of integrating research and practice; and (6) disseminate findings.
This notice announces a priority that NIDRR intends to use for DRRP competitions in FY 2011 and possibly later years. However, nothing precludes NIDRR from publishing additional priorities if needed. Furthermore, NIDRR is under no obligation to make an award for this priority. The decision to make an award will be based on the quality of applications received and available funding.
29 U.S.C. 762(g) and 764(a).
We published a notice of proposed priority (NPP) for this program in the
There are no differences between the proposed priority and this final priority.
Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.
The Assistant Secretary for Special Education and Rehabilitative Services establishes a priority for a Disability and Rehabilitation Research Project (DRRP) on Disability in the Family. The DRRP must contribute to the outcome of increased participation and community living for individuals with disabilities and their families.
To contribute to this outcome, the DRRP must—
1. Conduct research activities, development activities, or both;
2. Identify or develop, and test or evaluate interventions, programs, technologies, or products;
3. Conduct knowledge translation activities (
4. Involve key stakeholder groups in the activities described in paragraphs 1 through 3 in order to maximize the relevance and usability of the interventions, programs, technologies, or products to be developed or studied; and
5. Include families who are from traditionally underserved populations and who have at least one member with a disability as participants when conducting the activities described in paragraphs 1 through 3.
To contribute to this outcome, the DRRP may—
1. Focus its activities at the individual level, the family level, the systems level, or any combination of the three levels;
2. Include in its activities families with a person with a disability of any age and any disability;
3. Interpret the term “family” broadly; and
4. Choose from a wide range of research and development topics and approaches within any of the domains in NIDRR's currently approved Long Range Plan (
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does
The potential costs associated with this final regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this final regulatory action, we have determined that the benefits of the final priority justify the costs.
The benefits of the Disability and Rehabilitation Research Projects and Centers Programs have been well established over the years in that similar projects have been completed successfully. This final priority will generate new knowledge through research, development, and knowledge translation activities. Another benefit of this final priority is that the establishment of a new DRRP will improve the lives of individuals with disabilities and their family members. The new DRRP will generate and promote the use of new information that will improve the community living and community participation options for individuals with disabilities and their families.
You may also access documents of the Department published in the
U.S. Department of Education.
Notice of a Closed Meeting.
This notice sets forth the schedule and proposed agenda of an upcoming closed meeting of the National Advisory Council on Indian Education (the Council) and is intended to notify the general public of the meeting. This notice also describes the functions of the Council. Notice of the Council's meetings is required under Section 10(a)(2) of the Federal Advisory Committee Act.
The National Advisory Council on Indian Education is authorized by Section 7141 of the Elementary and Secondary Education Act. The Council is established within the Department of
One of the Council's responsibilities is to develop and provide recommendations to the Secretary of Education on the funding and administration (including the development of regulations, and administrative policies and practices) of any program over which the Secretary has jurisdiction that can benefit Indian children or adults participating in any program which could benefit Indian children. Additionally, the Council makes recommendations to the Secretary for filling the position of the Director of Indian Education whenever a vacancy occurs.
The purpose of these closed meetings is to convene the Council via conference calls to interview candidates and deliberate on recommendations to the Secretary of Education for a Director of the Office of Indian Education. These closed discussions will take place June 23, 2011, 2 p.m. to 5 p.m. Eastern Daylight Savings Time and June 24, 2011, 12 p.m. to 5 p.m. Eastern Daylight Savings Time. These discussions pertain solely to internal personnel rules and practices of an agency and will disclose information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, this discussion is protected by exemptions 2 and 6 of section 552b(c) of Title 5 U.S.C.
Jenelle Leonard, Acting Director/Designated Federal Official, Office of Indian Education, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202. Telephone: 202-205-2161. Fax: 202-205-5870.
A report of the activities of the closed session and related matters that are informative to the public and consistent with the policy of section 5 U.S.C. 552b(c) will be available to the public within 21 days of the meeting. Records are kept of all Council proceedings and are available for public inspection at the at the Office of Indian Education, United States Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202. Monday-Friday, 8:30 a.m.-5:00 p.m. Eastern Daylight Time.
You may also access documents of the Department published in the
Office of Fossil Energy, DOE.
Notice of application.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application filed on April 21, 2011, by Freeport LNG Development, L.P. (Freeport LNG), requesting blanket authorization to export liquefied natural gas (LNG) that previously had been imported into the United States from foreign sources on a short-term or spot market basis. The LNG would be exported from the existing Freeport LNG terminal facilities on Quintana Island, Texas, in an amount up to the equivalent of 24 billion cubic feet (Bcf) of natural gas to any country that has the capacity to import LNG via ocean-going carrier, and with which trade is not prohibited by U.S. law or policy. Freeport LNG seeks to export the LNG over a two year period commencing on the date of the authorization on its own behalf or as agent for others. The application is filed under section 3 of the Natural Gas Act (NGA). Protests, motions to intervene, notices of intervention, and written comments are invited.
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section of this notice, no later than 4:30 p.m., eastern time, July 11, 2011
Freeport LNG is a Delaware limited partnership with one general partner, Freeport LNG-GP, Inc., a Delaware corporation, which is owned 50% by an individual, Michael S. Smith, and 50% by ConocoPhillips Company. Freeport LNG's limited partners are: (1) Freeport LNG Investments, LLLP, a Delaware limited liability limited partnership,
On June 18, 2004, the Federal Energy Regulatory Commission (FERC) authorized Freeport LNG to site, construct and operate the Freeport LNG terminal on Quintana Island, southeast of the City of Freeport in Brazoria County, Texas. The facilities, completed in June 2008, include an LNG ship marine terminal and unloading dock, LNG transfer lines and storage tanks, high-pressure vaporizers, and a 9.6-mile long send-out pipeline extending to the Stratton Ridge meter station.
On January 15, 2008, DOE/FE granted Freeport LNG blanket authorization to import up to 30 Bcf of LNG from various international sources for a two-year term beginning March 1, 2008.
On May 6, 2009, FERC authorized certain equipment modifications at the Freeport LNG terminal as required to enable the loading and export of foreign-source LNG.
On May 28, 2009, in DOE/FE Order No. 2644 (Order 2644), DOE/FE granted Freeport LNG blanket authorization to export, on its own behalf or as agent for others, up to a total of the equivalent of 24 Bcf of foreign-source LNG from the Freeport LNG terminal over a two-year period to customers in the United Kingdom, Belgium, Spain, France, Italy, Japan, South Korea, India, China and/or Taiwan.
In the instant application, Freeport LNG is seeking blanket authorization to export LNG that previously had been imported from foreign sources, to which it holds title, as well as previously imported LNG that it may export as agent on behalf of other entities who themselves hold title, on a short-term or spot market basis from the existing Freeport LNG terminal on Quintana Island, Texas. Freeport LNG states that the current application is filed in anticipation of the expiration of the blanket export authorization granted in Order No. 2644. Freeport LNG is requesting to export an amount up to the equivalent of 24 Bcf of natural gas to any country which has the capacity to import LNG via ocean-going carrier, and with which trade is not prohibited by U.S. law or policy. Freeport LNG seeks to export the LNG over a two year period commencing on the date of the authorization
In support of its application, Freeport LNG asserts the proposed authorization is in the public interest. Under section 3 of the Natural Gas Act, as amended, an LNG export from the United States to a foreign country must be authorized unless “the proposed exportation will not be consistent with the public interest.” Section 3 thus creates a statutory presumption in favor of approval of this application, and parties opposing the authorization bear the burden of overcoming this presumption.
Freeport LNG states that there is no domestic reliance on the LNG that it seeks to export. Freeport LNG states that DOE/FE, in Order 2644, authorized the export of previously imported foreign-sourced LNG. DOE/FE determined that there was no domestic reliance on the volumes of imported LNG that Freeport sought to export. Freeport LNG states that DOE/FE has recently issued LNG blanket export authorizations to other applicants, in each case finding that existing domestic supplies are sufficient to serve U.S. markets without reliance on imported LNG supplies. Freeport LNG states that DOE/FE made the same finding in Order No. 2859, which granted the Dow Chemical Company blanket authorization to export up to an amount equivalent to 390 Bcf of previously imported LNG from the Freeport LNG terminal. In that Order, DOE/FE found that “the LNG which Dow seeks to export in this case is not needed in order to meet domestic market demand for natural gas on a competitively priced basis and that the exports of LNG authorized by this amendment will have no significant impact on the market's ability to meet the demand for natural gas domestically.”
Additionally, Freeport LNG states that traditional domestic natural gas production has been supplemented by unconventional sources, such as shale gas formations, which new technologies have made economically recoverable. Freeport LNG asserts that as a result of this increased domestic supply, domestic gas prices have remained low compared to other global markets, such as in Europe and Asia, discouraging imports to the U.S. Freeport LNG states that the imported LNG that Freeport LNG seeks to export will be surplus to the demands of U.S. markets during the period of requested authorization, and is needed primarily to enable Freeport LNG to economically maintain and operate its Freeport LNG terminal on Quintana Island. In the event that market conditions would support delivery of Freeport LNG's imported supplies to U.S. markets, the requested authorization would also serve to increase LNG supplies available for delivery to U.S. markets if those markets support it.
Freeport LNG also states in its application that local natural gas supplies will not be reduced. The applicant states that it intends to export only foreign sourced LNG, and does not intend to export domestically produced natural gas. Further, the applicant states that U.S. natural gas supplies would actually increase if the requested authorization were granted, since the boil-off gas from any LNG cargoes delivered to the Freeport LNG terminal would be sold into U.S. markets. Freeport LNG asserts that granting the requested authorization would encourage it to obtain and store spot-market LNG cargoes, making it available to supply local markets when conditions support it, thereby serving to moderate U.S. natural gas price volatility. Freeport LNG asserts that in light of these conditions, its request to export previously imported foreign-
Freeport LNG states that no change to the Freeport LNG terminal on Quintana Island would be required for the proposed export of foreign-source LNG. Thus, according to Freeport, approval of this application would not constitute a Federal action significantly affecting the human environment within the meaning of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321
This export application will be reviewed pursuant to section 3 of the Natural Gas Act, as amended, and the authority contained in DOE Delegation Order No. 00-002.00L (Apr. 29, 2011) and DOE Redelegation Order No. 00-002.04E (Apr. 29, 2011). In reviewing this LNG export application, DOE will consider domestic need for the gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. Parties that may oppose this application should comment in their responses on these issues.
In response to this notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention, as applicable. The filing of comments or a protest with respect to the application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the application. All protests, comments, motions to intervene or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) E-mailing the filing to
A decisional record on the application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. A party seeking intervention may request that additional procedures be provided, such as additional written comments, an oral presentation, a conference, or trial-type hearing. Any request to file additional written comments should explain why they are necessary. Any request for an oral presentation should identify the substantial question of fact, law, or policy at issue, show that it is material and relevant to a decision in the proceeding, and demonstrate why an oral presentation is needed. Any request for a conference should demonstrate why the conference would materially advance the proceeding. Any request for a trial-type hearing must show that there are factual issues genuinely in dispute that are relevant and material to a decision and that a trial-type hearing is necessary for a full and true disclosure of the facts.
If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.
The application filed by Freeport LNG is available for inspection and copying in the Office of Natural Gas Regulatory Activities docket room, Room 3E-042, 1000 Independence Avenue, SW., Washington, DC 20585. The docket room is open between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The application and any filed comments, protests, motions to intervene or notice of interventions, will also be available electronically by going to the following DOE/FE Web address:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 dockets(s). For assistance with any FERC Online
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's regulations, 18 CFR part 380 (Order No. 486, 52 FR 47879), the Office of Energy Projects has reviewed Central Nebraska Public Power and Irrigation District's proposed revised land and shoreline management plan (LSMP) for the Kingsley Dam Project, located on the North Platte and Platte Rivers in Garden, Keith, Lincoln, Gosper, and Dawson Counties, Nebraska, and has prepared an environmental assessment (EA) on the LSMP.
A copy of the EA is on file with the Commission and is available for public inspection. The EA also may be viewed on the Commission's Web site at
Any comments on the EA should be filed by June 13, 2011, and should be addressed to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1-A, Washington, DC 20426. Please reference the project name and project number (P-1417-246) on all comments. Comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “eFiling” link. For further information, contact Rebecca Martin at (202) 502-6012 or by e-mail at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before July 11, 2011.
Submit your comments, referencing Docket ID No. EPA-HQ-OPP-2010-1085, to (1) EPA online using
Kathryn Boyle, (7506P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-305-6304; fax number: 703-305-5884; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On February 18, 2011 (76 FR 9574), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received one comment. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OPP-2010-1085, which is available for online viewing at
Use EPA's electronic docket and comment system at
Responses to this collection of information are voluntary. One survey would be conducted over the life of this ICR. The collected information could be used to revise insect repellent product labels and to create other user friendly consumer information materials. By enabling consumers to make better choices in regard to purchasing and using products intended to protect their health, EPA will more effectively carry out its mandate to protect the public from unreasonable risks to human health.
Environmental Protection Agency (EPA).
Notice of document availability for public comment.
The Environmental Protection Agency (EPA) is announcing a 45-day public comment period for the External Review Draft of “
This draft Guidance for Data Derived Extrapolation Factors document outlines approaches for developing factors for inter- and intra-species extrapolation based on data describing toxicokinetic and/or toxicodynamic properties of particular agent(s). The draft document was developed to provide guidance for EPA staff in evaluating such data and/or information and to provide information to the regulated community and other interested parties about deriving and implementing extrapolation factors derived from data instead of defaults.
All comments received by the docket closing date July 25, 2011 will be shared with the external peer review panel for their consideration. Comments received beyond that time may be considered by EPA when it finalizes the document.
Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2009-0694, by one of the following methods:
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Dr. Michael W. Broder, Office of the Science Advisor, Mail Code 8105-R, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-3393; fax number: (202) 564-2070, E-mail:
Key goals for the U.S. EPA include improving the transparency, objectivity and scientific basis for health risk assessment. In 2005, a WHO-sponsored effort produced guidance on the development of Chemical-Specific Adjustment Factors (CSAFs). CSAFs are intended to replace default uncertainty factor values for inter- and intraspecies extrapolation in health risk assessment. The U.S. EPA recognizes differences between the WHO guidance and typical Agency risk assessment practices, policies and guidance. EPA's Risk Assessment Forum convened a technical panel that initiated work on developing draft guidance for use in replacing default values for inter- and intraspecies uncertainty factors with science-based extrapolation factors. The draft document has been reviewed by EPA's Risk Assessment Forum and Science and Technology Policy Council and approved for external review. In 2010, the document was sent to the National Science and Technology Council (NSTC) Committee on Environment and Natural Resources, Toxics and Risk Subcommittee for informal review and comment. The draft document is now available for public comment.
The draft document has been structured and developed in accordance with existing Agency policies on health risk assessment. The draft document provides guidance for the evaluation of data describing interspecies differences in chemical disposition (toxicokinetics); interspecies differences in toxicant-induced response (toxicodynamics); intraspecies differences in chemical disposition (toxicokinetics); and intraspecies differences in toxicant-induced response (toxicodynamics). The document maintains the subdivision of the interspecies and intraspecies uncertainty factors into toxicokinetic and toxicodynamic components specified in the U.S. EPA Inhalation Reference Concentration methodology (U.S. EPA, 1994). EPA will consider all peer review and public comments in finalizing
Environmental Protection Agency (EPA).
Notice.
EPA Region 4 proposes to modify the expiration date of the National Pollutant Discharge Elimination System (NPDES) general permit authorizing the discharge of stormwater from construction activities on Tribal Lands within the states of Alabama, Florida, Mississippi and North Carolina. This NPDES construction general permit (CGP), hereinafter referred to as “the Region 4 CGP,” was issued on September 1, 2009, with an expiration date of August 31, 2011. EPA Region 4 is proposing to extend the expiration date from August 31, 2011, to September 1, 2012. No other revisions are being proposed to the Region 4 CGP. The purpose of extending the expiration date is to ensure that there is no lapse in permit coverage prior to the effective date of the issuance of a new permit, which has been proposed for public review and comment in a separate action. Information about the proposed new permit, hereinafter referred to as “the new National CGP,” can be found at
EPA is proposing a modification to the Region 4 CGP that would extend the expiration date from August 31, 2011, to September 1, 2012. If the proposed modification is finalized, the Region 4 CGP would expire at midnight, on September 1, 2012, or on the effective date of the new National CGP, whichever is earlier. Comments on the proposal to modify the expiration date of the Region 4 CGP must be postmarked by July 11, 2011.
Alanna Conley or Michael Mitchell of the Stormwater and Nonpoint Source Section, Water Protection Division, Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303; telephone number: (404) 562-9443 or (404) 562-9303; fax number: (404) 562-8692; e-mail address:
If a discharger chooses to apply for coverage under the Region 4 CGP, the permit provides specific requirements for preventing contamination of waterbodies from stormwater discharges from the following construction activities:
EPA does not intend the preceding table to be exhaustive, but provides it as a guide for readers regarding entities likely to be regulated by this action. This table lists the types of activities that EPA is now aware of that could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility is affected by this action, you should carefully examine the definition of
Eligibility for coverage under the Region 4 CGP would be limited to operators of “new projects” or “unpermitted ongoing projects.” A “new project” is one that commences after the effective date of the Region 4 CGP (
You may access this
You may submit comments electronically (e-mail or cdrom), or by postal mail. Comments should be sent to the person listed for technical information in the
This action will not be finalized until after all significant public comments have been considered and addressed. Once the final permit becomes effective, operators of new and unpermitted ongoing construction projects may seek authorization under the Region 4 CGP prior to midnight, September 1, 2012, or the effective date of the new National CGP, whichever is earlier.
The Clean Water Act (CWA) establishes a comprehensive program “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” See 33 U.S.C. 1251(a). The CWA also includes the objective of attaining “water quality which provides for the protection and propagation of fish, shellfish and wildlife and * * * recreation in and on the water.” See 33 U.S.C. 1251(a)(2). To achieve these goals, the CWA requires EPA to control point source discharges of pollutants through the issuance of NPDES permits.
The Water Quality Act of 1987 (WQA) added section 402(p) of the CWA, which directed EPA to develop a phased approach to regulate stormwater discharges under the NPDES program, 33 U.S.C. 1342(p). EPA published a final regulation in the
NPDES permits issued for construction stormwater discharges are required under Section 402(a)(1) of the CWA to include conditions for meeting technology-based effluent limits established under Section 301 and, where applicable, Section 306. Once an effluent limitations guideline or new source performance standard is promulgated in accordance with these sections, NPDES permits are required to incorporate limits based on such limitations and standards. See 40 CFR 122.44(a)(1). Prior to the promulgation of national effluent limitations guidelines and new source performance standards, permitting authorities incorporate technology-based effluent limitations on a best professional judgment basis. See CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).
EPA announced the issuance of the 2009 Region 4 CGP on August 26, 2009. See 74 FR 43120. Construction operators choosing to be covered by the Region 4 CGP must certify in their notice of intent (NOI) that they meet the requisite eligibility requirements, described in Subpart 1.3 of the permit. If eligible, operators are authorized to discharge under this permit in accordance with Part 2. Permittees must install and implement control measures to meet the effluent limits applicable to all dischargers in Part 3, and must inspect such stormwater controls and repair or modify them in accordance with Part 4. The permit in Part 5 requires all construction operators to prepare a stormwater pollution prevention plan (SWPPP) that identifies all sources of pollution and describes control measures used to minimize pollutants discharged from the construction site. Part 6 details the requirements for terminating coverage under the permit.
EPA Region 4 issued the Region 4 CGP in 2009 to replace the expired CGP, issued in 2004, for operators of new and unpermitted ongoing construction projects. The geographic coverage and scope of eligible construction activities are listed in Appendix B of the Region 4 CGP.
EPA proposes to modify the Region 4 CGP by extending the expiration date of the permit to September 1, 2012. EPA Region 4 finds it necessary to propose this extension in order to provide
NPDES permits issued for construction stormwater discharges are required under Section 402(a)(1) of the CWA to include conditions for meeting technology-based effluent limits established under Section 301 and, where applicable, Section 306. Once an effluent limitations guideline or new source performance standard is promulgated in accordance with these sections, any NPDES permits issued after the effective date of these requirements must incorporate limits based on such limitations and standards. See 40 CFR 122.44(a)(1). In the case of the CGP, EPA promulgated effluent limitations guidelines and new source performance standards for the construction and development point source category on December 1, 2009 (“C&D rule”), which for the first time imposed a set of minimum Federal numeric and non-numeric effluent limitations on regulated construction sites. See 74 FR 62996 (December 1, 2009). The C&D rule (located at 40 CFR part 450) became effective on February 1, 2010, thus requiring that any NPDES permit issued after this date, whether issued by EPA or an authorized state, must incorporate the substantive technology-based requirements of the rule into the permit. For the new National CGP, this means that EPA must incorporate the effective requirements of the C&D rule into the permit.
Among other requirements, the C&D rule subjected discharges from certain larger construction sites to a numeric effluent limitation of 280 NTU for the pollutant turbidity starting in August of 2011 (for sites disturbing 20 or more acres at one time) and February of 2014 (for sites disturbing 10 or more acres at one time). Subsequent to the promulgation of the C&D rule, EPA received two petitions for reconsideration of the rule. These petitions pointed out a potential error in the calculation of the numeric limitation. Based on EPA's examination of the dataset underlying the 280 NTU limit, EPA concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support the 280 NTU numeric effluent limitation. In response to this finding, EPA finalized a stay of the 280 numeric NTU limit and associated monitoring requirements (see 40 CFR 450.22(a)) on January 4, 2011, in order to enable the Agency to correct its error in calculating the numeric limitation. See 75 FR 68215 (November 5, 2010). EPA is currently in the process of initiating a limited rulemaking to correct the numeric limitation.
Preceding the decision to stay the numeric turbidity limit, the uncertainty surrounding the error in calculating the 280 NTU limit, and the appropriate way for EPA to address it, caused a delay of several months to the permit issuance process for the new National CGP. EPA believes it is impracticable to finalize the new National CGP when considering the minimum tasks required of the Agency to finalize the permit.
With the setback of time related to the stay of the 280 NTU limit, EPA needs additional time to complete the permit issuance process as explained above. EPA believes that the proposed extension of the expiration date of the Region 4 CGP to September 1, 2012, will provide the sufficient time for the Agency to finalize the new National CGP. EPA believes it is imperative that sufficient time to incorporate the C&D ELG into the new National CGP is allotted. If EPA does not extend the expiration date of the Region 4 CGP, no new construction projects could receive general permit coverage between September 1, 2011, and the effective date of the new National CGP, leaving individual NPDES permits as the only available option for permitting new projects. The sole reliance on individual permits would mean that discharge authorizations would almost certainly be delayed due to the greater amount of time and Agency resources that are required for developing and issuing individual permits. In turn, construction projects that need to begin construction activities on or after midnight August 31, 2011, for the 2009 Regional CGP, would be delayed for an uncertain amount of time until EPA can review their individual permit application and issue the necessary permits. Rather than risk detrimental delays to new construction projects, with no clear benefit to our nation's surface waters, EPA Region 4 has decided that it is advisable to instead propose a modification to the 2009 Region 4 CGP to extend the expiration date until September 1, 2012.
EPA regulations establish when the permitting authority may make modifications to existing NPDES permits. In relevant part, EPA regulations state that “[w]hen the Director receives any information * * * he or she may determine whether or not one or more of the causes listed in paragraph (a) * * * of this section for modification * * * exist. If cause exists, the Director may modify * * * the permit accordingly, subject to the limitations of 40 CFR 124.5(c).” 40 CFR 122.62. For purposes of this
In the case of the Region 4 CGP, a permit modification is justified based on the new information EPA received following the issuance of the permit, and more specifically, in terms of the delay to the permit process associated with the discovery of the numeric limit calculation error and resulting stay to the numeric turbidity limit. If this information was available at the time of issuance of the Region 4 CGP, it would have justified EPA establishing an expiration date for the Region 4 CGP that was later than August 31, 2011. As a result, cause exists under EPA regulations to justify modification of the Region 4 CGP to extend the permit until September 1, 2012. If the proposed modification is finalized, the Region 4 CGP would expire at midnight, on
EPA notes that, by law, NPDES permits cannot be extended beyond 5 years. See 40 CFR 122.46. The proposed extension of the expiration date of the Region 4 CGP complies with this restriction. The Region 4 CGP was issued with an effective date of September 1, 2009. Assuming the extension of the expiration date of the Region 4 CGP is finalized as proposed, the permit would still have been in effect for less than the 5-year limit.
Clean Water Act, 33 U.S.C. 1251
Environmental Protection Agency (EPA).
Notice of approval and solicitation of requests for a public hearing.
The Environmental Protection Agency (EPA) is hereby giving notice that the State of Missouri is revising its approved Public Water System Supervision Program under the Missouri Department of Natural Resources (MDNR). The EPA has determined that these revisions are no less stringent than the corresponding Federal regulations. Therefore, the EPA intends to approve these program revisions.
This determination to approve the Missouri program revision is made pursuant to 40 CFR 142.12(d)(3). This determination shall become final and effective on July 11, 2011, unless (1) A timely and appropriate request for a public hearing is received or (2) the Regional Administrator elects to hold a public hearing on his own motion. Any interested person, other than Federal Agencies, may request a public hearing. All interested parties may request a public hearing on the approval of these program revisions to the EPA Regional Administrator to the address shown below by July 11, 2011. If a substantial request for a public hearing is made within the requested thirty day time frame, a public hearing will be held and a notice will be given in the
Any request for a public hearing shall include the following information: (1) Name, address and telephone number of the individual organization or other entity requesting a hearing; (2) a brief statement of the requesting person's interest in the Regional Administrator's determination and a brief statement on information that the requesting person intends to submit at such hearing; (3) the signature of the individual making the request or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity. Requests for Public Hearing shall be addressed to: Karl Brooks, Regional Administrator, Environmental Protection Agency-Region 7, 901 North 5th Street, Kansas City, Kansas 66101.
All documents relating to this determination are available for review between the hours of 9 a.m. and 4:30 p.m., Monday through Friday, at the following offices:
(1) Missouri Department of Natural Resources, Public Drinking Water Branch, 1101 Riverside Drive, Jefferson City, MO 65101. (2) Environmental Protection Agency-Region 7, Water Wetlands and Pesticides Division, Drinking Water Management Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Neftali Hernandez-Santiago, Environmental Protection Agency-Region 7, Drinking Water Management Branch, (913) 551-7036, or by e-mail at
Notice is hereby given that the EPA has determined to approve an application by the Missouri Department of Natural Resources to incorporate the following EPA National Primary Drinking Water Regulations: (1) Stage 2 Disinfectants and Disinfection Byproducts Rule (January 4, 2006, 71 FR 388) and (2) Long Term 2 Enhanced Surface Water Treatment Rule (January 5, 2006, 71 FR 654). During the review of the state's drinking water regulations, EPA noted an issue related to best available technology (BAT). Under the Safe Drinking Water Act, EPA must specify the best available technology for each maximum contaminant level (MCL) or maximum residual disinfectant level (MRDL) that is set. Public water systems that are unable to achieve an MCL or MRDL may be granted a variance on condition that the system use the BATs, treatment techniques, or other means which the Administrator finds are available (taking costs into consideration), based upon an evaluation satisfactory to the State that indicates that alternative sources of water are not reasonably available to the system. Missouri allows variances to MCLs but has not adopted the BATs listed in 40 CFR 141.64(a) and (b). Since Missouri has the authority to grant variances, the state must also adopt the BATs specified by the EPA Administrator, in order to be consistent with the language in Sections 1415 and 1416 of the SDWA. The Missouri rule language currently states that the system installs BATs that the state (department) finds to be available; this language is less stringent than the Federal statute requires. EPA Region 7 has negotiated a resolution to this issue with MDNR, concluding that, until Missouri promulgates a rule adopting EPA's BATs, MDNR agrees to issue variances only to systems that have agreed, as a condition of being issued the variance, to utilize BATs, treatment techniques, or other means, which the EPA Administrator, taking cost into consideration, finds generally available, in accordance with the requirements of Title 40 of the CFR and Sections 1415 and 1416 of the SDWA. In light of Missouri's agreement to issue variances only to systems that have agreed to install BATs, treatment techniques, or other means consistent with requirements of the SDWA and its implementing regulations, EPA has determined that Missouri continues to meet requirements for primary enforcement responsibility of the SDWA, as specified in 40 CFR 142.10.
Section 1413 of the Safe Drinking Water Act, as amended, and 40 CFR 142.10, 142.12(d) and 142.13.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (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.
The FCC 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.
Written PRA comments should be submitted on or before August 8, 2011. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at (202) 395-5167, or via e-mail to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Election Commission.
Tuesday, June 14, 2011 at 10 a.m.
999 E Street, NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g. Audits conducted pursuant to 2 U.S.C. 437g, 438(b), and Title 26, U.S.C. Matters concerning participation in civil actions or proceedings or arbitration. Internal personnel rules and procedures or matters affecting a particular employee.
Judith Ingram, Press Officer. Telephone: (202) 694-1220.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for a license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF)—Ocean Transportation Intermediary (OTI) pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. chapter 409 and 46 CFR 515). Notice is also hereby given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a license.
Interested persons may contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523-5843 or by e-mail at
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay, Contact Representative, or Renee Chapman, Contact Representative.
Federal Trade Commission, Premerger Notification Office, Bureau of Competition, Room H-303, Washington, DC 20580, (202) 326-3100.
By Direction of the Commission.
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 collection 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
The purpose of this project is “to strengthen the link between evidence production and strategies for conveying this information in ways that encourage evidence-based behavior change among providers and patients. The central question is how best to get CER information to physicians and patients in a way they understand. This task is considered critical to capitalizing on the Department's CER investment.”
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 collection 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
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from Vitro Manufacturing, Canonsburg, Pennsylvania, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On April 29, 2011, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All Atomic Weapons Employer employees who worked at Vitro Manufacturing in Canonsburg, Pennsylvania, from January 1, 1958 through December 31, 1959, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
This designation became effective on May 29, 2011, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Linde Ceramics Plant in Tonawanda, New York, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On April 21, 2011, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All Atomic Weapons Employees who worked at the Linde Ceramics Plant in Tonawanda, New York, from January 1, 1954 through December 31, 1969, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
This designation became effective on May 21, 2011, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Wah Chang facility, Albany, Oregon, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On April 29, 2011, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS
All Atomic Weapons Employer employees who worked in any building at the Wah Chang facility in Albany, Oregon, for the operational period from January 1, 1971 through December 31, 1972, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Norton Company, Worcester, Massachusetts, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On April 29, 2011, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All atomic weapons employees who worked in any building or area at the facility owned by the Norton Co. (or a subsequent owner) in Worcester, Massachusetts, during the period from January 1, 1958 through October 10, 1962, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
This designation became effective on May 29, 2011, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
Office of the Secretary, HHS.
Notice.
Notice is hereby given that on May 16, 2011, the Department of Health and Human Services (HHS) Debarring Official, on behalf of the Secretary of HHS, issued a final notice of debarment based on the misconduct in science and research misconduct findings of the Office of Research Integrity (ORI) in the following case:
ORI found that the Respondent knowingly and intentionally falsified data reported in two (2) papers:
Specifically, ORI found:
• Respondent committed misconduct in science and research misconduct by knowingly and intentionally falsely reporting in Figure 1A of
• Respondent engaged in misconduct in science and research misconduct by falsifying data presented in Figure 4B of
ORI issued a charge letter enumerating the above findings of misconduct in science and proposing HHS administrative actions. Dr. Bois subsequently requested a hearing before an Administrative Law Judge (ALJ) of the Departmental Appeals Board (DAB) to dispute these findings. ORI moved to dismiss Dr. Bois' hearing request. On May 16, 2011, the ALJ of the DAB ruled in ORI's favor and dismissed Dr. Bois' hearing request. The ALJ found that Dr. Bois had not raised a genuine dispute over facts or law material to the findings of research misconduct and dismissed the hearing request pursuant to 42 CFR 93.504(a)(2), (3).
Thus, the misconduct in science and research misconduct findings set forth above became effective, and the following administrative actions have been implemented for a period of three (3) years, beginning on May 26, 2011:
(1) Dr. Bois is debarred from eligibility for any contracting or subcontracting with any agency of the United States Government and from eligibility for, or involvement in, nonprocurement programs of the United States Government, referred to as “covered transactions,” pursuant to HHS' Implementation of OMB Guidelines to Agencies on
(2) Dr. Bois is prohibited from serving in any advisory capacity to the U.S. Public Health Service (PHS), including but not limited to service on any PHS advisory committee, board, and/or peer review committee, or as a consultant.
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453-8800.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
On the morning of the second day there will be a review of the final PCAST letters. There will also be a briefing on the Department's Mulit-Payor Claims Database. Subcommittees will also present their reports.
On the third day public and private stakeholders will convene to update the Standards Subcommittee on the status of preparations for the upcoming compliance deadlines for new versions of the updated HIPAA Standards (5010, D.0), a new standard (Medicaid subrogation—NCPDP Version 3.0) and updated code sets under ICD-10. The compliance date for the updated and new standards is January 1, 2012, and the compliance deadline for ICD-10 is October 1, 2013.
The times shown above are for the full Committee meeting. Subcommittee breakout sessions can be scheduled for late in the afternoon of the first day and second day and in the morning prior to the full Committee meeting on the second day. Agendas for these breakout sessions will be posted on the NCVHS website (URL below) when available.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458-4EEO (4336) as soon as possible.
Department of Health and Human Services, Office of the Secretary, Office of the Assistant Secretary for Health, Office of Disease Prevention and Health Promotion.
Notice of Meeting.
42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended. The Committee is governed by the provision of Public Law 92-463, as amended (5 U.S.C. appendix 2), which sets forth standards for the formation and use of advisory committees.
The U.S. Department of Health and Human Services (HHS) announces the next Federal advisory committee meeting regarding the national health promotion and disease prevention objectives for 2020. This meeting will be open to the public and will be held online via WebEx software. The Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 will address efforts to implement the nation's health promotion and disease prevention objectives and strategies to improve the health status and reduce health risks for Americans by the year 2020. The Committee will provide to the Secretary of Health and Human Services advice and consultation for implementing Healthy People 2020, the nation's health promotion and disease prevention goals and objectives, and provide recommendations for initiatives to occur during the implementation phase of the goals and objectives.
The Committee will meet on June 30, 2011, from Noon to 2 p.m. Eastern Daylight Time (EDT).
The meeting will be held on the Internet via WebEx software. For detailed instructions about how to make sure that your windows computer and browser are set up for WebEx, please visit the “Secretary's Advisory Committee” Web page of the Healthy People Web site (
Emmeline Ochiai, Designated Federal Officer, Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020, U.S. Department of Health and Human Services, Office of the Assistant Secretary for Health, Office of Disease Prevention and Health Promotion, 1101 Wootton Parkway, Room LL-100, Rockville, MD 20852, (240) 453-8259 (telephone), (240) 453-8281 (fax). Additional information is available on the Internet at
To listen to the Committee meeting, individuals must pre-register to attend at the Healthy People Web site located at
Registration questions may be directed to Hilary Scherer at
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of request for nominations for expert panelists.
This notice requests members of the public to nominate experts to provide individual input into the CHIPRA Pediatric Quality Measures Program. Section 401(a) of the Children's Health Insurance Program Reauthorization Act (CHIPRA) of 2009 (Pub. L. 111-3) amended the Social Security Act (the Act) by adding Section 1139A, which directs the Secretary of the Department of Health and Human Services (HHS) to establish a Pediatric Quality Measures Program. The purpose of the Pediatric Quality Measures Program is to (a) Improve and strengthen the initial core child health care quality measures established pursuant to Section 1139A(a) of the Act; (b) expand on existing quality measures used by public and private health care purchasers and advance the development of such new and emerging quality measures; and (c) increase the portfolio of evidence-based, consensus pediatric quality measures available to public and private purchasers of children's health care services, providers, and consumers. A meeting of the experts will be held on September 18, 2011, in Bethesda, Maryland. We are seeking experts who can provide individual comment on the criteria by which new or enhanced children's health care quality measures will be evaluated. Expert panels will be convened in subsequent years to evaluate new or enhanced children's health care quality measures using these criteria. These evaluations will take place annually before recommended changes to the core set of children's health care quality measures are published in the
Section 1139A(b) of the Act identifies several minimum criteria that the core set of children's health care quality measures must meet and requires consultation with stakeholders in identifying gaps in existing pediatric quality measures and establishing priorities for development and advancement of such measures. AHRQ will convene a group of experts representing a broad range of stakeholder groups. These experts will be asked to provide individual comments on the additional aspects of validity, feasibility, importance, understandability, or other criteria that should be considered when reviewing quality measures. They will also be asked to provide individual comments on the documentation required to provide evidence that each criterion has been met.
We seek nominations for a panel of 15 experts that will include representatives from among the following groups: State Medicaid Programs and Children's Health Insurance Programs (CHIP); pediatricians, children's hospitals, and other primary and specialized pediatric health care professionals (including members of the allied health professions) who specialize in the care and treatment of children, particularly children with special physical, mental, and developmental health care needs; dental professionals, including pediatric dental professionals; health care providers that furnish primary health care to children and families who live in urban and rural medically underserved communities or who are members of distinct population sub-groups at heightened risk for poor health outcomes; national organizations representing children, including children with disabilities and children with chronic conditions; national organizations representing consumers and purchasers of children's health care; national organizations and individuals with expertise in pediatric health quality measurement; and voluntary consensus standards setting organizations and other organizations involved in the advancement of evidence-based measures of health care. Individuals, who are affiliated with the CHIPRA PQMP Centers of Excellence as subcontractors, stakeholders, or key personnel (“affiliated individuals”), are not eligible to apply. However, other individuals from entities represented by the affiliated individuals are eligible to apply.
We are seeking individuals who are distinguished in their knowledge of health care disparities (
Nominations should be received on or before 21 days after date of publication.
Nominations should be e-mailed to
Section 401(a) of the Children's Health Insurance Program Reauthorization Act (CHIPRA) of 2009 (Pub. L. 111-3) amended the Social Security Act (the Act) by adding Section 1139A, which directs the Secretary of HHS to establish a Pediatric Quality Measures Program. Section 1139A(b)(3) of the Act provides that the Secretary of HHS shall consult with various entities in establishing priorities for development and advancement of children's health care quality measures. The Secretary delegated this task to the Centers for Medicare & Medicaid Services (CMS). The Centers for Medicare & Medicaid Services (CMS) entered into an Interagency Agreement with the Agency for Healthcare Research and Quality (AHRQ), by which CMS and AHRQ would collaborate to develop the Pediatric Quality Measures Program.
Under the Pediatric Quality Measures Program, AHRQ has funded seven
The expected time commitment for expert panelists is up to 3 days. This includes travel to and from the expert panel meeting to be held on September 18, 2011, as one of the pre-meetings to the AHRQ Annual Conference in Bethesda, Maryland; review of materials in advance of the in-person meeting; and attendance at the full-day in-person meeting on September 18, 2011.
Interested persons may nominate one or more qualified persons for the expert panel. Self-nominations are accepted. Nominations shall include: (1) A copy of the nominee's resume or curriculum vitae; (2) a statement of the stakeholder group or groups that the nominee would represent, from among the following: State Medicaid Programs and Children's Health Insurance Programs (CHIP); pediatricians, children's hospitals, and other primary and specialized pediatric health care professionals (including members of the allied health professions) who specialize in the care and treatment of children, particularly children with special physical, mental, and developmental health care needs; dental professionals, including pediatric dental professionals; health care providers that furnish primary health care to children and families who live in urban and rural medically underserved communities or who are members of distinct population sub-groups at heightened risk for poor health outcomes; national organizations representing children, including children with disabilities and children with chronic conditions; national organizations representing consumers and purchasers of children's health care; national organizations and individuals with expertise in pediatric health quality measurement; and voluntary consensus standards setting organizations and other organizations involved in the advancement of evidence-based measures of health care; (3) a statement that the nominee is willing to serve as a member of the expert panel; (4) a statement about any financial interest, arrangement or affiliation with any entity that may create a potential conflict of interest for the nominee or his or her family; if any, please describe the relationship with each entity as either Grant/Research Support, Consultant, Speakers Bureau, Major Stock Shareholder, or Other Financial or Material Support; and (5) a statement about any intellectual interest in a study or other research related to children's health care quality measures, if any. Please note that once you are nominated, AHRQ may consider your nomination for future expert panels related to the Pediatric Quality Measures Program.
AHRQ strives to ensure that membership on expert panels is fairly balanced in terms of points of view represented and the panel's function. Every effort is made to ensure that the views of women, all ethnic and racial groups, and people with disabilities are represented on expert panels and, therefore, AHRQ encourages nominations of qualified candidates from these groups. AHRQ also encourages geographic diversity in the composition of expert panels. Selection of panelists shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.
Administration on Aging, HHS.
Notice.
The Administration on Aging (AoA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by July 11, 2011.
Submit written comments on the collection of information by fax 202-395-6974 to the OMB Desk Officer for AoA, Office of Information and Regulatory Affairs, OMB.
Becky Kurtz, National Long-Term Care Ombudsman, Administration on Aging, Washington, DC 20201.
In compliance with 44 U.S.C. 3507, AoA has submitted the following proposed collection of information to OMB for review and clearance. AoA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of AoA's functions, including whether the information will have practical utility; (2) the accuracy of AoA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques when appropriate, and other forms of information technology.
The Certification on Maintenance of Effort for the Title III and Certification of Long-Term Care Ombudsman Program Expenditures provides statutorily required information regarding state's contribution to programs funded under the Older American's Act and conformance with legislative requirements, pertinent Federal regulations and other applicable instructions and guidelines issued by the Administration on Aging. This information will be used for Federal oversight of Title III Programs and the Title VII Ombudsman Program.
AoA estimates the burden of this collection of information as follows: 56 State Agencies on Aging respond annually with an average burden of one half (
In the
The Office of Community Services (OCS) within the Administration for Children and Families is conducting a descriptive study of Financial Education Practices among Assets for Independence (AFI) grantees to increase its knowledge about current practices in financial education for AFI participants and the costs involved to provide the financial education.
The Assets for Independence program is a national demonstration through which OCS awards grants to community-based nonprofit organizations, and State, local, and Tribal government agencies nationwide. The AFI program is authorized in Section 402 of the Community Opportunities, Accountability, and Training and Educational Services Act of 1998 (Title IV of Public Law 105-285). Grantees implement five year projects that empower low-income families and individuals to save earned income and purchase an economic asset as a means for becoming economically self-sufficient. Grantees provide eligible low-income individuals and families access to matched savings accounts, known as individual development accounts (IDAs). In addition, grantees provide asset-building services to program participants, such as financial literacy education, and specialized asset-specific training regarding asset purchase and ownership.
This data collection effort will provide OCS with a better understanding of the future needs of AFI grantees in financial education and help OCS to build strategies to strengthen the quality of the financial education provided to AFI participants. The data collection will be collected once through two instruments: The Survey of Financial Education Practices of AFI Grantees and the AFI Financial Education Cost Data Form.
The Survey of Financial Education Practices of AFI Grantees will be a Web-based survey consisting mainly of multiple choice questions. All current AFI grantees (approximately 300 grantees) will be asked to complete the survey. The AFI Financial Education Cost Data Form is a supplement to the grantee practices survey. A smaller sample of grantees (approximately 35 grantees) representing a variety of organizational types will be randomly selected to complete this supplemental survey on the costs of providing financial education. The Cost Data Form will be sent to grantees to complete and technical assistance will be provided to grantees to help them complete the form.
Specific areas to be covered in this study include: topics covered by financial education; formats used in delivering financial education; assessment tools that are used to determine participant needs and effectiveness of training efforts; challenges encountered in providing financial education; training materials used; costs and sources of funding for training; strategies for tracking participant progress in developing financial skills; and participant outcomes related to financial education.
All active AFI grantee agencies, their partners or sub-grantees, an estimated 300 agencies will respond to IC1, a Survey of Financial Education Practices.
IC2, the Financial Education cost form, will be administered to financial personnel of all active AFI grantees who have completed at least three years of their five-year project period, an estimated 30 agencies.
IC3, the Financial Education cost form, will be administered to financial personnel of all active AFI sub grantees who have completed at least three years of their five-year project period, an estimated 42 agencies.
Estimated Total Annual Burden Hours: 444.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. E-mail address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
States, including the District of Columbia, Tribes, Tribal organizations and Territories applying for LIHEAP REACH funds must Submit an annual application prior to receiving Federal funds. The Human Services Amendments of 1994 (Pub. L. 103-252) amended the LIHEAP statute to add Section 2607B, which established the REACH program. REACH was funded for the first time in FY 1996 and is intended to: (1) Minimize health and safety risks that result from high energy burdens on low-income Americans; (2) reduce home energy vulnerability and prevent homelessness as a result of the inability to pay energy bills; (3) increase the efficiency of energy usage by low-income families, helping them achieve energy self-sufficiency; and (4) target energy assistance to individuals who are most in need. The REACH Model Plan clarifies the information being requested and ensures the submission of all the information required by statute. The form facilitates our response to numerous queries each year concerning the information that should be included in the REACH application. Submission of a REACH application and use of the REACH Model Plan is voluntary. Grantees have the option to use another format.
State Governments, Tribal governments, Insular Areas, the District of Columbia, and Commonwealth of Puerto Rico.
Estimated Total Annual Burden Hours: 3,672.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, e-mail
Comments are invited on: (a) The proposed collection of information for the proper performance of the functions of the agency; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The National Health Service Corps (NHSC) of the Bureau of Clinician Recruitment and Service (BCRS), HRSA, is committed to improving the health of the Nation's underserved by uniting communities in need with caring health professionals, and by supporting their efforts to build better systems of care. The NHSC Site Application, which renames and revises the previous Recruitment and Retention Assistance Application, requests information on the clinical service site, sponsoring agency, recruitment contact, staffing levels, service users, charges for services, employment policies, and fiscal management capabilities. Assistance in completing the application may be obtained through the appropriate State Primary Care Offices, State Primary Care Associations and the NHSC. The information on the application is used for determining the eligibility of sites for assignment of NHSC-obligated health professionals
The annual estimate of burden is as follows:
E-mail comments to
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of Federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301-496-7057; fax: 301-402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
The portable CXR is one of the most commonly requested diagnostic medical tests around the world. They are performed nearly daily on some of the sickest patients in hospitals. Paradoxically, it is well documented that portable radiography of the chest is inconsistent and often inadequate.
An upright projection best evaluates effusions, rules out free air, or detects air-fluid levels. Optimally, the images are obtained at similar angles each day, even if not erect, to allow accurate comparisons and assessment of change. It is well documented that portable radiography of the chest is inconsistent and often inadequate. To achieve optimal quality of the exam the technologist attempts the most upright projection; balanced with patient condition and ability to achieve this often impossible task.
• Currently, there is no quantitative marker to indicate degree of the upright position. Prior markers with small ball bearings sinking to a small circle only indicate if the patient is supine or not. This technology introduces a simple dynamic marker that can quantify the angle at a glance for the radiologist to best compare patient condition over time. This device objectively quantifies cassette angle with a ball bearing in a cylindrical tube with markers to indicate upright position in degrees.
• The technology improves performance of CXR, allowing reliable comparisons of patient condition over time. Thus, better therapies can be planned and unnecessary CT (Computerized Tomography) can be prevented.
• The technology improves care for Intensive Care Unit patients, as developing effusion and the need for immediate drainage (as one of many examples) can be more effectively assessed with the present apparatus. A widespread use of the device will save lives through improved diagnosis and comparison of effusions.
• A performance of a visual prototype was demonstrated. The visual prototype was imaged at 5 selected angles with a chest phantom. Initial
• Improved prototypes with more accuracy are currently being manufactured for patient use. In-vivo studies will soon be underway to validate clinical utility.
1. Wandtke JC. Bedside chest radiography. Radiology. 1994; 190:1-10. [PMID: 8043058]
2. Pneumatikos I, Bouros D. Pleural effusions in critically ill patients. Respiration. 2008; 76(3):241-248. [PMID: 18824883]
3. Mattison LE, et al. Pleural effusions in the medical ICU: prevalence, causes, and clinical implications. Chest. 1997 Apr;111(4):1018-1023. [PMID: 9106583]
4. Fartoukh M, et al. Clinically documented pleural effusions in medical ICU patients: how useful is routine thoracentesis? Chest. 2002 Jan;121(1):178-184. [PMID: 11796448]
5. Bekemeyer WB, et al. Efficacy of chest radiography in a respiratory intensive care unit. A prospective study. Chest. 1985 Nov; 88(5): 691-696. [PMID: 4053711]
6. Tocino I. Chest imaging in intensive care unit. Eur J Radiol 1996 Aug;23(1):46-57. [PMID: 8872073]
• Uri Reichman, PhD, MBA; 301-435-4616;
• Michael Shmilovich, Esq.; 301-435-5019;
In obesity, the rapid expansion of adipose tissue outpaces the oxygen supply, resulting in hypoxia. HIF1α, a transcription factor that plays an essential role in cellular and systemic responses to low oxygen levels, is activated in these tissues, and causes inflammation that has been linked to insulin resistance and other metabolic dysfunction.
To examine the role of hypoxia in obesity and insulin resistance, investigators at the National Cancer Institute disrupted the HIF1α gene (or its dimerization partner, the HIF1β) in the adipose tissue of transgenic mice, and found that these mice were protected from obesity and insulin resistance when fed a high-fat (western) diet. In further experiments, administration of an HIF1α inhibitor to wild-type mice achieved similar reductions in fat mass and insulin resistance, as well as other indicators of metabolic disease. Thus, HIF1α inhibitors represent promising new leads for obesity and diabetes therapeutics.
The instant invention relates to a novel combination of ceramide and vinca alkaloids, which synergistically decrease cancer cell growth without increasing the toxicity profile compared to the individual drugs. The drug combination has been rigorously evaluated in both
This combination induces cell death via a novel mechanism (induction of autophagy with simultaneous blockade of autophagy flux). This mechanism appears to impart selectivity of the therapy to cancer cells.
Available for licensing are methods to use the combination therapy for cancer treatment.
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.
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.
The ATTC Network, a nationwide, multidisciplinary resource that draws upon the knowledge, experience and latest research of recognized experts in the field of addictions and behavioral health, is a unique CSAT initiative formed in 1993 in response to a shortage of well-trained addiction and behavioral health professionals in the public sector. The ATTC Network works to enhance the knowledge, skills and aptitudes of the addiction/behavioral health treatment and recovery services workforce by disseminating current health services research from the National Institute on Drug Abuse, National Institute on Alcohol Abuse and Alcoholism, National Institute of Mental Health, Agency for Health Care Policy and Research, National Institute of Justice, and other sources, as well as other SAMHSA programs. To accomplish this, the ATTC Network (1) Develops and updates state-of-the-art research based curricula and professional development training, (2) coordinates and facilitates meetings between Single State Authorities, Provider Associations and other key stakeholders, and (3) provides ongoing technical assistance to individuals and organizations at the local, regional and national levels.
In response to the emerging shortages of qualified addiction treatment and recovery services professionals, SAMHSA/CSAT instructed the ATTC National Office to lead the ATTC Network in the development and implementation of a national addiction treatment workforce data collection effort of those individuals who work in substance use specialty treatment services. The purpose of this survey and data collection is to gather information to guide the formation of effective national, regional, state, and organizational policies and strategies aimed at successfully recruiting and retaining a sufficient number of adequately prepared providers who are able to respond to the growing needs of those affected by substance use and mental health disorders; including co-occurring disorders and trauma. This data collection will offer a unique perspective on the clinical treatment field so that CSAT and the ATTC Network can better understand current successful strategies and methodologies being used in the workforce and develop appropriate training for emerging trends in the field.
Although SAMHSA/CSAT is the primary target audience for data collection findings, it is expected that the data collected and resulting reports will also be useful to the ATTC Network, as well as to Single State Agencies, provider organizations, professional organizations, training and education entities, and individuals in the workforce.
Data will be collected from two main sources: (1) A random sample of clinical directors or a designated direct care supervisor from facilities listed in the I-SATS database. (2) A national sample of clinical directors and key thought leaders, identified by CSAT in conjunction with the ATTC network, in the substance use disorders treatment field. Respondents will be asked to participate in at least one of three (3) distinct methods. They are:
• A Web-based Clinical Director Survey (also available in paper format).
• On-line Focus Groups.
• Key Informant Telephone Interviews.
In addition to this original data collection, existing national data sets will also be utilized. Such data systems will include:
• Census 2000 datasets.
• National Survey of Substance Abuse Treatment Services (N-SSATS).
• SAMHSA Treatment Gap Projection Analysis.
• Treatment Episode Data.
• Bureau of Labor datasets such as Current Employment Statistics.
• Annapolis Coalition Data.
The objectives of the national addiction treatment workforce data collection effort are to understand the national demographics of the current workforce and how this differs across regions and states, in addition to exploring issues related to workforce development: (1) Staff training, recruitment and retention; (2) Professional development; and 3. Support for strategies and methodologies to prepare, recruit, retain, and sustain the workforce. To accomplish these objectives, CSAT outlined three primary questions to be addressed by the workforce data collection:
For the purposes of the ATTC data collection effort, this means that we will comprehensively describe the workforce comprised of direct care staff, clinical supervisors, and administrators in agencies represented in the Inventory of Substance Abuse Treatment Services (I-SATS).
For the purposes of this data collection, the ATTC Network will identify the growth and capacity-building needs over the next five years of direct care staff, clinical supervisors, and administrators in agencies represented in the I-SATS registry.
Identification of potentially effective strategies used to prepare and recruit individuals to enter the workforce (as previously defined), and encourage them to remain in the workforce and stay current on clinical and other job related skills (
This will be the first national survey of the substance use disorders treatment workforce. The quantitative survey and the qualitative interviews and analysis will be used to provide a snapshot of the current state of the addiction treatment workforce as it relates to demographics, workforce development needs, and retention and maintenance of a strong workforce. These data will provide national benchmark data that can be used to inform ongoing policy and practice.
Information collected from this workforce data collection will help CSAT and the ATTC Network to better understand the needs of the workforce and categorize some best practices for providing support to the field now and in the future. Emerging trends in addiction and/or co-occurring and trauma treatment and the existence of mental health problems in substance use disorder treatment and recovery services will be identified and shared with those in the addiction/behavioral health treatment field so appropriate training and funding can be allocated. The information from this data collection will also help CSAT identify areas where deficiencies in substance use and/or co-occurring disorder and trauma treatment exist and provide assistance to regions (and states) to help them develop and adopt strategies for addressing this.
The chart below summarizes the annualized burden for this project.
Written comments and recommendations concerning the proposed information collection should be sent by July 11, 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.
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the Navigation Safety Advisory Council (NAVSAC). NAVSAC provides advice and recommendations to the Secretary, Department of Homeland Security, through the Commandant of the U.S. Coast Guard, on matters relating to prevention of maritime collisions, rammings, and groundings, including the Inland and International Rules of the Road, navigation regulations and equipment, routing measures, marine information, diving safety, and aids to navigation systems.
Applicants must submit a cover letter and resume on or before July 29, 2011.
Applicants should send their cover letter and resume to Mr. Mike Sollosi, Alternate Designated Federal Officer (ADFO), at the following address: Commandant (CG-553), Attn: Mr. Mike Sollosi, U.S. Coast Guard, 2100 2nd Street SW., STOP 7580, Washington, DC 20593-7580.
Mr. Mike Sollosi, the NAVSAC Alternate Designated Federal Officer (ADFO), at phone 202-372-1545, fax 202-372-1991, or e-mail
The NAVSAC is an advisory committee authorized in 33 U.S.C. 2073 and chartered under 5 U.S.C. App. (Pub. L. 92-463). NAVSAC provides advice and recommendations to the Secretary, through the Commandant of the U.S. Coast Guard, on matters relating to prevention of maritime collisions, rammings, and groundings, including the Inland and International Rules of the Road, navigation regulations and equipment, routing measures, marine information, diving safety, and aids to navigation systems.
The NAVSAC is expected to meet at least twice each year, or more often with the approval of the Designated Federal Officer (DFO). Members may be reimbursed for travel and per diem, as allowed by regulations and Department policy. All travel for NAVSAC business must be approved in advance by the DFO. The NAVSAC is comprised of not more than 21 members who shall have expertise in Inland and International vessel navigation Rules of the Road, aids to maritime navigation, maritime law, vessel safety, port safety, or commercial diving safety. Each member shall be appointed to represent the viewpoints and interests of one of the following groups or organizations, and at least one member shall be appointed to represent each membership category:
a. Commercial vessel owners or operators;
b. Professional mariners;
c. Recreational boaters;
d. The recreational boating industry;
e. State agencies responsible for vessel or port safety;
f. The Maritime Law Association.
Members serve as representatives and are not Special Government Employees as defined in section 202(a) of Title 18, United States Code.
The Coast Guard will consider applications for eight positions that will become vacant on November 11, 2011, in the following categories:
a. Commercial vessel owners or operators (one position);
b. Professional mariners (two positions);
c. Recreational boaters (one position);
d. The recreational boating industry (one position);
e. State agencies responsible for vessel or port safety (one position); and
f. The Maritime Law Association (two positions).
Members shall serve terms of office of up to three years, and approximately one-third of members' terms of office shall expire each year. A member appointed to fill an unexpired term shall be appointed for the remainder of such term. In the event NAVSAC is terminated, all appointments to the Council shall terminate.
Registered lobbyists are not eligible to serve on Federal advisory committees. Registered lobbyists are lobbyists required to comply with provisions contained in the Lobbying Disclosure Act of 1995 (Pub. L. 110-81, as amended).
In support of the Coast Guard policy on gender and ethnic nondiscrimination, we encourage qualified men and women and members of all racial and ethnic groups to apply. The Coast Guard values diversity; all the different characteristics and attributes that enhance the mission of the Coast Guard.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Tennessee (FEMA-1978-DR), dated May 9, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated May 9, 2011, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Tennessee resulting from severe storms, flooding, tornadoes, and straight-line winds on April 4, 2011, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, W. Montague Winfield, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Tennessee have been designated as adversely affected by this major disaster:
Chester, Davidson, Decatur, Dickson, Henderson, Humphreys, Lake, Shelby, and Sumner Counties for Public Assistance.
All counties within the State of Tennessee are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Arkansas (FEMA-1975-DR), dated May 2, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Arkansas is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 2, 2011.
Bradley County for Public Assistance, including direct Federal assistance. Jackson, Lee, Lonoke, Mississippi, Prairie, St. Francis, and Woodruff Counties for Public Assistance, including direct Federal assistance (already designated for Individual Assistance).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Tennessee (FEMA-1979-DR), dated May 9, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Tennessee is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 9, 2011.
Lincoln County for Individual Assistance.
Tipton County for Individual Assistance and Public Assistance, including direct Federal assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Tennessee (FEMA-1974-DR), dated May 1, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Tennessee is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 1, 2011.
Knox and Montgomery Counties for Individual Assistance.
Blount, Campbell, Fentress, Franklin, Giles, Hickman, Houston, Humphreys, Jackson, Knox, Lawrence, Lewis, Lincoln, Loudon, Marshall, Montgomery, Moore, Perry, Pickett, Polk, Scott, Sequatchie, Smith, Sullivan, and Wayne Counties for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of North Dakota (FEMA-1981-DR), dated May 10, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of North Dakota is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 10, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Tennessee (FEMA-1979-DR), dated May 9, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated May 9, 2011, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Tennessee resulting from severe storms, tornadoes, straight line winds, and flooding beginning on April 19, 2011, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance and Public Assistance in the designated areas, and Hazard Mitigation throughout the State. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance, Hazard Mitigation, and Other Needs Assistance will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, W. Montague Winfield, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Tennessee have been designated as adversely affected by this major disaster:
Dyer, Lake, Obion, Shelby, and Stewart Counties for Individual Assistance.
Benton, Carroll, Crockett, Dyer, Gibson, Henderson, Henry, Houston, Lake, Lauderdale, Madison, Montgomery, Obion, Shelby, and Stewart Counties for Public Assistance, including direct Federal assistance.
All counties within the State of Tennessee are eligible to apply for assistance under the Hazard Mitigation Grant Program.
U.S. Customs and Border Protection, DHS.
Notice.
This notice announces that the Commissioner of U.S. Customs and Border Protection is designating an approved Native American Tribal Card issued by the Pascua Yaqui Tribe to U.S. citizens as an acceptable travel document for purposes of the Western Hemisphere Travel Initiative. The approved card may be used to denote identity and U.S. citizenship of Pascua Yaqui members entering the United States from contiguous territory or adjacent islands at land and sea ports of entry.
This designation will become effective on June 9, 2011.
Colleen Manaher, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Washington, DC 20229, 202-344-3003.
Section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law 108-458, as amended, required the Secretary of Homeland Security (Secretary), in consultation with the Secretary of State, to develop and implement a plan to require U.S. citizens and Bermudian, Canadian, and Mexican nationals to present a passport or other document or combination of documents as the Secretary deems sufficient to denote identity and citizenship for all travel into the United States.
Under the WHTI land and sea final rule, one type of citizenship and identity document that may be presented upon entry to the United States at land and sea ports of entry from contiguous territory or adjacent islands
Upon designation by the Secretary of Homeland Security of a United States qualifying Tribal entity document as an acceptable document to denote identity and citizenship for the purposes of entering the United States, Native Americans may be permitted to present Tribal cards upon entering or seeking admission to the United States according to the terms of the voluntary agreement entered between the Secretary of Homeland Security and the Tribe. The Secretary of Homeland Security will announce, by publication of a notice in the
The Secretary has delegated to the Commissioner of CBP the authority to designate certain documents as acceptable border crossing documents for persons arriving in the United States by land or sea from within the Western Hemisphere, including certain United States Native American Tribal cards.
The WHTI land and sea final rule allowed U.S. Federally recognized Native American Tribes to work with CBP to enter into agreements to develop Tribal ID cards that can be designated as acceptable to establish identity and citizenship when entering the United States at land and sea ports of entry from contiguous territory or adjacent islands. CBP has been working with various U.S. Federally recognized Native American Tribes to facilitate the development of such cards.
After production of the cards in accordance with the specified requirements, and successful testing and auditing by CBP of the cards and program, the Secretary of DHS or the Commissioner of CBP may designate the Tribal card as an acceptable WHTI-compliant document for the purpose of establishing identity and citizenship when entering the United States by land or sea from contiguous territory or adjacent islands. Such designation will be announced by publication of a notice in the
The Pascua Yaqui Tribe of Arizona (Pascua Yaqui Tribe) has voluntarily established a program to develop a WHTI-compliant Tribal card that denotes identity and U.S. citizenship. On May 27, 2009, CBP and the Pascua Yaqui Tribe signed a Memorandum of Agreement (MOA) to develop, issue, test, and evaluate Tribal cards to be used for border crossing purposes. Pursuant to this MOA, the cards are issued to members of the Pascua Yaqui Tribe who can establish identity, Tribal membership, and U.S. citizenship. The cards incorporate physical security features acceptable to CBP as well as facilitative technology allowing for electronic validation of identity, citizenship, and Tribal membership. In 2010, CBP and the Pascua Yaqui Tribe entered into two related agreements, a March 18, 2010, security agreement and an April 1, 2010, service level agreement. The former addresses confidentiality and information sharing, and the latter memorializes the technical specifications for the production, issuance and use of the card.
CBP has tested the cards developed by the Pascua Yaqui Tribe pursuant to the above agreements and has performed an audit of the Tribe's card program. On the basis of these tests and audit, CBP has determined that the cards meet the requirements of section 7209 of the IRTPA and are acceptable documents to denote identity and U.S. citizenship for purposes of entering the United States at land and sea ports of entry from contiguous territory or adjacent islands. CBP's continued acceptance of the Tribal card as a WHTI-compliant document is conditional on compliance with the MOA and all related agreements.
Acceptance and use of the WHTI-compliant Tribal card is voluntary for Tribe members. If an individual is denied a WHTI-compliant Tribal card, he or she may still apply for a passport or other WHTI-compliant document.
This notice announces that the Commissioner of CBP designates the Tribal card issued by the Pascua Yaqui Tribe in accordance with the MOA and all related agreements between the Tribe and CBP as an acceptable WHTI-compliant document pursuant to section 7209 of the IRTPA and 8 CFR 235.1(e). In accordance with these provisions, the approved card, if valid and lawfully obtained, may be used to denote identity and U.S. citizenship of Pascua Yaqui members who are entering the United States from contiguous territory or adjacent islands at land and sea ports of entry.
Fish and Wildlife Service, Interior.
Notice of intent; request for comments.
We, the U.S. Fish and Wildlife Service (Service) intend to prepare a comprehensive conservation plan (CCP) for Stewart B. McKinney National Wildlife Refuge (NWR). An environmental assessment (EA) evaluating effects of various CCP alternatives will also be prepared. We provide this notice in compliance with our policy to advise other Federal and State agencies, Tribes, and the public of our intentions, and to obtain suggestions and information on the scope of issues to consider in the planning process. We are also announcing public meetings and requesting public comments.
We will hold public meetings to begin the CCP planning process; see Public Meetings under
Send your comments or requests for more information by any of the following methods:
Bill Perry, 413-253-8688 (phone),
With this notice, we initiate our process for developing the CCP for Stewart B. McKinney NWR, with headquarters located in Middlesex County, CT. This notice complies with our CCP policy to: (1) Advise other Federal and State agencies, Tribes, and the public of our intention to conduct detailed planning on this refuge: and (2) obtain suggestions and information on the scope of issues to consider in the environmental document and during development of the CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System (NWRS), consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years
Each unit of the NWRS was established for specific purposes. We use these purposes as the foundation for developing and prioritizing the management goals and objectives for each refuge within the NWRS mission, and to determine how the public can use each refuge. The planning process is a way for us and the public to evaluate management goals and objectives that will ensure the best possible approach to wildlife, plant, and habitat conservation, while providing for wildlife-dependent recreation opportunities that are compatible with each refuge's establishing purposes and the mission of the NWRS.
Our CCP process provides participation opportunities for Tribal, State, and local governments, agencies, organizations, and the public. At this time, we encourage input in the form of issues, concerns, ideas, and suggestions for the future management of Stewart B. McKinney NWR.
We will conduct the environmental review of this project and develop an EA in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321
Stewart B. McKinney NWR encompasses over 900 acres of forest, barrier beach, tidal wetland, and island habitats. The refuge consists of 10 separate units along the Connecticut coast from Westbrook to Greenwich. Lands include eight islands and three coastline locations. Located in the Atlantic Flyway, the refuge provides important resting, feeding, and nesting habitat for many species of wading birds, shorebirds, songbirds, and terns, including the endangered roseate tern. Adjacent waters serve as wintering habitat for brant, scoters, American black duck, and other waterfowl.
The refuge was established in 1972 under the name Salt Meadow NWR. It was re-designated by Congress as the Connecticut Coastal NWR in 1984. The refuge was then renamed again in 1987 to honor the late U.S. Congressman Stewart B. McKinney, who was instrumental in the establishment of the refuge. Under the Migratory Bird Conservation Act (16 U.S.C. 715-715d, 715e, 715f-715r) of 1929, (45 Stat. 1222), the original unit was established, “
The 347-acre Salt Meadow Unit includes salt marsh and forested upland habitat in the Town of Westbrook. It provides roosting and courtship grounds for early successional birds such as American woodcock, breeding grounds for sharp-tailed sparrows, and migration and nesting areas for other passerines. The Faulkner Island Unit is a 5-acre maritime island located off the coast of Guilford in Long Island Sound. It provides breeding habitat for over 100 pairs of the Federally endangered roseate tern, and is home to more than 3,500 pairs of common terns, a State species of concern. The Milford Point Unit is a 22-acre barrier beach peninsula located at the mouth of the Housatonic River in the Town of Milford. It is a breeding site for the Federally threatened piping plover. The 525-acre tidal marsh complex of the Great Meadows Unit is located on the Connecticut shoreline in the Town of Stratford. It provides foraging habitat for the Federally and State-threatened piping plover, and for the State-threatened least tern. Other Federally listed threatened and State-endangered or special concern species have been seen at Great Meadows, including the sharp-tailed sparrow, least bittern, pied-billed grebe, and bald eagle. Other island units include the 70-acre Chimon Island Unit, 57-acre Sheffield Island Unit, 1
The predominant public uses on refuge lands are wildlife observation and photography. There are walking trails and boardwalks, observation blinds and decks, and special use permits for island tours on remote island sites.
We have identified preliminary issues, concerns, and opportunities that we may address in the CCP. We have briefly summarized these issues below. During public scoping, we may identify additional issues. These include invasive species management, public use management consistent with protecting habitats, and sea level rise due to climate change.
We will give the public an opportunity to provide input at public meetings. Public meetings will be announced on our Web site at
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.
Bureau of Land Management, Interior.
Notice of Intent.
Pursuant to applicable provisions of the Federal Lands
To ensure that comments will be considered, the BLM must receive written comments on the BLM's proposal to collect fees in the SJRG SRMA by July 11, 2011. Effective 6 months after the publication of this notice, the BLM's Bakersfield Field Office would initiate fee collection in the San Joaquin River Gorge Special Recreation Management Area, unless the BLM publishes a
You may submit comments on this fee collection proposal by any of the following methods:
•
•
•
Timothy Z. Smith, Field Manager, telephone (661) 391-6000 or at the address above. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The San Joaquin River Gorge Management Area is a popular recreation area offering significant opportunities for outdoor recreation and has received substantial Federal investment. The BLM's commitment is to find the proper balance between public use and the protection of resources. The BLM's policy is to collect fees at all specialized recreation sites, or where the BLM at Federal expense provides facilities, equipment or services in connection with outdoor use. In an effort to meet increasing demands for services and maintenance of existing facilities, routes and trails, and provide enhanced recreation services and opportunities, the BLM proposes to implement a fee program for the SJRG SRMA which qualifies as a site wherein visitors can be charged a “Standard Amenity Fee” authorized under Section 803(f) of REA, 16 U.S.C. 6801
Suggested fees for use of a walk-in campsite at the campground are $10 single and $15 for double and triple sites. Fees for the use of the group campground would be $175 and $25 for non-exclusive use of the horse camp. Interpretive and educational programs would cost $15 per person for up to a half day (4 hours) and $20 per person for a full day (6+ hours). The proposal would also charge a $5 per vehicle day use fee. An annual pass would be available for $40.
The BLM's goal for the SJRG SRMA fee program is to ensure that funding is available to maintain and enhance existing facilities and recreational opportunities, to provide for increased law enforcement presence, to develop additional services such as expanding interpretive/educational programming, and to protect resources. All fees collected would be used for expenses within the SJRG SRMA.
In April 2010, the BLM published the SJRG Business Plan which outlines operational goals of the area and the purpose of the fee program. This Business Plan provides management direction for public access to a variety of recreational opportunities and landscapes while minimizing the potential for resource damage from authorized uses. The Plan also provides a market analysis of local recreation sites and sets the basis for the fee proposal. The plan is available on line at:
The SJRG Business Plan addresses recreation opportunities, the issuance of use permits, and the charging of fees for each primary vehicle for use of the Management Area. This Plan, prepared pursuant to REA and BLM recreation fee program policy, also addresses the establishment of a permit process and the collection of user fees. This Business Plan establishes the rationale for charging recreation fees. In accordance with the BLM recreation fee program policy, the Business Plan explains the fee collection process and outlines how the fees would be used at the SJRG SRMA. The BLM has notified and involved the public at each stage of the planning process, including the proposal to collect fees, through notifications on-site and several public meetings to present and gather ideas concerning fees within the SRMA. The Pacific Southwest Region Recreation Resource Advisory Committee (RRAC) recommended approval of the fee proposal at its June 24, 2010, meeting in Mammoth Lakes, California. Future adjustments in the fee amount would be modified in accordance with the SJRG Business Plan, and through consultation with the Pacific Southwest Region RRAC and the public prior to a fee increase. Fee amounts will be posted on-site and online at the Bakersfield Field Office Web site at:
The BLM welcomes public comments on this proposal. 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
16 U.S.C. 6803(b) and 43 CFR 2932.13.
National Park Service, Interior.
Notice.
The Native American Graves Protection and Repatriation Act (NAGPRA) requires museums and Federal agencies that receive Federal funds to complete item-by-item inventories of Native American human remains and associated funerary objects in their possession or control. Recent regulations (43 CFR 10.13) provide deadlines for completing inventories of human remains and associated funerary objects received after the initial 1995 deadline, as well as for situations in which human remains and associated funerary objects are culturally affiliated with a newly Federally recognized Indian Tribe or an institution receives Federal funds for the first time.
Section 5 of the statute (25 U.S.C. 3003(c)) authorizes the Secretary of the Interior to extend the inventory time requirements for museums that have made a good faith effort to complete their inventories by the regulatory deadline. The deadline for inventory completion has been extended for The Colorado Historical Society. The requested extension is granted to November 2, 2011.
Office of Natural Resources Revenue, Interior.
Notice.
Regulations for geothermal, solid minerals, and Indian oil and gas leases authorize the Office of Natural Resources Revenue (ONRR) to assess payors for failure to submit payments of the same amount as the royalty or bill document, or to provide adequate information. The amount assessed for each mismatched or inadequately identified payment will be $214.00, effective on the date stated below.
Paul Knueven, Financial Management (FM), ONRR; telephone (303) 231-3316; e-mail
On March 26, 2008, ONRR (formerly Minerals Management Service's Minerals Revenue Management) published a final rule titled “Reporting Amendments” (73 FR 15885), with effective date April 25, 2008. This rule revised 30 CFR 1218.41 to comply with the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996. The regulations authorize ONRR to assess payors for failure to submit payments of the same amount as the royalty or bill document, or to provide adequate information. Section 1218.41(f) requires ONRR to publish the assessment amount and the effective date in the
The ONRR bases the amount of the assessment on ONRR's cost experience with improper payment and identification. The assessment allows ONRR to recover the associated costs and provides industry with incentives to improve the efficiency of payment processing.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of OSRAM GmbH on June 3, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain light-emitting diodes and products containing the same. The complaint names as respondents LG Electronics Inc. of Seoul, South Korea; LG Innotek Co., Ltd of Seoul, South Korea; LG Electronics U.S.A., Inc. of
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2812”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of OSRAM GmbH on June 3, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain light-emitting diodes and products containing same. The complaint names as respondents Samsung Electronics Co., Ltd of Korea; Samsung Electronics America, Inc. of Ridgefield Park, NJ; Samsung LED Co., Ltd. of Korea and Samsung LED America, Inc. of Atlanta, GA.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2813”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of countervailing duty investigation No. 701-TA-476 (Final) under section 705(b) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)) (the Act) and the final phase of antidumping investigation No. 731-TA-1179 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of subsidized and less-than-fair-value imports from China of multilayered wood flooring (“MLWF”), provided for in subheadings 4409.10, 4409.29, 4412.31, 4412.32, 4412.39, 4412.94, 4412.99, 4418.71, 4418.72, 4418.79.00, and 4418.90 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Fred Ruggles (202-205-3187 or
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117), the U.S. International Trade Commission is publishing this notice to advise the public of the availability of the FY 2010 Service Contract Inventory. This inventory provides information on service contract actions over $25,000 that were made in FY 2010. The information is organized by function to show how contracted resources are distributed throughout the agency. The inventory has been developed in accordance with guidance issued on November 5, 2010 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). OFPP's guidance is available at
Questions regarding the service contract inventory should be directed to Stephen A. McLaughlin in the Office of Administration at 202-205-3131 or
By order to the Commission.
United States International Trade Commission.
June 13, 2011 at 1 p.m.
Room 110, 500 E Street, SW., Washington, DC 20436. Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. No. 731-TA-669 (Third Review) (Cased Pencils from China). The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before June 24, 2011.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the
By order of the Commission:
Pursuant to Section 122 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9622, notice is hereby given that on May 31, 2011, a proposed Consent Decree in
On May 27, 2011, the United States, on behalf of the U.S. Department of Agriculture, Forest Service (“Forest Service”), filed a Complaint in this matter against defendant United Nuclear Corporation (“UNC”) pursuant to CERCLA Section 107, 42 U.S.C. 9607, for environmental response costs incurred or to be incurred by the Forest Service to address releases or threatened releases of hazardous substances at the Site. The proposed Consent Decree resolves the claims in the Complaint. Under the Consent Decree, UNC will pay the Forest Service $800,000 in reimbursement of response costs. In return, UNC and certain of its corporate affiliates receive a covenant not to sue or to take administrative action pursuant to Sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607, from the United States with respect to certain response costs and response actions, including the costs of, and performance by, the Forest Service of a removal action at the Site to address the mercury and other hazardous substances present in the mining wastes and sediments at the Site.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Settlement Agreement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site:
A copy of the proposed Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood (
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Candle Development, LLC, pursuant to Sections 301, 309, and 404 of the Clean Water Act, 33 U.S.C. 1311, 1319, and 1344, to obtain injunctive relief from and impose civil penalties against the Defendants for violating the Clean Water Act by, among other things, discharging pollutants without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring the Defendants to restore the impacted areas and/or mitigate the damages and to pay a civil penalty.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to David A. Carson, United States Department of Justice, Environment and Natural Resources Division, 999 18th Street, South Terrace, Suite 370, Denver, Colorado, 80202, and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the District of South Dakota, Southern Division. In addition, the proposed Consent Decree may be viewed at
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in Schedule I or II, and prior to issuing a regulation under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with 21 CFR 1301.34(a), this is notice that on March 25, 2011, AllTech Associates Inc., 2051 Waukegan Road, Deerfield, Illinois 60015, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of the following basic classes of controlled substances:
The company plans to import these controlled substances for the manufacture of reference standards.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43, and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections should be addressed, in quintuplicate, to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than July 11, 2011.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on March 28, 2011, Alltech Associates Inc., 2051 Waukegan Road, Deerfield, Illinois 60015, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture high purity drug standards used for analytical applications only in clinical, toxicological, and forensic laboratories.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR § 1301.33(a).
Any such comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than August 8, 2011.
In accordance with the provisions of the Federal Advisory Committee Act, Title 5, United States Code, Appendix, and Title 41, Code of Federal Regulations, Section 101-6.1015, with the concurrence of the Attorney General, I have determined that the reestablishment of the Criminal Justice Information Services (CJIS) Advisory Policy Board (APB) is in the public interest. In connection with the performance of duties imposed upon the FBI by law, I hereby give notice of the reestablishment of the APB Charter.
The APB provides me with general policy recommendations with respect to the philosophy, concept, and operational principles of the various criminal justice information systems managed by the FBI's CJIS Division.
The APB includes representatives from local and state criminal justice agencies; Tribal law enforcement representatives; members of the judicial, prosecutorial, and correctional sectors of the criminal justice community, as well as one individual representing a national security agency; a representative of Federal agencies participating in the CJIS Division Systems; and representatives of criminal justice professional associations (
The APB functions solely as an advisory body in compliance with the provisions of the Federal Advisory Committee Act. The Charter has been filed in accordance with the provisions of the Act.
Notice.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Steel Erection (29 CFR part 1926, subpart R),” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35).
Submit comments on or before July 11, 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: 202-395-4816/Fax: 202-395-6881 (these are not toll-free numbers), e-mail:
Contact the DOL Information Management Team by e-mail at
The Standard on Steel Erection requires that workers exposed to fall hazards receive specified training in the recognition and control of these hazards and that they are notified that building materials, components, steel structures, and fall protection equipment are safe for specific uses.
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,
Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This
Copies of the final decisions are posted on MSHA's Web Site at
Roslyn B. Fontaine, Acting Director, Office of Standards, Regulations and Variances at 202-693-9475 (Voice),
Under section 101 of the Federal Mine Safety and Health Act of 1977, a mine
MSHA bases the final decision on the petitioner's statements, any comments and information submitted by interested persons, and a field investigation of the conditions at the mine. In some instances, MSHA may approve a petition for modification on the condition that the mine operator complies with other requirements noted in the decision.
On the basis of the findings of MSHA's investigation, and as designee of the Secretary, MSHA has granted or partially granted the following petitions for modification:
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Veterans' Employment and Training Service, Department of Labor.
On October 13, 2010, President Barack Obama signed the Veterans' Benefits Act of 2010 (Pub. L. 111-275). Section 201 reauthorizes the Homeless Veterans Reintegration Program through fiscal year (FY) 2011 and indicates: “The Secretary of Labor shall conduct, directly or through grant or contract, such programs as the Secretary determines appropriate to provide job training, counseling, and placement services (including job readiness and literacy and skills training) to expedite the reintegration of homeless veterans into the labor force.”
HVRP grants are intended to address two objectives: (1) To provide services to assist in reintegrating homeless veterans into meaningful employment within the labor force, and (2) to stimulate the development of effective service delivery systems that will address the complex problems facing homeless veterans.
The full Solicitation for Grant Application is posted on
All meetings are held at 2:30 p.m. Wednesday, June 1; Thursday, June 2; Tuesday, June 7; Wednesday, June 8; Thursday, June 9; Tuesday, June 14; Wednesday, June 15; Thursday, June 16; Tuesday, June 21; Wednesday, June 22; Thursday, June 23; Tuesday, June 28; Wednesday, June 29; Thursday, June 30.
Board Agenda Room, No. 11820, 1099 14th St., NW., Washington, DC 20570.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition * * * of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Lester A. Heltzer, (202) 273-1067.
Nuclear Regulatory Commission.
Notice of pending NRC action to submit an information collection request to the Office of Management and
The U.S. Nuclear Regulatory Commission (NRC) invites public comment about our intention to request the OMB's approval for renewal of an existing information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
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Submit, by August 8, 2011, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
The public may examine and have copied for a fee publicly available documents, including the draft supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC worldwide Web site:
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of license amendment request, opportunity to request a hearing and to petition for leave to intervene, and Commission order.
A request for a hearing must be filed by August 8, 2011. Any potential party as defined in Title 10 of the Code of Federal Regulations (10 CFR) 2.4 who believes access to sensitive unclassified non-safeguards Information (SUNSI) is necessary to respond to this notice must request document access by June 20, 2011.
Please include Docket ID NRC-2011-0128 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You may submit comments by any one of the following methods:
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You can access publicly available documents related to this notice using the following methods:
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Tracy J. Orf, Project Manager, Plant Licensing Branch II-2, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301-415-2788; fax number: 301-415-2102; e-mail:
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering issuance of an amendment to Facility Operating License No. DPR-67 issued to Florida Power & Light Company (the licensee) for operation of the St. Lucie Plant, Unit 1, located in St. Lucie County, Florida.
The proposed amendment would increase the licensed core power level for St. Lucie Plant, Unit 1, from 2700 megawatts thermal (MWt) to 3020 MWt. The increase in core thermal power will be approximately 12 percent, including a 10 percent power uprate and a 1.7 percent measurement uncertainty recapture, over the current licensed core thermal power level and is categorized as an extended power uprate. The proposed amendment would modify the renewed facility operating license and the technical specifications to support operation at the increased core thermal power level.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
The amendment will not be issued prior to a hearing unless the staff makes a determination that the amendment involves no significant hazards considerations. If a request for a hearing is received, the Commission's staff may issue the amendment after it completes its technical review and prior to the completion of any required hearing if it publishes a further notice for public comment of its proposed finding of no significant hazards consideration in accordance with 10 CFR 50.91 and 50.92.
Requirements for hearing requests and petitions for leave to intervene are found in 10 CFR 2.309, “Hearing requests, petitions to intervene, requirements for standing, and contentions.” Interested persons should consult 10 CFR 2.309, which is available at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852 (or call the PDR at 1-800-397-4209 or 301-415-4737). The NRC regulations are also accessible online in the NRC's Library at
Any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the requestor/petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition must provide the name, address, and telephone number of the requestor or petitioner and specifically explain the reasons why the intervention should be permitted with particular reference to the following factors: (1) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest.
A petition for leave to intervene must also include a specification of the contentions that the petitioner seeks to have litigated in the hearing. For each contention, the requestor/petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. Additionally, the requestor/petitioner must demonstrate that the issue raised by each contention is within the scope of the proceeding and is material to the findings the NRC must make to support the granting of a license amendment in response to the application. The petition must include a concise statement of the alleged facts or expert opinions which support the position of the requestor/petitioner and on which the requestor/petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely. Finally, the petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, including references to specific portions of the application for amendment that the requestor/petitioner disputes and the supporting reasons for each dispute, or, if the requestor/petitioner believes that the application for amendment fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the requestor's/petitioner's belief. Each contention must be one which, if proven, would entitle the requestor/petitioner to relief.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board
Non-timely petitions for leave to intervene and contentions, amended petitions, and supplemental petitions will not be entertained absent a determination by the Commission, the Licensing Board or a presiding officer that the petition should be granted and/or the contentions should be admitted based upon a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
A State, county, municipality, Federally-recognized Indian Tribe, or agencies thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(d)(2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by August 8, 2011. The petition must be filed in accordance with the filing instructions in Section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that State and Federally-recognized Indian Tribes do not need to address the standing requirements in 10 CFR 2.309(d)(1) if the facility is located within its boundaries. The entities listed above could also seek to participate in a hearing as a nonparty pursuant to 10 CFR 2.315(c).
Any person who does not wish, or is not qualified, to become a party to this proceeding may request permission to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to such limits and conditions as may be imposed by the Licensing Board. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission August 8, 2011.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First-class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852,
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed by August 8, 2011. Non-timely filings will not be entertained absent a determination by the presiding officer that the petition or request should be granted or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing sensitive unclassified non-safeguards information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party as defined in 10 CFR 2.4 who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requestor shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requestor's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff either after a determination on standing and need for access, or after a determination on trustworthiness and reliability, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requestor may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) the presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief
H. Review of Grants of Access. A party other than the requestor may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR Part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend CHX Article 20, Rule 4 which governs orders that are eligible for entry to the Exchange's Matching System. The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange is proposing to amend CHX Article 20, Rule 4, which governs the basic requirements for order eligibility in the CHX Matching System.
Currently, all orders sent to the Matching System must meet the requirements specified in CHX Article 20, Rule 4(a) and shall be automatically rejected if they do not meet those requirements. In addition, the Matching System will only accept the order types and order indications that are defined in CHX Article 20, Rule 4(b). Currently, by rule the Matching System must accept each and every order type and order indication found in CHX Article 20, Rule 4(b). If the Exchange determines that a certain order type (or order indication) should no longer be eligible for entry into the Matching System, the Exchange would need to submit a formal rule change with the Securities and Exchange Commission (“SEC”) pursuant to Section 19(b)(1) of the Act
For purposes of efficiency and flexibility in determining which orders shall be eligible for entry to the Matching System (at any point in time), the Exchange is proposing to amend its rule to give the Exchange the ability to turn an order type under CHX Article 20, Rule 4(b) on or off without having to file a formal rule change with the SEC.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act in general,
The flexibility to turn certain order types on and off will give the Exchange the ability to accept orders into its Matching System that is consistent with order types that are eligible at other market centers. This flexibility will be especially beneficial when the Exchange implements a routing system that routes unexecuted orders to other market centers. For example, certain CHX order types defined in CHX Article 20, Rule 4(b) may not be acceptable at other exchanges and by being able to turn an order on or off will give the Exchange
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 either solicited or received.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal is similar to the rules of another exchange that have been approved by the Commission,
At any time within 60 days of the filing of the 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) of the Securities Exchange Act of 1934 (“Act”)
The Exchange through its wholly-owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”) proposes to amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (the “Schedule”) to establish a new regulatory fee. While changes to the Schedule pursuant to this proposal will be effective on filing, the changes will become operative on June 1, 2011. The text of the proposed rule change is available at the Exchange, at the Commission's Public Reference
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.
Effective June 1, 2011, the Exchange proposes to amend the Schedule to establish a regulatory fee (“Gross FOCUS Revenue Fee”) to be charged to ETP Holders, the purpose of which is to recover the regulatory expenses of the Exchange with respect to ETP Holders, including expenses associated with the regulatory functions performed both by NYSE Regulation, Inc. (“NYSE Regulation”) and by the Financial Industry Regulatory Authority (“FINRA”) pursuant to a regulatory services agreement, for which FINRA is paid by NYSE Regulation. The Exchange is proposing to set this regulatory fee at a rate of $0.07 per $1,000 of gross revenues as reported by each ETP Holder in its FOCUS report.
Prior to the initiation of the new Gross FOCUS Revenue Fee on June 1, the Exchange has eliminated, by means of a separate rule filing,
The term “OTP Holder” refers to a natural person, in good standing, who has been issued an Options Trading Permit (“OTP”) by the Exchange for effecting approved securities transactions on the trading facilities of the Exchange, or has been named as a nominee.
The term “OTP Firm” refers to a sole proprietorship, partnership, corporation, limited liability company or other organization in good standing that holds an OTP or upon whom an individual OTP Holder has conferred trading privileges on the Exchange's trading facilities pursuant to and in compliance with the rules of the Exchange.
Each ETP Holder, OTP Holder and OTP Firm has status as a “member” of the Exchange as that term is defined in Section 3 of the Act. An ETP Holder or an OTP Firm must be a registered broker or dealer pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Act”). An OTP Holder must be a registered broker or dealer pursuant to Section 15 of the Act, or a nominee or an associated person of a registered broker or dealer that has been approved by the Exchange to conduct business on the trading facilities of the Exchange.
The Exchange believes that the realigned regulatory fee structure as proposed herein will allow the Exchange to continue to adequately fund the expenses associated with the performance of its regulatory functions with respect to ETP Holders and the equities business of the Exchange. The Exchange will monitor the amount of revenue collected from the Gross FOCUS Revenue Fee to ensure that it, in combination with its other regulatory fees and fines, does not exceed regulatory costs. The Exchange expects to monitor regulatory costs and revenues on an annual basis, at a minimum. If the Exchange determines that regulatory revenues exceed regulatory costs, the Exchange would adjust the Gross FOCUS Revenue Fee downward by submitting a fee change filing to the Commission.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange further believes that the initial level of the Gross FOCUS Revenue Fee is reasonable because it is expected to generate revenues that, when combined with the Exchange's other regulatory fees with respect to ETP Holders, will be less than or equal to the Exchange's costs related to the regulation of its equities business. This is consistent with the Commission's previously stated view that regulatory fees be used for regulatory purposes and not to support the Exchange's business side.
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 foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
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) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend its Fee Schedule (“Schedule”) to adopt a fee for Qualified Contingent Cross (“QCC”) trades. The proposed change will be effective on June 1, 2011. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
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.
NYSE Arca proposes to amend the Schedule to adopt a fee for QCC trades.
The Exchange adopted rules permitting QCC trades on March 14, 2011,
The Exchange proposes to assess all market participants in all issues a fee of $0.10 per contract for participation in a QCC transaction. The Exchange is proposing this separate QCC transaction fee because orders that are part of a QCC trade are entered to the Exchange as a matched trade. Therefore, the trade is not a standard execution, nor can an order that is part of such a trade be described as either taking liquidity or adding liquidity. The proposed fee will apply to each side of the transaction.
The proposed charges will be effective on June 1, 2011.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Securities Exchange Act of 1934 (the “Act”),
The proposed change to the fee schedule is equitable and reasonable in that it applies uniformly to all market participants and is within the range of fees assessed by other exchanges for similar transactions. The proposed fee is not discriminatory because the same rate is assessed to all market participants.
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 foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
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.
On February 28, 2011, C2 Options Exchange, Incorporated (“C2” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Institution of these proceedings, however, does not indicate that the Commission has reached any conclusions with respect to the proposed rule change, nor does it mean that the Commission will ultimately disapprove the proposed rule change. Rather, as addressed below, the Commission desires to solicit additional input from interested parties, including relevant data and analysis, on the issues presented by the proposed rule change. In particular, the Commission is interested in receiving additional data and analysis relating to the potential effect that proposed p.m.-settled index options could have on the underlying cash equities markets.
In its filing, C2 proposed to permit the listing and trading of S&P 500 index options with third-Friday-of-the-month (“Expiration Friday”) expiration dates for which the exercise settlement value would be based on the index value derived from the closing prices of component securities (“p.m.-settled”). The proposed contract would use a $100 multiplier, and the minimum trading increment would be $0.05 for options trading below $3.00 and $0.10 for all other series. Strike price intervals would be set no less than 5 points apart. Consistent with existing rules for index options, the Exchange would allow up to twelve near-term expiration months, as well as LEAPS. Expiration processing would occur on the Saturday following Expiration Friday. The product would have European-style exercise, and, as proposed, would not be subject to position limits, though trading would be subject to C2's enhanced surveillance and reporting requirements for index options.
The Exchange proposed that the proposed rule change be approved on a pilot basis for a period of 14 months. As part of a pilot program, the Exchange would submit a pilot program report to the Commission at least 2 months prior to the expiration date of the program (the “annual report”). The annual report would contain an analysis of volume, open interest, and trading patterns. The analysis would examine trading in the proposed option product as well as trading in the securities that comprise the S&P 500 index. In addition, for series that exceed certain minimum open interest parameters, the annual report would provide analysis of index price volatility and share trading activity. The annual report would be provided to the Commission on a confidential basis. In addition to the annual report, the Exchange would provide the Commission with periodic interim reports while the pilot is in effect.
The Commission received 7 comment letters on this proposal addressing several issues, including the reintroduction of p.m. settlement; similarity with the Chicago Board Options Exchange's (“CBOE”) options on the S&P 500 index that are a.m.-settled (“SPX options”); position limits; and exclusive product licensing.
Two commenters raise concerns over the reintroduction of p.m. settlement on a potentially popular index derivative and the possible impact that doing so could have on the underlying cash equities markets.
The other commenter raised concerns and described the history behind the transition to a.m. settlement and criticized C2 for trivializing that history.
Taking the opposite view, two commenters urge the Commission to approve the proposal on a pilot basis.
C2 submitted a response to comments.
C2 also notes that for roughly 5 years (1987-1992) CBOE listed both a.m. and p.m.-settled options on the S&P 500 index and did not observe any related market disruptions during that period in connection with the dual a.m.-p.m. settlement.
One commenter believes that separate a.m. and p.m.-settled S&P 500 index options could potentially bifurcate the market for CBOE's existing a.m.-settled SPX contract.
Another commenter offers a similar opinion and asserts that CBOE and C2 should trade a fungible S&P 500 index option in order to address what the commenter describes as “huge customer-unfriendly spreads” in SPX.
In response, C2 argues that the difference between a.m.-settled and p.m.-settled S&P 500 index optiona would be a material term and that it is indisputable that C2's proposed S&P 500 index option could not be fungible with, nor could it be linked with, CBOE's SPX option.
Under C2's proposal, position limits would not apply to S&P 500 index options traded on its market. One commenter argues that position limits should apply to C2's proposed p.m.-settled S&P 500 index options.
In its response to comments, C2 notes that the Dutt-Harris paper acknowledges that S&P 500 options have, and should have, extraordinarily large position limits and Dutt-Harris observes that position limits are most useful when market surveillance is inadequate.
CBOE has an exclusive license agreement with S&P to list and trade index options on the S&P 500 index as
In view of the issues raised by the proposal, the Commission has determined to institute proceedings pursuant to Section 19(b)(2) of the Act to determine whether to approve or disapprove C2's proposed rule change.
Pursuant to Section 19(b)(2)(B) of the Act,
C2's proposal would reintroduce p.m. settlement for a cash-settled derivatives contract based on a broad-based index. When cash-settled index options were first introduced in the 1980s, they generally utilized p.m. settlement. However, as effects on the underlying cash equities markets became associated with the expiration of p.m.-settled index derivatives, concern was expressed with the potential impact of p.m.-settled index derivatives on the underlying cash equities markets. In particular, concentrated trading interest became associated with the potential for sharp price movements on Expiration Friday, particularly during the “triple-witching” hour on the third Friday of March, June, September and December when index options, index futures, and options on index futures expired concurrently.
To address this concern, the Commission coordinated with the Commodity Futures Trading Commission (“CFTC”). In 1987, the CFTC approved a rule change by the Chicago Mercantile Exchange to provide for a.m. settlement for index futures, including futures on the S&P 500 index.
The Commission believes that the proposal to allow p.m. settlement of an option on the S&P 500 index raises questions as to the potential effects on the underlying cash equities markets, and thus as to whether it is consistent with the requirements of Section 6(b)(5) of the Act, including whether the proposal is designed to prevent manipulation, promote just and equitable principles of trade, perfect the mechanism of a free and open market and the national market system, and protect investors and the public interest.
Accordingly, the Commission solicits additional analysis and data concerning whether the Exchange's proposal is consistent with the Act. Specifically, the Commission now seeks additional input to inform its evaluation of whether reintroducing p.m. settlement for C2's proposed options on the S&P 500 index and establishing a precedent that could lead to the reintroduction of p.m. settlement on index futures, could impact volume and volatility on the underlying cash equities markets at the close of the trading day, and the potential consequences this might have for investors and the overall stability of the markets.
The Commission is asking that commenters address the merits of C2's statements in support of its proposal as well as the comments received on the proposal, in addition to any other comments they may wish to submit about the proposed rule change. Specifically, the Commission is considering and requesting comment on the following issues:
1. What are commenters' views with respect to the operation and structure of the markets today in comparison to the operation and structure at the time of the shift to a.m. settlement of cash-settled index options, and whether the current operation and structure of the markets support, or do not support, allowing S&P 500 index options on C2 to be p.m.-settled? Please be specific in your response.
2. In particular, what are commenters' views on the ability of the closing procedures currently in place on national securities exchanges to manage a potential increase in volume, and potentially an increase in one-sided volume, at the close on Expiration Fridays if derivatives on the S&P 500 index were p.m.-settled?
3. Even if commenters believe that the current closing procedures would be sufficient, what are commenters' views as to the incentives or inclination of market participants to offset liquidity imbalances at the close of trading on Expiration Friday?
4. What are commenters' views on whether volatility or the potential for market disruptions would be more likely to be caused by or connected with p.m. settlement of cash-settled index derivatives compared to a.m. settlement?
5. What are commenters' views on the potential impact, if any, on the underlying cash equities markets, particularly at the close, if the futures markets introduce a p.m.-settled future subsequent to C2 introducing a p.m.-settled S&P 500 index option? If commenters think there may be an impact, do changes in market structure mitigate or exacerbate that impact relative to the experience pre-1987 when p.m. settlement was standard? Please provide data in support of your conclusion.
6. How has trading and volatility on Expiration Fridays, in particular during the open and during the close, and particularly on the quarterly expiration cycle (
7. If given the opportunity to trade both an a.m. and a p.m.-settled S&P 500 index option, how would market participants react and what might trading in each product look like?
8. To what extent do market participants currently trade S&P 500 index options OTC with p.m. settlement? To what extent would market participants currently trading S&P 500 index options in the OTC market consider switching to a p.m.-settled standardized option on the S&P 500 index?
9. Finally, the Commission requests any addition data or analysis that commenters think may be relevant to the Commission's consideration of C2's proposal for p.m.-settled options on the S&P 500 index.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any others they may have identified with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change is inconsistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change should be approved or disapproved by July 11, 2011. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by July 25, 2011. 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, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
IN THE MATTER OF AMERICAN PACIFIC RIM COMMERCE GROUP; ANYWHERE MD, INC.; CALYPSO WIRELESS, INC.; CASCADIA INVESTMENTS, INC.; CYTOGENIX, INC.; EMERGING HEALTHCARE SOLUTIONS, INC.; EVOLUTION SOLAR CORPORATION; GLOBAL RESOURCE CORPORATION; GO SOLAR USA, INC.; KORE NUTRITION, INC.; LAIDLAW ENERGY GROUP, INC.; MIND TECHNOLOGIES, INC.; MONTVALE TECHNOLOGIES, INC.; MSGI TECHNOLOGY SOLUTIONS, INC. (F/K/A MGSI SECURITY SOLUTIONS, INC.); PRIME STAR GROUP, INC.; SOLAR PARK INITIATIVES, INC.; UNITED STATES OIL & GAS CORPORATION
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of the issuers listed below. As set forth below for each issuer, questions have arisen regarding the accuracy of publicly disseminated information, concerning, among other things: (1) The company's assets; (2) the company's business operations; (3) the company's current financial condition; and/or (4) issuances of shares in company stock.
1. American Pacific Rim Commerce Group is a California corporation based in Florida. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's revenues.
2. Anywhere MD, Inc. is a Nevada corporation with its principal place of business in California. Questions have arisen concerning the adequacy and accuracy of publicly available information about the company.
3. Calypso Wireless, Inc. is a Delaware corporation based in Texas. Questions have arisen concerning the adequacy of publicly available information about the company.
4. Cascadia Investments, Inc. is a Nevada corporation based in Washington State. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations and assets.
5. CytoGenix, Inc. is a Nevada corporation based in Texas. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations and financing transactions.
6. Emerging Healthcare Solutions, Inc. is a Wyoming corporation based in Texas. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations and assets.
7. Evolution Solar Corporation is a Colorado corporation based in Arizona. Questions have arisen concerning the adequacy and accuracy of the company's Web site and press releases concerning the company's operations and revenues.
8. Global Resource Corporation is a Nevada corporation based in North Carolina. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations and the adequacy of publicly available information about the company.
9. Go Solar USA, Inc. is a Nevada corporation based in Louisiana. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's products and operations.
10. Kore Nutrition, Inc. is a Nevada corporation based in Nevada. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations.
11. Laidlaw Energy Group, Inc. is a New York corporation based in New York. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations, the accuracy of its financial statements, and stock promoting activity by the company.
12. Mind Technologies, Inc. is a Nevada corporation based in California. Questions have arisen concerning the accuracy of its financial statements.
13. Montvale Technologies, Inc. is a New Jersey corporation based in New Jersey. Questions have arisen concerning the adequacy and accuracy of publicly available information about the company.
14. MSGI Technology Solutions, Inc. (f/k/a MSGI Security Solutions, Inc.) is a Nevada corporation based in New York. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations and financing transactions.
15. Prime Star Group, Inc. is a Nevada corporation based in Nevada. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations.
16. Solar Park Initiatives, Inc. is a Nevada corporation based in Florida. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations and revenues.
17. United States Oil & Gas Corporation is a Delaware corporation based in Texas. Questions have arisen concerning the adequacy and accuracy of press releases concerning the company's operations and stock promoting activity by the company.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of North Dakota (FEMA-1981-DR), dated 05/10/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of North Dakota, dated 05/10/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Ohio dated 06/02/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 12609 6 and for economic injury is 12610 0.
The States which received an EIDL Declaration # are Ohio, Kentucky, West Virginia.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Louisiana dated 06/02/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 12613 B and for economic injury is 12614 0.
The State which received an EIDL Declaration # is Louisiana.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Kentucky (FEMA-1976-DR), dated 05/04/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of KENTUCKY, dated 05/04/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Alabama (FEMA-1971-DR), dated 04/28/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Alabama, dated 04/28/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 8.
This is an amendment of the Presidential declaration of a major disaster for the State of Alabama (FEMA-1971-DR), dated 04/28/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center,14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for the State of Alabama, dated 04/28/2011 is hereby amended to establish the incident period for this disaster as beginning 04/15/2011 and continuing through 05/31/2011.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration .
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Tennessee (FEMA-1974-DR), dated 05/01/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Tennessee, dated 05/01/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Tennessee (FEMA-1979-DR), dated 05/09/2011.
06/01/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Tennessee, dated 05/09/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of Tennessee (FEMA-1979-DR), dated 05/09/2011.
06/01/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Tennessee, dated 05/09/2011 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the State of Tennessee (FEMA-1974-DR), dated 05/01/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Tennessee, dated 05/01/2011 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Missouri (FEMA-1980-DR), dated 05/09/2011.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Missouri, dated 05/09/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Arkansas (FEMA-1975-DR), dated 05/02/2011.
06/02/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of ARKANSAS, dated 05/02/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before June 29, 2011.
You may send comments identified by Docket Number FAA-2011-0494 using any of the following methods:
•
•
•
•
Keira Jones (202) 267-4024, Tyneka Thomas (202) 267-7626, or David Staples (202) 267-4058, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before July 11, 2011.
Robert Bouchard, Maritime Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-5076; or e-mail
Maritime Administration (MARAD).
49 CFR 1.66.
Issued in Washington, DC.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on an information collection under Office of Management and Budget (OMB) Control No. 2137-0622, titled “Pipeline Safety: Public Awareness Program.” PHMSA is preparing to request approval from OMB for a renewal of the current information collection.
Interested persons are invited to submit comments on or before August 8, 2011.
Comments may be submitted in the following ways:
Cameron Satterthwaite by telephone at 202-366-1319, by fax at 202-366-4566, or by mail at U.S. DOT, PHMSA, 1200 New Jersey Avenue, SE., PHP-30, Washington, DC 20590-0001.
Section 1320.8(d), Title 5, Code of Federal Regulations, requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies an information collection request that PHMSA will be submitting to OMB for renewal and extension. The information collection expires October 31, 2011, and is identified under Control No. 2137-0622, titled: “Pipeline Safety: Public Awareness Program.” The following information is provided for this information collection: (1) Title of the information collection; (2) OMB control number; (3) Type of request; (4) Abstract of the information collection activity; (5) Description of affected public; (6) Estimate of total annual reporting and recordkeeping burden; and (7) Frequency of collection. PHMSA will request a three-year term of approval for this information collection activity. PHMSA requests comments on the following information collection:
Comments are invited on:
(a) The need for the proposed collection of information 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 the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Surface Transportation Board, DOT.
Notices of exemptions.
In Docket No. 35520, the Board grants an exemption, under 49 U.S.C. 10502, from the prior approval requirements of 49 U.S.C. 11323-25 for The New Brunswick Railway Company (NBRC) to continue in control of Maine Northern Railway Company (MNRC) and Eastern Maine Railway once MNRC becomes a Class III carrier. The Board makes the exemption effective on June 15, 2011. Additionally, in related Docket Nos. FD 35518 and FD 35519, the Board makes MNRC's authority to exercise trackage rights granted by the Montreal, Maine & Atlantic Railway, Ltd. effective on June 15, 2011.
These exemptions will be effective on June 15, 2011. Petitions for stay must be filed by June 10, 2011, and petitions for reconsideration in Docket No. FD 35520 must be filed by June 10, 2011.
An original and 10 copies of all pleadings, referring to Docket Nos. 35518, 35519, and 35520 must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on the parties' representative: Karyn A. Booth, Thompson Hine LLP, Suite 800, 1920 N Street, NW., Washington, DC 20036.
Joseph H. Dettmar, (202) 245-0395. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
Additional information is contained in the Board's decision. Board decisions and notices are available on our Web site at
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The Department of Treasury's Office of Foreign Assets Control (“OFAC”) is announcing an update to the entry of an individual on OFAC's list of Specially Designated Nationals and Blocked Persons (“SDN List”). The individual's date of birth has been amended and two addresses and an alternate place of birth have been added to the SDN List entry. The individual was listed in the Annex to Executive Order 13219 (“E.O. 13219”) of June 26, 2001, “Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans,” as amended by Executive Order 13304 (“E.O. 13304”) of May 28, 2003, “Termination of Emergencies With Respect to Yugoslavia and Modification of Executive Order 13219 of June 26, 2001.”
The update to the entry of this individual on the SDN List is effective May 26, 2011.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, Tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On June 26, 2001, the President, invoking the authority of,
(i) The persons listed in the Annex to E.O. 13304; and
(ii) Persons designated by the Secretary of the Treasury, in consultation with the Secretary of State, because they are determined:
(A) To be under open indictment by the International Criminal Tribunal for the former Yugoslavia, unless circumstances warrant otherwise; or
(B) To have committed, or to pose a significant risk of committing, acts of violence that have the purpose or effect of threatening the peace in or diminishing the stability or security of any area or state in the Western Balkans region, undermining the authority, efforts, or objectives of international organizations or entities present in the region, or endangering the safety of persons participating in or providing support to the activities of those international organizations or entities; or
(C) To have actively obstructed, or pose a significant risk of actively obstructing, the Ohrid Framework Agreement of 2001 relating to Macedonia, United Nations Security Council Resolution 1244 relating to Kosovo, or the Dayton Accords or the Conclusions of the Peace Implementation Conference held in London on December 8-9, 1995, including the decisions or conclusions of the High Representative, the Peace Implementation Council or its Steering Board, relating to Bosnia and Herzegovina; or
(D) To have materially assisted in, sponsored, or provided financial, material, or technological support for, or goods or services in support of, such acts of violence or obstructionism or any person listed in or designated pursuant to this order; or
(E) To be owned or controlled by, or acting or purporting to act directly or indirectly for or on behalf of, any of the foregoing persons.
On May 26, 2011, the Director of OFAC determined that the entry on the SDN List for the individual listed below, who was listed in the Annex to E.O. 13219, as amended by E.O. 13304, should be amended:
The proposed modification to that entry is as follows:
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The Department of Treasury's Office of Foreign Assets Control (“OFAC”) is publishing the names of two entities whose property and interests in property have been unblocked pursuant to Executive Order 13067 of November 3, 1997, “Blocking Sudanese Government Property and Prohibiting Transactions With Sudan,” and Executive Order 13412 of October 13, 2006, “Blocking Property of and Prohibiting Transactions With the Government of Sudan.”
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the entities identified in this notice whose property and interests in property were blocked pursuant to Executive Order 13067 of November 3, 1997, and Executive Order 13412 of October 13, 2006, is effective April 28, 2011 for the Bank of Khartoum and May 26, 2011 for National Export-Import Bank.
Assistant Director for Sanctions Compliance and Evaluation, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On November 3, 1997 the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (“IEEPA”), issued Executive Order 13067 (“E.O. 13067”). In E.O. 13067, the President declared a national emergency to deal with the Government of Sudan's continued support of international terrorism; ongoing efforts to destabilize neighboring governments; and the prevalence there of human rights violations, including slavery and the denial of religious freedom. Section 1 of E.O. 13067 blocks, with certain exceptions, all property and interests in property of the Government of Sudan that are in the United States, that hereafter come within the United States, or that hereafter come within the possession or control of United States persons, including their overseas branches. Section 4 defines the term “Government of Sudan” to include the Government of Sudan, its agencies, instrumentalities and controlled entities, and the Central Bank of Sudan.
On October 13, 2006, the President, invoking the authority of,
On April 28, 2011, OFAC removed the entity listed below, whose property and interests in property were blocked pursuant to E.O. 13067 and E.O. 13412 from the SDN List:
BANK OF KHARTOUM (a.k.a. BANK OF KHARTOUM GROUP), P.O. Box 1008, Khartoum, Sudan; P.O. Box 312, Khartoum, Sudan; P.O. Box 880, Khartoum, Sudan; P.O. Box 2732, Khartoum, Sudan; P.O. Box 408, Barlaman Avenue, Khartoum, Sudan; P.O. Box 67, Omdurman, Sudan; P.O. Box 241, Port Sudan, Sudan; P.O. Box 131, Wad Medani, Sudan; Abu Hammad, Sudan; Abugaouta, Sudan; Assalaya, Sudan; P.O. Box 89, Atbara, Sudan; Berber, Sudan; Dongola, Sudan; El Daba, Sudan; El Dain, Sudan; El Damazeen, Sudan; El Damer, Sudan; El Dilling, Sudan; El Dinder, Sudan; El Fashir, Sudan; El Fow, Sudan; El Gadarit, Sudan; El Garia, Sudan; El Ghadder, Sudan; El Managil, Sudan; El Mazmoum, Sudan; P.O. Box 220, El Obeid, Sudan; El Rahad, Sudan; El Roseirs, Sudan; El Suk el Shabi, Sudan; Halfa el Gadida, Sudan; Karima, Sudan; Karkoug, Sudan; Kassala, Sudan; Omdurman P.O. Square, P.O. Box 341, Khartoum, Sudan; Sharia el Barlaman, P.O. Box 922, Khartoum, Sudan; Sharia el Gama'a, P.O. Box 880, Khartoum, Sudan; Sharia el Gamhoria, P.O. Box 312, Khartoum, Sudan; Sharia el Murada, Khartoum, Sudan; Tayar Murad, P.O. Box 922, Khartoum, Sudan; Suk el Arabi, P.O. Box 4160, Khartoum, Sudan; University of Khartoum, Khartoum, Sudan; P.O. Box 12, Kosti, Sudan; P.O. Box 135, Nyala, Sudan; Rabak, Sudan; Rufaa, Sudan;
On May 26, 2011, OFAC removed from the SDN List the entity listed below, whose property and interests in property were blocked pursuant to E.O. 13067 and E.O. 13412:
NATIONAL EXPORT-IMPORT BANK (n.k.a. BANK OF KHARTOUM GROUP), Sudanese Kuwait Commercial Centre, Nile Street, P.O. Box 2732, Khartoum, Sudan [SUDAN]
Alcohol and Tobacco Tax and Trade Bureau; Treasury.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, we invite comments on the proposed or continuing information collections listed below in this notice.
We must receive your written comments on or before August 8, 2011.
You may send comments to Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, at any of these addresses:
• P.O. Box 14412, Washington, DC 20044-4412;
• 202-453-2686 (facsimile); or
•
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form or recordkeeping requirement number, and OMB number (if any) in your comment. If you submit your comment via facsimile, send no more than five 8.5 x 11 inch pages in order to ensure electronic access to our equipment.
To obtain additional information, copies of the information collection and its instructions, or copies of any comments received, contact Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412; or telephone 202-453-2265.
The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau (TTB), as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please not do include any confidential or inappropriate material in your comments.
Currently, we are seeking comments on the following forms and recordkeeping requirements:
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). The IRS is soliciting comments concerning information collection requirements related to Additional First Year Depreciation Deduction.
Written comments should be received on or before August 8, 2011 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for copies of regulation should be directed to Joel Goldberger, at the Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, by phone at (202) 927-9368, or on the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
U.S.-China Economic and Security Review Commission.
Notice of open public hearing—June 15, 2011 Washington, DC.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate, assess, and report to Congress annually on “the national security implications of the economic relationship between the United States and the People's Republic of China.”
Pursuant to this mandate, the Commission will hold a public hearing in Washington, DC on June 15, 2011, to address “China's Five Year Plan, Indigenous Innovation and Technology Transfers, and Outsourcing.”
Any interested party may file a written statement by June 15, 2011, by mailing to the contact below. A portion of each panel will include a question and answer period between the Commissioners and the witnesses.
Transcripts of past Commission public hearings may be obtained from the USCC Web Site
The hearing will be held in Room 216 of the Hart Senate Office Building, located at Constitution Avenue and 2nd Street, NE. in Washington, DC 20002.
Any member of the public seeking further information concerning the hearing should contact Michael Danis, Executive Director for the U.S.-China Economic and Security Review Commission, 444 North Capitol Street, NW., Suite 602, Washington, DC 20001; phone: 202-624-1407, or via e-mail at
Congress created the U.S.-China Economic and Security Review Commission in 2000 in the National Defense Authorization Act (Pub. L. 106-398), as amended by Division P of the Consolidated Appropriations Resolution, 2003 (Pub. L. 108-7), as amended by Public Law 109-108 (November 22, 2005).
Thursday, June 23, 2011 (11 a.m.-5:30 p.m.).
Friday, June 24, 2011 (9 a.m.-3:30 p.m.).
2301 Constitution Avenue, NW., Washington, DC 20037.
Open Session—Portions may be closed pursuant to Subsection (c) of Section 552(b) of Title 5, United States Code, as provided in subsection 1706(h)(3) of the United States Institute of Peace Act, Public Law 98-525.
June 2011 Board Meeting; Approval of Minutes of the One Hundred Thirty-Ninth Meeting (January 20, 2011) of the Board of Directors; Chairman's Report; President's Report; Executive Vice President Update; Q & A with Senior Vice Presidents; Updates on Budget; Board Executive Session; Other General Issues.
Tessie F. Higgs, Executive Office, Telephone: (202) 429-3836.
(a) Executive Vice President;
(b) Vice President and General Counsel;
(c) Vice President and Chief Financial Officer;
(d) Chief of Staff;
(e) Vice President, Investment Policy;
(f) Vice President, External Affairs;
(g) Vice President, Investment Funds;
(h) Vice President, Insurance;
(i) Vice President, Structured Finance; and
(j) Vice President, Small and Medium Enterprise Finance.
(b) No individual who is serving in an office listed in section 1 of this memorandum shall act as President of OPIC unless that individual is otherwise eligible to so serve under the Act.
(c) Notwithstanding the provisions of this memorandum, the President retains discretion, to the extent permitted by law, to depart from this memorandum in designating an acting President of OPIC.
Commodity Futures Trading Commission.
Notice of proposed rulemaking.
The Commodity Futures Trading Commission (the “Commission”) hereby proposes rules to implement new statutory provisions enacted by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). Specifically, the proposed rules contained herein impose requirements on futures commission merchants (“FCMs”) and derivatives clearing organizations (“DCOs”) regarding the treatment of cleared swaps customer contracts (and related collateral), and make conforming amendments to bankruptcy provisions applicable to commodity brokers under the Commodity Exchange Act (the “CEA”).
Comments must be received on or before August 8, 2011.
You may submit comments, identified by RIN number 3038-AC99, by any of the following methods:
• The agency's Web site, at
•
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Robert B. Wasserman, Associate Director, Division of Clearing and Intermediary Oversight (DCIO), at 202-418-5092 or
The Dodd-Frank Act
In order to implement the segregation requirements in the Dodd-Frank Act, the Commission has determined to propose that each FCM and DCO be required to enter (or “segregate”), in its books and records, the cleared swaps of each individual customer and relevant collateral. The Commission also proposes to permit each FCM and DCO to operationally hold (or “commingle”) all relevant collateral in one account. The Commission further proposes that, in the event that an FCM defaults simultaneously with one or more cleared swaps customers, the DCO may access the collateral of the FCM's defaulting cleared swaps customers to cure the default, but not the collateral of the FCM's non-defaulting cleared swaps customers. However, the Commission is continuing to assess the benefits and costs of the proposal, and is considering whether to permit the DCO to access the collateral of non-defaulting cleared swaps customers, after the DCO attempts to cure the default by applying its own capital and the guaranty fund contributions of its non-defaulting FCM members. Moreover, the Commission is also continuing to assess the feasibility of permitting each DCO to choose the level of protection that it would accord to the cleared swaps customer collateral of its FCM members.
In deciding to propose the above requirements, the Commission looked to current practices for the protection of uncleared swaps collateral, as well as current practices for the protection of collateral supporting futures customer contracts. The Commission, through its staff, sought comment from a wide variety of stakeholders (
On July 21, 2010, President Obama signed the Dodd-Frank Act. Title VII of the Dodd-Frank Act
Section 724 of the Dodd-Frank Act prescribes the manner in which cleared swaps (and related collateral)
1. The FCM must treat and deal with all collateral (including accruals thereon) deposited by a customer
2. The FCM may not commingle such collateral with its own property and may not, with certain exceptions, use such collateral to margin the cleared swaps of any person other than the customer depositing such collateral;
3. A DCO may not hold or dispose of the collateral that an FCM receives from a customer to margin cleared swaps as belonging to the FCM or any person other than the customer; and
4. The FCM and the DCO may only invest such collateral in enumerated investments.
Section 724(b) of the Dodd-Frank Act governs bankruptcy treatment of cleared swaps by clarifying that cleared swaps are “commodity contracts” within the meaning of section 761(4)(F) of the Bankruptcy Code.
The Commission considered several alternatives for implementing new section 4d(f) of the CEA. The first alternative that the Commission explored was legal segregation with operational commingling (the “Legal Segregation Model”). Under the Legal Segregation Model, each FCM and DCO would enter (or “segregate”), in its books and records, the cleared swaps of each individual customer and relevant collateral. Each FCM and DCO would ensure that such entries are separate from entries indicating (i) FCM or DCO obligations or (ii) the obligations of non-cleared swaps customers. Operationally, however, each FCM and DCO would be permitted to hold (or “commingle”) the relevant collateral in one account. Each FCM and DCO would ensure that such account is separate from any account holding FCM or DCO property or holding property belonging to non-cleared swaps customers.
Under the Legal Segregation Model, the FCM, prior to default, would ensure that the DCO does not use the collateral of one cleared swaps customer to support the obligations of another customer by making certain that the value of the cleared swaps collateral that the DCO holds equals or exceeds the value of all cleared swaps collateral that it has received to secure the contracts of the FCM's customers. The Commission considered two possible scenarios after a simultaneous default of the FCM and of one or more cleared swaps customers. First, the Commission contemplated permitting the DCO to access the collateral of the defaulting cleared swaps customers, but not the collateral of the non-defaulting cleared swaps customers (the “Complete Legal Segregation Model”).
As its second alternative, the Commission explored full physical segregation (the “Physical Segregation Model”).
As its third alternative, the Commission explored replicating the
Finally, the Commission explored permitting a DCO to choose between (i) the Legal Segregation Model (whether Complete or with Recourse), (ii) the Physical Segregation Model, and (iii) the Futures Model, rather than mandating any particular alternative.
Throughout the fall and winter of 2010, the Commission sought public comment on the alternatives mentioned above, and on the advisability of permitting the DCO to choose between alternatives. First, the Commission, through its staff, held extensive external meetings with three segments of stakeholders (
As the ANPR describes, the Roundtable revealed that stakeholders had countervailing concerns regarding the alternatives that the Commission set forth. On the one hand, a number of swaps customers argued that the Commission should focus on effectively eliminating fellow-customer risk
In general, DCOs maintain packages of financial resources to cure the default. The first element of such packages is the property of the defaulting FCM (
On the other hand, a number of FCMs and DCOs argued that the benefits of effectively eliminating Fellow-Customer Risk and Investment Risk are outweighed by the costs. With respect to benefits, these FCMs and DCOs noted that the Futures Model has served the futures industry well for many decades. With respect to costs, these FCMs and DCOs described two potential sources. First, FCMs and DCOs stated that, depending on the manner in which the Commission proposes to eliminate or mitigate Fellow-Customer Risk and Investment Risk, they may experience substantial increases to operational costs. Second, and more significantly, FCMs and DCOs stated that they may incur additional risk costs due to proposed financial resources requirements.
The Commission has proposed to require systemically-important DCOs to maintain a financial resources package sufficient to cover a default by the two clearing members creating the largest combined financial exposure in extreme but plausible market conditions.
Some DCOs may have anticipated including collateral from non-defaulting cleared swaps customers as an element in their financial resources packages. If DCOs no longer have access to such collateral, then those DCOs would need to obtain additional financial resources to meet proposed Commission requirements. As the ANPR noted, DCOs stated that they could obtain such financial resources in two ways (or a combination thereof). They can increase the amount of collateral that each cleared swaps customer must provide to margin its cleared swaps. Alternatively, they can increase the amount of capital that each FCM must contribute to the relevant DCO guaranty funds. Both FCMs and DCOs averred that the costs associated with obtaining such additional financial resources may be
Given the countervailing concerns that stakeholders expressed at the Roundtable, the Commission decided to seek further comment through the ANPR on the potential benefits and costs of (i) the Legal Segregation Model (whether Complete or with Recourse), (ii) the Physical Segregation Model, and (iii) the Futures Model. As the ANPR explicitly stated, “[t]he Commission [was] seeking to achieve two basic goals: Protection of customers and their collateral, and minimization of costs imposed on customers and on the industry as a whole.”
Although the ANPR sought comment on the abovementioned models from the general public, it addressed specific questions to the three segments of stakeholders (
The Commission received thirty-one comments from twenty-nine commenters.
The comments were generally divided by the nature of the commenter: most (though not all) of the buy-side commenters favored either the Legal Segregation Model (whether Complete or with Recourse) or the Physical Segregation Model, manifesting a willingness to bear the added costs. Most of the FCMs and DCOs favored the Futures Model. LCH favored the Complete Legal Segregation Model. Finally, ISDA, in its supplemental comment, opined that the most important factor that the Commission should consider is the extent to which a model fostered the portability
In general, comments to the ANPR addressed the following major issues: (i) Concerns with statutory interpretation; (ii) the appropriate basis for comparison of benefits and costs for each model; (iii) estimates of costs, and the assumptions underlying such estimates; (iv) the benefits of individual collateral protection (
Section 4d(f)(6) of the CEA prohibits “any person, including any derivatives clearing organization * * *” from holding, disposing, or using cleared swaps customer collateral “for deposit in a separate account or accounts * * * as belonging to * * * any person other than the swaps customer of the futures commission merchant.” The emphasis on “separate account or accounts” and the use of “customer” in the singular contrasts with section 4d(b) of the CEA (applicable to futures customer contracts and related collateral). In the ANPR, the Commission asked for comment as to whether Congress evinced intent to create a segregation regime that protects cleared swaps (and related customer collateral) on a more individualized basis than futures (and related customer collateral). In general, commenters presented opposing views. For example, one commenter viewed use of the singular term “customer” in section 4d(f)(6) of the CEA as a “critical difference.”
Additionally, some commenters maintained that the Futures Model depends on an interpretive statement issued by the Office of the General Counsel, which they describe as “dated and questionable” in relation to cleared swaps.
In general, commenters presented opposing views on whether the Commission should consider the benefits and costs of each model in light of current swaps practice or current futures practice. Most buy-side commenters stated that benefits and costs of each model should be informed by current swaps practice. First, these commenters emphasized that they are currently able to negotiate for individual collateral protection at independent third parties, and are therefore exposed to neither Fellow-Customer Risk nor Investment Risk. Second, these commenters stated that they are accustomed to the costs associated with individual collateral protection and note that their counterparties enjoy profit from this business model. Finally, these commenters maintained that the Futures Model forms an inappropriate basis for the consideration of benefits and costs because:
(i) The Commission is contemplating the appropriate segregation regime for cleared swaps and related customer collateral; (ii) the Futures Model references industry conventions for futures contracts and related collateral; and (iii) the market for cleared swaps has developed and may continue to develop in a different manner than the market for futures contracts.
In contrast, a number of commenters, primarily the FCMs and the DCOs, suggested that the benefits and costs of each model should be informed by current futures practice. In support of this position, these commenters note that the futures segregation requirement has served the futures industry well for many decades.
In general, commenters estimated the costs of implementing each model in light of the basis for consideration that they viewed most appropriate. For example, those commenters that argued that current swaps practice should inform the benefits and costs of each model emphasized that they have been willing to bear the costs for individual collateral protection. In contrast, those commenters that argued that current futures practice should inform the benefits and costs of each model emphasized that implementing either the Legal Segregation Model (whether Complete or with Recourse) or the Physical Segregation Model would lead to substantial costs. As mentioned above, they described two major sources for such costs: (i) Operational costs; and (ii) costs associated with obtaining additional financial resources to meet proposed Commission requirements (assuming that the Commission prohibits a DCO from accessing the collateral of non-defaulting cleared swaps customers to cure an FCM default) (the “Risk Costs”).
For the Physical Segregation Model, one commenter estimates that an FCM would incur upfront operational costs of $33 million and ongoing operational costs of $136 million.
As mentioned above, the Physical Segregation Model would require that each FCM and DCO maintain a separate account for each cleared swaps customer. Therefore, the costs that commenters identify include, among other things, (i) the costs to establish and maintain such accounts, (ii) the costs to effect separate fund transfers between such accounts, (iii) the costs of account reconciliation, and (iv) the costs to establish the information technology infrastructure for such accounts.
In contrast to the Physical Segregation Model, the Legal Segregation Model (whether Complete or with Recourse) would permit an FCM and a DCO to continue maintaining omnibus accounts, while requiring enhanced reporting. Therefore, the costs that commenters identify pertain mostly to such reporting.
i. The physical segregation model and the complete legal segregation model.
Both the Physical Segregation Model and the Complete Legal Segregation Model would result in Risk Costs,
ii. The legal segregation with recourse model and the futures model.
Based on the rationale articulated above, neither the Legal Segregation with Recourse Model nor the Futures Model would result in a need to obtain
Certain commenters disagreed with the assumptions underlying the estimates of Risk Costs for the Complete Legal Segregation Model and the Physical Segregation Model. Specifically, they questioned whether, upon an FCM default, a DCO would have any collateral of non-defaulting cleared swaps customers left to access. These commenters noted that, if an FCM declines over time, customers may begin transferring their cleared swaps collateral to more creditworthy FCMs.
DCOs [to be] managed prudently * * * their risk waterfalls must cater for all events, not just `shock' events. This requires that DCOs clearing swaps must always assume that no client Initial Margin is available at the point of a default, as this is the most conservative assumption from a risk management standpoint.
In general, commenters agreed that the Physical Segregation Model would eliminate Investment Risk, and that such model, along with the Legal Segregation Model (whether Complete or with Recourse), would mitigate Fellow-Customer Risk. As mentioned above, commenters disagreed on whether such benefits would outweigh the operational costs and Risk Costs, as applicable, which would be incurred to implement such models.
One commenter emphasized that the most important factor that the Commission should consider in deciding which model to propose is the effect of that model on the portability of the cleared swaps of non-defaulting customers in the event of an FCM default. The commenter stated that the Physical Segregation Model and the Complete Legal Segregation Model would most facilitate portability.
A number of commenters described ways in which the Legal Segregation Model (whether Complete or with Recourse) or the Physical Segregation Model may mitigate systemic risk. The commenter that emphasized the importance of portability stated that the Complete Legal Segregation Model or the Physical Segregation Model would mitigate systemic risk by enhancing portability of the cleared swaps of non-defaulting customers in the event of FCM default.
In general, commenters offered different opinions on the appropriate focus of induced changes in behavior analysis. For example, certain commenters focused on the effects of the Futures Model on the motivations of the DCO. As mentioned above, under the Futures Model, a DCO may access the collateral of non-defaulting cleared swaps customers prior to its own capital in the event of an FCM default. Therefore, the above-mentioned commenters argued that under the Futures Model a DCO may be less motivated to ensure that each FCM member is managing the risks posed by cleared swaps customers properly than under Legal Segregation or Physical Segregation models.
Other commenters focused on the effect of the Legal Segregation Model (especially Complete) and the Physical Segregation Model on the motivations of cleared swaps customers and FCMs. First, these commenters argued that such models would cause changes in behavior, because cleared swaps customers benefitting from individual collateral protection would be less motivated to create market discipline by clearing thorough less risky firms.
Finally, a number of commenters observed that an important consideration in selecting a model is the effect that the model would have on the willingness of cleared swaps customers to maintain excess margin. The more protective of cleared swaps customer collateral a model is, the more likely it is that cleared swaps customers would be willing to maintain excess margin.
A number of commenters expressed concern that the use of models other than the Futures Model would create fragmented segregation requirements (whether across securities and commodities accounts, or between different classes of commodities accounts), which in turn would create barriers to the ability of cleared swaps customers to portfolio margin.
Finally, a number of commenters suggested that the Commission permit DCOs the option of offering different models for protecting cleared swaps customer contracts and related collateral (the “Optional Approach”).
After carefully considering all comments, the Commission has decided to propose the Complete Legal Segregation Model in this NPRM for the following reasons.
First, as discussed in section III(A) herein, the Commission believes that section 4d(f) of the CEA provides it with authority to propose the Complete Legal Segregation Model. Further, the Commission believes that the language of section 4d(f) of the CEA supports strongly considering the current swaps practice.
Second, as discussed in section III(D) herein, the Commission believes that the Complete Legal Segregation Model provides the best balance between benefits and costs in order to protect market participants and the public. Section III(B) herein describes the Commission's evaluation of the costs of each model, whereas section III(C) herein describes the Commission's evaluation of the benefits of each model.
As mentioned in section I (
The Commission requests comments on (i) its proposal, (ii) whether it should adopt, in the alternative, the Legal Segregation with Recourse Model, and (iii) whether it should adopt the Optional Approach or the Futures Model. The Commission has set forth specific questions below.
Section 4d(f) of the CEA provides the Commission with the authority to afford individualized protection to cleared swaps customer collateral. As mentioned above, new section 4d(f)(6) of the CEA prohibits “any person, including any derivatives clearing organization * * * ” from holding, disposing, or using customer collateral “for deposit in a separate account or accounts * * * as belonging to * * * any person other than the swaps customer of the futures commission merchant.” The reference to “separate account or accounts” and the use of “customer” in the singular contrasts with section 4d(b) of the CEA, which governs the handling of customer collateral by DCOs in the futures market. Section 4d(b) prohibits a DCO from holding, disposing, or using customer collateral “for deposit in a separate account * * * as belonging to * * * any person other than the customers of such futures commission merchant,” using the plural form “customers” to refer to the property of customers collectively. The contrast between sections 4d(b) and 4d(f)(6) of the CEA suggests that the Commission need not treat cleared swaps customer collateral in the same manner as futures customer collateral. This is particularly true because the reference to “separate account or accounts” and “customer” in section 4d(f)(6) of the CEA accords with the individual collateral protection currently available in the swaps markets and contrasts with the omnibus approach traditionally used in futures markets. For the same reason, the Commission is persuaded that the costs of and protections provided by current swaps practices are highly relevant to the evaluation of alternative models for implementing the statute.
As mentioned above, the Commission believes that current swaps practices
With respect to operational costs, the Commission notes that commenters appeared to have relied upon appropriate assumptions in their estimates for the Legal Segregation Model (whether Complete or with Recourse) and the Physical Segregation Model.
The Commission seeks comment on potential operational costs associated with implementing the Futures Model, and whether such costs could vary depending on the volume of swaps to be cleared.
Further, the Commission seeks comment on potential operational costs and Risk Costs for all models other than the Futures Model, especially with respect to (i) the extent to which such costs could be offset against the costs that swaps customers currently incur to obtain individual collateral protection, and (ii) the extent to which such costs may correspond to the implicit costs that customers may bear due to Fellow-Customer Risk.
The Commission also seeks comment on the assumptions underlying estimates of Risk Costs for the Complete Legal Segregation Model and the Physical Segregation Model.
• Specifically, is it plausible that an FCM might decline gradually over time rather than in a sudden event? If so, is it plausible that customers of such a declining FCM might transfer their cleared swaps and related collateral to another FCM?
• If the Commission were to permit a DCO to access collateral from non-defaulting cleared swaps customers to cure a default, would it be prudent, in light of answers to the foregoing questions, for the DCO to rely upon such collateral in calculating the financial resources package that it must hold? Why or why not, or to what extent? If not, or if only to a limited extent, how does that conclusion affect the Risk Costs for the Complete Legal Segregation Model (as well as the Physical Segregation Model)? Do DCOs account for potential differences between fellow customer collateral at the time of calculation and expected fellow-customer collateral at the time of default in their default resource calculations? If so, how?
In addition, as discussed above, a number of commenters on the ANPR suggested that consideration of the costs and benefits of all models should be informed by the protections for collateral obtained by customers in the existing swaps market and of the costs incurred for such protections.
Finally, some commenters on the ANPR stated that swaps, including cleared swaps, have inherent characteristics that differentiate them from exchange-traded futures contracts and that affect the magnitude of the exposure that Cleared Swaps Customers have to Fellow-Customer Risk.
The Commission agrees with commenters that the Legal Segregation Model (whether Complete or with Recourse) and the Physical Segregation Model would mitigate Fellow-Customer Risk and Investment Risk to differing extents. With respect to Fellow-Customer Risk, the Commission believes that: (i) The Physical Segregation Model would eliminate Fellow-Customer Risk, albeit only to the extent permitted under the Bankruptcy Code;
The Commission agrees with commenters that the Physical Segregation Model would eliminate Investment Risk because the FCM and DCO would invest the collateral of one cleared swaps customer separately from the collateral of another such customer. Therefore, the FCM or DCO may attribute losses on such investments to one particular customer. The Commission believes that the Legal Segregation Model (whether Complete or with Recourse) and the Futures Model would not mitigate Investment Risk. Such models permit the FCM and DCO to hold the collateral of all cleared swaps customers in one account, and therefore neither the FCM nor the DCO would be able to attribute investments (and losses thereon) to one particular customer.
The Commission agrees with commenters that the Complete Legal Segregation Model and the Physical Segregation Model would enhance portability of the cleared swaps of non-defaulting customers in the event of an FCM default. The Commission notes that the Legal Segregation with Recourse Model would not likely facilitate portability to the same extent, because the DCO is unlikely to release the collateral of such non-defaulting customers until it has completed the process of liquidating the portfolio of the defaulting FCM and customers. Therefore, even if the DCO or trustee ports the cleared swaps of non-defaulting customers, such customers may need to post additional collateral at the non-defaulting FCM to support such swaps. Such customers may not be able to meet such increased capital demands, especially during a time of resource scarcity.
The Commission agrees with comments that the Complete Legal Segregation Model and the Physical Segregation Model would most mitigate systemic risk by enhancing portability of the cleared swaps of non-defaulting customers in the event that an FCM defaults. The Commission notes that certain international regulators also emphasize the importance of portability. For example, the Consultative Report on the Principles for Financial Market Infrastructures (the “CPSS-IOSCO Principles”)
The Commission agrees with commenters that argued that the better the protection that a model affords to the collateral of non-defaulting cleared swaps customers, the more likely customers would leave excess margin at an FCM. In contrast, the Commission does not find persuasive arguments that the Legal Segregation Model (especially Complete) and the Physical Segregation Model would cause changes in behavior, by (i) discouraging cleared swaps customers from creating market discipline by clearing through less risky firms,
With respect to (i), cleared swaps customers generally cannot exert material market discipline because they lack information to accurately assess the risk of their FCMs. For example, certain commenters noted that cleared swaps customers cannot obtain information about the risk profile of fellow customers.
• The FCM's total equity, regulatory capital and net worth;
• The dollar value of the FCM's proprietary margin requirements as a percentage of its segregated and secured customer margin requirements;
• What number of the FCM's customers comprise an agreed significant percentage of its customer segregated funds;
• The aggregate notional value of non-hedged, principal OTC transactions into which the FCM has entered;
• The amount, generic source and purpose of any unsecured and uncommitted short-term funding the FCM is using;
• The aggregate amount of financing the FCM provides for customer transactions involving illiquid financial products for which it is difficult to obtain timely and accurate prices;
• The percentage of defaulting assets (debits and deficits) the FCM had during the prior year compared to its year-end segregated and secured customer funds; and
• A summary of the FCM's current risk practices, controls and procedures.
With respect to (ii), the Commission notes that FCMs have claimed in recent net capital rulemakings that Commission capital requirements are sufficient.
In response to concerns regarding the impact of models other than the Futures Model on portfolio margining,
The Commission seeks comment on the above analysis of benefits accorded by each model, including whether there are any additional benefits that the Commission should consider. What benefits would be realized by, alternatively, adopting the Futures Model?
As mentioned above, commenters generally agreed that customers would bear the costs of implementing any model. Therefore, the Commission believes that it is appropriate to give weight to the preference of customers. The Commission finds it compelling that most (although not all) buy-side commenters to the ANPR favored a model other than the Futures Model. The Commission notes that models other than the Futures Model would provide more individualized protection to cleared swaps customer collateral in accordance with section 4d(f) of the CEA. Any such model may provide substantial benefits in the form of (i) decreased Fellow-Customer Risk (as well as Investment Risk, in certain circumstances), (ii) increased likelihood of portability, (iii) decreased systemic risk, and (iv) positive impact on portfolio margining. The Commission seeks additional comments, in particular from customers, as to whether and why, in light of this NPRM, they favor or oppose adoption of the Futures Model. The Commission anticipates that, to the extent it decides to adopt the Futures Model, the proposed rule text from proposed regulation 22.2 to proposed regulation 22.10 would implement such model. The Commission notes that changes to the language of proposed regulation 22.15 may be necessary. Specifically, proposed regulation 22.15 would need to include an additional section to the effect that a DCO may, if its rules so provide, use the Cleared Swaps Customer Collateral of all Cleared Swaps Customers of a Depositing Futures Commission Merchant that has defaulted on a payment to the DCO with respect to its Cleared Swaps Customer Account.
In choosing between the Legal Segregation Model (whether Complete or with Recourse) and the Physical Segregation Model, the Commission notes that the operational costs for the Physical Segregation Model are substantially higher than the operational costs for the Legal Segregation Model (whether Complete or with Recourse).
With respect to benefits, the Commission believes that the Physical Segregation Model provides only incremental advantages over the Legal Segregation Model (whether Complete or with Recourse) with respect to the mitigation of Fellow-Customer Risk. The Physical Segregation Model, unlike the Legal Segregation Model (whether Complete or with Recourse), does eliminate Investment Risk. However, the Commission notes that (i) it is in the process of further addressing Investment Risk by proposing amendments to regulation 1.25, and (ii) each FCM and DCO already values investments conservatively. Finally, the Commission observes that the Physical Segregation Model generally enhances portability to the same extent as the Complete Legal Segregation Model, and therefore would have similar effects on systemic risk. The Physical Segregation Model and the Legal Segregation Model (whether Complete or with Recourse) would likely enhance portfolio margining to the same extent.
Consequently, after weighing the potential costs and benefits of the Physical Segregation Model, the Commission has decided that this model does not provide the best balance, in that it provides similar benefits as the Legal Segregation Model (whether Complete or with Recourse), but costs more to implement. Hence, the Commission has determined not to propose the Physical Segregation Model.
In choosing between the Complete Legal Segregation Model and the Legal Segregation with Recourse Model, the Commission notes that commenters have argued that implementing the former would result in significant Risk Costs, whereas implementing the latter would result in no Risk Costs. As mentioned above, the Commission finds, at least initially, persuasive comments that question the assumptions underlying the estimates of Risk Costs for the Complete Legal Segregation Model. Nevertheless, the Commission recognizes that such assumptions form an area of divergence between commenters, and therefore asks for additional comment on the Risk Costs for the Complete Legal Segregation Model. The Commission observes that operational costs for the Complete Legal Segregation Model and the Legal Segregation with Recourse Model are approximately the same.
With respect to benefits, the Commission notes that the Complete Legal Segregation Model would mitigate Fellow-Customer Risk even in extreme FCM defaults, unlike the Legal Segregation with Recourse Model. Further, the Complete Legal Segregation Model would enhance portability (and therefore mitigate systemic risk) to a significantly greater extent than the Legal Segregation with Recourse Model. Finally, the Complete Legal Segregation Model would have an incremental advantage over the Legal Segregation with Recourse Model with respect to impact on portfolio margining.
Consequently, after weighing the potential costs and benefits, the Commission has determined that the Complete Legal Segregation Model provides the best balance, and therefore has determined to propose the Complete Legal Segregation Model. Nevertheless, because the Commission is still evaluating the costs associated with such model, as well as with the Legal
As mentioned above, a number of commenters urged the Commission to propose the Optional Approach. The Commission has preliminarily declined to propose the Optional Approach because it may not be compatible with the Bankruptcy Code and regulation part 190 (“Part 190”). Specifically, if customer collateral cannot be transferred, section 766(h) of the Bankruptcy Code
In making that proposal, the Commission cited to text in the House Report for the 1978 Bankruptcy Code concerning those definitions, which noted that:
It is anticipated that a debtor with multifaceted characteristics will have separate estates for each different kind of customer. Thus, a debtor that is a leverage transaction merchant and a commodity options dealer would have separate estates for the leverage transaction customers and for the options customers, and a general estate for other creditors.
In the release adopting part 190, the Commission added another “account class,” delivery accounts, for property related to the making or taking of physical delivery by a customer. Delivery accounts are not mentioned in section 761(9) of the Bankruptcy Code, but are, again, related to a “different kind of customer.”
Moreover, as a number of commenters have noted, optional models may cause legal, regulatory, operational and other complexities.
It may be possible for the Commission to resolve the incompatibility between (i) the Optional Approach and (ii) the Bankruptcy Code and Part 190, by permitting DCOs to require that FCMs establish separate legal entities, each of which is limited to clearing at DCOs that use only one of (A) the Complete Legal Segregation Model or (B) the Legal Segregation with Recourse Model. The Commission notes, however, that this approach might cause concerns with respect to open access and competition. The Commission seeks comment on the practicability of this approach.
• What costs (including implementation, operational, and capital) would such DCOs and FCMs incur?
• Would FCMs be willing to establish such separate legal entities? What systemic risk impacts might there be, if any?
• Would such an approach create benefits or burdens in other contexts?
• What would be the effect of this approach on competition and on opening FCM access to clearing organizations?
In addition, the Commission seeks comment on whether the Optional Approach should be expanded to add the Futures Model as an option. If so, what would be the impact on (1) costs, (2) the protection of Cleared Swaps Customer Collateral, and (3) the existence of effective choice by customers?
The Commission also seeks comment on whether to implement a model that permits DCOs to offer the Physical Segregation Model for cleared swaps customer collateral for some set of customers of their FCM members, with the remaining cleared swaps customer collateral staying in an omnibus account under the Futures Model. (Under this model, the customers in question would hold claims with respect to the collateral placed in physical segregation directly against the DCO rather than against the FCM through which the customers clear.)
• How would such a model work in the ordinary course of business (
• What changes to proposed Part 22 and Part 190 should the Commission make to accommodate this model?
• Who (
• In the event of an FCM bankruptcy, would such cleared swaps customer collateral constitute “customer property” subject to ratable distribution pursuant to section 766(h) of the Bankruptcy Code?
○ To what extent would the answer to this question depend on the manner in which the FCM and the DCO structured their respective cash flows in the ordinary course of business?
○ To the extent cleared swaps customer collateral is removed from “customer property”:
■ What vulnerabilities might that raise for the protection of such collateral in an FCM or a DCO bankruptcy? For example, is there a risk that, in some circumstances, such property might be deemed to be part of a bankrupt FCM's or DCO's bankruptcy estate subject to the claims of creditors other than the relevant swaps customers?
■ What changes would need to be made to self-regulatory organization audit programs to ensure protection of
• Should such a model be an option elected by cleared swaps customers, or mandatory for defined “high-risk” customers?
○ By whom would the definition of “high-risk” be set?
○ What criteria should be included in the definition of “high risk”?
○ Would the definition of “high risk” vary by asset class?
• To the extent the model is optional by a cleared swaps customer, to what extent might there be a tendency for cleared swaps customers posing greater risk to remain in the omnibus pool? What policy concerns, if any, might be raised by the inclusion of a larger concentration of cleared swaps customers posing greater risk in the omnibus pool?
Proposed regulation part 22 (“Part 22”) establishes the basic architecture for protecting cleared swaps customer collateral through the promulgation of definitions and procedures for the segregation of cleared swaps pertaining to customers, as well as associated collateral. The Commission intends for proposed Part 22 to incorporate legal segregation, and to parallel, for the most part, the substance of corresponding provisions in part 1 to Title 17 (the “Part 1 Provisions”), in updated and clarified form, with respect to issues such as requirements for treatment of customer funds on a day-to-day basis, required amounts of collateral in customer accounts, and required qualifications for permitted depositories. While most of the proposed regulations in Part 22 will remain the same for the Complete Legal Segregation Model and the Legal Segregation with Recourse Model, proposed regulation 22.15 sets forth alternatives to take into account the fact that, under the Legal Segregation with Recourse Model, following an event of default a DCO would be able to access the collateral of non-defaulting cleared swaps customers after the DCO applied (i) its own capital to cure the default and (ii) the guaranty fund contributions of its non-defaulting FCM members.
The infrastructure supporting legal segregation is established in proposed regulations 22.11-22.16, including (i) the requirement that an FCM transmit to its DCO daily information regarding customers and their swaps, (ii) tools that the DCO may use to manage the risk it incurs with respect to individual customers, (iii) steps the FCM is required to take if it fails to meet a cleared swaps customer margin call in full, and (iv) an explicit requirement that cleared swaps customer collateral be treated on an individual basis. The Commission requests comment on whether Part 22 differs in substance from the Part 1 Provisions, other than in the specific instances described in this NPRM.
In addition, proposed revisions to Part 190 of the Commission's regulations generally implement changes wrought by the Dodd-Frank Act, including the inclusion of swaps cleared with a DCO as customer contracts for all commodity brokers, the inclusion of swaps execution facilities as a category of trading venue, and additional conforming changes to time periods. Additional proposed changes have been made to conform Part 190 to current market practices (
Proposed regulation 22.1 establishes definitions for,
(a) The depository must (subject to proposed regulation 22.9) be one of the following types of entities:
(1) A bank located in the United States;
(2) a trust company located in the United States;
(3) a Collecting Futures Commission Merchant registered with the Commission (but only with respect to a Depositing Futures Commission Merchant providing Cleared Swaps Customer Collateral); or
(4) a derivatives clearing organization registered with the Commission; and
(b) the FCM or the DCO must hold a written acknowledgment letter from the depository as required by proposed regulation 22.5.
The Commission has never defined the terms “segregate” and “commingle,” although the Part 1 Provisions make extensive use of these terms. Regulation 22.1 proposes definitions for these terms that are intended to codify the common meaning of such terms under the Part 1 Provisions. Pursuant to the proposal, to “segregate” two or more items means to keep them in separate accounts and to avoid combining them in the same transfer between accounts. In contrast, to “commingle” two or more items means to hold them in the same account, or to combine such items in a transfer between accounts. For purposes of these definitions, to keep items in separate accounts means: (i) To hold tangible items
The term “Cleared Swap” has no analog in the Part 1 Provisions. Regulation 22.1 proposes a definition that incorporates section 1a(7) of the CEA,
Regulation 22.1 proposes a definition of “Cleared Swaps Customer” that has two elements. First, an entity holding a Cleared Swaps Proprietary Account (as discussed further below) is not a “Cleared Swaps Customer” with respect to the Cleared Swaps (and related collateral) in that account. Such exclusion is consistent with regulation 1.3,
Regulation 22.1 proposes to define “Cleared Swaps Customer Collateral” to include money, securities, or other property that an FCM or a DCO receives, from, for, or on behalf of a Cleared Swaps Customer, which (i) is intended to or does margin, guarantee, or secure a Cleared Swap,
Regulation 1.21 states: “All money received directly or indirectly by, and all money and equities accruing to, a futures commission merchant from any clearing organization or from any clearing member or from any member of a contract market incident to or resulting from any trade, contract or commodity option made by or through such futures commission merchant on behalf of any commodity or option customer shall be considered as accruing to such commodity or option customer within the meaning of the Act and these regulations. Such money and equities shall be treated and dealt with as belonging to such commodity or option customer in accordance with the provisions of the Act and these regulations. Money and equities accruing in connection with commodity or option customers' open trades, contracts, or commodity options need not be separately credited to individual accounts but may be treated and dealt with as belonging undivided to all commodity or option customers having open trades, contracts, or commodity option positions which if closed would result in a credit to such commodity or option customers.” 17 CFR 1.21.
The Commission requests comment on whether it should include in Part 22 a parallel to regulation 1.21.
In general, the proposed definition parallels regulation 1.3,
Regulation 22.1 proposes to define “Cleared Swaps Customer Account” as (i) an account that an FCM maintains at a Permitted Depository (as such term is discussed below) for the Cleared Swaps (and related collateral) of its Cleared Swaps Customers, or (ii) an account that a DCO maintains at a Permitted Depository, for collateral related to Cleared Swaps that the FCM members intermediate for their Cleared Swaps Customers. The proposed definition does not include any physical locations in which an FCM or a DCO may itself hold tangible Cleared Swaps Customer Collateral. As described below, regulations 22.2 and 22.3 propose to define such physical locations as the “FCM Physical Location” and the “DCO Physical Location,” respectively. The proposed definition is consistent with regulation 1.3,
Regulation 22.1 proposes a definition for “Cleared Swaps Proprietary Account” that is substantially similar to regulation 1.3, which defines “Proprietary Account” for futures contracts.
The terms “Collecting Futures Commission Merchant” and “Depositing Futures Commission Merchant” have no analogs in the Part 1 Provisions. Regulation 22.1 proposes to define a “Collecting Futures Commission Merchant” as one that carries Cleared Swaps on behalf of another FCM and the Cleared Swaps Customers of that other FCM and, as part of doing so, collects Cleared Swaps Customer Collateral. In contrast, regulation 22.1 proposes to define a “Depositing Futures Commission Merchant” as one that carries Cleared Swaps on behalf of its Cleared Swaps Customers through a Collecting Futures Commission Merchant, and, as part of doing so, deposits Cleared Swaps Customer Collateral with such Collecting Futures Commission Merchant. Regulation 22.7, as described below, proposes to employ the terms “Collecting Futures Commission Merchant” and “Depositing Futures Commission Merchant” to delineate the circumstances in which one FCM may serve as a Permitted Depository to another.
Regulation 22.2 proposes requirements for an FCM's treatment of Cleared Swaps Customer Collateral, as well as the associated Cleared Swaps.
Regulation 22.2(a) proposes to require an FCM to treat and deal with the Cleared Swaps of Cleared Swaps Customers, as well as associated Cleared Swaps Customer Collateral, as belonging to the Cleared Swaps Customers. In other words, the FCM may not use Cleared Swaps Customer Collateral to cover or support (i) its own obligations or (ii) the obligations of Customers (
Regulation 22.2(b) proposes to require that an FCM segregate all Cleared Swaps Customer Collateral that it receives. Such proposal parallels regulations 1.20(a) and 1.26(a).
Regulation 1.26(a) states: “Each futures commission merchant who invests customer funds in instruments described in Sec. 1.25 shall separately account for such instruments and segregate such instruments as belonging to such commodity or option customers.” 17 CFR 1.26.
Paralleling an implicit assumption of regulations 1.20(a) and 1.26(a), the first method permits the FCM to hold Cleared Swaps Customer Collateral itself.
• Physically separate the collateral from FCM property (
• Clearly identify each physical location (an “FCM Physical Location”) in which it holds such collateral as a “Location of Cleared Swaps Customer Collateral” (
• Ensure that the FCM Physical Location provides appropriate protection for such collateral (
• Record in its books and records the amount of such collateral separately from FCM funds (
Paralleling an explicit provision of regulations 1.20(a) and 1.26(a),
Regulation 22.2(c) proposes to permit an FCM to commingle the Cleared Swaps Customer Collateral of multiple Cleared Swaps Customers, while prohibiting the FCM from commingling Cleared Swaps Customer Collateral with:
• FCM property, except as permitted under proposed regulation 22.2(e) (as discussed below); or
• “Customer funds” for futures contracts (as regulation 1.3 defines such term) or the “foreign futures or foreign options secured amount” (as regulation 1.3 defines such term), except as permitted by a Commission rule, regulation or order (or a derivatives clearing organization rule approved pursuant to regulation 39.15(b)(2)).
In contrast, if the Commission adopts a rule or regulation or issues an order pursuant to section 4d(f) of the CEA, or if the Commission approves DCO rules pursuant to proposed regulation 39.15(b)(2) permitting such commingling, the proposed definition of “Cleared Swap” would operate to apply Part 22 and Part 190 to (i) the futures contract (and related collateral) or (ii) the foreign futures contract (and related collateral) as if such contracts constituted Cleared Swaps (and related collateral).
Regulation 1.20(c), in contrast, first explicitly prohibits an FCM from commingling the “customer funds” of one futures customer with (i) “customer funds” of another futures customer, (ii) funds supporting customer transactions in non-futures contracts (
Regulation 22.2(d) proposes certain limitations on the use that an FCM may make of Cleared Swaps Customer Collateral. First, regulation 22.2(d)(1) proposes to prohibit an FCM from using, or permitting the use of, the Cleared Swaps Customer Collateral or one Cleared Swaps Customer to purchase, margin, or settle the Cleared Swaps, or any other transaction, of a person other than the Cleared Swaps Customer. Such proposal parallels regulation 1.20(c) and 1.22.
Regulation 1.22 states: “No futures commission merchant shall use, or permit the use of, the customer funds of one commodity and/or option customer to purchase, margin, or settle the trades, contracts, or commodity options of, or to secure or extend the credit of, any person other than such customer or option customer.” 17 CFR 1.22.
Regulation 22.2(d)(2) proposes to prohibit an FCM from imposing, or permitting the imposition of, a lien on Cleared Swaps Customer Collateral, including on any FCM residual financial interest therein (as regulation 22.2(e)(3) discusses further). The Commission believes that such a prohibition, in the event that an FCM becomes insolvent, would preempt the claim of an FCM creditor against any portion of the Cleared Swaps Customer Collateral, and would thereby prevent the FCM creditor from interfering with the porting of such collateral to a solvent FCM.
Regulation 22.2(d)(3) proposes to prohibit an FCM from claiming that any of the following constitutes Cleared Swaps Customer Collateral:
• Money invested in the securities, memberships, or obligations of any DCO, DCM, SEF, or SDR; or
• Money, securities, or other property that any DCO holds and may use for a purpose other than to margin, guarantee, secure, transfer, adjust or settle the obligations incurred by the FCM on behalf of its Cleared Swaps Customers.
Regulation 22.2(e) proposes certain exceptions to the abovementioned requirements and limitations.
Proposed regulation 22.2(e)(1) constitutes an exception to regulation 22.2(d) (Limitations on Use). Regulation 22.2(e)(1) proposes to allow an FCM to
* * * may be invested in obligations of the United States, in general obligations of any State or of any political subdivision of a State, and in obligations fully guaranteed as to principal and interest by the United States, or in any other investment that the Commission may by rule or regulation prescribe * * *.
Thus, with the exception of the specified government obligations, Congress chose not to mandate any specific acceptable customer investments. In exercising the power granted under section 4d(f)(4) to expand the universe of acceptable customer investments, the Commission is seeking the same goals as in regulation 1.25—namely, preserving principal and maintaining liquidity.
By allowing certain investments of Cleared Swaps Customer Collateral, proposed regulation 22.2(e)(1) parallels regulation 1.20(c).
Proposed regulation 22.2(e)(2) permits an FCM to withdraw Cleared Swaps Customer Collateral for such purposes as meeting margin calls at a DCO or a Collecting FCM, or to meet charges lawfully accruing in connection with a cleared swap, such as brokerage or storage charges. Regulation 22.2(e)(2) parallels regulation 1.20(c) and implements section 4d(f)(3)(A)(ii).
Proposed regulation 22.2(e)(3) constitutes an exception to regulations 22.2(b) (Location of Cleared Swaps Customer Collateral) and (c) (Commingling). Regulation 22.2(e)(3) proposes to permit an FCM: (i) To place its own property in an FCM Physical Location or (ii) to deposit its own property in a Cleared Swaps Customer Account.
Proposed regulation 22.2(e)(4) clarifies that, if an FCM places or deposits its own property in an FCM Physical Location or a Cleared Swaps Customer Account, as applicable, then that property becomes Cleared Swaps Customer Collateral. This regulation would permit an FCM to retain a residual financial interest in property in excess of that necessary to comport with proposed regulation 22.2(f) (Requirements as to Amount). It allows the FCM to make withdrawals from the FCM Physical Location or the Cleared Swaps Customer Account, as applicable, so long as the FCM first ascertains that such withdrawals do not surpass its residual financial interest. In general, proposed regulation 22.2(e)(4) parallels regulation 1.23.
Proposed regulation 22.2(f) sets forth an explicit calculation for the value of Cleared Swaps Customer Collateral that each FCM must hold, which parallels the implicit calculation in the Part 1 Provisions. The Part 1 Provisions clearly require an FCM to segregate “customer funds” (as regulation 1.3 defines such term) for futures contracts.
Consistent with the intention of the Commission to incorporate updated and clarified versions of the Part 1 Provisions in Part 22, the Commission proposes an explicit calculation for the amount of Cleared Swaps Customer Collateral that an FCM must maintain in segregation. As such this calculation is intended only to make explicit what the Part 1 Provisions left implicit, the
First, regulation 22.2(f) proposes to define “account” to reference FCM's books and records pertaining to the Cleared Swaps Customer Collateral of a particular Cleared Swaps Customer.
Second, regulation 22.2(f) proposes to require an FCM to reflect in its account for each Cleared Swaps Customer the market value of any Cleared Swaps Collateral that it receives from such customer, as adjusted for:
• Any uses that proposed regulation 22.2(d) permits;
• Any accruals or losses on investments permitted by proposed regulation 22.2(e) that, pursuant to the applicable FCM customer agreement, are creditable or chargeable to such Cleared Swaps Customer;
• Any charges lawfully accruing to the Cleared Swaps Customer, including any commission, brokerage fee, interest, tax, or storage fee; and
• Any appropriately authorized distribution or transfer of the Cleared Swaps Collateral.
Third, regulation 22.2(f) proposes to categorize accounts of Cleared Swaps Customers as having credit or debit balances. Accounts where the market value of Cleared Swaps Customer Collateral is positive after adjustments have credit balances. Conversely, accounts where the market value of Cleared Swaps Customer Collateral is negative after adjustments have debit balances.
Fourth, regulation 22.2(f) proposes to require an FCM to maintain in segregation, in its FCM Physical Location and/or its Cleared Swaps Customer Accounts at Permitted Depositories, an amount equal to the sum of any credit balances that Cleared Swaps Customers have in their accounts, excluding from such sum any debit balances that Cleared Swaps Customers have in their accounts (the “Collateral Requirement”).
Finally, regulation 22.2(f) proposes an exception to the exclusion of debit balances, which parallels regulation 1.32(b).
The Commission requests comment on the Collateral Requirement proposed in regulation 22.2(f). Specifically, the Commission requests comment on whether the explicit calculation of such Collateral Requirement materially differs from the implicit calculation in the Part 1 Provisions for segregated “customer funds” of futures customers.
Regulation 22.2(g), paralleling regulation 1.32,
• The aggregate market value of the Cleared Swaps Customer Collateral in all FCM Physical Locations and all Cleared Swaps Customer Accounts at Permitted Depositories (the “Collateral Value”);
• The Collateral Requirement; and
• The amount of the residual financial interest that the FCM holds in such Cleared Swaps Customer Collateral (
Regulation 22.2(g), further paralleling regulation 1.32,
Regulation 22.3 proposes requirements for DCO treatment of Cleared Swaps Customer Collateral from FCMs, as well as the associated Cleared Swaps. Such requirements generally parallel the Part 1 Provisions.
Regulation 22.3(a) proposes to require a DCO to treat and deal with the Cleared Swaps Customer Collateral deposited by an FCM as belonging to the Cleared Swaps Customers of such FCM and not other persons, including, without limitation, the FCM. In other words, the DCO may not use Cleared Swaps Customer Collateral to cover or support (i) the obligations of the FCM depositing the Cleared Swaps Customer Collateral, (ii) the obligations of any other FCM, or (iii) the obligations of Customers (
Regulation 22.3(b) proposes to require that a DCO segregate all Cleared Swaps Customer Collateral that it receives from
Regulation 1.26(b) states: “Each clearing organization which invests money belonging or accruing to commodity or option customers of its clearing members in instruments described in § 1.25 shall separately account for such instruments and segregate such instruments as belonging to such commodity or option customers.” 17 CFR 1.26(b).
Paralleling an implicit assumption of regulations 1.20(b) and 1.26(b), the first method permits the DCO to hold Cleared Swaps Customer Collateral itself.
• Physically separate (
• Clearly identify each physical location (the “DCO Physical Location”) in which it holds such collateral as a “Location of Cleared Swaps Customer Collateral” (
• Ensure that each such DCO Physical Location provides appropriate protection for such collateral (
• Record in its books and records the amount of such collateral separately from its own funds, the funds of any FCM, and the funds of any other person that is not a Cleared Swaps Customer of an FCM (
Paralleling explicit provisions of regulations 1.20(b) and 1.26(b),
As described above, both the first and second methods incorporate assumptions with respect to DCO structure that were true when regulations 1.20(b) and 1.26(b) were first adopted and remain true currently. However, the Commission recognizes that DCO structure may change after the Dodd-Frank Act and the regulations thereunder become effective. Notably, the Commission recognizes that a depository registered with either domestic or foreign banking regulators may seek to become a DCO, and that such depository may seek to hold Cleared Swaps Customer Collateral, as well as other forms of customer property. The Commission therefore requests comment on what, if any, changes to proposed regulation 22.3 may be appropriate to accommodate such possibility. Specifically, the Commission requests comment on whether a DCO that is also a registered depository should be permitted to hold both tangible and intangible forms of Cleared Swaps Customer Collateral from FCMs itself. What challenges might this arrangement pose to protection (including effective segregation) of Cleared Swaps Customer Collateral (as well as other forms of customer property)? How might these challenges be addressed?
Regulation 22.3(c) proposes to permit a DCO to commingle the Cleared Swaps Customer Collateral that it receives from multiple FCMs on behalf of their Cleared Swaps Customers, while prohibiting the DCO from commingling Cleared Swaps Customer Collateral with:
• The money, securities, or other property belonging to the DCO;
• The money, securities, or other property belonging to any FCM; or
• Other categories of funds that it receives from an FCM on behalf of Customers, including “customer funds” for futures contracts (as regulation 1.3 defines such term) or the “foreign futures or foreign options secured amount” (as regulation 1.3 defines such term), except as permitted by a Commission rule, regulation or order (or by a derivatives clearing organization rule approved pursuant to regulation 39.15(b)(2)).
Proposed regulation 22.3(c) parallels regulations 1.20(a), 1.20(b), and 1.26(b).
Regulations 22.3(d) and (e) propose certain exceptions to the abovementioned requirements and limitations.
Regulation 22.3(d) constitutes an exception to regulation 22.3(c) (Commingling). Regulation 22.3(d) proposes to allow a DCO to place money, securities, or other property belonging to an FCM in a DCO Physical Location, or deposit such money, securities, or other property in the relevant Cleared Swaps Customer Account, pursuant to an instruction
Regulation 22.3(e) constitutes an exception to regulation 22.3(b)(1) (Location of Cleared Swaps Collateral) and regulation 22.15 (Treatment of Cleared Swaps Collateral on an Individual Basis). Regulation 22.3(e) proposes to allow a DCO to invest Cleared Swaps Customer Collateral in accordance with regulation 1.25, which delineates permitted investments of “customer funds” (as regulation 1.3 defines such term) for futures contracts.
Regulation 22.4 proposes a list of depositories permitted to hold Cleared Swaps Customer Collateral (the “Permitted Depositories”). For a DCO or an FCM, a Permitted Depository must (subject to regulation 22.9) be: (i) A bank located in the United States; (ii) a trust company located in the United States; or (iii) a DCO. As discussed further below, regulation 22.9 incorporates regulation 1.49 with respect to Permitted Depositories located outside the United States.
In general, proposed regulation 22.4 parallels regulations 1.20, 1.26 and 1.49(d)(2), with the exception of allowing an FCM to serve as a Permitted Depository only if the FCM is a “Collecting Futures Commission Merchant.”
The Commission seeks public comment on whether the limitation that it is proposing for an FCM serving as a Permitted Depository is appropriate.
As mentioned above, a DCO or FCM must obtain a written acknowledgement letter from a potential Permitted Depository before opening a Cleared Swaps Customer Account.
Second, regulation 22.5 proposes to exempt the FCM or DCO from the requirement to obtain a written acknowledgement letter, if the potential Permitted Depository is a DCO that has adopted rules providing for the segregation of Cleared Swaps Customer Collateral. This proposed exemption is consistent with regulation 1.20.
Currently, with respect to a DCO, regulation 1.20(b) states: “The clearing organization shall obtain and retain in its files for the period provided by § 1.31 an acknowledgment from such bank or trust company that it was informed that the customer funds deposited therein are those of commodity or option customers of its clearing members and are being held in accordance with the provisions of the Act and these regulations.” 17 CFR 1.20(b).
However, as noted above, the Commission is currently considering a notice of proposed rulemaking amending regulation 1.20.
The Commission is currently considering a notice of proposed rulemaking amending regulation 1.20 with respect to requirements for written acknowledgement letters from depositories of “customer funds” (as regulation 1.3 defines such term) for futures contracts. The Commission seeks comment on whether the following are appropriate: (i) The incorporation of regulation 1.20 (as the Commission may choose to amend such
Regulation 22.6 proposes to require an FCM or DCO to ensure that the name of each Cleared Swaps Customer Account that it maintains with a Permitted Depository (i) clearly identifies the account as a “Cleared Swaps Customer Account,” and (ii) clearly indicates that the collateral therein is “Cleared Swaps Customer Collateral” subject to segregation in accordance with section 4d(f) of the CEA and Part 22 (as final). Proposed regulation 22.6 parallels regulation 1.20(a), 1.20(b), 1.26(a), and 1.26(b).
Regulation 22.7 proposes to require a Permitted Depository to treat all funds in a Cleared Swaps Customer Account as Cleared Swaps Customer Collateral. Regulation 22.7 further proposes to prohibit a Permitted Depository from holding, disposing of, or using any Cleared Swaps Customer Collateral as belonging to any person other than (i) the Cleared Swaps Customers of the FCM maintaining such Cleared Swaps Customer Account or (b) the Cleared Swaps Customers of the FCMs for which the DCO maintains such Cleared Swaps Customer Account. In other words, no Permitted Depository may use Cleared Swaps Customer Collateral to cover or support the obligations of the FCM or DCO maintaining the Cleared Swaps Customer Account. Proposed regulation 22.7 parallels section 4d(f)(6) of the CEA, as added by section 724 of the Dodd-Frank Act.
Proposed regulation 22.8 has no analog in the Part 1 Provisions. Regulation 22.8 proposes to require (i) each FCM to designate the United States as the site (
The Commission requests comment on whether proposed regulation 22.8 achieves the purpose of the Commission—namely, to ensure that Cleared Swaps Customer Collateral be treated in accordance with the United States Bankruptcy Code, to the extent possible. If proposed regulation 22.8 does not achieve such purpose, what alternatives should the Commission consider to achieve such purpose? Additionally, the Commission requests comment on the benefits and costs of proposed regulation 22.8, as well as any alternatives.
Regulation 22.9 proposes to incorporate regulation 1.49 by reference, as applicable to Cleared Swaps Customer Collateral. Regulation 1.49 sets forth, for futures contracts, rules determining the permitted denominations of customer funds (
Regulation 22.10 proposes to incorporate by reference regulations 1.27 (Record of investments), 1.28 (Appraisal of obligations purchased with customer funds), 1.29 (Increment or interest resulting from investment of customer funds), and 1.30 (Loans by futures commission merchants; treatment of proceeds), as applicable to Cleared Swaps Customers and Cleared Swaps Customer Collateral. Regulation 1.27 requires FCMs and DCOs investing “customer funds” (as regulation 1.3 defines such term) to maintain specified records concerning such investments. Regulation 1.28 requires FCMs investing “customer funds” to record and report such investment at no greater than market value. Regulation 1.29 permits
In order to implement the Complete Legal Segregation Model, regulations 22.11 to 22.16 propose, among other things, requirements that ensure that each DCO and FCM: (i) Obtains, on a daily basis, information necessary for risk management; (ii) performs, on a daily basis, risk management calculations and records the results; (iii) receives on the day of default, any residual Cleared Swaps Customer Collateral; and (iv) allocates, on the day of default, the value of Cleared Swaps Customer Collateral that it owes to each individual customer. Regulations 22.11 to 22.16 recognize that swaps may be cleared through a multi-tier system, with certain FCMs clearing swaps for customers directly with the DCO and other FCMs clearing swaps for customers indirectly through another FCM. Therefore, Part 22 recognizes the concepts of “Depositing Futures Commission Merchant” and “Collecting Futures Commission Merchant,” each of which is described above. Regulations 22.11 to 22.16 extend their requirements through each potential tier of clearing, from the Depositing Futures Commission Merchant through the Collecting Futures Commission Merchant and finally to the DCO.
Regulation 22.11 proposes to require that (i) each Depositing Futures Commission Merchant provide to its Collecting Futures Commission Merchant and (ii) each FCM member provide to its DCO, in each case, information sufficient to identify Cleared Swaps Customers on a one-time basis, and information sufficient to identify the portfolio of rights and obligations belonging to such customers with respect to their Cleared Swaps on a daily basis. If a Depositing Futures Commission Merchant or FCM member also serves as a Collecting Futures Commission Merchant, then it must provide the specified information with respect to each individual Cleared Swaps Customer for which it acts (on behalf of a Depositing Futures Commission Merchant) as a Collecting Futures Commission Merchant.
The abovementioned information should aid Collecting Futures Commission Merchants and DCOs in their daily risk management programs by (i) revealing ownership of cleared swaps customer contracts (in contrast to currently available Large Trader information, which is based on control of futures contracts) and (ii) permitting DCOs to aggregate the positions of Cleared Swaps Customers clearing through multiple FCMs, and Collecting Futures Commission Merchants to aggregate the contracts of Cleared Swaps Customers clearing through multiple Depositing Futures Commission Merchants. The abovementioned information will also enable Collecting Futures Commission Merchants and DCOs to conform to their obligations to allocate Cleared Swaps Customer Collateral, in the event of an FCM default, pursuant to proposed regulation 22.15.
The DCO is at the apex of the reporting structure that regulation 22.11 establishes, as it receives all information for each individual Cleared Swaps Customer that FCMs, Collecting Futures Commission Merchants, and Depositing Futures Commission Merchants serve. Therefore, regulation 22.11 proposes to hold the DCO responsible for taking appropriate steps to confirm that the information that it receives is accurate and complete, and ensure that the information is being produced on a timely basis. However, because the DCO may not have a direct relationship with,
Does the proposed requirement in regulation 22.11 for a Depositing Futures Commission Merchant to provide a Collecting Futures Commission Merchant with information sufficient to identify its Cleared Swaps Customers raise any,
Regulation 22.12 proposes to require DCOs and Collecting Futures Commission Merchants to use the information provided pursuant to proposed regulation 22.11 to calculate, no less frequently than once each business day, the amount of collateral required (i) for each relevant Cleared Swaps Customer (including each such customer of a Depositing Futures Commission Merchant), based on the portfolio of rights and obligations arising from its Cleared Swaps; and (ii) for all relevant Cleared Swaps Customers. It is not the responsibility of a DCO or a Collecting Futures Commission Merchant to monitor or to calculate the extent to which a Cleared Swaps Customer has, in fact, posted excess or insufficient collateral. In the latter case, the relevant FCM will have, in effect, made a loan to the Cleared Swaps Customer and will have a claim against that customer, outside of the relationship with the DCO or the Collecting Futures Commission Merchant.
Regulation 22.13 proposes two tools that DCOs or Collecting Futures Commission Merchants may use to manage the risk they incur with respect to individual Cleared Swaps Customers. These tools are not intended to be mandatory or exclusive, and the Commission seeks comment on how the Commission may enable DCOs or Collecting Futures Commission Merchants to use other tools to manage such risk.
Regulation 22.13(a) proposes to clarify that a DCO or Collecting Futures Commission Merchant may increase the collateral required of a particular Cleared Swaps Customer or group of such customers, based on an evaluation of the credit risk posed by such customer(s), in which case such higher amount shall be calculated and recorded as provided in proposed regulation 22.12, and would (on an individual basis) be available in the event of a default by any such Cleared Swaps Customer. This proposed clarification is not intended to interfere with the right of any FCM to increase the collateral requirements with respect to any of its customers. The Commission requests comment regarding whether a DCO or a
Similarly, proposed regulation 22.13(b) clarifies that any collateral deposited by an FCM out of its own funds pursuant to proposed regulation 22.2(e)(3), in which the FCM has a residual financial interest pursuant to proposed regulation 22.2(e)(4), may, to the extent of such residual interest, be used by a DCO or Collecting Futures Commission Merchant to margin the cleared swaps of any or all of such customers. Thus, if a DCO chooses to require an FCM member, or if a Collecting Futures Commission Merchant chooses to require a Depositing Futures Commission Merchant, in each case, to post such additional collateral out of its own funds, the collateral would be available, to the extent specified above, on an omnibus basis, in the event of default of any relevant Cleared Swaps Customer.
The structure of proposed regulations 22.14(a) through (d) is intended to ensure that each tier of clearing receives the requisite transmissions of Cleared Swaps Customer Collateral and information to attribute such collateral on the date of an FCM default. Starting from the lowest tier, regulation 22.14(a) proposes to require a Depositing Futures Commission Merchant that fails to meet a margin call with respect to a Cleared Swaps Customer Account, in full, to (i) transmit to its Collecting Futures Commission Merchant, with respect to each Cleared Swaps Customer of the Depositing Futures Commission Merchant whose contracts contribute to that margin call, the lesser of the amount called for or the remaining collateral for that customer on deposit at such Depositing Futures Commission Merchant, and (ii) advise the Collecting Futures Commission Merchant of the identity of the Cleared Swaps Customer and the amount transmitted on behalf of such customer. Moving towards the middle tier, regulation 22.14(b) proposes to parallel the above requirement for a Depositing Futures Commission Merchant that also serves as a Collecting Futures Commission Merchant. Moving towards the apex, regulations 22.14(c) and (d) propose to parallel the above requirement for an FCM member of a DCO, including if the FCM member is also a Collecting Futures Commission Merchant.
Regulations 22.14(e) and (f) propose to address a situation involving investment risk, the loss of value of collateral, despite the application of haircuts. Specifically, if (i) the collateral collected by a DCO or Collecting Futures Commission Merchant is sufficient to meet the amount of collateral required by regulation 22.12 on the business day before the failure to meet the margin call (with sufficiency measured including the application of haircuts specified by the rules and procedures of the DCO or the policies applied by the Collecting Futures Commission Merchant), and (ii) as of the close of business on the business day of the failure to meet the margin call, the value of such collateral is, due to changes in market value, less than the amount required by regulation 22.12 on the business day before the failure to meet the margin call, then that loss of value will be shared among the customers
Proposed regulation 22.15 sets forth the basic principle of individual collateral protection. It requires each DCO and each Collecting Futures Commission Merchant to treat the amount of collateral required with respect to the portfolio of rights and obligations arising out of the Cleared Swaps intermediated for each Cleared Swaps Customer as belonging to that customer. That amount may not be used to margin, guarantee or secure the cleared swaps, or any other obligations, of an FCM, or of any other customer.
It should be noted that what is protected is an amount (
As discussed above, the Commission is proposing herein the Complete Legal Segregation Model, but is seeking comment as to whether the Legal Segregation with Recourse Model would be more appropriate. Under the Legal Segregation with Recourse Model, this regulation would be modified to permit the use of the Cleared Swaps Customer Collateral of non-defaulting customers after the exhaustion of both the DCO's contribution to default resources from its own capital, and the guaranty fund contributions of clearing members.
Specifically, an additional section would be added to the effect that
Under such a proposal, the Commission does not contemplate requiring the use of a DCO's assessment powers before permitting the use of the collateral of non-defaulting customers under the Legal Segregation with Recourse Model.
In order to make Cleared Swaps Customers aware of the limits of protection under the Complete Legal Segregation Model, proposed regulations 22.16(a) and (b) require FCMs to disclose to their Cleared Swaps Customers the governing provisions relating to use of customer collateral, transfer of Cleared Swaps and related collateral, neutralization of the risks of customer positions, or liquidation of cleared swaps, in each case in the event of a default by its FCM related to the Cleared Swaps Customer Account, either to a Collecting Futures Commission Merchant or directly to a DCO. Proposed regulation 22.16(c) specifies that the governing provisions are the rules of the DCO, or the provisions of the customer agreement between the Depositing Futures Commission Merchant and the Collecting Futures Commission Merchant, on or through which the Depositing Futures Commission Merchant clears swaps for Cleared Swaps Customers.
The Commission is particularly interested in further discussion of the benefits and costs of each model in light of the proposed regulations (
In April of 2010, prior to the enactment of the Dodd-Frank Act, the Commission promulgated rules to establish an account class for cleared OTC derivatives (and related collateral).
Section 724 of the Dodd-Frank Act has resolved these questions. As mentioned above, section 4d(f) of the Dodd-Frank Act requires, among other things, segregation of Cleared Swaps and Cleared Swaps Customer Collateral. Section 4d(f)(3)(B) of the CEA permits the inclusion of positions in other contracts (such as exchange-traded futures) and related collateral with Cleared Swaps and Cleared Swaps Customer Collateral. Section 724(b) of the Dodd-Frank Act amends the Bankruptcy Code to include in the definition of “commodity contracts” Cleared Swaps with respect to both FCMs and DCOs. Thus, this section V proposes amendments to regulation Part 190, pursuant to Commission authority under section 20 of the CEA, in order to give effect to section 724 of the Dodd-Frank Act. Such amendments conform to proposed Part 22.
The Commission proposes certain technical amendments to regulation 190.01 to remove the reference to the definition of “Opt-out customer” from the definition of “Non-Public Customer,” and to include or exclude Cleared Swaps and Cleared Swaps Collateral in the definitions of “Clearing Organization,” “Non-Public Customer,” and “Principal Contract,” as appropriate. The Commission also proposes substantive changes to the definitions of “Account Class” and “Cleared Swaps.”
The Commission proposes amending regulation 190.01(a) to change the definition of account class to include a class for cleared swaps accounts, without limiting that definition to commodity brokers that are FCMs (as is currently the case). In addition, commodity option accounts would be deleted from the definition because the term commodity options, as defined in section 1.3, includes options on futures (which are regulated as futures) and options on commodities (which under the Dodd-Frank Act are swaps). The additions of subsections (a)(2)(i) and (a)(2)(ii) are meant to make clear that options on futures and options on commodities should not be grouped into one account class; rather options on futures should be deemed part of the futures account class and options on commodities should deemed part of the cleared swaps account class. Another proposed amendment, subsection (a)(3), is intended to clarify that Commission orders putting futures contracts and related collateral in the cleared swaps account class (pursuant to new section 4d(f)(3)(B) of the CEA) are treated, for bankruptcy purposes, in a manner analogous to orders putting cleared swaps and related collateral in the futures account class (pursuant to CEA section 4d(a)(2)). The proposed amended § 190.01(a) would clarify that if, pursuant to a Commission rule, regulation or order (or a derivatives clearing organization rule approved pursuant to regulation 39.15(b)(2)), positions or transactions that would otherwise belong to one class are associated with positions and related collateral in commodity contracts another account class, then the former positions and related collateral shall be treated as part of the latter account class.
The Commission proposes defining the term “calendar day” to include the time from midnight to midnight.
The Commission proposes to amend the definition of clearing organization to remove, as unnecessary, the reference to commodity options traded on or subject to the rules of a contract market or board of trade.
The Commission proposes to amend the definition of non-public customer to include references to non-public customers under regulation 30.1(c) (with respect to foreign futures and options customers) and in the definition of cleared swaps proprietary account.
The Commission proposes to amend the definition of principal contract to include an exclusion for cleared swaps contracts.
The Commission proposes to amend the definition of specifically identifiable property to change, in subsection (ll)(2)(ii), an anachronistic reference to section 5a(a)(12) of the CEA to a reference to 5c(c) of the CEA, and to change references to “business days” in subsections (ll)(4) and (ll)(5) to references to “calendar days,” to conform to other proposed changes to Part 190 implementing Public Law 111-16, the Statutory Time-Periods Technical Amendments Act of 2009, which (in relevant part) changed the time period in 11 U.S.C. 764(b) from five (business) days to seven (calendar) days.
Proposed new § 190.01(pp) replaces the definition of “Cleared OTC Derivative” that the Commission previously adopted with a definition of cleared swap that incorporates by reference the definition of that term in § 22.1.
The Commission is proposing certain technical amendments to (1) expand regulation 190.02 to apply to cleared swaps (and related collateral) and (2) change references to “business days” to references to “calendar days,” and require transfer instructions by the sixth calendar day after the order for relief and instructed transfers to be completed by the seventh calendar day after the order for relief, in order to fall within the protection of section 764(b) of the Bankruptcy Code. Other proposed amendments to § 190.02(g)(1)(i) are intended to clarify that maintenance margin refers to the maintenance margin requirements of the applicable designated contract market or swap execution facility. Inclusion of the words “if any” reflects Commission recognition that there may be situations where there is no applicable designated contract market or swap execution facility.
In addition to certain technical amendments to (1) expand regulation 190.03 to apply to cleared swaps (and related collateral) and (2) change references to “business days” to references to “calendar days,” proposed amendments to § 190.03(a)(3) are intended to clarify that maintenance margin refers to the maintenance margin requirements of the applicable designated contract market or swap execution facility. Inclusion of the words “if any” reflects Commission recognition that there may be situations where there is no applicable designated contract market or swap execution facility.
Proposed amendments to regulation 190.04 would extend the liquidation of open commodity contracts held for a house account or a customer account by or on behalf of a commodity broker that is a debtor to commodity contracts traded on swap execution facilities.
Proposed amendments to regulation 190.05 are technical in nature, changing a reference to “contract market” to “designated contract market, swap execution facility, or clearing organization,” and requiring the submission of rules for approval subject to section 5c(c) of the CEA.
Proposed amendments to regulation 190.06(a) are intended to clarify that nothing in paragraph (a) would constrain the contractual right of the DCO to liquidate open commodity contracts, even those pertaining to customers (whether transacting in futures, cleared swaps, or other products).
Proposed amendments to regulation 190.06(e) would permit the trustee to transfer accounts with no open commodity contracts. In past commodity broker bankruptcies, the Commission has permitted the transfer of such accounts. Moreover, section 761(9)(A)(ii)(I) and (II) of the Bankruptcy Code define a “customer” to include an entity that holds a claim against the FCM arising out of: (i) the liquidation of a commodity contract and (ii) a deposit or payment of property with such FCM for the purpose of making or margining a commodity contract, either of which might occur after or before the customer holds a commodity contract. Further, section 764 of the Bankruptcy Code prohibits the trustee from avoiding post-petition transfers: (i) facilitating the liquidation of a commodity contract, and presumably claims attendant thereto, and (ii) of any cash, securities, or other property margining or securing a commodity contract, and presumably claims thereto.
Proposed amendments to regulation 190.06(g) would prohibit the trustee from avoiding pre-petition transfers made by a clearing organization on behalf of customers of the debtor of accounts held for or on behalf of customers of the debtor as long as the money, securities, or other property accompanying such transfer would not exceed the funded balance of such accounts based on information available as of the close of business on the business day immediately preceding such transfer minus the value on the date of return or transfer of any property previously returned or transferred thereto. The Commission believes that this change promotes portability by allowing clearing organizations to efficiently manage the customer accounts of the debtor in a default scenario.
In light of the importance of transfers to swaps markets, the Commission observes that certain portions of regulation 190.06 are not being changed. Specifically, regulation 190.06(f)(3) addresses partial transfers, whether with respect to fewer than all customers (subsection (i)), or with respect to fewer than all contracts cleared on behalf of a particular customer (subsection (ii)). Moreover, regulation 190.06(e)(2) limits the amount of equity that may be transferred in respect of any account to the funded balance of that account, subject to certain adjustments, “based on available information as of the calendar day immediately preceding transfer” (emphasis supplied).
While a transfer of all contracts in all accounts may be preferable, it may, in certain circumstances, be impracticable. If so, the regulations described above accommodate partial transfers.
In addition, technical amendments have been made to change “business day” to “calendar day.”
Proposed amendments to regulation 190.07(b) clarify that individual cleared swaps customer accounts within an omnibus account are to be treated individually. A proposed amendment to regulation 190.07(c) corrects a typographical error. Proposed amendments to regulation 190.07(e) would change the valuation of an open commodity contract so that the value of the commodity contract would be derived from the settlement price as calculated by the relevant clearing organization pursuant to its rules, provided that such rules have been submitted to the Commission for approval pursuant to section 5c(c)(4) of the CEA and have received such approval, or have been approved pursuant to regulation 190.10(d). This change is intended to conform the valuation of an open commodity contract to current market practices. Another proposed amendment to regulation 190.07(e) would change references to securities traded over-the-counter pursuant to the National Association of Securities Dealers Automated Quotation System to securities not traded on an exchange, again to conform to current market practices.
Proposed amendments to regulation 190.09(b) have been made to include references to an account excluded pursuant to the proviso in regulation 30.1(c) (with respect to proprietary foreign futures and options customers) and to the cleared swaps proprietary account.
Proposed amendments to regulation 190.10 (a) have been made to remove references to providing notice by telegram or ordinary postal mail and to require notice by e-mail and overnight mail.
Proposed changes to appendix A, form 1 would remove references to “bulk transfers” and replace the term with the word “transfers.” While the Commission believes that the trustee should transfer as much of a customer account as possible for each account class
Technical amendments also are being proposed for appendix A to Part 190. These amendments would include revisions to reflect the addition of section 4d(f) by section 724 of the Dodd-Frank Act. In addition, amendments have been made to clarify that Commission approval with respect to the rules of a registered entity that require Commission approval means Commission approval under section 5c(c) of the CEA. Additional technical amendments to appendix A to Part 190 have been proposed to conform certain time periods to the proposed changes made by the Commission to implement Public Law 111-16, the Statutory Time-Periods Technical Amendments Act of 2009.
Proposed amendments to appendix B would clarify that the cross margining program is intended to apply only to futures customers and futures customer funds.
The Commission requests comment on the appropriate timing of effectiveness for the final rules for Part 22.
The Regulatory Flexibility Act (“RFA”)
Accordingly, pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), the Chairman, on behalf of the Commission, certifies that these proposed rule amendments will not have a significant economic impact on a substantial number of small entities. The Commission invites the public to comment on this finding.
Provisions of proposed new Part 22 of the Commission's rules include new information disclosure and recordkeeping requirements that constitute the collection of information within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
Proposed section 22.2(g) requires each FCM with Cleared Swaps Customer Accounts to compute daily the amount of Cleared Swaps Customer Collateral on deposit in Cleared Swaps Customer Accounts, the amount of such collateral
Proposed section 22.5(a) requires an FCM or DCO to obtain, from each depository with which it deposits cleared swaps customer funds,
Proposed section 22.11 requires each FCM that intermediates cleared swaps for customers on or subject to the rules of a DCO, whether directly as a clearing member or indirectly through a Collecting Futures Commission Merchant, to provide the DCO or the Collecting Futures Commission Merchant, as appropriate, with information sufficient to identify each customer of the FCM whose swaps are cleared by the FCM. Section 22.11 also requires the FCM, at least once daily, to provide the DCO or the Collecting Futures Commission Merchant, as appropriate, with information sufficient to identify each customer's portfolio of rights and obligations arising out of cleared swaps intermediated by the FCM. The purpose of this collection of information is to facilitate risk management by DCOs and Collecting Futures Commission Merchants, and, in the event of default by the FCM, to enable DCOs and Collecting Futures Commission Merchants to perform their duty, pursuant to section 22.15, to treat the collateral attributed to each customer of the FCM on an individual basis.
Proposed section 22.12 requires that each Collecting Futures Commission Merchant and DCO, on a daily basis, calculate, based on information received pursuant to proposed section 22.11 and on information generated and used in the ordinary course of business by the Collecting Futures Commission Merchant or DCO, and record certain information about the amount of collateral required for each Cleared Swaps Customer and the sum of these amounts.
Proposed section 22.16 requires that each FCM who has cleared swaps customers disclose to each of such customers the governing provisions, as established by DCO rules or customer agreements between collecting and depositing FCMs, relating to use of customer collateral, transfer, neutralization of the risks, or liquidation of cleared swaps in the event of a default by a depositing FCM relating to a cleared swaps customer account. The purpose of this collection of information is to ensure that cleared swaps customers are informed of the procedures to which accounts containing their swaps collateral may be subject in the event of a default by their FCM.
The recordkeeping and disclosure requirements of sections 22.2(g) and 22.11 are expected to apply to approximately 100 entities on a daily basis.
The disclosure required by section 22.11 involves information that FCMs that intermediate swaps generate and use in the usual and customary ordinary course of their business. It is expected that the required disclosure will be performed using automated data systems that FCMs maintain and use in the usual and customary ordinary course of their business but that certain additional functionality will need to be added to these systems to perform the required disclosure. Because of the novel character of proposed section 22.11, it is not possible to make a precise estimate of the paperwork burden. We estimate that the necessary modifications to, and maintenance of, systems may require a range of between 20 and 40 hours of work annually at a salary of approximately $75 per hour.
The recordkeeping required by proposed section 22.12 involves information that Collecting Futures Commission Merchants and DCOs will receive pursuant to proposed section 22.11 or that they generate and use in the usual and customary ordinary course of their business. It is expected that the required recordkeeping will be performed using automated data systems that Collecting Futures Commission Merchants and DCOs maintain and use in the usual and customary ordinary course of their business but that certain additional functionality will need to be added to these systems to perform the required disclosure. Because of the novel character of proposed section 22.12, it is not possible to make a precise estimate of the paperwork burden. We estimate that the necessary modifications to, and maintenance of, systems may require a range of between 20 and 40 hours of work annually at a salary of approximately $75 per hour.
Proposed section 22.16 would apply to the same estimated 100 entities as sections 22.2(g), 22.5(a) and 22.11. The required disclosure would have to be made once each time a swaps customer begins to be cleared through a particular DCO or collecting FCM and each time a DCO or collecting FCM through which a customer's swaps are cleared changes it polices on the matters covered by the disclosure. It is expected that each disclosure would require about 0.2 hours of staff time by staff with a salary level of about $25 per hour. It is uncertain what average number of swaps customers FCMs will have, and what average number of disclosures will be required for each customer annually. Assuming an average of 500 customers per FCM and two disclosures per customer per year, the estimated total annual burden would be 200 hours and $5000 per entity, for an overall burden of $500,000.
The Commission requests comment on all aspects of this proposed mandatory collection of information and document retention. Specifically, the Commission requests comment on whether the Commission has provided sufficient clarity concerning the types of information that would be required to be disclosed and retained.
Section 15(a) of the CEA
As mentioned above, the Commission has decided to propose the Complete Legal Segregation Model. A number of commenters to the ANPR suggested that the costs and benefits of the Complete Legal Segregation Model should be informed by the Futures Model. Such commenters provided quantitative estimates of such costs (but not such benefits). Using these quantitative estimates of cost, the Commission discusses the costs and benefits of the Complete Legal Segregation Model (as well as the Legal Segregation with Recourse Model) in relation to a common baseline—namely, the Futures Model.
The Commission notes that other commenters suggested that the costs and benefits of the Complete Legal Segregation Model should be informed by the protections for collateral obtained by customers in the existing swaps markets and of the costs incurred for such protections. While this alternative is not part of the formal analysis, it can inform us of the costs of the various models. Therefore, the Commission has asked for additional comment on such protections, including quantitative estimates of costs, in section III(B) herein.
Finally, as mentioned above, the Commission is considering the Legal Segregation with Recourse Model. The Commission has asked for additional comment on the Legal Segregation with Recourse Model, as well as (i) the Futures Model and (ii) the Optional Approach.
There are several kinds of costs associated with the Complete Legal Segregation and the Legal Segregation with Recourse Models, relative to the Futures Model. These can be categorized as operational costs, Risk Costs (as section II(C)(3) defines such term), and costs associated with induced changes in behavior. The Complete Legal Segregation, the Legal Segregation with Recourse, and the Futures Models will require different payments from various parties in the event that there is a simultaneous default of one or more Cleared Swaps Customers and their FCMs. The direct effect of the Complete Legal Segregation and the Legal Segregation with Recourse Models, in contrast to the Futures Model, would be to protect the Cleared Swaps Customer Collateral of non-defaulting customers against claims by the relevant DCO.
Operational costs associated with the Complete Legal Segregation and the Legal Segregation with Recourse Models result from a greater need, relative to the Futures Model, to transfer information about individual Cleared Swaps Customer Contracts between FCMs and DCOs, an increased amount of account information kept by DCOs, potential increases in compliance costs, and related kinds of costs. Some of these costs will be one-time set-up costs, and other costs will be recurring. Operational costs associated with the Complete Legal Segregation and the Legal Segregation with Recourse Models can be expected to be identical or close to identical because the informational and other operational requirements of both models are substantially similar—where the two models differ is in the scope of DCO's claim to Cleared Swaps Customer Collateral in the event of the simultaneous default of one or more Cleared Swaps Customers and their FCMs.
Precise determination of the extent of operational costs associated with the Complete Legal Segregation and the Legal Segregation with Recourse Models depends on the number of Cleared Swaps Customers at each FCM, the number and types of Cleared Swaps Customer Accounts held by each customer, and other factors. Some estimates of the typical FCM's costs were provided by ISDA. As discussed above, in comments on the ANPR, ISDA estimates that the Complete Legal Segregation and the Legal Segregation with Recourse Models would involve a one-time cost increase of $0.8 million to $1 million per FCM, plus a recurring
Risk Costs refer to the costs associated with reassigning liability in the event of a customer default (
Thus, the Complete Legal Segregation Model will potentially result in a decrease in the financial resources package available to the DCO in the event of default. Hence, maintaining the same assurance of performance requires the DCO to raise additional financial resources. While the Legal Segregation with Recourse Model does not directly reduce DCO financial resources, it restructures them so as to likely lead a DCO to change its default management structure. The exact nature of the Risk Costs will depend on how each DCO structures its default management structure if the Complete Legal Segregation or the Legal Segregation with Recourse Models is chosen over the Futures Model. The comments sent to the Commission have suggested two possible ways by which the DCO may vary its default management structure: (i) By increasing the amount of collateral that each Cleared Swaps Customer must provide; or (ii) by increasing the amount of resources that each FCM must contribute to the guaranty fund.
Focusing on (i) (an increase in the amount of collateral that each Cleared Swaps Customer must provide), estimates of the size of the increase vary, and in principle depend on whether the Complete Legal Segregation Model or the Legal Segregation with Recourse Model is under consideration. In comments on the ANPR, both CME and ISDA suggest that the Complete Legal Segregation Model would require an increase of approximately 70% in Cleared Swaps Customer Collateral, or an increase of roughly $500-600 billion in total required Cleared Swaps Customer Collateral relative to the Futures Model. The organizations had somewhat different views of the Legal Segregation with Recourse Model. ISDA noted that the total pool of capital available to a DCO under this model would not be changed, although there would be “a real wealth transfer” from the FCMs and DCO to the customers, while CME suggested that the increase would be of a similar magnitude to the effect of the Complete Legal Segregation Model.
If instead the capital structure is restored though (ii) (an increase in the amount of resources that each FCM would contribute to the guaranty fund), what were described as “conservative” estimates suggest an increase of $50 billion (CME) to $128 billion (ISDA) in guaranty funds for the Complete Legal Segregation Model.
The wide divergence in these figures is due in large part to different implicit assumptions about fellow customer behavior, and how such behavior should affect a DCO's prudent design of its financial resources package. Specifically, Core Principle B for DCOs, section 5b(c)(2)(B) of the CEA, requires the sufficiency of a DCO's financial resources package to be judged relative to the “worst” exposure, in a probabilistic sense, created by a member or participant in extreme but plausible market conditions. In the Complete Legal Segregation Model, such an approach likely requires an assessment of the largest stressed loss on a to-be-specified number of the largest customers to the given FCM since, in this instance, the DCO would not have access to the collateral of non-defaulting customers in such an event. By contrast, the Futures and the Legal Segregation with Recourse Models allow (to a degree) for the sufficiency of the DCO financial resources package to be judged relative to the “worst” loss that an FCM suffers in its omnibus customer account, recognizing that account as a diversified pool and taking advantage of the diversification benefit realized by the DCO across the customers within that pool. This is so because the Futures Model (and, at a later point, the Legal Segregation with Recourse Model) would allow the DCO to use the collateral of non-defaulting customers to cover losses the DCO would otherwise face as a result of a simultaneous default of one or more Cleared Swaps Customers and their FCMs.
However, the extent of the diversification effect arising from the DCO's access to the entire omnibus customer account allowed by the Futures Model (and, at a later point in the process, the Legal Segregation with Recourse Model) depends on how much
More generally, the extent to which the Complete Legal Segregation or the Legal Segregation with Recourse Models really requires a larger guaranty fund or higher levels of collateral per Cleared Swaps Customer (relative to the Futures Model) depends on the extent to which Cleared Swaps Customer Contracts can be expected to remain with the defaulting FCM during the time period immediately before the default.
A distinct question in evaluating Risk Cost is how to translate a Cleared Swaps Customer Collateral or guaranty fund increase to a cost increase. A customer required to post an additional $100 of Cleared Swaps Customer Collateral is not made worse off by $100. Moreover, the cost to the customer is, at least in part, offset by the benefit to the DCO. The cost to the customer of a Cleared Swaps Customer Collateral increase of $100 is the difference between the gain he or she would have received by retaining that $100, and the return he or she will receive on the asset while it is on deposit with the FCM or DCO. For example, the customer might invest the $100 in buying and holding grain over the pendency of the swap if the level of Cleared Swaps Customer Collateral were not increased, while he or she is limited to the return on assets the DCO will accept as margin payment (
The benefit to customers of greater protection for customer margin provided by the Complete Legal Segregation Model and the Legal Segregation with Recourse Model also depends, to some extent, on assumptions about customers' behavior in advance of a fellow-customer default. Under the extreme assumption that all customers costlessly anticipate the default and move their positions to a different FCM, then neither the Complete Legal Segregation Model nor the Legal Segregation with Recourse Model provides any benefit to customers (since their Cleared Swaps Customer Accounts would not have been at risk under the benchmark). More generally, the greater the extent to which customers will move their positions, the lower the benefits of the Complete Legal Segregation Model and the Legal Segregation with Recourse Model relative to the Futures Model. Of course, under the Futures Model there exists uncertainty surrounding a customer's ability to anticipate an FCM default, and this uncertainty is either wholly or mostly eliminated under the Complete Legal Segregation and the Legal Segregation with Recourse Models. However, this benefit afforded the customer needs to be balanced against the cost to the DCO of insuring against this uncertainty, a portion of which can be anticipated to be passed along to the customer. Thus, both the capital costs and the benefits of the Complete Legal Segregation and the Legal Segregation with Recourse Models, relative to the Futures Model, will tend to be lower to the extent customers are likely to move their positions in advance of an FCM default and higher to the extent customers are unlikely to be able to move their positions. As a result, differing assumptions about customer mobility in advance of default are likely to have smaller implications for the relative costs and benefits of differing approaches than they do for Risk Cost considered in isolation.
Finally, in the category of costs and benefits associated with induced changes in behavior, several issues are worth noting. CME has argued that the Complete Legal Segregation and the Legal Segregation with Recourse Models could potentially reduce the incentives of individual customers to exercise due diligence when choosing an FCM. In effect, they argue that because the financial condition of the FCM, and of the FCM's other customers, will be less relevant to the customer's liability in the event of fellow customer default, the customer will devote less effort to monitoring the FCM and its customers. While this is likely to be true, these liability regimes have offsetting increased monitoring incentives on the part of FCMs and the DCO. That is, because the Complete Legal Segregation and the Legal Segregation with Recourse Models increase the likelihood that a customer default would impact the guaranty fund, increased incentives exist to protect that fund through more careful monitoring by the suppliers of the guaranty fund and their agent (the
Another issue is the ease of moving Cleared Swaps Customer Contracts to new FCMs following an FCM default. Following a default by an FCM, the Cleared Swaps Contracts of the FCM's customers either have to be moved to another FCM, or closed. Moving a position to another FCM allows the DCO to maintain its net position in that contract at zero, which is generally a goal of a DCO. It also prevents a customer from needing to reestablish a position, which potentially can be costly, especially in a stressed economic state.
Overall, evaluating the costs and benefits of the Complete Legal Segregation Model and the Legal Segregation with Recourse Model relative to the Futures Model requires one to know the inherently-subjective valuation end-users place on the lower likelihood of losing their initial margin, as well as more precise estimates of the cost. Given the constraints on such knowledge, and the likelihood that the benefits to customers will, to some extent, vary with the cost to DCOs (that is, both are related to the same underlying factors), the best indirect evidence of the likely effect is the comments provided by the buy-side. While the Commission has not canvassed all buy-side members, most of those that chose to comment on the ANPR support the change. It is not knowable if these commenters fully internalized all of the potential costs outlined above (
A final option is giving DCOs the choice of which segregation model to employ. If all DCOs would adopt the same model when given a choice, then the foregoing analysis would apply. In contrast, if different DCOs might adopt different models, then the analysis of the system-wide costs and benefits would need to account for the choices made by the extant DCOs. The Commission seeks comment on the likely alternatives that would emerge if DCOs had the option of choosing their segregation model, and the likely costs and benefits of having alternative default models available.
Based on the discussion in the previous section, the primary expected benefits of adopting the Complete Legal Segregation or the Legal Segregation with Recourse Models to implementing section 724 of the Dodd-Frank Act can be summarized as follows.
The primary direct benefit from either the Complete Legal Segregation or the Legal Segregation with Recourse Models is to reduce the risk to Cleared Swaps Customers of losing the value of their collateral in a scenario in which an FCM and one or more of its customers defaults on its obligations in connection with Cleared Swaps transactions. The Complete Legal Segregation Model would largely eliminate this risk.
As discussed in the previous section, the value of this reduced risk of loss to Cleared Swaps Customers will, to some degree, depend on the extent to which such customers are able to anticipate FCM defaults and voluntarily transfer their Cleared Swaps Contracts, and associated collateral, to other FCMs before the default occurs. In practice, some FCM defaults may be anticipated by a substantial proportion of Cleared Swaps Customers, while others may occur suddenly with few or no customers able to transfer their collateral.
An additional benefit of the Complete Legal Segregation Model is to foster portability. By preserving the collateral of non-defaulting Cleared Swaps Customers, this model increases the likelihood that the Cleared Swaps Contracts of these customers can be successfully transferred. Fostering such transfer, as opposed to the liquidation of these Cleared Swaps Contracts, will carry benefits both for the Cleared Swaps Customers and for the financial system as a whole (the latter by reducing the likelihood that markets would be roiled by a mass liquidation).
Further benefits are expected to result from changes in behavior induced by the direct costs and benefits of the Complete Legal Segregation or Legal Segregation with Recourse Models. Because DCOs will not be able to rely on the collateral of non-defaulting Cleared Swaps Customers, they will have incentives to increase the extent of their monitoring of the risk posed by their FCM members and the major customers of those FCMs. This will have a tendency to reduce the incidence of FCM and major customer defaults. Some commenters on the ANPR suggested that the greater protection provided by the Legal Segregation Model (particularly the Complete Legal Segregation Model) will mean that Cleared Swaps Customers have less incentive to monitor the riskiness of their FCMs than under the Futures Model in which customers are exposed to greater risk of loss. However, for reasons explained in the previous section, DCOs are in a better position than Cleared Swaps Customers to monitor FCMs, and the customers thereof, so the benefits from increased monitoring by DCOs can be expected to outweigh any reduced monitoring by customers.
The costs and benefits discussed in the previous sections bear on a number of the considerations listed in section 15(a)(2) of the CEA:
a. Protection of market participants and the public. The primary benefit of the Complete Legal Segregation Model, reduction in the risk of loss of Cleared Swaps Customer Collateral, advances this interest. The Commission notes that the Legal Segregation with Recourse Model, which the Commission is considering, also achieves such benefit, but to a lesser extent.
b. Efficiency, competitiveness, and financial integrity of markets. As mentioned above, the Complete Legal Segregation Model would increase the likelihood that, in the event of a simultaneous FCM and Cleared Swaps Customer default, the DCO would be able to transfer the Cleared Swaps of non-defaulting Cleared Swaps Customers. Therefore, to the extent that the Complete Legal Segregation Model would enable Cleared Swaps Customers to avoid liquidation of their existing Cleared Swaps, this model would avoid what one commenter described as “major market disruption with significant adverse economic impact.”
Additionally, behavioral responses to the Complete Legal Segregation Model discussed above may also affect the financial integrity of markets. To the extent that the Complete Legal Segregation Model creates incentives for DCOs to employ higher levels of monitoring of FCMs and their Cleared Swaps Customers, it will enhance the financial integrity of markets.
The Commission notes that, in contrast to the Complete Legal Segregation Model, the Legal Segregation with Recourse Model increases the likelihood of the transfer of Cleared Swaps Customer Contracts to a lesser extent. Therefore, the Legal Segregation with Recourse Model does not enhance the financial integrity of markets as much as the Complete Legal Segregation Model.
As mentioned above, the Complete Legal Segregation Model arguably entails greater Risk Costs, although not operational costs, than the Legal Segregation with Recourse Model. Both such models arguably entail greater operational costs than the Futures Model. However:
• As discussed above, commenters exhibited considerable divergence in their estimates of Risk Costs.
• As discussed above, ANPR commenters suggested that the incremental operational costs of the Complete Legal Segregation or the Legal Segregation with Recourse Models, as compared with the Futures Model, would be relatively modest against the size of the market for cleared swaps.
• Despite the possibility of increased Risk Costs and operational costs, most buy-side commenters to the ANPR suggested that they valued the degree of certainty that they will not lose Cleared Swaps Customer Collateral, and several such commenters indicated that the absence of this level of certainty would impair their ability to use cleared swaps for risk management purposes. To the extent that these commenters represented the perspective of swaps users generally, then, notwithstanding the possibility of increased Risk Costs and operational costs, adoption of either the Complete Legal Segregation or the Legal Segregation with Recourse Models may increase the efficiency and competitiveness of markets, because they may encourage buy-side use of such markets in the management of risk.
Because the Complete Legal Segregation Model would eliminate the ability of DCOs to access the collateral of non-defaulting Cleared Swaps Customers in the event of an FCM default accompanied by the default of one or more customers, other things held constant, there could potentially be negative effects on a DCO's financial integrity. Such potential negative effects would not be present for the Legal Segregation with Recourse Model, because DCOs would still have the ability to access the collateral of non-defaulting Cleared Swaps Customers. To the extent that negative effects may exist, Core Principle B for DCOs, section 5b(c)(2)(B) of the CEA would require a DCO to have available alternative resources to protect the DCO from the consequences of a major FCM default, such as higher margin levels or larger guaranty funds. Consistent with this requirement, commenters on the ANPR who considered access to the collateral of non-defaulting Cleared Swaps Customers to be important generally assumed that DCOs would procure alternative financial resources if the Complete Legal Segregation Model is adopted. As a result, any potential negative effect of the Complete Legal Segregation Model on market integrity will be reflected in higher capital costs rather than an actual reduction in market integrity.
c. Price discovery. The effect of the Complete Legal Segregation Model (or the Legal Segregation with Recourse Model), as proposed, on price discovery will depend on the value that Cleared Swaps Customers assign to the additional protection that they will
d. Sound risk management practices. To the extent that the Complete Legal Segregation Model or the Legal Segregation with Recourse Model creates incentives for higher levels of monitoring of FCMs and their Cleared Swaps Customers by DCOs, it will enhance sound risk management practices. As discussed above, some commenters suggested that the Complete Legal Segregation Model or the Legal Segregation with Recourse Model would reduce incentives for Cleared Swaps Customers to “risk manage” their FCMs. As noted above, there are significant questions about the ability of customers to “risk manage” their FCMs effectively. Moreover, the Commission expects that any such effect would be outweighed by enhanced risk management on the part of DCOs.
e. Other public interest considerations. As discussed above, some commenters suggested that the Complete Legal Segregation Model would increase market stability in times of stress facilitating the prompt transfer of customer positions without the need for liquidation when an FCM defaults.
The Commission invites public comment on its cost-benefit considerations, including the costs and benefits of the Complete Segregation Model (as proposed), the Legal Segregation with Recourse Model (which is under consideration), the Futures Model, and giving DCOs a choice of such approaches. Commenters are also invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits with their comment letters.
Brokers, Clearing, Consumer protection, Reporting and recordkeeping requirements, Swaps.
Bankruptcy, Brokers, Commodity futures, Reporting and recordkeeping requirements, Swaps.
For the reasons stated in this release, the Commission hereby proposes to amend Chapter as follows:
1. Add Part 22 to read as follows:
7 U.S.C. 1a, 6d, 7a-1 as amended by Pub. L. 111-203, 124 Stat. 1376.
For the purposes of this part:
(1) This term shall exclude any swap (along with money, securities, or other property received to margin, guarantee, or secure such a swap) that, pursuant to a Commission rule, regulation, or order (or a derivatives clearing organization rule approved in accordance with § 39.15(b)(2) of this chapter), is (along with such money, securities, or other property) commingled with a commodity future or option (along with money, securities, or other property received to margin, guarantee, or secure such a future or option) that is segregated pursuant to section 4d(a) of the Act.
(2) This term shall include any trade or contract (along with money, securities or other property received to margin, guarantee, or secure such a trade or contract), that (i) Would be required to be segregated pursuant to section 4d(a) of the Act, or (ii) Would be subject to § 30.7 of this chapter, but which is, in either case, pursuant to a Commission rule, regulation, or order (or a derivatives clearing organization rule approved in accordance with § 39.15(b)(2) of this chapter), commingled with a swap (along with money, securities, or other property received to margin, guarantee, or secure such a swap) in an account segregated pursuant to section 4d(f) of the Act.
(1) A futures commission merchant maintains on behalf of Cleared Swaps Customers (including, in the case of a Collecting Futures Commission Merchant, the Cleared Swaps Customers of a Depositing Futures Commission Merchant) or
(2) A derivatives clearing organization maintains for futures commission merchants on behalf of Cleared Swaps Customers thereof.
(i) Is intended to or does margin, guarantee, or secure a Cleared Swap; or
(ii) Constitutes, if a Cleared Swap is in the form or nature of an option, the settlement value of such option.
(2) This term shall also include accruals,
(i) Where such account is carried for a person falling within one of the categories specified in paragraph (2) of this definition, or
(ii) Where ten percent or more of such account is owned by a person falling within one of the categories specified in paragraph (2) of this definition, or
(iii) Where an aggregate of ten percent or more of such account is owned by more than one person falling within one or more of the categories specified in paragraph (2) of this definition.
(2) The relationships to the futures commission merchant referred to in paragraph (1) of this definition are as follows:
(i) Such individual himself, or such partnership, corporation or association itself;
(ii) In the case of a partnership, a general partner in such partnership;
(iii) In the case of a limited partnership, a limited or special partner in such partnership whose duties include:
(
(
(
(
(iv) In the case of a corporation or association, an officer, director, or owner of ten percent or more of the capital stock of such organization;
(v) An employee of such individual, partnership, corporation or association whose duties include:
(
(
(
(
(vi) A spouse or minor dependent living in the same household of any of the foregoing persons;
(vii) A business affiliate that, directly or indirectly, controls such individual, partnership, corporation, or association; or
(viii) A business affiliate that, directly or indirectly, is controlled by or is under common control with, such individual, partnership, corporation or association.
(1) Any “customer” or “commodity customer” within the meaning of § 1.3 of this chapter; and
(2) Any “foreign futures or foreign options customer” within the meaning of § 30.1(c) of this chapter.
(a)
(b)
(2) If a futures commission merchant holds Cleared Swaps Customer Collateral itself, then the futures commission merchant must:
(i) Physically separate such collateral from its own property;
(ii) Clearly identify each physical location in which it holds such collateral as a “Location of Cleared Swaps Customer Collateral” (the “FCM Physical Location”);
(iii) Ensure that the FCM Physical Location provides appropriate protection for such collateral; and
(iv) Record in its books and records the amount of such Cleared Swaps Customer Collateral separately from its own funds.
(3) If a futures commission merchant holds Cleared Swaps Customer Collateral in a Permitted Depository, then:
(i) The Permitted Depository must qualify pursuant to the requirements set forth in § 22.4 of this part, and
(ii) The futures commission merchant must maintain a Cleared Swaps Customer Account with each such Permitted Depository.
(c)
(2) A futures commission merchant shall not commingle Cleared Swaps Customer Collateral with either of the following:
(i) Funds belonging to the futures commission merchant, except as expressly permitted in paragraph (e)(3) of this section; or
(ii) Other categories of funds belonging to Customers of the futures
(d)
(2) A futures commission merchant may not impose or permit the imposition of a lien on Cleared Swaps Customer Collateral, including any residual financial interest of the futures commission merchant in such collateral, as described in paragraph (e)(4) of this section.
(3) A futures commission merchant may not include, as Cleared Swaps Customer Collateral,
(i) Money invested in the securities, memberships, or obligations of any derivatives clearing organization, designated contract market, swap execution facility, or swap data repository, or
(ii) Money, securities, or other property that any derivatives clearing organization holds and may use for a purpose other than those set forth in § 22.3 of this part.
(e)
(1)
(2)
(3)
(4)
(ii) The futures commission merchant shall have a residual financial interest in any portion of such money, securities, or other property in excess of that necessary for compliance with paragraph (f)(4) of this section.
(iii) The futures commission merchant may withdraw money, securities, or other property from the FCM Physical Location or Cleared Swaps Customer Account, to the extent of its residual financial interest therein. At the time of such withdrawal, the futures commission merchant shall ensure that the withdrawal does not cause its residual financial interest to become less than zero.
(f)
(2) The futures commission merchant must reflect in the account that it maintains for each Cleared Swaps Customer the market value of any Cleared Swaps Customer Collateral that it receives from such customer, as adjusted by:
(i) Any uses permitted under § 22.2(d) of this part;
(ii) Any accruals or losses on permitted investments of such collateral under § 22.2(e) of this part that, pursuant to the futures commission merchant's customer agreement with that customer, are creditable or chargeable to such customer;
(iii) Any charges lawfully accruing to the Cleared Swaps Customer, including any commission, brokerage fee, interest, tax, or storage fee; and
(iv) Any appropriately authorized distribution or transfer of such collateral.
(3) If the market value of Cleared Swaps Customer Collateral in the account of a Cleared Swaps Customer is positive after adjustments, then that account has a credit balance. If the market value of Cleared Swaps Customer Collateral in the account of a Cleared Swaps Customer is negative after adjustments, then that account has a debit balance.
(4) The futures commission merchant must maintain in segregation, in its FCM Physical Locations and/or its Cleared Swaps Customer Accounts at Permitted Depositories, an amount equal to the sum of any credit balances that the Cleared Swaps Customers of the futures commission merchant have in their accounts, excluding from such sum any debit balances that the Cleared Swaps Customers of the futures commission merchant have in their accounts.
(5) Notwithstanding the foregoing, the futures commission merchant must include, in calculating the sum referenced in paragraph (f)(4) of this section, any debit balance that a Cleared Swaps Customer may have in its account, to the extent that such balance is secured by “readily marketable securities” that the Cleared Swaps Customer deposited with the futures commission merchant.
(i) For purposes of this section, “readily marketable” shall be defined as having a “ready market” as such latter term is defined in Rule 15c3-1(c)(11) of the Securities and Exchange Commission (§ 241.15c3-1(c)(11) of this title).
(ii) In order for a debit balance to be deemed secured by “readily marketable securities,” the futures commission merchant must maintain a security interest in such securities, and must hold a written authorization to liquidate the securities at the discretion of the futures commission merchant.
(iii) To determine the amount secured by “readily marketable securities,” the futures commission merchant shall: (A) determine the market value of such securities; and (B) reduce such market value by applicable percentage deductions (
(g)
(i) The aggregate market value of the Cleared Swaps Customer Collateral in all FCM Physical Locations and all Cleared Swaps Customer Accounts held at Permitted Depositories (the “Collateral Value”);
(ii) The sum referenced in paragraph (f)(4) of this section (the “Collateral Requirement”); and
(iii) The amount of the residual financial interest that the futures commission merchant holds in such Cleared Swaps Customer Collateral, which shall equal the difference between the Collateral Value and the Collateral Requirement.
(2) The futures commission merchant must complete the daily computations required by this section prior to noon on the next business day and must keep such computations, together with all supporting data, in accordance with the requirements of § 1.31 of this chapter.
(a)
(b)
(2) If a derivatives clearing organization holds Cleared Swaps Customer Collateral itself, then the derivatives clearing organization must:
(i) Physically separate such collateral from its own property, the property of any futures commission merchant, and the property of any other person that is not a Cleared Swaps Customer of a futures commission merchant;
(ii) Clearly identify each physical location in which it holds such collateral as “Location of Cleared Swaps Customer Collateral” (the “DCO Physical Location”);
(iii) Ensure that the DCO Physical Location provides appropriate protection for such collateral; and
(iv) Record in its books and records the amount of such Cleared Swaps Customer Collateral separately from its own funds, the funds of any futures commission merchant, and the funds of any other person that is not a Cleared Swaps Customer of a futures commission merchant.
(3) If a derivatives clearing organization holds Cleared Swaps Customer Collateral in a Permitted Depository, then:
(i) The Permitted Depository must qualify pursuant to the requirements set forth in § 22.4 of this part; and
(ii) The derivatives clearing organization must maintain a Cleared Swaps Customer Account with each such Permitted Depository.
(c)
(2) A derivatives clearing organization shall not commingle the Cleared Swaps Customer Collateral that it receives from a futures commission merchant on behalf of Cleared Swaps Customers with any of the following:
(i) The money, securities, or other property belonging to the derivatives clearing organization;
(ii) The money, securities, or other property belonging to any futures commission merchant; or
(iii) Other categories of funds that it receives from a futures commission merchant on behalf of Customers, including customer funds (as § 1.3 of this chapter defines such term) and the foreign futures or foreign options secured amount (as § 1.3 of this chapter defines such term), except as expressly permitted by Commission rule, regulation or order, (or a derivatives clearing organization rule approved in accordance with § 39.15(b)(2) of this chapter).
(d)
(e)
In order for a depository to be a Permitted Depository:
(a) The depository must (subject to § 22.9) be one of the following types of entities:
(1) A bank located in the United States;
(2) A trust company located in the United States;
(3) A Collecting Futures Commission Merchant registered with the Commission (but only with respect to a Depositing Futures Commission Merchant providing Cleared Swaps Customer Collateral); or
(4) A derivatives clearing organization registered with the Commission; and
(b) The futures commission merchant or the derivatives clearing organization must hold a written acknowledgment letter from the depository as required by § 22.5 of this part.
(a) Before depositing Cleared Swaps Customer Collateral, the futures commission merchant or derivatives clearing organization shall obtain and retain in its files a separate written acknowledgment letter from each depository in accordance with §§ 1.20 and 1.26 of this chapter, with all references to “customer funds” modified to apply to Cleared Swaps Customer Collateral, and with all references to section 4d(a) or 4d(b) of the Act and the regulations thereunder modified to apply to section 4d(f) of the Act and the regulations thereunder.
(b) The futures commission merchant or derivatives clearing organization shall adhere to all requirements specified in §§ 1.20 and 1.26 of this chapter regarding retaining, permitting access to, filing, or amending the written acknowledgment letter, in all cases as if the Cleared Swaps Customer Collateral comprised customer funds subject to segregation pursuant to section 4d(a) or 4d(b) of the Act and the regulations thereunder.
(c) Notwithstanding paragraph (a) of this section, an acknowledgement letter need not be obtained from a derivatives clearing organization that has made effective, pursuant to section 5c(c) of the Act and the regulations thereunder, rules that provide for the segregation of Cleared Swaps Customer Collateral, in accordance with all relevant provisions of the Act and the regulations thereunder.
The name of each Cleared Swaps Customer Account that a futures commission merchant or a derivatives clearing organization maintains with a Permitted Depository shall (a) clearly identify the account as a “Cleared Swaps Customer Account” and (b) clearly indicate that the collateral therein is “Cleared Swaps Customer Collateral” subject to segregation in accordance with the Act and this part.
A Permitted Depository shall treat all funds in a Cleared Swaps Customer Account as Cleared Swaps Customer Collateral. A Permitted Depository shall not hold, dispose of, or use any such Cleared Swaps Customer Collateral as belonging to any person other than:
(a) The Cleared Swaps Customers of the futures commission merchant maintaining such Cleared Swaps Customer Account or;
(b) The Cleared Swaps Customers of the futures commission merchants for which the derivatives clearing organization maintains such Cleared Swaps Customer Account.
The situs of each of the following shall be located in the United States:
(a) Each FCM Physical Location or DCO Physical Location;
(b) Each “account,” within the meaning of § 22.2(f)(1), that a futures commission merchant maintains for each Cleared Swaps Customer; and
(c) Each Cleared Swaps Customer Account on the books and records of a derivatives clearing organization with respect to the Cleared Swaps Customers of a futures commission merchant.
(a) Futures commission merchants and derivatives clearing organizations may hold Cleared Swaps Customer Collateral in the denominations, at the locations and depositories, and subject to the same segregation requirements specified in § 1.49 of this chapter, which section shall apply to such Cleared Swaps Customer Collateral as if it comprised customer funds subject to segregation pursuant to section 4d(a) of the Act.
(b) Each depository referenced in paragraph (a) of this section shall be considered a Permitted Depository for purposes of this part.
Sections 1.27, 1.28, 1.29, and 1.30 of this chapter shall apply to the Cleared Swaps Customer Collateral held by futures commission merchants and derivatives clearing organizations to the same extent as if such sections referred to:
(a) “Cleared Swaps Customer Collateral” in place of “customer funds;”
(b) “Cleared Swaps Customers” instead of “commodity or option customers” or “customers or option customers;”
(c) “Cleared Swaps Contracts” instead of “trades, contracts, or commodity options;” and
(d) “Section 4d(f) of the Act” instead of “section 4d(a)(2) of the Act.”
(a) Each Depositing Futures Commission Merchant shall provide to its Collecting Futures Commission Merchant the following information:
(1) The first time that the Depositing Futures Commission Merchant intermediates a Cleared Swap for a Cleared Swaps Customer, information sufficient to identify such customer; and
(2) At least once each business day thereafter, information sufficient to identify, for each Cleared Swaps Customer, the portfolio of rights and obligations arising from the Cleared Swaps that the Depositing Futures Commission Merchant intermediates for such customer.
(b) If an entity serves as both a Depositing Futures Commission Merchant and a Collecting Futures Commission Merchant, then:
(1) The information that such entity must provide to its Collecting Futures Commission Merchant pursuant to paragraph (a)(1) of this section shall also include information sufficient to identify each Cleared Swaps Customer of the Depositing Futures Commission Merchant for which such entity serves as a Collecting Futures Commission Merchant; and
(2) The information that such entity must provide to its Collecting Futures Commission Merchant pursuant to paragraph (a)(2) of this section shall also include information sufficient to identify, for each Cleared Swaps Customer referenced in paragraph (b)(1) of this section, the portfolio of rights and obligations arising from the Cleared Swaps that such entity intermediates as a Collecting Futures Commission Merchant, on behalf of its Depositing Futures Commission Merchant, for such customer.
(c) Each futures commission merchant that intermediates a Cleared Swap for a Cleared Swaps Customer, on or subject to the rules of a derivatives clearing organization, directly as a Clearing Member shall provide to such derivatives clearing organization the following information:
(1) The first time that such futures commission merchant intermediates a Cleared Swap for a Cleared Swaps Customer, information sufficient to identify such customer; and
(2) At least once each business day thereafter, information sufficient to identify, for each Cleared Swaps Customer, the portfolio of rights and obligations arising from the Cleared Swaps that such futures commission merchant intermediates for such customer.
(d) If the futures commission merchant referenced in paragraph (c) of this section is a Collecting Futures Commission Merchant, then:
(1) The information that it must provide to the derivatives clearing organization pursuant to paragraph (c)(1) of this section shall also include information sufficient to identify each Cleared Swaps Customer of any entity that acts as a Depositing Futures Commission Merchant in relation to the Collecting Futures Commission Merchant (including, without limitation, each Cleared Swaps Customer of any Depositing Futures Commission Merchant for which such entity also serves as a Collecting Futures Commission Merchant); and
(2) The information that it must provide to the derivatives clearing organization pursuant to paragraph (c)(2) of this section shall also include information sufficient to identify, for each Cleared Swaps Customer referenced in paragraph (d)(1) of this section, the portfolio of rights and obligations arising from the Cleared Swaps that the Collecting Futures Commission Merchant intermediates, on behalf of the Depositing Futures Commission Merchant, for such customer.
(e) Each derivatives clearing organization shall (1) take appropriate steps to confirm that the information it receives pursuant to paragraphs (c)(1) or (c)(2) of this section is accurate and complete, and (2) ensure that the futures commission merchant is providing the derivatives clearing organization the information required by paragraphs (c)(1) or (c)(2) of this section on a timely basis.
(a) Each Collecting Futures Commission Merchant receiving Cleared Swaps Customer Funds from an entity serving as a Depositing Futures Commission Merchant shall, no less frequently than once each business day, calculate and record:
(1) the amount of collateral required at such Collecting Futures Commission Merchant for each Cleared Swaps Customer of the entity acting as Depositing Futures Commission Merchant (including, without limitation, each Cleared Swaps Customer of any Depositing Futures Commission Merchant for which such entity also serves as a Collecting Futures Commission Merchant); and
(2) the sum of the individual collateral amounts referenced in paragraph (a)(1) of this section.
(b) Each Collecting Futures Commission Merchant shall calculate the collateral amounts referenced in paragraph (a) of this section with respect to the portfolio of rights and obligations arising from the Cleared Swaps that the Collecting Futures Commission Merchant intermediates, on behalf of the Depositing Futures Commission Merchant, for each Cleared Swaps Customer referenced in paragraph (a)(1).
(c) Each derivatives clearing organization receiving Cleared Swaps Customer Funds from a futures commission merchant shall, no less frequently than once each business day, calculate and record:
(1) The amount of collateral required at such derivatives clearing organization for each Cleared Swaps Customer of the futures commission merchant; and
(2) the sum of the individual collateral amounts referenced in paragraph (c)(1) of this section.
(d) If the futures commission merchant referenced in paragraph (c) of this section is a Collecting Futures Commission Merchant, then the derivatives clearing organization shall also perform and record the results of the calculation required in paragraph (c) of this section for each Cleared Swaps Customer of an entity acting as a Depositing Futures Commission Merchant in relation to the Collecting Futures Commission Merchant (including, without limitation, any Cleared Swaps Customer for which such entity is also acting as a Collecting Futures Commission Merchant).
(e) Each futures commission merchant shall calculate the collateral amounts referenced in paragraph (c) of this section with respect to the portfolio of rights and obligations arising from the Cleared Swaps that the futures commission merchant intermediates (including, without limitation, as a Collecting Futures Commission Merchant on behalf of a Depositing Futures Commission Merchant), for each Cleared Swaps Customer referenced in paragraphs (c)(1) and (d).
(f) The collateral requirement referenced in paragraph (a) of this section with respect to a Collecting Futures Commission Merchant shall be no less than that imposed by the relevant derivatives clearing organization with respect to the same portfolio of rights and obligations for each relevant Cleared Swaps Customer.
(a)(1) At the election of the derivatives clearing organization or Collecting Futures Commission Merchant, the collateral requirement referred to in § 22.12(a), (c), and (d) of this part applicable to a particular Cleared Swaps Customer or group of Cleared Swaps Customers may be increased based on an evaluation of the credit risk posed by such customer or group, in which case the derivatives clearing organization or Collecting Futures Commission Merchant shall collect and record such higher amount as provided in section 22.12 of this part.
(2) Nothing in paragraph (a)(1) of this section is intended to interfere with the right of a futures commission merchant to increase the collateral requirements at such futures commission merchant with respect to any of its Cleared Swaps Customers or Customers.
(b) Any collateral deposited by a futures commission merchant (including a Depositing Futures Commission Merchant) pursuant to § 22.2(e)(3) of this part, which collateral is identified as funds or securities in which such futures commission merchant has a residual financial interest pursuant to § 22.2(e)(4) of this part, may, to the extent of such residual financial interest, be used by the derivatives clearing organization or Collecting Futures Commission Merchant, as applicable, to margin, guarantee or secure the cleared swaps of any or all of such Cleared Swaps Customers.
(a) A Depositing Futures Commission Merchant which receives a call for either initial margin or variation margin with respect to a Cleared Swaps Customer Account from a Collecting Futures Commission Merchant, which call such Depositing Futures Commission Merchant does not meet in full, shall, with respect to each Cleared Swaps Customer of such Depositing Futures Commission Merchant whose Cleared Swaps contribute to such margin call,
(1) Transmit to the Collecting Futures Commission Merchant an amount equal to the lesser of
(i) The amount called for; or
(ii) The remaining Cleared Swaps Collateral on deposit at such Depositing Futures Commission Merchant for that Cleared Swaps Customer; and
(2) Advise the Collecting Futures Commission Merchant of the identity of each such Cleared Swaps Customer, and the amount transmitted on behalf of each such customer.
(b) If the entity acting as Depositing Futures Commission Merchant referenced in paragraph (a) of this section is also a Collecting Futures Commission Merchant, then:
(1) Such entity shall include in the transmission required in paragraph (a)(1) of this section any amount that it receives, pursuant to paragraph (a)(1) of this section, from a Depositing Futures Commission Merchant for which such entity acts as a Collecting Futures Commission Merchant; and
(2) Such entity shall present its Collecting Futures Commission Merchant with the information that it receives, pursuant to paragraph (a)(2) of this section, from a Depositing Futures Commission Merchant for which such
(c) A futures commission merchant which receives a call for margin (whether initial or variation) with respect to a Cleared Swaps Customer Account from a derivatives clearing organization, which call such futures commission merchant does not meet in full, shall, with respect to each Cleared Swaps Customer of such futures commission merchant whose Cleared Swaps contribute to such margin call:
(1) Transmit to the derivatives clearing organization an amount equal to the lesser of
(i) The amount called for; or
(ii) The remaining Cleared Swaps Collateral on deposit at such futures commission merchant for each such Cleared Swaps Customer; and
(2) advise the derivatives clearing organization of the identity of each such Cleared Swaps Customer, and the amount transmitted on behalf of each such customer.
(d) If the futures commission merchant referenced in paragraph (c) is a Collecting Futures Commission Merchant, then:
(1) Such Collecting Futures Commission Merchant shall include in the transmission required in paragraph (c)(1) of this section any amount that it receives from a Depositing Futures Commission Merchant pursuant to paragraph (a)(1) of this section; and
(2) Such Collecting Futures Commission shall present the derivatives clearing organization with the information that it receives from a Depositing Futures Commission Merchant pursuant to paragraph (a)(2) of this section.
(e) If,
(1) On the business day prior to the business day on which the Depositing Futures Commission Merchant fails to meet a margin call with respect to a Cleared Swaps Customer Account, such Collecting Futures Commission Merchant referenced in paragraph (a) of this section held, with respect to such account, Cleared Swaps Collateral of a value no less than the amount specified in § 22.12(a)(2) of this part, after the application of haircuts specified by policies applied by such Collecting Futures Commission Merchant in its relationship with the Depositing Futures Commission Merchant, and
(2) As of the close of business on the business day on which the margin call is not met, the market value of the Cleared Swaps Collateral held by the derivatives clearing organization or Collecting Futures Commission Merchant is, due to changes in such market value, less than the amount specified in § 22.12(a)(2) of this part, then the amount of such collateral attributable to each Cleared Swaps Customer pursuant to § 22.12(a)(1) of this part shall be reduced by the percentage difference between the amount specified in § 22.12(a)(2) of this part and such market value.
(f) If:
(1) On the business day prior to the business day on which the futures commission merchant fails to meet a margin call with respect to a Cleared Swaps Customer Account, the derivatives clearing organization referenced in paragraph (c) of this section held, with respect to such account, Cleared Swaps Collateral of a value no less than the amount specified in § 22.12(c)(2) of this part, after the application of haircuts specified by the rules and procedures of such derivatives clearing organization, and
(2) As of the close of business on the business day on which the margin call is not met, the market value of the Cleared Swaps Collateral held by the derivatives clearing organization is, due to changes in such market value, less than the amount specified in § 22.12(c)(2) of this part, then the amount of collateral attributable to each Cleared Swaps Customer pursuant to § 22.12(c)(1) of this part shall be reduced by the percentage difference between the amount specified in § 22.12(c)(2) and such market value.
Subject to § 22.3(e) of this part, each derivatives clearing organization and each Collecting Futures Commission Merchant receiving Cleared Swaps Customer Collateral from a Depositing Futures Commission Merchant shall treat the value of collateral required with respect to the portfolio of rights and obligations arising out of the Cleared Swaps intermediated for each Cleared Swaps Customer, and collected from the Depositing Futures Commission Merchant, as belonging to such customer, and such amount shall not be used to margin, guarantee, or secure the Cleared Swaps or other obligations of the Depositing Futures Commission Merchant or of any other Cleared Swaps Customer or Customer.
(a) A futures commission merchant shall disclose, to each of its Cleared Swaps Customers, the governing provisions, as described in paragraph (c) of this section, relating to use of Cleared Swaps Customer Collateral, transfer, neutralization of the risks, or liquidation of Cleared Swaps in the event of a default by the futures commission merchant relating to the Cleared Swaps Customer Account, as well as any change in such governing provisions.
(b) If the futures commission merchant referenced in paragraph (a) of this section is a Depositing Futures Commission Merchant, then such futures commission merchant shall disclose, to each of its Cleared Swaps Customers, the governing provisions, as described in paragraph (c) of this section, relating to use of Cleared Swaps Customer Collateral, transfer, neutralization of the risks, or liquidation of Cleared Swaps in the event of a default by:
(1) Such futures commission merchant or
(2) Any relevant Collecting Futures Commission Merchant relating to the Cleared Swaps Customer Account, as well as any change in such governing provisions.
(c) The governing provisions referred to in paragraphs (a) and (b) of this section are the rules of each derivatives clearing organization, or the provisions of the customer agreement between the Collecting Futures Commission Merchant and the Depositing Futures Commission Merchant, on or through which the Depositing Futures Commission Merchant will intermediate Cleared Swaps for such Cleared Swaps Customer.
2. The authority citation for part 190 continues to read as follows:
7 U.S.C. 1a, 2, 4a, 6c, 6d, 6g, 7a, 12, 19, and 24, and 11 U.S.C. 362, 546, 548, 556, and 761-766, unless otherwise noted.
3. In 17 CFR Part 190:
A. Remove the words “commodity account” and “commodity futures account” and add, in their place, the words “commodity contract account” in:
i. Sections 190.01(w), (y), and (kk)(6),
ii. Sections 190.02(d)(1), (6), and (7),
iii. Section 190.03(a)(2),
iv. Sections 190.06(g)(1)(i), (ii), and (3),
v. Sections 190.10(d)(1) and (h),
B. Remove the words “commodity futures contract” and add, in their place, the words “commodity contract” in § 190.05(a)(1) and (b)(1).
C.
i. Sections 190.01(gg), (kk)(2)(i), (4) and (5),
ii. Section 190.04(d)(1)(i), and
iii. Section 190.07(e)(2)(ii)(B) Remove the words “commodity transaction” and
4. In § 190.01, redesignate paragraphs (e) through (oo) as (f) through (pp), add a new paragraph (e) and revise paragraphs (a), (f), and newly redesignated paragraphs (cc), (hh), (ll)(2)(ii), (ll)(4), (ll)(5), and (pp) to read as follows:
(a)(1)
(2)(i) To the extent that the equity balance, as defined in § 190.07 of this part, of a customer in a commodity option, as defined in § 1.3 of this chapter, may be commingled with the equity balance of such customer in any domestic commodity futures contract pursuant to regulations under the Act, the aggregate shall be treated for purposes of this part as being held in a futures account.
(ii) To the extent that such equity balance of a customer in a commodity option may be commingled with the equity balance of such customer in any cleared swaps account pursuant to regulations under this act, the aggregate shall be treated for purposes of this part as being held in a cleared swaps account.
(iii) If positions or transactions in commodity contracts that would otherwise belong to one account class (and the money, securities, or other property margining, guaranteeing, or securing such positions or transactions), are, pursuant to a Commission rule, regulation, or order (or a derivatives clearing organization rule approved in accordance with § 39.15(b)(2) of this chapter), held separately from other positions and transactions in that account class, and are commingled with positions or transactions in commodity contracts of another account class (and the money, securities, or other property margining, guaranteeing, or securing such positions or transactions), then the former positions (and the relevant money, securities, or other property) shall be treated, for purposes of this part, as being held in an account of the latter account class.
(e)
(f)
(cc)
(hh)
(1) Transactions executed off the floor of a designated contract market pursuant to rules approved by the Commission or rules which the designated contract market is required to enforce, or pursuant to rules of a foreign board of trade located outside the United States, its territories or possessions; or (2) cleared swaps contracts.
(ll) * * *
(2) * * *
(ii) Is a bona fide hedging position or transaction as defined in § 1.3 of this chapter or is a commodity option transaction which has been determined by the registered entity to be economically appropriate to the reduction of risks in the conduct and management of a commercial enterprise pursuant to rules which have been approved by the Commission pursuant to section 5c(c) of the Commodity Exchange Act; and
(4) Any cash or other property deposited prior to the entry of the order for relief to pay for the taking of physical delivery on a long commodity contract or for payment of the strike price upon exercise of a short put or a long call option contract on a physical commodity, which cannot be settled in cash, in excess of the amount necessary to margin such commodity contract prior to the notice date or exercise date, which cash or other property is identified on the books and records of the debtor as received from or for the account of a particular customer on or after three calendar days before the first notice date or three calendar days before the exercise date specifically for the purpose of payment of the notice price upon taking delivery or the strike price upon exercise, respectively, and such customer takes delivery or exercises the option in accordance with the applicable contract market rules.
(5) The cash price tendered for any property deposited prior to the entry of the order for relief to make physical delivery on a short commodity contract or for exercise of a long put or a short call option contract on a physical commodity, which cannot be settled in cash, to the extent it exceeds the amount necessary to margin such contract prior to the notice date or exercise date, which property is identified on the books and records of the debtor as received from or for the account of a particular customer on or after three calendar days before the first notice date or three calendar days before the exercise date specifically for the purpose of a delivery or exercise, respectively, and such customer makes delivery or exercises the option in accordance with the applicable contract market rules.
(pp)
5. In § 190.02, revise paragraphs (a), (b)(1), (b)(2), (d)(11), (e), (f)(1), and (g)(2)(i) to read as follows:
(a)
(1)
(2)
(b)
(2)
(d) * * *
(11) Whether the claimant's positions in security futures products are held in a futures account or a securities account, as these terms are defined in § 1.3 of this chapter;
(e)
(2)
(f)
(1)
(i) Dealer option contracts, if the dealer option grantor is not the debtor, which cannot be transferred on or before the seventh calendar day after the order for relief; and
(ii) Specifically identifiable commodity contracts as defined in § 190.01(kk)(2) for which an instruction prohibiting liquidation is noted prominently in the accounting records of the debtor and timely received under paragraph (b)(2) of this section. Notwithstanding the foregoing, an open commodity contract must be offset if: such contract is a futures contract or a cleared swaps contract which cannot be settled in cash and which would otherwise remain open either beyond the last day of trading (if applicable), or the first day on which notice of intent to deliver may be tendered with respect thereto, whichever occurs first; such contract is a long option on a physical commodity which cannot be settled in cash and would be automatically exercised, has value and would remain open beyond the last day for exercise; such contract is a short option on a physical commodity which cannot be settled in cash; or, as otherwise specified in these rules.
(g) * * *
(2) * * *
(i) 100% of the maintenance margin requirements of the applicable designated contact market or swap execution facility, if any, with respect to the open commodity contracts in such account; or
6. In § 190.03, revise paragraphs (a)(3), (b)(3), (b)(4), (b)(5), and (c) to read as follows:
(a) * * *
(3)
(b) * * *
(3) The trustee has received no customer instructions with respect to such contract by the sixth calendar day after entry of the order for relief;
(4) The commodity contract has not been transferred in accordance with § 190.08(d)(2) on or before the seventh calendar day after entry of the order for relief; or
(5) The commodity contract would otherwise remain open (
(c)
All specifically identifiable property other than open commodity contracts which have not been liquidated prior to the primary liquidation date, and for which no customer instructions have been timely received must be liquidated, to the extent reasonably possible, no later than the sixth calendar day after final publication of the notice referred to in § 190.02(b)(1). All other specifically identifiable property must be liquidated or returned, to the extent reasonably possible, no later than the seventh calendar day after final publication of such notice.
7. In § 190.04, revise paragraph (d)(1) to read as follows:
(d)
(ii)
8. In § 190.05, revise paragraph (b) introductory text to read as follows:
(b) Rules for deliveries on behalf of a customer of a debtor. Except in the case of a commodity contract which is settled in cash, each designated contract market, swap execution facility, or clearing organization shall adopt, maintain in effect and enforce rules which have been submitted in accordance with section 5c(c) of the Act for approval by the Commission, which:
9. In § 190.06, remove paragraph (e)(1)(iv) and redesignate paragraph (e)(1)(v) as (e)(1)(iv), revise paragraphs (a), (e)(1)(iii), (e)(2), (f)(3)(i) and (g)(2), and add paragraph (g)(1)(iii) to read as follows:
(a)
(1) Are inconsistent with the provisions of this part;
(2) Interfere with the acceptance by its members of open commodity contracts and the equity margining or securing such contracts from futures commission merchants, or persons which are required to be registered as futures com-mission merchants, which are required to transfer accounts pursuant to § 1.17(a)(4) of this chapter; or
(3) Prevent the acceptance by its members of transfers of open commodity contracts and the equity margining or securing such contracts from futures commission merchants with respect to which a petition in bankruptcy has been filed, if such transfers have been approved by the Commission.
(e)
(1) * * *
(iii) Dealer option accounts, if the debtor is the dealer option grantor with respect to such accounts; or
(f) * * *
(3)
(i) If all eligible customer accounts held by a debtor cannot be transferred under this section, a partial transfer may nonetheless be made. The Commission will not disapprove such a transfer for the sole reason that it was a partial transfer if it would prefer the transfer of accounts, the liquidation of which could adversely affect the market or the bankrupt estate. Any dealer option contract held by or for the account of a debtor which is a futures commission merchant from or for the account of a customer which has not previously been transferred, and is eligible for transfer, must be transferred on or before the seventh calendar day after entry of the order for relief.
(g) * * *
(1) * * *
(iii) The transfer prior to the order for relief by a clearing organization of one or more accounts held for or on behalf of customers of the debtor, provided that (I) the money, securities, or other property accompanying such transfer did not exceed the funded balance of each account based on available information as of the close of business on the business day immediately preceding such transfer less the value on the date of return or transfer of any property previously returned or transferred thereto, and (II) the transfer is not disapproved by the Commission.
(2)
(i) The transfer of a customer account eligible to be transferred under paragraph (e) or (f) of this section made by the trustee of the commodity broker or by any self-regulatory organization of the commodity broker:
(A) On or before the seventh calendar day after the entry of the order for relief; and
(B) The Commission is notified in accordance with § 190.02(a)(2) prior to the transfer and does not disapprove the transfer; or
(ii) The transfer of a customer account at the direction of the Commission on or before the seventh calendar day after the order for relief upon such terms and conditions as the Commission may deem appropriate and in the public interest.
10. In § 190.07, redesignate paragraph (b)(2)(xiii) as paragraph (b)(2)(xiv), add a new paragraph (b)(2)(xiii), and revise paragraphs (b)(2)(viii), (b)(2)(ix), (b)(3)(v), (c)(1)(i), (e) introductory text, (e)(1) and (e)(4) to read as follows:
(b) * * *
(2) * * *
(viii) Subject to paragraph (b)(2)(ix) of this section, the futures accounts, leverage accounts, options accounts, foreign futures accounts, delivery accounts (as defined in § 190.05(a)(2)), and cleared swaps accounts of the same person shall not be deemed to be held in separate capacities:
(ix) an omnibus customer account of a futures commission merchant maintained with a debtor shall be deemed to be held in a separate capacity from the house account and any other omnibus customer account of such futures commission merchant.
(xiii) with respect to the cleared swaps customer account class, each individual customer account within each omnibus customer account referred to in paragraph (ix) of this section shall be deemed to be held in a separate capacity from each other such individual customer account; subject to the provisions of paragraphs (i) through (xii) of this paragraph (b)(2).
(3) * * *
(v) The rules pertaining to separate capacities and permitted setoffs contained in this section must be applied subsequent to the entry of an order for relief; prior to the filing date, the provisions of § 1.22 of this chapter and of sections 4d(a)(2) and 4d(f) of the Act shall govern what setoffs are permitted.
(c) * * *
(1) * * *
(i) Multiplying the ratio of the amount of the net equity claim less the amounts referred to in (c)(1)(ii) of this section of such customer for any account class bears to the sum of the net equity claims less the amounts referred to in (c)(1)(ii) of this section of all customers for accounts of that class by the sum of:
(A) The value of the money, securities or property segregated on behalf of all accounts of the same class less the amounts referred to in (1)(ii) of this section;
(B) The value of any money, securities or property which must be allocated under § 190.08 to customer accounts of the same class; and
(C) The amount of any add-back required under paragraph (b)(4) of this section; and
(e)
(1)
(4)
11. In § 190.09, revise paragraph (b) to read as follows:
(b)
12. In § 190.10, revise paragraph (a) to read as follows:
(a)
13. Revise Appendix A to Part 190 to read as follows:
For the convenience of a prospective trustee, the Commission has constructed an approximate schedule of important duties which the trustee should perform during the early stages of a commodity broker bankruptcy proceeding. The schedule includes duties required by this part, subchapter IV of chapter 7 of the Bankruptcy Code as well as certain practical suggestions, but it is only intended to highlight the more significant duties and is not an exhaustive description of all the trustee's responsibilities. It also assumes that the commodity broker being liquidated is an FCM. Moreover, it is important to note that the operating facts in a particular bankruptcy proceeding may vary the schedule or obviate the need for any of the particular activities.
1. Assure that the commodity broker has notified the Commission, its designated self-regulatory organization (“DSRO”) (if any), and all applicable clearing organizations of which it is a member that a petition or order for relief has been filed (§ 190.02(a)(1)).
2. Attempt to effectuate the transfer of entire customer accounts wherein the commodity contracts are transferred together with the money, securities, or other property margining, guaranteeing, or securing the commodity contracts (hereinafter the “transfer”).
3. Attempt to estimate shortfall of customer funds segregated pursuant to sections 4d(a) and (b) of the Act; customer funds segregated pursuant to section 4f of the Act; and the foreign futures or foreign options secured amount, as defined in § 1.3 of this chapter.
a. The trustee should:
i. Contact the DSRO (if any) and the clearing organizations and attempt to effectuate a transfer with such shortfall under section 764(b) of the Code; notify the Commission for assistance (§ 190.02(a)(2) and (e)(1), § 190.06(b)(2), (e), (f)(3), (g)(2), and (h)) but recognize that if there is a substantial shortfall, a transfer of such funds or amounts is highly unlikely.
ii. If a transfer cannot be effectuated, liquidate all customer commodity contracts that are margined, guaranteed, or secured by funds or amounts with such shortfall, except dealer options and specifically identifiable commodity contracts which are bona fide hedging positions (as defined in § 190.01(kk)(2)) with instructions not to be liquidated. (See §§ 190.02(f) and 190.06(d)(1)). (In this connection, depending upon the size of the debtor and other complications of liquidation, the trustee should be aware of special liquidation rules, and in particular the availability under certain circumstances of book-entry liquidation (§ 190.04(d)(1)(ii)).
b. If there is a small shortfall in any of the funds or amounts listed in paragraph 2, negotiate with the clearing organization to effect a transfer; notify the Commission (§§ 190.02(a)(2) and (e)(1), 190.06(b)(2), (e), (f)(3), (g)(2), and (h)).
4. Whether or not a transfer has occurred, liquidate or offset open commodity contracts not eligible for transfer (
5. Offset all futures contracts and cleared swaps contracts which cannot be settled in cash and which would otherwise remain open either beyond the last day of trading (if applicable) or the first day on which notice of intent to deliver may be tendered with respect thereto, whichever occurs first; offset all long options on a physical commodity which cannot be settled in cash, have value and would be automatically exercised or would remain open beyond the last day of exercise; and offset all short options on a physical commodity which cannot be settled in cash (§ 190.02(f)(1)).
6. Compute estimated funded balance for each customer commodity account containing open commodity contracts (§ 190.04(b)) (daily thereafter).
7. Make margin calls if necessary (§ 190.02(g)(1)) (daily thereafter).
8. Liquidate or offset any open commodity account for which a customer has failed to meet a margin call (§ 190.02(f)(1)) (daily thereafter).
9. Commence liquidation or offset of specifically identifiable property described in § 190.02(f)(2)(i) (property which has lost 10% or more of value) (and as appropriate thereafter).
10. Commence liquidation or offset of property described in § 190.02(f)(3) (“all other property”).
11. Be aware of any contracts in delivery position and rules pertaining to such contracts (§ 190.05).
1. If a transfer occurred on the date of entry of the order for relief:
a. Liquidate any remaining open commodity contracts, except any dealer option or specifically identifiable commodity contract [hedge] (See § 190.01(kk)(2) and § 190.02(f)(1)), and not otherwise transferred in the transfer.
b. Primary liquidation date for transferred or liquidated commodity contracts (§ 190.01(ff)).
2. If no transfer has yet been effected, continue attempt to negotiate transfer of open commodity contracts and dealer options (§ 190.02(c)(1)).
3. Provide the clearing house or carrying broker with assurances to prevent liquidation of open commodity contract accounts available for transfer at the customer's instruction or liquidate all open commodity contracts except those available for transfer at a customer's instruction and dealer options.
If no transfer has yet been effected, request directly customer instructions regarding transfer of open commodity contracts and publish notice for customer instructions regarding the return of specifically identifiable property other than commodity contracts (§§ 190.02(b) (1) and (2)).
1. Second publication date for customer instructions (§ 190.02(b)(1)) (publication is to be made on two consecutive days, whether or not the second day is a business day).
2. Last day on which to notify the Commission with regard to whether a transfer in accordance with section 764(b) of the Bankruptcy Code will take place (§ 190.02(a)(2) and § 190.06(e)).
Last day for customers to instruct the trustee concerning open commodity contracts (§ 190.02(b)(2)).
1. If not previously concluded, conclude transfers under § 190.06(e) and (f). (See § 190.02(e)(1) and § 190.06(g)(2)(i)(A)).
2. Transfer all open dealer option contracts which have not previously been transferred (§ 190.06(f)(3)(i)).
3. Primary liquidation date (§ 190.01(ff)) (assuming no transfers and liquidation effected for all open commodity contracts for which no customer instructions were received by the sixth calendar day).
4. Establishment of transfer accounts (§ 190.03(a)(1)) (assuming this is the primary liquidation date); mark such accounts to market (§ 190.03(a)(2)) (daily thereafter until closed).
5. Liquidate or offset all remaining open commodity contracts (§ 190.02(b)(2)).
6. If not done previously, notify customers of bankruptcy and request customer proof of claim (§ 190.02(b)(4)).
Customer instructions due to trustee concerning specifically identifiable property (§ 190.02(b)(1)).
Commence liquidation of specifically identifiable property for which no arrangements for return have been made in accordance with customer instructions (§§ 190.02(b)(1), 190.03(c)).
Complete liquidation to the extent reasonably possible of specifically identifiable property which has yet to be liquidated and for which no customer instructions have been received (§ 190.03(c)).
1. Within one business day after notice of receipt of filing of the petition in bankruptcy, the trustee should assure that proper notification has been given to the Commission, the commodity broker's designated self-regulatory organization (
2. On or before the seventh calendar day after the filing of a petition in bankruptcy,
As no customer may obtain more than his or her proportionate share of the property available to satisfy customer claims, if you instruct the trustee to return your property to you, you will be required to pay the estate, as a condition to the return of your property, an amount determined by the trustee. If your property is not margining an open contract, this amount will approximate the difference between the market value of your property and your
1. Any security deposited as margin which, as of (date petition was filed), was securing an open commodity contract and is:
2. Any fully-paid, non-exempt security held for your account in which there were no open commodity contracts as of (date petition was filed). (Rather than the return, at this time, of the specific securities you deposited with (commodity broker), you may instead request now, or at any later time, that the trustee purchase “like-kind” securities of a fair market value which does not exceed your proportionate share of the estate).
3. Any warehouse receipt, bill of lading or other document of title deposited as margin which, as of (date petition was filed), was securing an open commodity contract and—can be identified in (commodity broker)'s records as being held for your account, and—is neither in bearer form nor otherwise transferable by delivery.
4. Any warehouse receipt bill of lading or other document of title, or any commodity received, acquired or held by (commodity broker) to make or take delivery or exercise from or for your account and which—can be identified in (commodity broker)'s records as received from or for your account as held specifically for the purpose of delivery or exercise.
5. Any cash or other property deposited to make or take delivery on a commodity contract may be eligible to be returned. The trustee should be contacted directly for further information if you have deposited such property with (commodity broker) and desire its return.
Prior to receipt of your instructions, circumstances may require the trustee to liquidate your property, or transfer your property to another broker if it is margining open commodity contracts. If your property is transferred and your instructions were received within the required time, your instructions will be forwarded to the new broker.
The trustee is required to liquidate your property despite the timely receipt of your instructions, money, and proof of claim if, for any reason, your property cannot be returned by (close of business on the 7th business day after 2d publication date).
United States Bankruptcy Court __District of _____In re _____, Debtor, No. _____.
You indicated when your hedge account was opened that the commodity contracts in your hedge account should not be liquidated automatically in the event of the bankruptcy of (commodity broker), and that you wished to provide instructions at this time concerning their disposition.
Be further advised that prior to receipt of your instructions, circumstances may, in any event, require the trustee to liquidate or transfer your commodity contracts. If your commodity contracts are so transferred and your instructions are received, your instructions will be forwarded to the new broker.
Note also that the trustee is required to liquidate your positions despite the timely receipt of your instructions and money if, for any reason, you have not made arrangements to transfer and/or your contracts are not transferred by (7 calendar days after entry of order for relief).
[Note to trustee: As indicated in § 190.02(d), this form is provided as a guide to the trustee and should be modified as necessary depending upon the information which the trustee needs at the time a proof of claim is requested and the time provided for a response.]
United States Bankruptcy Court __District of _____In re _____, Debtor, No. _____. Return this form by _____ or your claim will be barred (unless extended, for good cause only).&
I. [If claimant is an individual claiming for himself] The undersigned, who is the claimant herein, resides at _____.
[If claimant is a partnership claiming through a member] The undersigned, who resides at __, is a member of _____, a partnership, composed of the undersigned and _____, of _____, and doing business at __, and is duly authorized to make this proof of claim on behalf of the partnership.
[If claimant is a corporation claiming though a duly authorized officer] The undersigned, who resides at __ is the _____ of __, a corporation organized under the laws of __ and doing business at _____, and is duly authorized to make this proof of claim on behalf of the corporation.
[If claim is made by agent] The undersigned, who resides at _____, is the agent of _____, and is duly authorized to make this proof of claim on behalf of the claimant.
II. The debtor was, at the time of the filing of the petition initiating this case, and still is, indebted to this claimant for the total sum of $ _____.
III. List EACH account on behalf of which a claim is being made by number and name of account holder[s], and for EACH account, specify the following information:
a. Whether the account is a futures, foreign futures, leverage, option (if an option account, specify whether exchange-traded, dealer or cleared swap), “delivery” account, or a cleared swaps account. A “delivery” account is one which contains only documents of title, commodities, cash, or other property identified to the claimant and deposited for the purposes of making or taking delivery on a commodity underlying a commodity contract or for payment of the strike price upon exercise of an option.
b. The capacity in which the account is held, as follows (and if more than one is applicable, so state):
1. [The account is held in the name of the undersigned in his individual capacity];
2. [The account is held by the undersigned as guardian, custodian, or conservator for the benefit of a ward or a minor under the Uniform Gift to Minors Act];
3. [The account is held by the undersigned as executor or administrator of an estate];
4. [The account is held by the undersigned as trustee for the trust beneficiary];
5. [The account is held by the undersigned in the name of a corporation, partnership, or unincorporated association];
6. [The account is held as an omnibus customer account of the undersigned futures commission merchant];
7. [The account is held by the undersigned as part owner of a joint account];
8. [The account is held by the undersigned in the name of a plan which, on the date the petition in bankruptcy was filed, had in effect a registration statement in accordance with the requirements of § 1031 of the Employee Retirement Income Security Act of 1974 and the regulations thereunder]; or
9. [The account is held by the undersigned as agent or nominee for a principal or beneficial owner (and not described above in items 1-8 of this II, b)].
10. [The account is held in any other capacity not described above in items 1-9 of this II, b. Specify the capacity].
c. The equity, as of the date the petition in bankruptcy was filed, based on the commodity contracts in the account.
d. Whether the person[s] (including a general partnership, limited partnership, corporation, or other type of association) on whose behalf the account is held is one of the following persons OR whether one of the following persons, alone or jointly, owns 10% or more of the account:
1. [If the debtor is an individual—
A. Such individual;
B. Relative (as defined below in item 8 of this III,d) of the debtor or of a general partner of the debtor;
C. Partnership in which the debtor is a general partner;
D. General partner of the debtor; or
E. Corporation of which the debtor is a director, officer, or person in control];
2. [If the debtor is a partnership—
A. Such partnership;
B. General partner in the debtor;
C. Relative (as defined in item 8 of this III,d) of a general partner in, general partner of, or person in control of the debtor;
D. Partnership in which the debtor is a general partner;
E. General partner of the debtor; or
F. Person in control of the debtor];
3. [If the debtor is a limited partnership—
A. Such limited partnership;
B. A limited or special partner in such partnership whose duties include:
i. The management of the partnership business or any part thereof;
ii. The handling of the trades or customer funds of customers of such partnership;
iii. The keeping of records pertaining to the trades or customer funds of customers of such partnership; or
iv. The signing or co-signing of checks or drafts on behalf of such partnership];
4. [If the debtor is a corporation or association (except a debtor which is a futures commission merchant and is also a cooperative association of producers)—
A. Such corporation or association;
B. Director of the debtor;
C. Officer of the debtor;
D. Person in control of the debtor;
E. Partnership in which the debtor is a general partner;
F. General partner of the debtor;
G. Relative (as defined in item 8 of this III,d) of a general partner, director, officer, or person in control of the debtor;
H. An officer, director or owner of ten percent or more of the capital stock of such organization];
5. [If the debtor is a futures commission merchant which is a cooperative association of producers—
Shareholder or member of the debtor which is an officer, director or manager];
6. [An employee of such individual, partnership, limited partnership, corporation or association whose duties include:
A. The management of the business of such individual, partnership, limited partnership, corporation or association or any part thereof;
B. The handling of the trades or customer funds of customers of such individual, partnership, limited partnership, corporation or association;
C. The keeping of records pertaining to the trades or funds of customers of such individual, partnership, limited partnership, corporation or association; or
D. The signing or co-signing of checks or drafts on behalf of such individual, partnership, limited partnership, corporation or association];
7. [Managing agent of the debtor];
8. [A spouse or minor dependent living in the same household of ANY OF THE FOREGOING PERSONS, or any other relative, regardless of residency, (unless previously described in items 1-B, 2-C, or 4-G of this III, d) defined as an individual related by affinity or consanguinity within the third degree as determined by the common law, or individual in a step or adoptive relationship within such degree];
9. [“Affiliate” of the debtor, defined as:
A. Entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than an entity that holds such securities—
i. In a fiduciary or agency capacity without sole discretionary power to vote such securities; or
ii. Solely to secure a debt, if such entity has not in fact exercised such power to vote;
B. Corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor, or by an entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than an entity that holds such securities—
i. In a fiduciary or agency capacity without sole discretionary power to vote such securities; or
ii. Solely to secure a debt, if such entity has not in fact exercised such power to vote;
C. Person whose business is operated under a lease or operating agreement by the debtor, or person substantially all of whose property is operated under an operating agreement with the debtor;
D. Entity that otherwise, directly or indirectly, is controlled by or is under common control with the debtor];
E. Entity that operates the business or all or substantially all of the property of the debtor under a lease or operating agreement; or
F. Entity that otherwise, directly or indirectly, controls the debtor; or
10. [Any of the persons listed in items 1-7 above of this III, d if such person is associated with an affiliate (see item 9 above) of the debtor as if the affiliate were the debtor].
e. Whether the account is a discretionary account. (If it is, the name in which the “attorney in fact” is held).
f. If the account is a joint account, the amount of the claimant's percentage interest in the account. (Also specify whether participants in a joint account are claiming separately or jointly).
g. Whether the claimant's positions in security futures products are held in a futures account or securities account, as those terms are defined in § 1.3 of this chapter.
IV. Describe all claims against the debtor not based upon a commodity contract account of the claimant (
V. Describe all claims of the DEBTOR against the CLAIMANT not already included in the equity of a commodity contract account[s] of the claimant (see III, c above).
VI. Describe any deposits of money, securities or other property held by or for the debtor from or for the claimant, and indicate if any of this property was included in your answer to III, c above.
VII. Of the money, securities, or other property described in VI above, identify any which consists of the following:
a. With respect to property received, acquired, or held by or for the account of the debtor from or for the account of the claimant to margin, guarantee or secure an open commodity contract, the following:
1. Any security which as of the filing date is:
A. Held for the claimant's account;
B. Registered in the claimant's name;
C. Not transferable by delivery; and
D. Not a short term obligation; or
2. Any warehouse receipt, bill of lading or other document of title which as of the filing date:
A. Can be identified on the books and records of the debtor as held for the account of the claimant; and
B. Is not in bearer form and is not otherwise transferable by delivery.
b. With respect to open commodity contracts, and except as otherwise provided below in item g of this VII, any such contract which:
1. As of the date the petition in bankruptcy was filed, is identified on the books and records of the debtor as held for the account of the claimant;
2. Is a bona fide hedging position or transaction as defined in Rule 1.3 of the Commodity Futures Trading Commission (“CFTC”) or is a commodity option transaction which has been determined by a registered entity to be economically appropriate to the reduction of risks in the conduct and management of a commercial enterprise pursuant to rules which have been approved by the CFTC pursuant to section 5c(c) of the Commodity Exchange Act;
3. Is in an account designated in the accounting records of the debtor as a hedging account.
c. With respect to warehouse receipts, bills of lading or other documents of title, or physical commodities received, acquired, or held by or for the account of the debtor for the purpose of making or taking delivery or exercise from or for the claimant's account, any such document of title or commodity which as of the filing date can be identified on the books and records of the debtor as received from or for the account of the claimant specifically for the purpose of delivery or exercise.
d. Any cash or other property deposited prior to bankruptcy to pay for the taking of physical delivery on a long commodity contract or for payment of the strike price upon exercise of a short put or a long call option contract on a physical commodity, which cannot be settled in cash, in excess of the amount necessary to margin such commodity contract prior to the notice date or exercise date which cash or other property is identified on the books and records of the debtor as received from or for the account of the claimant within three or less days of the notice date or three or less days of the exercise date specifically for the purpose of payment of the notice price upon taking delivery or the strike price upon exercise.
e. The cash price tendered for any property deposited prior to bankruptcy to make physical delivery on a short commodity contract or for exercise of a long put or a short call option contract on a physical commodity, which cannot be settled in cash, to the extent it exceeds the amount necessary to margin such contract prior to the notice exercise date which property is identified on the books and records of the debtor as received from or for the account of the claimant within three or less days of the notice date or of the exercise date specifically for the purpose of a delivery or exercise.
f. Fully paid, non-exempt securities identified on the books and records of the debtor as held by the debtor for or on behalf of the commodity contract account of the claimant for which, according to such books and records as of the filing date, no open commodity contracts were held in the same capacity.
g. Open commodity contracts transferred to another futures commission merchant by the trustee.
VIII. Specify whether the claimant wishes to receive payment in kind, to the extent possible, for any claim for securities.
IX. Attach copies of any documents which support the information provided in this proof of claim, including but not limited to customer confirmations, account statements, and statements of purchase or sale.
This proof of claim must be filed with the trustee no later than ___, or your claim will be barred unless an extension has been granted, available only for good cause.
Return this form to:
Penalty for Presenting Fraudulent Claim. Fine of not more than $5,000 or imprisonment for not more than five years or both—Title 18, U.S.C. 152.
14. Revise Appendix B to Part 190 to read as follows:
The Commission has established the following distributional convention with respect to “futures customer funds” (as § 1.3 of this chapter defines such term) held by a futures commission merchant (FCM) that participated in a cross-margining (XM) program which shall apply if participating market professionals sign an agreement that makes reference to this distributional rule and the form of such agreement has been approved by the Commission by rule, regulation or order:
All futures customer funds held in respect of XM accounts, regardless of the product that customers holding such accounts are trading, are required by Commission order to be segregated separately from all other customer segregated funds. For purposes of this distributional rule, XM accounts will be deemed to be commodity interest accounts and securities held in XM accounts will be deemed to be received by the FCM to margin, guarantee or secure commodity interest contracts. The maintenance of property in an XM account will result in subordination of the claim for such property to certain non-XM customer claims and thereby will operate to cause such XM claim not to be treated as a customer claim for purposes of the Securities Investors Protection Act and the XM securities to be excluded from the securities estate. This creates subclasses of futures customer accounts, an XM account and a non-XM account (a person could hold each type of account), and results in two pools of segregated funds belonging to futures customers: An XM pool and a non-XM pool. In the event that there is a shortfall in the non-XM pool of customer class segregated funds and there is no shortfall in the XM pool of customer segregated funds, all futures customer net equity claims, whether or not they arise out of the XM subclass of accounts, will be combined and will be paid
The following examples illustrate the operation of this convention. The examples assume that the FCM has two customers, one with exclusively XM accounts and one with exclusively non-XM accounts. However, the examples would apply equally if there were only one customer, with both an XM account and a non-XM account.
1. Sufficient Funds to Meet Non-XM and XM Customer Claims:
There are adequate funds available and both the non-XM and the XM customer claims will be paid in full.
2. Shortfall in Non-XM Only:
Due to the non-XM account, there are insufficient funds available to meet both the non-XM and the XM customer claims in full. Each customer will receive his
3. Shortfall in XM Only:
Due to the XM account, there are insufficient funds available to meet both the non-XM and the XM customer claims in full. Accordingly, the XM funds and non-XM funds are treated as separate pools, and the non-XM customer will be paid in full, receiving $ 150 while the XM customer will receive the remaining $100.
4. Shortfall in Both, With XM Shortfall Exceeding Non-XM Shortfall:
There are insufficient funds available to meet both the non-XM and the XM customer claims in full, and the XM shortfall exceeds the non-XM shortfall. The non-XM customer will receive the $125 available with respect to non-XM claims while the XM customer will receive the $100 available with respect to XM claims.
5. Shortfall in Both, With Non-XM Shortfall Exceeding XM Shortfall:
There are insufficient funds available to meet both the non-XM and the XM customer claims in full, and the non-XM shortfall exceeds the XM shortfall. Each customer will receive 50% of the $225 available, or $112.50.
6. Shortfall in Both, Non-XM Shortfall = XM Shortfall:
There are insufficient funds available to meet both the non-XM and the XM customer claims in full, and the non-XM shortfall equals the XM shortfall. Each customer will receive 50% of the $200 available, or $100.
These examples illustrate the principle that
The Commission has established the following allocation convention with respect to futures customer funds (as § 1.3 of this chapter defines such term) and Cleared Swaps Customer Collateral (as § 22.1 of this chapter defines such term) segregated pursuant to the Act and Commission rules thereunder held by a futures commission merchant (“FCM”) or derivatives clearing organization (“DCO”) in a depository outside the United States (“U.S.”) or in a foreign currency. The maintenance of futures customer funds or Cleared Swaps Customer Collateral in a depository outside the U.S. or denominated in a foreign currency will result, in certain circumstances, in the reduction of customer claims for such funds. For purposes of this proposed bankruptcy convention, sovereign action of a foreign government or court would include, but not be limited to, the application or enforcement of statutes, rules, regulations, interpretations, advisories, decisions, or orders, formal or informal, by a Federal, state, or provincial executive, legislature, judiciary, or government agency. If an FCM enters into bankruptcy and maintains futures customer funds or Cleared Swaps Customer Collateral in a depository located in the U.S. in a currency other than U.S. dollars or in a depository outside the U.S., the following allocation procedures shall be used to calculate the claim of each futures customer or Cleared Swaps Customer (as § 22.1 of this chapter defines such term). The allocation procedures should be performed separately with respect to each futures customer or Cleared Swaps Customer.
1. Convert the claim of each futures customer or Cleared Swaps Customer in each currency to U.S. Dollars at the exchange rate in effect on the Final Net Equity Determination Date, as defined in § 190.01(s) (the “Exchange Rate”).
2. Determine the amount of assets available for distribution to futures customers or Cleared Swaps Customers. In making this calculation,
3. Convert the amount of futures customer funds and Cleared Swaps Customer Collateral available for distribution to U.S. Dollars at the Exchange Rate.
4. Determine the Shortfall Percentage that is
1. Reduce the claim of each futures customer or Cleared Swaps Customer by the Shortfall Percentage.
1. If any portion of the claim of a futures customer or Cleared Swaps Customer is required to be kept in U.S. dollars in the U.S., that portion of the claim is not exposed to Sovereign Loss.
2. If any portion of the claim of a futures customer or Cleared Swaps Customer is authorized to be kept in only one location and that location is:
a. The U.S. or a location in which there is no Sovereign Loss, then that portion of the claim is not exposed to Sovereign Loss.
b. A location in which there is Sovereign Loss, then that entire portion of the claim is exposed to Sovereign Loss.
3. If any portion of the claim of a futures customer or Cleared Swaps Customer is authorized to be kept in only one currency and that currency is:
a. U.S. dollars or a currency in which there is no Sovereign Loss, then that portion of the claim is not exposed to Sovereign Loss.
b. A currency in which there is Sovereign Loss, then that entire portion of the claim is exposed to Sovereign Loss.
4. If any portion of the claim of a futures customer or Cleared Swaps Customer is authorized to be kept in more than one location and:
a. There is no Sovereign Loss in any of those locations, then that portion of the claim is not exposed to Sovereign Loss.
b. There is Sovereign Loss in one of those locations, then that entire portion of the claim is exposed to Sovereign Loss.
c. There is Sovereign Loss in more than one of those locations, then an equal share of that portion of the claim will be exposed to Sovereign Loss in each such location.
5. If any portion of the claim of a futures customer or Cleared Swaps Customer is authorized to be kept in more than one currency and:
a. There is no Sovereign Loss in any of those currencies, then that portion of the claim is not exposed to Sovereign Loss.
b. There is Sovereign Loss in one of those currencies, then that entire portion of the claim is exposed to Sovereign Loss.
c. There is Sovereign Loss in more than one of those currencies, then an equal share of that portion of the claim will be exposed to Sovereign Loss.
1. The total Sovereign Loss for each location is the difference between:
a. The total futures customer funds or Cleared Swaps Customer Collateral deposited in depositories in that location and
b. The amount of futures customer funds or Cleared Swaps Customer Collateral in that location that is available to be distributed to futures customers or Cleared Swaps Customers, after taking into account any sovereign action.
2. The total Sovereign Loss for each currency is the difference between:
a. The value, in U.S. dollars, of the futures customer funds or Cleared Swaps Customer Collateral held in that currency on the day before the sovereign action took place and
b. The value, in U.S. dollars, of the futures customer funds or Cleared Swaps Customer Collateral held in that currency on the Final Net Equity Determination Date.
1. Each portion of the claim of a futures customer or Cleared Swaps Customer exposed to Sovereign Loss in a location will be reduced by:
2. Each portion of the claim of a futures customer or Cleared Swaps Customer exposed to Sovereign Loss in a currency will be reduced by:
3. A portion of the claim of a futures customer or Cleared Swaps Customer exposed to Sovereign Loss in a location or currency will not be reduced below zero. (The above calculations might yield a result below zero where the FCM kept more futures customer funds or Cleared Swaps Customer Funds in a location or currency than it was authorized to keep.)
4. Any amount of Sovereign Loss from a location or currency in excess of the total amount of futures customer funds or Cleared Swaps Customer Funds authorized to be kept in that location or currency (calculated in accord with section II.1 above) (“Total Excess Sovereign Loss”) will be divided among all futures customers or Cleared Swaps Customer who have authorized funds to be kept outside the U.S., or in currencies other than U.S. dollars, with each such futures customer or Cleared Swaps Customer claim reduced by the following amount:
The following examples illustrate the operation of this convention.
No shortfall in any location.
Conversion Rates: £1 = $1; £1=$1.5.
Convert the claim of each futures customer or Cleared Swaps Customer in each currency to U.S. Dollars:
Determine assets available for distribution to futures customers or Cleared Swaps Customers, converting to U.S. dollars:
There are no shortfalls in funds held in any location. Accordingly, there will be no reduction of futures customer or Cleared Swaps Customer claims.
Claims:
Shortfall in funds held in the U.S.
Conversion Rates: €1 = $1.
Reduction in Claims for General Shortfall
There is a shortfall in the funds held in the U.S. such that only
Convert each customer's claim in each currency to U.S. Dollars:
Determine assets available for distribution to futures customers or Cleared Swaps Customers, converting to U.S. dollars:
Determine the percentage of shortfall that is not attributable to sovereign action:
Reduce each futures customer or Cleared Swaps Customer claim by the Shortfall Percentage:
Reduction in Claims for Shortfall Due to Sovereign Action
There is no shortfall due to sovereign action. Accordingly, the futures customer or Cleared Swaps Customer claims will not be further reduced.
Claims After Reductions
Shortfall in funds held outside the U.S., or in a currency other than U.S. dollars, not due to sovereign action.
Conversion Rates: €1 = $1.
Convert the claim of each futures customer or Cleared Swaps Customer in each currency to U.S. Dollars:
Determine assets available for distribution to futures customers or Cleared Swaps Customers, converting to U.S. dollars:
Determine the percentage of shortfall that is not attributable to sovereign action:
Reduce each futures customer or Cleared Swaps Customer by the shortfall percentage:
There is no shortfall due to sovereign action. Accordingly, the claims will not be further reduced.
Shortfall in funds held outside the U.S., or in a currency other than U.S. dollars, due to sovereign action.
Conversion Rates: €1 = $1; ¥1 = $0.01, £1= $1.5.
Convert each futures customer or Cleared Swaps Customer claim in each currency to U.S. Dollars:
Determine assets available for distribution to futures customers or Cleared Swaps Customers, converting to U.S. dollars:
Determine the percentage of shortfall that is not attributable to sovereign action:
Reduce each futures customer or Cleared Swaps Customer claim by the shortfall percentage:
Due to sovereign action, only
Calculation of the allocation of the shortfall due to sovereign action—Germany ($50 shortfall to be allocated):
Claims After Reductions:
Shortfall in funds held outside the U.S., or in a currency other than U.S. dollars, due to sovereign action and a shortfall in funds held in the U.S.
Convert each futures customer or Cleared Swaps Customer claim in each currency to U.S. Dollars:
Determine assets available for distribution to futures customers or Cleared Swaps.
Customers, converting to U.S. dollars:
Determine the percentage of shortfall that is not attributable to sovereign action:
Shortfall Percentage = (1 − 900/1000) = (1 − 90%) = 10%. Reduce each futures customer or Cleared Swaps Customer claim by the shortfall percentage:
Due to sovereign action, none of the money in Germany is available.
Calculation of the allocation of the shortfall due to sovereign action Germany ($150 shortfall to be allocated):
Shortfall in funds held outside the U.S., or in a currency other than U.S. dollars, due to sovereign action, shortfall in funds held outside the U.S., or in a currency other than U.S. dollars, not due to sovereign action, and a shortfall in funds held in the U.S.
Convert each futures customer or Cleared Swaps Customer claim in each currency to U.S. Dollars:
Determine assets available for distribution to futures customers or Cleared Swaps Customers, converting to U.S. dollars:
Determine the percentage of shortfall that is not attributable to sovereign action:
Shortfall Percentage = (1-750/1000) = (1-75%) = 25%.
Reduce each futures customer or Cleared Swaps Customer claim by the shortfall percentage:
Due to sovereign action, none of the money in Germany and only
Calculation of the allocation of the shortfall due to sovereign action—Germany ($50 shortfall to be allocated):
Japan ($50 shortfall to be allocated):
Shortfall in funds held outside the U.S., or in a currency other than U.S. dollars, due to sovereign action, where the FCM kept more funds than permitted in such location or currency.
Convert each futures customer or Cleared Swaps Customer claim in each currency to U.S. dollars:
Determine assets available for distribution to futures customers or Cleared Swaps Customers, converting to U.S. dollars:
Determine the percentage of shortfall that is not attributable to sovereign action.
Reduce each futures customer or Cleared Swaps Customer claim by the shortfall percentage:
Due to sovereign action, none of the money in Germany is available.
Calculation of the allocation of the shortfall due to sovereign action—Germany ($200 shortfall to be allocated):
This would result in the claims of customers C and D being reduced below zero.
Accordingly, the claims of customer C and D will only be reduced to zero, or $50 for C and $100 for D. This results in a Total Excess Shortfall of $50.
This shortfall will be divided among the remaining futures customers or Cleared Swaps Customers who have authorized funds to be held outside the U.S. or in a currency other than U.S. dollars.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Gensler and Commissioners Dunn, Chilton and O'Malia voted in the affirmative; Commissioner Sommers voted in the negative.
I support the proposed rule on protection of cleared swaps customer contracts and collateral and the associated conforming amendments. The proposal carries out the Dodd-Frank Act's mandate that futures commission merchants (FCMs) and derivatives clearing organizations (DCOs) segregate customer collateral supporting cleared swaps. FCMs and DCOs must hold customer collateral in an account that is separate from that belonging to the FCMs or DCOs.
Under the Dodd-Frank Act, an FCM or DCO must not use the collateral of one swaps customer to cover the obligations of another swaps customer or itself. Under the proposed rule, in the event that an FCM defaults simultaneously with one or more of its cleared swaps customers, the DCO may access the collateral of the FCM's defaulting cleared swaps customers to cure the default, but not the collateral of the FCM's non-defaulting cleared swaps customers. The
This proposed rulemaking benefited from public input received during the CFTC staff roundtable on segregation and in other meetings and from the 32 comments received in response the Commission's advanced notice of proposed rulemaking. I look forward to further hearing from the public on this proposed rulemaking.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to recognize the recent change to the taxonomy of the currently endangered plant taxon,
We will accept comments received or postmarked on or before August 8, 2011. We must receive requests for public hearings, in writing, at the address shown in the
You may submit comments by one of the following methods:
(1)
(2)
We will not accept e-mail or faxes. We will post all comments on
Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We intend any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Please note that throughout the remainder of this document we will use the currently recognized names,
(1) Specific information regarding our recognition of
(2) Any available information on known or suspected threats and proposed or ongoing development projects with the potential to threaten either
(3) The effects of potential threat factors to both
(a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
(4) Specific information regarding impacts of fire on
(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act for
(6) Specific information on:
(a) The amount and distribution of
(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of these species, should be included in the designation and why,
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change, and
(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.
(7) Information that may assist us in identifying or clarifying the physical and biological features essential to the conservation of
(8) How the proposed critical habitat boundaries could be refined to more closely or accurately circumscribe the areas identified as containing the
(9) How we could improve or modify our design of critical habitat units, particularly our criteria for width of essential habitat for
(10) Information on pollinators of
(11) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(12) Information on the projected and reasonably likely impacts of climate change on the two species and the proposed critical habitat.
(13) Information on any quantifiable economic costs or benefits of the proposed designation of critical habitat.
(14) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
(15) Whether any specific areas we are proposing for critical habitat designation for
(16) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
You may submit your comments and materials concerning this proposed revised rule by one of the methods listed in the
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on
The Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date listed in the
It is our intent to discuss only those topics directly relevant to our recognition of the taxonomic split of
In 2001, Kelly and Burrascano (2001, p. 4) noted that “multiple biologists” had observed differences in the southernmost occurrences of
Further genetic investigation of
When we listed
Throughout this document, we refer to previous reports and documents, including
Only information relevant to actions described in this proposed rule is provided below. For additional information on
Federal actions taken prior to listing are described in the listing rule published in the
As described in the
The 5-year review (Service 2008, p. 13) concluded that
Very little is known about the germination and establishment of
No pollination studies are known to exist for
Figure 1. Range of
As of 2008, all eleven known occurrences of
In addition to the seven currently remaining natural occurrences, in 2007,
Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the criteria for determining whether a species is endangered or threatened under the Act. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors for
The original listing rule identified urban and residential development as a threat to
The Cities of San Diego and Santee have purchased private property as reserve land for
However, the occurrences discussed above represent only a small proportion of habitat that contains clumps of
Sand and gravel mining has broad-scale disruptive qualities to native ecosystems (Kondolf
The original listing rule identified altered hydrology as a threat to
Changes in local and regional hydrology have had detrimental effects on
Since listing, three occurrences have been extirpated due to altered hydrological patterns: Cemetery Canyon, Carroll Canyon, and western
Considering synergistic and cumulative effects of these combined hydrological threats, exacerbated by heavy development surrounding several canyons, we expect that altered hydrology will continue to pose a significant threat to habitats that support
The listing rule mentioned that fuel modification to exclude fire could affect
Our understanding of fire in fire-dependent habitat has changed since
Fire frequency has increased in North American Mediterranean Shrublands in California since about the 1950s, and studies indicate that southern California has demonstrated the greatest increase in wildfire ignitions, primarily due to an increase in population density beginning in the 1960s, and thus increasing the amount of human-caused fires (Keeley and Fotheringham 2003, p. 240). Increased wildfire frequency and decreased return fire interval, in conjunction with other effects of urbanization, such as increased nitrogen deposition and habitat disturbance due to foot and vehicle traffic, are believed to have resulted in the conversion of large areas of coastal sage scrub to nonnative grasslands in southern California (Service 2003, pp. 57-62; Brooks
However, threats to the habitat from fire exclusion, which impacts processes that historically created and maintained suitable habitat for
Some fire management is provided by CAL FIRE, which is an emergency response and resource protection department. CAL FIRE creates fire management plans to identify prevention measures that reduce risk, inform and involve the local communities in the area, and provide a framework to diminish potential wildfire losses and implement all applicable fire management regulations and policies (CAL FIRE 2011b; County of San Diego 2011a). CAL FIRE has signed a document to assist in management of backcountry areas in San Diego County, including Sycamore Canyon Ranch and its
Therefore, given the conversion of coastal sage scrub to nonnative grasses and the changing fire regime of southern California, we consider type conversion and the habitat effects of altered fire regime, particularly from increased frequency of fire, to be a significant threat to
To our knowledge, no commercial use exists for
Neither disease nor predation was known to be a threat affecting
At the time of listing, regulatory mechanisms that provided some protection for
Currently,
All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970 (42 U.S.C. 4321
Sikes Act
In 1997, section 101 of the Sikes Act (16 U.S.C. 670a(a)) was revised by the Sikes Act Improvement Act to authorize the Secretary of Defense to implement a program to provide for the conservation and rehabilitation of natural resources on military installations. To do so, the Department of Defense was required to work with Federal and State fish and wildlife agencies to prepare an integrated natural resources management plan (INRMP) for each facility with significant natural resources. The INRMPs provide a planning tool for future improvements; provide for sustainable multipurpose use of the resources, including activities such as hunting, fishing, trapping, and non-consumptive uses; and allow some public access to military installations. At MCAS Miramar and other military installations, INRMPs provide direction for project development and for the management, conservation, and rehabilitation of natural resources, including
Approximately 70 percent of the remaining habitat for
Under provisions of NPPA (Division 2, chapter 10 section 1900
Both the CESA and NPPA include prohibitions forbidding the “take” of State endangered and listed species (Chapter 10, Section 1908 and Chapter 1.5, Section 2080, CFG code). With regard to prohibitions of unauthorized take under NPPA, landowners are exempt from this prohibition for plants to be taken in the process of habitat modification. When landowners are notified by the State that a rare or endangered plant is growing on their land, the landowners are required to notify CDFG 10 days in advance of changing land use in order to allow salvage of listed plants. Sections 2081(b) and (c) of CESA allow CDFG to issue incidental take permits for State-listed threatened species if:
(1) The authorized take is incidental to an otherwise lawful activity;
(2) The impacts of the authorized take are minimized and fully mitigated;
(3) The measures required to minimize and fully mitigate the impacts of the authorized take are roughly proportional in extent to the impact of the taking of the species, maintain the applicant's objectives to the greatest extent possible, and are capable of successful implementation;
(4) Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and
(5) Issuance of the permit will not jeopardize the continued existence of a State-listed species.
The relationship between the NPPA and CESA has not been clearly defined under state law. The NPPA, which has been characterized as an exception to the take prohibitions of CESA, exempts a number of activities from regulation including: clearing of land for agricultural practices or fire control measures; removal of endangered or rare plants when done in association with an approved timber harvesting plan, or mining work performed pursuant to Federal or State mining laws, or by a public utility providing service to the public; or when a landowner proceeds with changing the use on their land in a manner that could result in take, provided the landowner notifies CDFG at least 10 days in advance of the change. These exemptions indicate that CESA and NPPA may be inadequate to protect
The California Environmental Quality Act (CEQA) (Public Resources Code 21000-21177) and the CEQA Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15000-15387) require State and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible. The CEQA applies to projects proposed to be undertaken or requiring approval by State and local government agencies, and the lead agency must complete the environmental review process required by CEQA, including conducting an initial study to identify the environmental impacts of the project and determine whether the identified impacts are significant; if significant impacts are determined, then an environmental impact report must be prepared to provide State and local agencies and the general public with detailed information on the potentially significant environmental effects (California Environmental Resources Evaluation System 2010). “Thresholds of Significance” are comprehensive criteria used to define environmental significant impacts based on quantitative and qualitative standards and include impacts to biological resources such as candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the CDFG or the Service; or any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the CDFG or Service (CEQA Handbook, Appendix G, 2010). Defining these significance thresholds helps ensure a “rational basis for significance determinations” and provides support for the final determination and appropriate revisions or mitigation actions to a project in order to develop a mitigated negative declaration rather than an environmental impact report (Governor's Office of Planning and Research 1994, p. 5). Under CEQA, projects may move forward if there is a statement of overriding consideration. If significant effects are identified, the lead agency has the option of requiring mitigation through changes in the project or to decide that overriding considerations make mitigation infeasible (CEQA section 21002). Protection of listed species through CEQA is, therefore, dependent upon the discretion of the lead agency involved.
The NCCP program is a cooperative effort between the State of California and numerous private and public partners with the goal of protecting habitats and species. An NCCP identifies and provides for the regional or area-wide protection of plants, animals, and their habitats, while allowing compatible and appropriate economic activity. The program began in 1991, under the State's NCCP Act (CFG Code 2800-2835). The primary objective of the NCCP program is to conserve natural communities at the ecosystem scale while accommodating compatible land uses (
The MSCP is a sub-regional HCP and NCCP made up of several subarea plans that have been in place for more than a decade. Under the umbrella of the MSCP, each of the 12 participating jurisdictions is required to prepare a subarea plan that implements the goals of the MSCP within that particular jurisdiction. The sub-regional MSCP covers 582,243 ac (235,625 ha) within the county of San Diego. Habitat conservation plans and multiple species conservation plans approved under section 10 of the Act are intended to protect covered species by avoidance, minimization, and mitigation of impacts.
The MSCP Subarea Plan for the City of San Diego includes
Within the City of San Diego MSCP Subarea Plan, further protections are afforded by the Environmentally Sensitive Lands ordinance (ESL). The ESL provides protection for sensitive biological resources (including
The County of San Diego MSCP Subarea Plan covers 252,132 ac (102,035 ha) of unincorporated county lands in the southwestern portion of the MSCP plan area. Only two percent of
In determining whether
The majority of
The City of San Diego Subarea Plan also includes provisions for monitoring and management through development of location-specific management plans for preserve land. However, the City of San Diego MSCP Subarea Plan has not developed final monitoring and management plans for
Despite the protections afforded to
Trampling was identified as a threat to
The listing rule identifies nonnative plants as a threat to
When the processes of natural disturbance, such as fire regime and normal storm flow events, are altered, native and nonnative plants can overcome otherwise suitable habitat for
Due to the absence or alteration of the natural disturbance processes within the range of
The listing rule identified the restricted range and small population size of
In particular, small population size makes it difficult for
Although the habitat occupied by
Recently, San Diego County has been impacted by multiple large fire events, a trend that is expected to continue. A model by Snyder
A narrow endemic such as
Given the increased frequency of megafires within Southern California ecosystems, and the inability of regulatory mechanisms to prevent or control megafire, we find that megafire does have the potential to impact occurrences of
A broad consensus exists among scientists that the earth is in a warming trend caused by anthropogenic greenhouse gases such as carbon dioxide (IPCC 2007). Researchers have documented climate-related changes in California (Croke
Since approximately the time of listing in 1998, an extended drought in the region (San Diego County Water Authority 2010, p. 2) created unusually dry habitat conditions. From 2000 to 2009, at one of the closer precipitation gauges to the species' range (Lake Cuyamaca, San Diego County, California), 8 of 10 years had precipitation significantly below normal (San Diego County Water Authority 2010, p. 2). This extended drought has cumulatively affected moisture regimes, riparian habitat, and vegetative conditions in and around suitable habitat for
The predicted future drought could impact the dynamic of the streambeds where
Additionally, drier conditions may result in increased fire frequency. As discussed under Factors A and E, this could make the ecosystems in which
While we recognize that climate change and increased drought associated with climate change are important issues with potential effects to listed species and their habitats, the best available scientific information does not currently give evidence specific enough for us to formulate accurate predictions regarding its effects to particular species, including
Based on a review of the best available scientific and commercial data regarding trampling, nonnative plant species, megafire, climate change, and small population size and restricted range, we found that nonnative plant species pose a significant threat to
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to
When the species was listed in 1998, there were 18 extant occurrences of what we now consider to be
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” Given the rapid population decline (particularly the decline of 45 percent of the population on MCAS Miramar since 2002), the species' limited range and small population size, and continuing significant threats, we find that
The chaparral habitat that
Very little is known about the germination and establishment of
No pollination studies are known to exist for
A total of two occurrences now considered
There is little information available on the population trends of most
Little information is available on the other occurrences. Reports from the CNDDB state that the Otay Lakes occurrence declined from 200 clumps in 1989, to 25 plants in 2005 (EO 4; CNDDB 2010b, p. 4); these are the only two surveys we are aware of for this occurrence. According to the CNDDB, all other occurrences are still extant (CNDDB 2010b). No surveys have been conducted in Mexico; the only known occurrences in Mexico are those visible across the border, as discussed above.
As stated above in the Summary of Factors Affecting
The original listing rule identified urban development as one of the most important threats to
The
Sand and gravel mining activities were identified as threats to
The original listing rule identified altered hydrology as a threat to
Habitat characteristics for
As discussed under Factor A for
Chaparral is more resistant to fire than coastal sage scrub, due to strong recruitment and effective germination after repeated fire events (Keeley 1987, p. 439; Tyler 1995, p. 1009). Chaparral is considered a crown-fire ecosystem, meaning ecosystems which “have endogenous mechanisms for recovery that include resprouting from basal burrs and long-lived seed banks that are stimulated to germinate by fire” (Keane
The fire regime in Baja California, Mexico, where some
Despite the resiliency of chaparral ecosystems to fire events, chaparral, like coastal sage scrub, has been experiencing type conversion in many areas in southern California. As with coastal sage scrub, chaparral habitat is also being invaded by nonnative species (Keeley 2006, p. 379). Nonnative grasses sprout more quickly after a fire than chaparral species; this process is exacerbated by increased fire intervals (Keeley 2001, pp. 84-85).
However, monitoring data from the MSCP Rare Plant Field Surveys by the City of San Diego indicate that type conversion is not taking place in chaparral habitats surrounding occurrences of
For the Marron Valley site, the MSCP Rare Plant Field Surveys conducted by the City of San Diego recorded 95 individuals of
Zedler
Nonetheless, fire is still a stressor to
The San Diego County Fire Authority (SDCFA), local governments, and CAL FIRE cooperatively protect 1.42 million ac (0.6 million ha) of land with 54 fire stations throughout San Diego County (County of San Diego 2011b, p. 1). Wildfire management plans and associated actions can help to reduce the impacts of type conversion due to frequent fire on natural resources, including
Therefore, based on the best available scientific and commercial information, type conversion due to more frequent fire does not pose a threat to
We evaluated several factors with the potential to destroy, modify, or curtail
To our knowledge, no commercial use exists for
Neither disease nor predation was known to be a threat affecting
At the time of listing, regulatory mechanisms identified as providing some level of protection for
All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970
The Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701
The Otay Mountain Wilderness Act (1999) (Pub. L. 106-145) and BLM management policies provide protection for all
The Memorandum of Understanding (MOU) between the Service, the BLM, the County of San Diego, the City of San Diego, SANDAG, and the CDFG, was issued in 1994 in conjunction with the development of the County of San Diego Subarea Plan under the MSCP for cooperation in habitat conservation planning and management (BLM 1994, pp. 1-8), and applies to the Otay Mountain Wilderness because it falls entirely within the boundary of this subarea plan. The MOU (BLM 1994, p. 3) details BLM's commitment to manage lands to “conform with” the County of San Diego Subarea Plan, which in turn requires protection of
Protections for
The BLM is collaborating with the Service to revise the South Coast Resource Management Plan, which covers the Otay Mountain Wilderness.
Under provisions of NPPA (Division 2, chapter 10 section 1900
The California Environmental Quality Act (CEQA) (Public Resources Code 21000-21177) and the CEQA Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15000-15387) requires State and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible. CEQA applies to projects proposed to be undertaken or requiring approval by State and local government agencies, and the lead agency must complete the environmental review process required by CEQA, including conducting an Initial Study to identify the environmental impacts of the project and determine whether the identified impacts are significant; if significant impacts are determined, then an Environmental Impact Report must be prepared to provide State and local agencies and the general public with detailed information on the potentially significant environmental effects (California Environmental Resources Evaluation System, 2010). “Thresholds of Significance” are comprehensive criteria used to define environmentally significant impacts based on quantitative and qualitative standards and include impacts to biological resources such as candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the CDFG or the Service; or any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the CDFG or Service (CEQA Handbook, Appendix G, 2010). Defining these significance thresholds helps ensure a “rational basis for significance determinations” and provides support for the final determination and appropriate revisions or mitigation actions to a project in order to develop a mitigated negative declaration rather than an Environmental Impact Report (Governor's Office of Planning and Research, 1994, p. 5). Under CEQA, projects may move forward if there is a statement of overriding consideration. If significant effects are identified, the lead agency has the option of requiring mitigation through changes in the project or to decide that overriding considerations make mitigation infeasible (CEQA section 21002). Protection of listed species through CEQA is, therefore, dependent upon the discretion of the lead agency involved.
Fifty-five percent of
The NCCP program is a cooperative effort between the State of California and numerous private and public partners with the goal of protecting habitats and species. An NCCP identifies and provides for the regional or area-wide protection of plants, animals, and their habitats, while allowing compatible and appropriate economic activity. The program began in 1991 under the State's NCCP Act (CFG Code 2800-2835). The primary objective of the NCCP program is to conserve natural communities at the ecosystem scale while accommodating compatible land uses (
Known occurrences of
The County of San Diego Subarea Plan covers 252,132 ac (102,035 ha) in
The private land on Otay Mountain where
Additionally, the County of San Diego Resource Protection Ordinance (RPO) (County of San Diego 2007) applies to unincorporated lands in the County, both within and outside of the MSCP subarea plan boundaries. The RPO identifies restrictions on development to reduce or eliminate impacts to natural resources, including wetlands, wetland buffers, floodplains, steep slope lands, and sensitive habitat lands. Sensitive habitat lands are those that support unique vegetation communities or those that either are necessary to support a viable population of sensitive species (such as
On City and County lands occupied by
On land owned and managed by the CDFG and BLM, which contain approximately 88 percent of all occurrences of
Based on our review of the best available scientific and commercial information, we conclude
Trampling was identified as a threat to
The listing rule identifies nonnative plants as a threat to
However, despite the presence of nonnative plants in the range of
The original listing rule identified the restricted range and small population size of
Of the 20 known occurrences of
Any decrease in occurrences may result in decreased reproductive opportunities and genetic exchange between canyons through pollination. However, effects from this threat may be less severe if more occurrences exist in Mexico than are currently known. However, we do not consider small population size alone sufficient to meet the information threshold indicating that the species warrants listing. In the absence of information identifying threats to the species and linking those threats to the rarity of the species, the Service does not consider rarity or small populations alone to be a threat. For example, the habitat supporting
As discussed under Factor E for
Furthermore, despite the increased frequency of fire,
Given the increased frequency of megafires within Southern California ecosystems, and the inability of regulatory mechanisms to prevent or control megafire, we find that megafire does have the potential to impact occurrences of
As noted above in our status determination for
Since approximately the time of listing in 1998, an extended drought in the region (San Diego County Water Authority 2010, p. 2) created unusually dry habitat conditions. From 2000 to 2009, at one of the closer precipitation gauges to the
The predicted drought could impact the dynamics of the streambeds where
While drier conditions associated with climate change may result in increased fire frequency within some plant communities as discussed under Factor A, the effect of more arid conditions is not known on chaparral, the plant community associated with
Preliminary information for
We found no evidence that other natural or manmade factors pose a significant threat to
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to
In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by
Due to the taxonomic split of
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:
(a) Essential to the conservation of the species and
(b) That may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies insure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain physical and biological features which are essential to the conservation of the species and which may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical and biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), focusing on the principal biological or physical constituent elements (primary constituent elements) within an area that are essential to the conservation of the species (such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type). Primary constituent elements are the elements of physical and biological features that are essential to the conservation of the species.
Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, the species' most recent 5-year Review, or other unpublished materials and expert opinion or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. Climate change will be a particular challenge for biodiversity because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy 2005, pp. 325-326). The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and magnitude of the effects to enable us to accurately predict its impacts on the narrow habitat range of
We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to designate as critical habitat, we consider the physical and biological features essential to the conservation of the species which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical and biological features required for
The primary constituent elements required for
Habitats that provide space for growth and persistence of
The long-term conservation of
Open or semi-open rocky, sandy alluvium on terraced floodplains, benches, stabilized sandbars, channel banks, and sandy washes along ephemeral streams, washes, and floodplains are needed for individual and population growth of
The 2008 5-year review (Service 2008, p. 7) concluded that
Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent element specific to
(1) With a natural hydrological regime, in which:
(a) Water flows only after peak seasonal rainstorms;
(b) High runoff events periodically scour riparian vegetation and redistribute alluvial material to create new stream channels, benches, and sandbars; and
(c) Water flows for usually less than 48 hours after a rain event, without long-term standing water;
(2) Surrounding vegetation that provides semi-open, foliar cover with:
(a) Little or no herbaceous understory;
(b) Little to no canopy cover;
(c) Open ground cover, less than half of which is herbaceous vegetation cover;
(d) Some shrub cover; and
(e) An association of other plants, including
(3) That contain ephemeral drainages that:
(a) Are made up of coarse, rocky, or sandy alluvium; and
(b) Contain terraced floodplains, terraced secondary benches, stabilized sandbars, channel banks, or sandy washes; and
(4) That have soil with high sand content, typically characterized by sediment and cobble deposits, and further characterized by a high content of coarse, sandy grains and low content of silt and clay.
The need for space for individual and population growth and normal behavior is provided by all sections of the PCE. The need for food, water, air, light, minerals, or other physiological requirements is provided by all sections of the PCE. Cover and shelter requirements are provided by section (2) of the PCE. Areas for reproduction are provided by all sections of the PCE. Finally, habitats representative of the historical, geographical, and ecological distributions of a species are provided by all sections of the PCE.
When designating critical habitat, we assess whether the physical and biological features within the geographical area occupied by the species at the time of listing that are essential to the conservation of the species may require special management considerations or protection.
The area proposed for designation as critical habitat will require some level of management or protection to address the current and future threats to the physical and biological features. In all units, special management considerations or protection may be required to provide for the sustained function of the ephemeral washes on which
The primary constituent element for
As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we consider whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing—is necessary to ensure the conservation of the species. We are not currently proposing to designate any areas outside the geographical area occupied by the species at the time of listing because currently occupied areas (which are within the area occupied by the species at the time of listing) are sufficient for the conservation of the species.
This proposed rule updates the information used in our 2006 final designation of critical habitat for
This section provides details of the process we used to delineate the proposed critical habitat. This proposed critical habitat designation is based on the best scientific data available, including our analysis of the distribution and ecology of
The areas in this proposed designation of critical habitat for
(1) We compiled observational data from the following sources to include in our GIS database for
(2) We considered extant all occurrences where presence of living plants has been confirmed within the past 10 years. Using this information, we determined that seven occurrences are currently extant. Based on data from the CNDDB, we confirmed that all of these seven occurrences were known and extant at the time of listing. We also documented the presence of transplanted individual plants in Carroll, San Clemente, and Lopez Canyons and included them in our analysis.
(3) To identify areas containing all the components that make up the PCE for
(a) We determined occurrence locations likely to belong to the same population. Regardless of observation date, all occurrence locations downstream from an extant occurrence and which would be connected to the upstream occurrence during runoff events (that could transport seeds downstream) were considered part of the same extant occurrence; this was completed by examining survey reports from MCAS Miramar, the City of San Diego, and the Friends of Los Peñasquitos Canyon.
(b) In order to create a scientifically based approach to drawing critical habitat units, we first examined the utility of GIS vegetation data polygons containing
(c) We examined polygons that were labeled as “riparian” vegetation for possible useful information to assist in delineation of potential critical habitat areas because
(d) We then tested the 490 ft (150 m) value as an estimate of the distance from the streambed most likely to capture the PCE throughout the species' range. We used the widest distance from the streambed to help identify areas that meet the definition of critical habitat rather than the median (or another value). We wanted to ensure that we captured all potential areas that have the physical and biological features essential to the conservation of
The conservation of
(4) We removed all areas not containing the physical and biological features essential to the conservation of
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical and biological features for
We are proposing for designation of critical habitat lands that we have determined were occupied at the time of listing and contain sufficient elements of physical and biological features to support life-history processes essential for the conservation of the species.
The areas identified in this proposed rule constitute a revision of the areas we described and mapped as meeting the definition of critical habitat for
The differences between this proposed rule and the 2006 critical habitat designation include the following:
(1) Recognition of
(2) We revised the Background section to include our updated knowledge of life history, taxonomy, and nomenclature, including information on potential pollinators of
(3) We revised the description of the PCEs for
(4) We revised the criteria used to identify critical habitat based on our reevaluation of all available
(5) Our reevaluation does not identify some areas as critical habitat that were designated as critical habitat in the 2006 final critical habitat rule. In the 2006 final critical habitat rule, all habitat containing occurrences of
We note that the habitat available in these canyons only supports a limited number of plants: Elanus Canyon has approximately 16 plants, Lopez Canyon has 8 plants, and Rose Canyon has the smallest occurrence of
We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For this reason, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. We solicit information during the public comment period on any areas that we have not included in this proposed rule (including Elanus, Lopez, and Rose Canyons), including any evidence that they meet the definition of critical habitat (see Public Comments section).
(6) We changed unit numbers and names in this proposed rule to reflect estimated population distributions instead of political boundaries (such as former Unit 2 that consisted of all partial polygons within MCAS Miramar, regardless of population distribution).
(7) Our revised criteria resulted in both inclusion of areas that meet the definition of critical habitat and removal of areas from the 2005 proposed rule or the 2006 final rule that do not meet the definition of critical habitat. Changes from areas identified in the 2005 proposed rule as meeting the definition of critical habitat include the exclusion of areas in Elanus, Lopez, and Rose Canyons that we no longer consider to meet the definition of critical habitat (see
(8) We did not include any areas associated with former Units 7, 8, and 9, described in the 2006 final critical habitat designation for
The differences between the 2006 final critical habitat designation and the proposed revised critical habitat designation in this rule are summarized below in Table 2. Please note that Table 2's units for the 2006 final rule do not correspond to the unit numbers presented in that rule; they correspond to the proposed units in this document.
We are proposing five units as critical habitat for
We present brief descriptions of the five proposed critical habitat units, and reasons why they meet the definition of critical habitat for
Unit 1 consists of 194 ac (79 ha) and is located in Sycamore Canyon at the northeastern boundary of MCAS Miramar, north of Santee Lakes in San Diego County, California. Three separate branches of the canyon within the unit pass outside the boundaries of MCAS Miramar and consist of 36 ac (15 ha) of land owned by San Diego County, 1 ac (less than 1 ha) of land owned by water districts, and 158 ac (64 ha) of private land, 110 ac (45 ha) of which are within the boundaries of the City of Santee, which has no approved MSCP; and 47 ac (19 ha) of which are within the boundaries of the City of San Diego. This canyon is the only place where
Unit 2 consists of 27 ac (11 ha), comprised of 21 ac (9 ha) of land owned by the City of San Diego and 6 ac (2 ha) of land owned by water districts, and is located in West Sycamore Canyon adjacent to the eastern section of MCAS Miramar, in San Diego County, California. The northernmost point of the unit is just outside the boundary of MCAS Miramar. West Sycamore Canyon, in which Unit 2 is found, is essential to the recovery of
Unit 3 consists of 97 ac (39 ha) and is located in Spring Canyon south of the border of MCAS Miramar and north of State Route 52 and Kumeyaay Lake in San Diego County, California. This unit is composed of 5 ac (2 ha) of land owned by the City of San Diego and 92 ac (37 ha) of private land within the boundaries of the City of San Diego. The occurrences in this canyon exist in dense clumps along the canyon on the inside edge of meandering portions of the streambed, and on low benches adjacent to drainages, and comprise a large population of
Unit 4 consists of 13 ac (5 ha) of land located in the eastern portion of San Clemente Canyon north of the northeastern border of MCAS Miramar
Unit 5 consists of 16 ac (7 ha) of land made up of 16 ac (7 ha) of land owned by the California Department of Transportation and less than 1 ac (<1 ha) of private land within the boundaries of the City of San Diego. This unit is located in the western portion of San Clemente Canyon, and begins near Clairemont Mesa Boulevard and continues east to the boundary of MCAS Miramar, in San Diego County, California. We consider this unit as a separate unit from the other part of San Clemente Canyon because the Sim J. Harris aggregate mine acts as a barrier to the physical and biotic continuity between the two portions of the canyon. This portion of the canyon is wetter and contains more riparian habitat than the eastern portion of San Clemente Canyon in Unit 4 and is one of few areas of
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat.
Federal activities that may affect
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat designated for
(1) Actions that would alter channel morphology or geometry and resultant hydrology to a degree that appreciably reduces the value of critical habitat for either the long-term survival or recovery of the species. Such activities could include, but are not limited to: Water impoundment, channelization, or diversion; road and bridge construction (including instream structures); licensing, relicensing, or operation of dams or other water impoundments; and mining and other removal or deposition of materials. Examples of effects these activities may have on
(2) Actions that would significantly directly or indirectly affect pollinator abundance or efficacy to a degree that appreciably reduces the value of the critical habitat for the long-term survival or recovery of the species. Such activities include, but are not limited to: Destruction of critical habitat that contains pollinators; introduction of nonnative insects into designated critical habitat that could compete with native pollinators; clearing or trimming of other native vegetation in designated critical habitat in a manner that diminishes appreciably its utility to support
(3) Actions that would significantly alter sediment deposition patterns and rates within a stream channel to a degree that appreciably reduces the value of the critical habitat for the long-term survival or recovery of the species. Such activities include, but are not limited to: Excessive sedimentation from road construction; excessive recreational trail use; residential, commercial, and industrial development; aggregate mining; and other watershed and floodplain disturbances. These activities may reduce the amount and distribution of suitable habitat for individual and population growth, and reduce or change habitat quality for reproduction, germination, and development.
(4) Actions that would significantly alter biotic features to a degree that appreciably reduces the value of the critical habitat for both the long-term survival or the recovery of the species. Such activities include, but are not limited to, modifying the habitats that support
(5) Actions that could contribute to the introduction or support of nonnative species into critical habitat to a degree that appreciably reduces the value of the critical habitat for both the long-term survival or recovery of
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
We consult with the military on the development and implementation of INRMPs for installations with Federally listed species. We analyzed the INRMP developed by MCAS Miramar, the only military installation located within the range of the proposed critical habitat designation for
Marine Corps Air Station Miramar has an approved INRMP (Gene Stout and Associates 2006) that addresses
In the previous final critical habitat designation for
Provisions in the INRMP for MCAS Miramar benefit
(1) Education of base personnel;
(2) Implementation of proactive measures that help avoid accidental impacts (such as signs and fencing);
(3) Development of procedures to respond to and restore accidental impacts; and
(4) Monitoring of
Additionally, MCAS Miramar's environmental security staff reviews projects and enforces existing regulations and base orders that avoid and minimize impacts to natural resources, including
Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that
Section 4(b)(2) of the Act states that the Secretary must designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, the Secretary may exercise his discretion to
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide.
In the case of
When we evaluate the existence of a conservation plan when considering the benefits of exclusion, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical and biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
The Secretary is considering whether to exercise discretion to exclude certain lands from critical habitat. Based on the information provided by entities seeking exclusion, as well as any additional public comments we receive, we will evaluate whether certain lands are appropriate for exclusion from the final critical habitat designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise his discretion to exclude the lands from the final designation.
We are considering whether to exercise the delegated discretion of the Secretary to exclude the areas listed below either because:
(1) Their value for conservation will be preserved for the foreseeable future by existing protective actions, or
(2) They are appropriate for exclusion under the “other relevant factor” provisions of section 4(b)(2) of the Act.
We specifically request comments on the inclusion or exclusion of these areas, as listed in Table 4. In the paragraphs below, we provide a preliminary analysis of these lands under section 4(b)(2) of the Act.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors.
We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available for downloading from the Internet at
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this proposal, we have exempted from the designation of critical habitat those lands on MCAS Miramar because the base has an approved INRMP which the Marine Corps is implementing and which we have concluded provides a benefit to
There are no other lands within the proposed designation of critical habitat that are owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not considering exercising his discretion to exclude any areas from the final designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.
We consider whether a current land management or conservation plan (HCPs as well as other types) provides adequate management or protection for critical habitat of
(1) The plan is complete and provides the same or better level of protection from adverse modification or destruction than is likely to result from a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation management strategies and actions will be implemented for the foreseeable future, based on past practices, written guidance, or regulations; and
(3) The plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology.
We are considering exercising our delegated discretion to exclude proposed critical habitat covered by the City of San Diego Subarea Plan and the County of San Diego Subarea Plan under the San Diego Multiple Species Conservation Program. Our review of the plans under section 4(b)(2) of the Act is consistent with our commitments to the City and County in the Implementing Agreements (IA) to consider the plans in future designations of critical habitat for covered species (Service
The Multiple Species Conservation Program (MSCP) is a comprehensive habitat conservation planning program that encompasses 582,243 (235,626 ha) acres within 12 jurisdictions of southwestern San Diego County. The MSCP is a subregional plan that identifies the conservation needs of 85 Federally listed and sensitive species, including
The subregional MSCP identifies where mitigation activities should be focused, such that upon completion approximately 171,920 ac (69,574 ha) of the 582,243 ac (235,626 ha) MSCP plan area will be preserved for conservation (MSCP 1998, pp. 2-1, and 4-2 to 4-4).
The City and County Subarea Plans identify areas where mitigation activities should be focused to assemble its preserve areas (
The City and County Subarea Plans include multiple conservation measures that provide benefits to
The MSCP also provides for a biological monitoring program, and
(1) Requires avoidance to the maximum extent feasible;
(2) Allows for a maximum 20 percent encroachment into a population if total avoidance is not feasible; and
(3) Requires mitigation at the 1:1 to 3:1 (in kind) for impacts if avoidance and minimization of impacts would result in no reasonable use of the property.
We are considering exercising our delegated discretion to exclude from critical habitat a portion of Unit 1 covered by the County of San Diego Subarea Plan under section 4(b)(2) of the Act. This area encompasses approximately 36 ac (15 ha) of land. We are also considering exercising our delegated discretion to exclude from critical habitat portions of Units 1-5 covered by the City of San Diego Subarea Plan under section 4(b)(2) of the act. This area encompasses 172 ac (70 ha) of land. All areas that are covered by the HCPs (City of San Diego Subarea Plan under the MSCP and County of San Diego Subarea Plan under the MSCP) are considered for exclusion.
In accordance with our joint policy on peer review published in the
We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of the final determination. Accordingly, the final decision may differ from this proposal.
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. We must receive your request within 45 days after the date of this
The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this proposed rule under Executive Order 12866 (Regulatory Planning and Review). OMB bases its determination upon the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal agencies' actions.
(3) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(4) Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
At this time, we lack the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, we defer the RFA finding until completion of the draft economic analysis prepared under section 4(b)(2) of the Act and Executive Order 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, we will announce availability of the draft economic analysis of the proposed designation in the
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect the designation of this proposed critical habitat to significantly affect energy supplies, distribution, or use, because there are no energy or distribution facilities within the area proposed as critical habitat. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule would significantly or uniquely affect small governments. Small governments would be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions would not adversely affect the critical habitat. Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment if appropriate.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for
In accordance with Executive Order 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in California. The designation of critical habitat in areas currently occupied by
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), it has been determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the elements of physical and biological features essential to the conservation of
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.
We have determined that there are no Tribal lands occupied by
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this package are the staff members of the Carlsbad Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.12(h), revise the entry for “
(h) * * *
3. In § 17.96, amend paragraph (a) by revising critical habitat for
(a)
(1) Critical habitat units are depicted for San Diego County, California, on the maps below.
(2) Within these areas, the primary constituent element of the physical and biological features essential to the conservation of
(i) With a natural hydrological regime, in which:
(A) Water flows only after peak seasonal rainstorms;
(B) High runoff events periodically scour riparian vegetation and redistribute alluvial material to create new stream channels, benches, and sandbars; and
(C) Water flows for usually less than 48 hours after a rain event, without long-term standing water;
(ii) With surrounding vegetation that provides semi-open, foliar cover with:
(A) Little or no herbaceous understory;
(B) Little to no canopy cover;
(C) Open ground cover, less than half of which is herbaceous vegetation cover;
(D) Some shrub cover; and
(E) An association of other plants, including
(iii) That contain ephemeral drainages that:
(A) Are made up of coarse, rocky, or sandy alluvium; and
(B) Contain terraced floodplains, terraced secondary benches, stabilized sandbars, channel banks, or sandy washes; and
(iv) That have soil with high sand content, typically characterized by sediment and cobble deposits, and further characterized by a high content of coarse, sandy grains and low content of silt and clay.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4)
(5)
(6) Unit 1: Sycamore Canyon and West Sycamore Canyon, San Diego County, California.
(i) [Reserved for textual description of Unit 1.]
(ii) [Reserved for textual description of Unit 2.]
(iii)
(7) Units 3 and 4: Spring Canyon and East San Clemente Canyon, San Diego County, California.
(i) [Reserved for textual description of Unit 3.]
(ii) [Reserved for textual description of Unit 4.]
(iii)
(8) Unit 5: West San Clemente Canyon, San Diego County, California.
(i) [Reserved for textual description of Unit 5.]
(ii)
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list
The finding announced in this document was made on June 9, 2011.
This finding is available on the Internet at
R. Mark Sattelberg, Field Supervisor, Wyoming Ecological Services Field Office (see
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
Federal action for
As a result of that review, we published a proposed rule on June 16, 1976, in the
On December 15, 1980, we published a current list of those plant taxa native to the United States being considered for listing under the Act; this identified both
The September 30, 1993, review changed the status of
On February 28, 1996, we proposed discontinuing the designation of category 2 species as candidates due to the lack of sufficient information to justify issuance of a proposed rule (61 FR 7596). This proposal included eliminating candidate status for four of the five species addressed in this finding; only
On September 19, 1997, we published a notice of review that retained
On July 30, 2007, we received a formal petition dated July 24, 2007, from Forest Guardians (now WildEarth Guardians), requesting that we: (1) Consider all full species in our Mountain-Prairie Region ranked as G1 or G1G2 by the organization NatureServe, except those that are currently listed, proposed for listing, or candidates for listing; and (2) list each species as either threatened or endangered. The petition identified 206 species as petitioned entities, including the 5 species we address in this status review. A species ranking of G1 is defined as a species that is critically imperiled across its entire range (or global range) (NatureServe 2010b, p. 3). A ranking of G1G2 means the species is either ranked as a G1 or a G2 species, with G2 defined as imperiled across its entire range (NatureServe 2010b, pp. 3-4). The petition incorporated all analysis, references, and documentation provided by NatureServe in its online database at
On March 19, 2008, WildEarth Guardians filed a complaint (1:08-CV-472-CKK) indicating that the Service failed to comply with its mandatory duty to make a preliminary 90-day finding on their two multiple-species petitions—one for mountain-prairie species and one for southwest species. We subsequently published two initial 90-day findings on January 6, 2009 (74 FR 419), and February 5, 2009 (74 FR 6122). The February 5, 2009, finding determined that there was not substantial scientific or commercial information indicating that listing 165 of the 206 petitioned species in the mountain-prairie region may be warranted (74 FR 6122). Two additional species were evaluated in a January 6, 2009, 90-day finding (74 FR 419), and no determination was made on whether substantial information had been presented on the remaining 39 species included in the petition (74 FR 6122). The 5 species covered in this 12-month finding were among the remaining 39 species. An additional species was determined to qualify for candidate status (73 FR 75175; December 10, 2008). On March 13, 2009, the Service and WildEarth Guardians filed a stipulated settlement in the District of Columbia Court, agreeing that the Service would submit to the
On June 18, 2008, we received a petition from WildEarth Guardians dated June 12, 2008, to emergency list 32 species under the Administrative Procedure Act and the Endangered Species Act. Of those 32 species, 11 were included in the July 24, 2007, petition to be listed on a non-emergency basis. Although the Act does not provide for a petition process for an interested person to seek to have a species emergency listed, section 4(b)(7) of the Act authorizes the Service to issue emergency regulations to temporarily list a species. In a letter dated July 25, 2008, we stated that the information provided in both the 2007 and 2008 petitions and in our files did not indicate that an emergency situation existed for any of the 11 species. The Service's decisions whether to exercise its authority to issue emergency regulations to temporarily list a species are not judicially reviewable.
On August 18, 2009, we published a notice of 90-day finding (74 FR 41649) on the remaining 38 species from the petition to list 206 species in the mountain-prairie region of the United States as threatened or endangered under the Act. We found that the petition presented substantial scientific and commercial information for 29 of the 38 species, indicating that listing may be warranted for those species. The 5 species we address in this 12-month finding were included within these 29 species. We also opened a 60-day public comment period to allow all interested parties an opportunity to provide information on the status of the 29 species (74 FR 41649). The public comment period closed on October 19, 2009. We received 224 public comments. Of these, 38 specifically addressed
Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In making these findings, information pertaining to each species in relation to the five factors provided in section 4(a)(1) of the Act is discussed below. In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives or contributes to the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that the potential threat has the capacity (
After considering the five factors, we assess whether each species is threatened or endangered throughout all of its range. Generally, we next consider in our findings whether a distinct vertebrate population segment (DPS) or any significant portion of the species' range meets the definition of endangered or is likely to become endangered in the foreseeable future (threatened).
In determining whether a species is threatened or endangered in a significant portion of its range, we first identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be both (1) significant and (2) threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be significant, and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that are not significant, such portions will not warrant further consideration.
If we identify portions that warrant further consideration, we then determine whether the species is threatened or endangered in these portions of its range. Depending on the biology of the species, its range, and the threats it faces, the Service may address either the significance question or the status question first. Thus, if the Service considers significance first and determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there. Likewise, if the Service considers status first and determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant. However, if the Service determines that both a portion of the range of a species is significant and the species is threatened or endangered there, the Service will specify that portion of the range as threatened or endangered under section 4(c)(1) of the ESA.
For each of the five species, we provide a description of the species and its life-history and habitat, an evaluation of listing factors for that species, and our finding that the petitioned action is warranted or not for that species. We follow these descriptions, evaluations, and findings with a discussion of the priority and progress of our listing actions.
The flowers of
Frank Tweedy made the first collection of
The name
Occurring between the area of beach affected by wave action and the more densely vegetated areas inland,
Herbarium records show that
Table 1 below presents available information regarding the four populations of
The majority of
Casual surveys of the North Shore area in the early 1990s estimated the population to be around 1,000 plants (Correy 2009, pp. 1-2), with the majority of the plants of a large-size class representing mature, older plants (NPS 1999a, p. 1; 1999b, p. 7). No seedlings were observed (NPS 1999b, p. 7). Extensive surveys during the 1998-1999 field seasons conservatively estimated the North Shore population to consist of 7,978
During the 2009-2010 field season, surveys of the North Shore population yielded an approximate count of 3,600
The Rock Point and Pumice Point
The South Arm population contained only one large
Dead and dying plants were counted during the 1998-1999 field surveys. Dead and dying
The Wyoming Natural Diversity Database (WNDD) has designated
Natural fluctuations in the
Information pertaining to
Potential factors that may affect the habitat or range of
As noted above (see Distribution and Abundance),
Trampling of
The North Shore population is located in one of the least visited portions of the north side of Yellowstone Lake's shoreline (NPS 1999b, p. 8). A large wetland restricts access to this site from the west (NPS 1999b, p. 8). The Storm Point Trail approaches the east end of the North Shore population, and visitors occasionally walk down the beach toward this population (NPS 1999b, p. 8). The YNP plans to install a sign just past the Storm Point Trail requesting that visitors remain near the water and avoid sensitive vegetation areas (Schneider 2010, pers. comm.).
The Pelican Creek Nature Trail is also near the North Shore population (Schneider 2010, pers. comm.). No plants currently occur in this area; however, it is historical habitat (Whipple
The Pumice Point population of
The two remaining populations are in areas with little visitation (NPS 1999b, p. 8). The Rock Point population is approximately a half-hour walk from the closest access point (Whipple 2010c, pers. comm.). The South Arm population is accessible by boat, with a backcountry campsite located about 200 m (656.2 ft) from the population (Whipple 2010c, pers. comm.). This backcountry campsite has no trail access (Whipple 2010c, pers. comm.).
YNP has received approximately 3 million visitors a year for the past 20 years; visitation was over 3 million for 11 of those years (NPS 2010a, unpaginated). From January to September of 2010, YNP received 3.4 million visitors, an increase of 8.7 percent over the previous year (NPS 2010b, unpaginated). Even with increases to visitation, we have no information indicating that the number of visitors correlates with increased trampling of
Wildlife trampling, particularly by ungulates, is occasionally indicated as a concern (Whipple 2010a, pers. comm.) We believe that these anecdotal observations do not add up to routine impacts on a scale that would cause the species to be threatened or endangered. Additionally, we believe that trampling by wildlife represents a natural ecological interaction in YNP that the species would have evolved with and poses no threat to long-term persistence.
In summary, the populations of
After habitat loss, the spread of nonnative invasive species is considered the second largest threat to imperiled plants in the United States (Wilcove
As of 2010, YNP has documented 218 nonnative plant species occurring within its boundaries (NPS 2010e, p. 1). Encroachment of invasive plants may potentially affect
Currently, nonnative invasive plants have affected only a few sites occupied by
In summary, nonnative invasive plants occur within YNP; however, the majority of these species do not impact the habitat of
The Intergovernmental Panel on Climate Change (IPCC) was established in 1988 by the World Meteorological Organization and the United Nations Environment Program in response to growing concerns about climate change and, in particular, the effects of global warming. The IPCC Fourth Assessment Report (IPCC 2007, entire) synthesized the projections of the Coupled Model Intercomparison Project (CMIP) Phase 3, a coordinated large set of climate model runs performed at modeling centers worldwide using 22 global climate models (Ray
In some cases, climate change effects can be demonstrated and evaluated (
Portions of the global climate change models can be used to predict changes at the regional-landscape scale; however, this approach contains higher levels of uncertainty than using global models to examine changes on a larger scale. The uncertainty arises due to various factors related to difficulty in applying data to a smaller scale, and to the paucity of information in these models such as regional weather patterns, local physiographic conditions, life stages of individual species, generation time of species, and species reactions to changing carbon dioxide levels. Additionally, global climate models do not incorporate a variety of plant-related factors that could be informative in determining how climate change could affect plant species (
Regional landscapes also can be examined by downscaling global climate models. Two common methods of downscaling are statistical downscaling and dynamic downscaling (Fowler
Climate change is likely to affect the habitat of
Climate change effects are not limited to the timing and amount of precipitation; other factors potentially influenced by climate change may in turn affect the habitat conditions for
Climate change is likely to affect multiple variables that may influence the availability of habitat for
Precipitation studies show that YNP weather cycles typically follow the larger weather patterns across the larger Northern Rockies ecosystem (Gray
We believe that
YNP offers protection of
We conclude that the best scientific and commercial information available indicates that
There has been limited use and collection of
Specimens, seeds, and parts of
No studies have been conducted investigating the effects of grazing or herbivory on
Additionally, some uprooted, partially eaten taproots were found in areas with abundant rodent tunnels (NPS 1999b, p. 7). Ungulate grazing has been noted on species that grow near
We have no evidence of adverse impacts to
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to threats that may place
All known populations of
Additionally, the Management Policies of the NPS state that conservation is paramount in situations of conflict between conserving resources and values and providing for enjoyment of them (NPS 2006b, p. 9; Schneider 2010, pers. comm.). These policies also charge the NPS with preserving the fundamental physical and biological processes, and maintaining all the components and processes of a naturally evolving park ecosystem, including the natural abundance, diversity, and genetic and ecological integrity of the plant and animal species native to those ecosystems (NPS 2006b, pp. 35-36; Schneider 2010, pers. comm.). The NPS is responsible for the inventory of native species that are of special management concern to parks (such as rare, declining, sensitive, or unique species and their habitats) and will manage them to maintain their natural distribution and abundance (NPS 2006b, pp. 45-46; Schneider 2010, pers. comm.). The Management Policies also direct the NPS to control detrimental nonnative species and manage detrimental visitor access (NPS 2006, p. 45).
As stated above, YNP is required, to the maximum extent practicable, to
Visitors to national parks are prohibited from removing, defacing, or destroying any plant, animal, or mineral; this includes collecting natural or archeological objects (NPS 2006c, p. 2). Visitors are prohibited from driving off roadways or camping outside of designated campgrounds (NPS 2010d, unpaginated). Additionally, YNP has developed a Conservation Plan for
All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970 (42 U.S.C. 4321
We considered the adequacy of existing regulatory mechanisms to protect
We conclude that the best scientific and commercial information available indicates that
Natural and manmade factors with the potential to affect
Small populations can be especially vulnerable to environmental disturbances such as habitat loss, nonnative species, grazing, and climate change (Barrett and Kohn 1991, p. 7; Oostermeijer 2003, p. 21; O'Grady 2004, pp. 513-514). However, plants that are historically rare may have certain adaptations to rarity (
Based on herbarium records, extirpation of
We do not have any indication that
Small populations may represent an unreliable food source, which may be visited by fewer pollinators than larger, less fragmented populations (Oostermeijer 2003, p. 23). However, low visitation rates may be more of a concern in currently rare species that were historically abundant (Brigham 2003, p. 84). We have no information suggesting that
Only very limited information is available regarding pollination of
Small population size can decrease genetic diversity due to genetic drift (the random change in genetic variation each generation), and inbreeding (mating of related individuals) (Antonovics 1976, p. 238; Ellstram and Elam 1993, pp. 218-219). Genetic drift can decrease genetic variation within a population by favoring certain characteristics and, thereby, increasing differences between populations (Ellstram and Elam 1993, pp. 218-219). Self-fertilization and low dispersal rates can cause low genetic diversity due to inbreeding (Antonovics 1976, p. 238; Barrett and Kohn 1991, p. 21). This decreased genetic diversity diminishes a species' ability to adapt to the selective pressures of a changing environment (Newman and Pilson 1997, p. 360; Ellstrand 1992, p. 77).
Limited information is available regarding the genetic diversity of the
As required by the Act, we considered the five factors in assessing whether
The primary factor potentially impacting
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient imminence, intensity, or magnitude to indicate that
Having determined that
In determining whether
We request that you submit any new information concerning the status of, or threats to,
Edith A. Ross collected the first recorded specimen of
Species of the
In the geothermally influenced areas of YNP, thermal
Typically,
The geysers in YNP are vapor-dominated, meaning that steam and other gases rise out of the ground (Fournier 1989, pp. 20-21; Tercek 2003, p. 36). The geysers are important to the soils because the elements and chemicals produced from the geysers affect the composition of the soil on which this species grows. The accompanying soils are rich in silica and calcium, and contain gases such as hydrogen sulfide and iron sulfide that are converted into sulfuric acid by bacteria (Tercek and Whitbeck 2004, p. 1956; White
In addition to
Four known populations of the plant occur in an area of approximately 4.86 ha (12 ac); these populations are named Upper Geyser Basin, Shoshone, Midway, and Lower Geyser (Whipple 2010a, pers. comm.). Many of these occurrences are ephemeral (only persist for a short period) subpopulations (Fertig 2000c, unpaginated). Because of the changing thermal habitat, subpopulation numbers and locations may fluctuate greatly (Fertig 2000c, unpaginated). One small (generally less than 50 plants) subpopulation northeast of Infant Geyser in Geyser Hill disappeared due to changes in soil temperatures between 1992 and 2008 (Fertig 2000c, unpaginated; Whipple 2010e, pers. comm.).
The WNDD has designated
Subpopulations can range in size from a solitary plant up to several thousand plants, in an area with a diameter of 100 m (328.1 ft) (Tercek 2003, p. 10; Tercek and Whitbeck 2004, p. 1956). Surveys conducted in 1995 suggest that the total population of all known
Information pertaining to
The following potential factors that may affect the habitat or range of
In the late 1970s and early 1980s, potential for geothermal energy development outside YNP was considered a threat to
As stated above, new construction of roads, trails, or structures occurring in YNP is rare, with reconstruction of existing features occurring occasionally (Whipple 2010e, pers. comm.). When new construction or reconstruction occurs in areas where there are sensitive species, YNP analyzes and carries out construction in a manner that minimizes adverse effects. For example, the reconstruction of the Biscuit Basin Boardwalk in the summer of 2010 included rerouting the boardwalk and restoration of
The majority of YNP remains undeveloped, and we have no information that this will change; therefore, we do not view development to be a threat to the species now or in the foreseeable future.
Most habitat of
For information on impacts of increased visitation to YNP, please refer to the “Trampling” discussion under
Wildlife, also, have the potential to trample
We have no information indicating that trampling by either humans or wildlife is a threat to the species now or in the foreseeable future.
For general background information on nonnative invasive plants, please refer to the first paragraph of “Nonnative Invasive Plants” under
As stated above,
We have no information indicating that nonnative invasive species are modifying the habitat of
For general background information on climate change, please refer to the first paragraphs of “Climate Change” under
The thermal features in YNP are part of the largest and most varied geyser basin in the world; this basin is essentially undisturbed (NPS 2008b, unpaginated). Few of YNP's thermal features have ever been diverted for human use (such as bathing pools or energy), despite the proximity of roads and trails (NPS 2008b, unpaginated). Thermal features can be affected by nearby ground-disturbing activities; water, sewer, and other utility systems adjacent to YNP have likely affected the park's features in the past (NPS 2008b, unpaginated). In other countries, geothermal drill holes and wells located 4.02 to 9.98 km (2.5 to 6.2 mi) from thermal features have reduced geyser activity and hot spring discharges (NPS 2008b, unpaginated). Connections between YNP's underlying geothermal basins are not fully understood. Therefore, if geothermal activities were to occur outside YNP, they could have the potential to affect this species.
For background information, please refer to the first paragraph of the “Drought” discussion under
As
YNP offers protection to the populations of
We conclude that the best scientific and commercial information available indicates that
There has been limited use and collection of the leaves of
All known populations of
The Geothermal Steam Act of 1970 (30 U.S.C. 1001-1027, December 24, 1970), as amended in 1977, 1988, and 1993, governs the lease of geothermal resources on public lands (Legal Information Institute 2010, unpaginated). In addition to preventing the issuance of geothermal leases on lands in YNP, it prevents the issuance of any lease that is reasonably likely to result in a significant adverse effect on thermal features within YNP (Legal Information Institute 2010, unpaginated).
The existing regulatory mechanisms, especially the NPS Organic Act and the Geothermal Steam Act, appear to adequately protect
We conclude that the best scientific and commercial information available indicates that
Natural and manmade factors with the potential to affect
Previously,
Conversely, thermal
For general background information on small population size, please refer to the first paragraph of “Small Population Size” under
We do not have any indication that
For general background information on genetic diversity, please refer to the first paragraph of “Genetic Diversity” under
Decreased genetic diversity diminishes a species' ability to adapt to the selective pressures of a changing environment (Newman and Pilson 1997, p. 360; Ellstrand 1992, p. 77). However,
Gene flow can also have negative effects on a species (Ellstrand 1992, p. 77). Genes favoring adaptations to a different environment or hybridization between two species can result (Ellstrand 1992, p. 77). Gene flow between
Limited information is available about the genetic diversity of
As required by the Act, we considered the five factors in assessing whether
The primary factors potentially impacting
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient imminence, intensity, or magnitude to indicate that
Having determined that
In determining whether
We request that you submit any new information concerning the status of, or threats to,
The first specimens of
The flowering plant genus
Although
Individual
Average annual precipitation where
The distribution of
Population estimates of
The distribution of
The WNDD has designated
Population trends for
Population counts and distribution of
Information pertaining to
The following potential factors that may affect the habitat or range of
Energy development has been identified as a potential threat to
Oil and gas exploration and extraction; coal, uranium, and trona mining; and oil shale and wind energy development may involve ground-disturbing actions that have the potential to remove or disturb
In 2000, seismic explorations took place near the mouth of Cottonwood Creek, where a population of
In the Green River Resource Management Plan (RMP), the BLM has established a Special Status Plant Species Area of Critical Environmental Concern (ACEC) that covers four plant species including
Additionally, BLM-administered lands under a 48.6-ha (120-ac) fenced enclosure around one of the subpopulations of
Although occurrences of
Roads can destroy or modify habitat and increase human access that may lead to trampling or the introduction of nonnative invasive plants (discussed below). Additionally, road construction can lead to increased erosion, and vehicle traffic on unimproved roads can result in increased atmospheric dust and dust deposition on vegetation.
Habitat for
On BLM lands, special status plant populations are closed to activities that could adversely affect them or their habitat (BLM 1997, p. 19), and the ACEC is closed to all direct surface-disturbing road construction (BLM 1997, p. 34). Future road development is a potential threat to occurrences of
The use of ORVs is both a means of transportation and recreation in Wyoming. Approximately 35.5 percent of Wyoming's 506,000 residents use ORVs for recreational purposes (Foulke
The area of BLM-administered land in Sweetwater County, Wyoming, where
In addition,
Finally, the ACEC is closed to ORV use (BLM 1997, p. 72). However, there are no physical barriers to keep ORVs out of the ACEC, except for in the 48.6-ha (120-ac) fenced exclosure (Glennon 2010a, pers. comm.). At other locations in southwestern Wyoming, violators of BLM and U.S. Forest Service travel restrictions on ORV use have been reported (WGFD 2010, unpaginated). The potential for impacts from illegal ORV use on BLM-administered lands is possible even within the ACEC. However, impacts from illegal ORV use are unlikely due to the low human populations in the area, the difficulty of traversing the habitats occupied by
Habitat modifications due to range improvement projects for livestock have been identified as a potential threat to
Disturbance associated with garbage disposal sites (dumps) has been identified as a potential threat to
For general background information on nonnative invasive plants, please refer to the first paragraph of “Nonnative Invasive Plants” under
We have no evidence of impacts to
We find the potential impact of wildfire to the species to be minimal due to the sparse vegetation cover in habitats occupied by
For general background information on climate change, please refer to the first paragraphs of “Climate Change” under
Although assessing the magnitude and type of effect climate change may have on
Occurrences of
In summary, we note that procedural considerations for amending the Green River RMP to ensure that all individual
We conclude that the best scientific and commercial information available indicates that
We conclude that the best scientific and commercial information available indicates that
Grazing and herbivory effects on
We conclude that the best scientific and commercial information available indicates that
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to threats that may place
As discussed previously, the special status species designation and the Special Status Plant Species ACEC, as documented in the Green River RMP (BLM 1997, pp. 19, 34), have adequate provisions to effectively protect 95 percent of the population distribution of
All Federal agencies are required to adhere to the NEPA for projects they fund, authorize, or carry out. For more information about NEPA, please refer to
The remaining 5 percent of the distribution of
The existing ACEC appears to adequately protect the majority (95 percent) of the habitat of
We conclude that the best scientific and commercial information available indicates that
Natural and manmade factors with the potential to affect
For background information, please refer to the first paragraph of “Small Population Size” under
We have no evidence that the populations of
Please refer to the first paragraph of “Pollination” under
For background information, please refer to the first paragraph of “Genetic Diversity” under
We have no information to suggest that
As required by the Act, we considered the five factors in assessing whether
Occurrences of
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient imminence, intensity, or magnitude to indicate that
Having determined that
In determining whether
We request that you submit any new information concerning the status of, or threats to,
Reproduction of
No information was available regarding chilling requirements for seeds of
Biological soil crusts are well-developed in
Most known
Table 2 presents available information regarding the known occurrences of
The Colorado Natural Heritage Program (CNHP) has designated
Long-term population trend data for
Information pertaining to
The following potential factors that may affect the habitat or range of
As previously discussed, many activities associated with energy development can destroy or modify habitat. Since 1989, energy exploration has increased in the Wyoming portion of the range of
While this development has destroyed some
In addition to oil and gas development, uranium is mined near the Red Creek Rim occurrence (Heidel 2009, p. 28). No impacts to
In conclusion, minimal impacts to
Roads can destroy or modify habitat. Roads also can increase access, leading to trampling or the introduction of nonnative invasive plants (discussed below). A few roads cross or are adjacent to occurrences of
In conclusion, only minimal impacts to
Trampling by livestock, ORVs, or human foot traffic can destroy plants and increase soil erosion, especially at sites with steep, loose soils. It has been mentioned as a potential concern at seven of nine occurrences (Warren
As stated above, biological soil crusts have been noted at occurrences in Colorado and Utah, but not in Wyoming (Spackman and Anderson 1999, pp. 22, 26; Heidel 2009, pp. 14, 20; CNHP 2010a, unpaginated;
In summary, trampling is a potential concern at most sites and has been documented at two sites. However, we have no information regarding whether any
For general background information on nonnative invasive plants, please refer to the first paragraph of “Nonnative Invasive Plants” under
Encroachment of nonnative invasive plants may potentially impact
Nonnative invasive plants are present at or near six occurrences of
For general background information on climate change, please refer to the first paragraphs of “Climate Change” under
Plant species with restricted ranges that also are climatically limited may experience population declines as a result of climate change (Schwartz and Brigham 2003, p. 11). Whether
Drought is a natural and common phenomenon within the range of
We believe that
Two occurrences (Sand Creek and Willow Creek) have experienced minor impacts from energy development. Five occurrences (Sand Creek, Willow Creek, Spitzie Draw, Sterling Place, and Flat Top Mountain) have roads that are nearby or cross a portion of the occurrence. The Sand Creek occurrence, which appears to be experiencing more disturbances from energy development and road usage than the other sites, has had an increase in
We conclude that the best scientific and commercial information available indicates that
We are not aware of any adverse impacts to
We are not aware of any adverse impacts to
Grazing intensity often varies between years and between sites and does not appear to negatively affect
The Cherokee Basin occurrence is the only site that is fenced. In 1985, the BLM fenced 95 percent of the site to exclude cattle, and 5 percent or less was left unfenced (Warren
No specific information regarding grazing is available for the T84N R18W, Willow Creek, or Red Creek Rim occurrences, other than general observations regarding the potential for grazing by livestock and wildlife.
Grazing intensity is variable between years and sites, but appears to have minimal impact to
We have no evidence of adverse impacts to
We conclude that the best scientific and commercial information available indicates that
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to threats that may place
Most known
Browns Park National Wildlife Refuge maintains a variety of native habitats and wildlife, with emphasis on migratory birds, threatened and endangered species, and species of special concern. The NWR has a portion of one occurrence of
Most known
The
TNC has a conservation easement on the private land portion of the T84N R18W occurrence that protects the area from many development activities (Heidel 2009, p. 31). This is a permanent easement that includes surface rights, but not mineral rights (Browning 2010, pers. comm.).
We have no evidence of impacts to
We conclude that the best scientific and commercial information available indicates that
Natural and manmade factors with the potential to affect
For general background information on small population size, please refer to the first paragraph of “Small Population Size” under
No information exists regarding the historical range or population numbers of
New occurrences of
Penstemons are pollinated by a variety of insects and hummingbirds, but most commonly by insects from the Order Hymenoptera (Wolfe
Only very limited information is available regarding pollination of
For general background information on genetic diversity, please refer to the first paragraph of “Genetic Diversity” under
The risk of negative consequences to rare plants from reduced genetic diversity varies (Brigham 2003, p. 88).
Only very limited information regarding the genetic diversity exhibited by
We conclude that the best scientific and commercial information available indicates that
As required by the Act, we considered the five factors in assessing whether
Five occurrences (Sand Creek, Willow Creek, Spitzie Draw, Sterling Place, and
Five occurrences (Sand Creek, Flat Top Mountain, Spitzie Draw, Sterling Place, and Daggett County) have documentation of grazing. However, the typical habitat of
All occurrences experience drought as a natural and regular phenomenon, which likely results in short-term population fluctuations. However,
All occurrences have relatively small populations. However,
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient imminence, intensity, or magnitude to indicate that
Having determined that
In determining whether
We do not find that
We request that you submit any new information concerning the status of, or threats to,
Due to the short growing season (approximately 30 days) in the areas that
Not all plants produce fruit in a particular year (Heidel 2005, pp. 15-16), which is thought to be caused by freezing conditions in spring or possibly drought (Heidel 2005, pp. 15-16). All
Although the surrounding vegetation is sparse (less than 10 percent cover),
Annual precipitation in the area averages 30.5 cm (12 in.), with the majority falling in the form of winter snow (Marriott 1986, p. 9). Average minimum and maximum temperatures in this area range between −16.1 and −3.9 °C (3 and 25 °F) in January and 4.6 and 24.4 °C (42 and 76 °F) in July (Dorn 1990b, p. 6), with strong, frequent winds present year-round (Heidel 2005, p. 10). This area has a very short growing season; approximately 30 frost-free days occur between mid-June and mid-July (Marriott 1986, p. 9).
The distribution of
To explain the trend of
In 2003, WYNDD estimated total flowering plants for the entire population at 150 to 250 (Heidel 2005, p. 14). The mean density of flowering plants derived from the 1988 and 2003 surveys indicate that the density dropped from 1.68 down to 0.33 flowering plants per m
The subpopulation plot, where the largest number of plants is found, had 671 individual flowering
Based on a limited number of surveys, the plant appears to have an overall pattern of decline documented since estimates were first provided in 1988 (Heidel 2005, p. 17; Heidel 2010c, pers. comm.; Windham 2010, pers. comm.).
Reproductive success may vary considerably from year to year depending on climate conditions, leading to wide fluctuations in populations (Dorn 1990b, p. 10). Possible evidence of these fluctuations is low levels of fruit production in 2003 that visibly increased in 2010 (Heidel 2010c, pers. comm.). However, 2010 plant numbers are low compared to those documented in 1988 and 1990.
Information pertaining to
The following potential factors that may affect the habitat or range of
The extraction of natural gas occurs in several developments in southwest Wyoming, which could be a potential threat to the habitat of
In addition, on February 23, 1998, the Secretary of the Interior issued Public Land Order No. 7312, the Withdrawal of Public Land for the Protection of
For general background information on nonnative invasive plants, please refer to the first paragraph of “Nonnative Invasive Plants” under
The habitat adjacent to the area occupied by
For general background information on climate change, please refer to the first paragraphs of “Climate Change” under
Plant species with restricted ranges may experience population declines as a result of climate change. The habitat for
Limited evidence shows there may be some response of
In summary, we found that numerous management actions taken previously by the BLM alleviated several potential threats to
We conclude that the best scientific and commercial information available indicates that
Field notes from 1993 suggest that some
Prior to conservation measures taken by the BLM, the habitat of
We do not have any information to suggest that disease or predation are a threat to this species. We conclude that the best scientific and commercial information available indicates that
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to threats that may place
Several regulatory mechanisms are in place to protect
The BLM designated the Pine Creek Special Management Area in 1978 (Heidel 2005, p. 16) and built an exclosure fence in 1982 to keep cattle out of the 35.6-ha (88-ac) area where recreational activities occur (Dunder 1984, unpaginated).
The BLM 6840 Manual requires that RMPs should address sensitive species, and that implementation “should consider all site-specific methods and procedures needed to bring species and their habitats to the condition under which management under the Bureau sensitive species policies would no longer be necessary” (BLM 2008, p. 2A1). The Federal Land Policy and Management Act of 1976 mandates Federal land managers to develop and revise land use plans. The RMPs are the basis for all actions and authorizations involving BLM-administered lands and resources (43 CFR 1601.0-5(n)). The 1997 RMP for the area that includes
The entire known population of
On February 23, 1998, the Secretary of the Interior issued Public Land Order No. 7312 to withdraw public land from certain uses for 50 years as a measure to protect
Because the entire population of
We have no evidence of impacts to
We conclude that the best scientific and commercial information available indicates that
Natural and manmade factors with the potential to affect
For general background information on small population size, please refer to the first paragraph of “Small Population Size” under
In order for a population to sustain itself, there must be enough reproducing individuals and habitat to ensure its survival. Conservation biology defines this as the “minimum viable population” requirement (Grumbine 1990, pp. 127-128). This requirement may be between 500 and 5,000 individuals for other species of
In addition to the small population size of
As required by the Act, we considered the five factors in assessing whether
This status review identified threats to
On the basis of the best scientific and commercial information available, we find that the petitioned action to list
We reviewed the available information to determine if the existing and foreseeable threats render the species at risk of extinction now such that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act is warranted. We determined that issuing an emergency regulation temporarily listing the species is not warranted for this species at this time, because threats to the species would not be further controlled with a change in status. Additionally, the most recent survey information suggests that, while the population has not rebounded to previous highs, the population declines also have not continued. However, if at any time we determine that issuing an emergency regulation temporarily listing
The Service adopted guidelines on September 21, 1983 (48 FR 43098), to establish a rational system for utilizing available resources for the highest priority species when adding species to the Lists of Endangered or Threatened Wildlife and Plants or reclassifying species listed as threatened to endangered status. These guidelines, titled “Endangered and Threatened Species Listing and Recovery Priority Guidelines” address the immediacy and magnitude of threats, and the level of taxonomic distinctiveness by assigning priority in descending order to monotypic genera (genus with one species), full species, and subspecies (or equivalently, distinct population segments of vertebrates).
As a result of our analysis of the best available scientific and commercial information, we have assigned
Under the Service's guidelines, the magnitude of threat is the first criterion we look at when establishing a listing priority. The guidance indicates that species with the highest magnitude of threat are those species facing the greatest threats to their continued existence. These species receive the highest listing priority. We consider the threats that
Under our LPN guidelines, the second criterion we consider in assigning a listing priority is the immediacy of threats. This criterion is intended to ensure that the species facing actual, identifiable threats are given priority over those for which threats are only potential or that are intrinsically vulnerable but are not known to be presently facing such threats. We consider the threat to
The third criterion in our Listing Priority Number guidance is intended to devote resources to those species representing highly distinctive or isolated gene pools as reflected by taxonomy.
We will continue to monitor the threats to
While we conclude that listing
Preclusion is a function of the listing priority of a species in relation to the resources that are available and the cost and relative priority of competing demands for those resources. Thus, in any given FY, multiple factors dictate whether it will be possible to undertake work on a listing proposal regulation or whether promulgation of such a proposal is precluded by higher priority listing actions.
The resources available for listing actions are determined through the annual Congressional appropriations process. The appropriation for the Listing Program is available to support work involving the following listing actions: Proposed and final listing rules; 90-day and 12-month findings on petitions to add species to the Lists of Endangered and Threatened Wildlife and Plants (Lists) or to change the status
The work involved in preparing various listing documents can be extensive and may include, but is not limited to: Gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer review comments on proposed rules and incorporating relevant information into final rules. The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. The median cost for preparing and publishing a 90-day finding is $39,276; for a 12-month finding, $100,690; for a proposed rule with critical habitat, $345,000; and for a final listing rule with critical habitat, the median cost is $305,000.
We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (see 31 U.S.C. 1341(a)(1)(A)). In addition, in FY 1998 and for each FY since then, Congress has placed a statutory cap on funds which may be expended for the Listing Program, equal to the amount expressly appropriated for that purpose in that FY. This cap was designed to prevent funds appropriated for other functions under the Act (for example, recovery funds for removing species from the Lists), or for other Service programs, from being used for Listing Program actions (see House Report 105-163, 105th Congress, 1st Session, July 1, 1997).
Since FY 2002, the Service's budget has included a critical habitat subcap to ensure that some funds are available for other work in the Listing Program (“The critical habitat designation subcap will ensure that some funding is available to address other listing activities” (House Report No. 107-103, 107th Congress, 1st Session, June 19, 2001)). In FY 2002 and each year until FY 2006, the Service had to use virtually the entire critical habitat subcap to address court-mandated designations of critical habitat, and consequently none of the critical habitat subcap funds were available for other listing activities. In some FYs since 2006, we have been able to use some of the critical habitat subcap funds to fund proposed listing determinations for high-priority candidate species. In other FYs, while we were unable to use any of the critical habitat subcap funds to fund proposed listing determinations, we did use some of this money to fund the critical habitat portion of some proposed listing determinations so that the proposed listing determination and proposed critical habitat designation could be combined into one rule, thereby being more efficient in our work. In FY 2011 we anticipate that we will be able to use some of the critical habitat subcap funds to fund proposed listing determinations.
We make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first and also because we allocate our listing budget on a nationwide basis. Through the listing cap, the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for other listing activities nationwide. Therefore, the funds in the listing cap, other than those needed to address court-mandated critical habitat for already listed species, set the limits on our determinations of preclusion and expeditious progress.
Congress identified the availability of resources as the only basis for deferring the initiation of a rulemaking that is warranted. The Conference Report accompanying Pub. L. 97-304, which established the current statutory deadlines and the warranted-but-precluded finding, states that the amendments were “not intended to allow the Secretary to delay commencing the rulemaking process for any reason other than that the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition [that is, for a lower-ranking species] unwise.” Although that statement appeared to refer specifically to the “to the maximum extent practicable” limitation on the 90-day deadline for making a “substantial information” finding, that finding is made at the point when the Service is deciding whether or not to commence a status review that will determine the degree of threats facing the species, and therefore the analysis underlying the statement is more relevant to the use of the warranted-but-precluded finding, which is made when the Service has already determined the degree of threats facing the species and is deciding whether or not to commence a rulemaking.
In FY 2010, $10,471,000 is the amount of money that Congress appropriated for the Listing Program (that is, the portion of the Listing Program funding not related to critical habitat designations for species that are already listed). Therefore, a proposed listing is precluded if pending proposals with higher priority will require expenditure of at least $10,471,000, and expeditious progress is the amount of work that can be achieved with $10,471,000. Since court orders requiring critical habitat work will not require use of all of the funds within the critical habitat subcap, we used $1,114,417 of our critical habitat subcap funds in order to work on as many of our required petition findings and listing determinations as possible. This brings the total amount of funds we had for listing actions in FY 2010 to $11,585,417.
The $11,585,417 was used to fund work in the following categories: Compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; section 4 (of the Act) listing actions with absolute statutory deadlines; essential litigation-related, administrative, and listing program-management functions; and high-priority listing actions for some of our candidate species. For FY 2011, on September 29, 2010, Congress passed a continuing resolution which provides funding at the FY 2010 enacted level. Until Congress appropriates funds for FY 2011, we will fund listing work based on the FY 2010 amount. In 2009, the responsibility for listing foreign species under the Act was transferred from the Division of Scientific Authority, International Affairs Program, to the Endangered Species Program. Therefore, starting in FY 2010, we use a portion of our funding to work on the actions described above as they apply to listing actions for foreign species. This has the potential to further reduce funding available for domestic listing actions. Although there are currently no foreign species issues included in our high-priority listing actions at this time, many actions have statutory or court-approved settlement deadlines, thus increasing their priority. The budget allocations for each specific listing action are identified in the Service's FY 2011 Allocation Table (part of our administrative record).
Based on our September 21, 1983, guidance for assigning an LPN for each candidate species (48 FR 43098), we have a significant number of species with a LPN of 2. Using this guidance, we assign each candidate an LPN of 1 to 12, depending on the magnitude of threats (high or moderate to low), immediacy of threats (imminent or nonimminent), and taxonomic status of the species (in order of priority: monotypic genus (a species that is the sole member of a genus); species; or part of a species (subspecies, distinct population segment, or significant portion of the range)). The lower the listing priority number, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority).
Because of the large number of high-priority species, we have further ranked the candidate species with an LPN of 2 by using the following extinction-risk type criteria: International Union for the Conservation of Nature and Natural Resources (IUCN) Red list status/rank, Heritage rank (provided by NatureServe), Heritage threat rank (provided by NatureServe), and species currently with fewer than 50 individuals, or 4 or fewer populations. Those species with the highest IUCN rank (critically endangered), the highest Heritage rank (G1), the highest Heritage threat rank (substantial, imminent threats), and currently with fewer than 50 individuals, or fewer than 4 populations, originally comprised a group of approximately 40 candidate species (“Top 40”). These 40 candidate species have had the highest priority to receive funding to work on a proposed listing determination. As we work on proposed and final listing rules for those 40 candidates, we apply the ranking criteria to the next group of candidates with an LPN of 2 and 3 to determine the next set of highest priority candidate species. Finally, proposed rules for reclassification of threatened species to endangered are lower priority, since as listed species, they are already afforded the protection of the Act and implementing regulations. However, for efficiency reasons, we may choose to work on a proposed rule to reclassify a species to endangered if we can combine this with work that is subject to a court-determined deadline.
We assigned
With our workload so much bigger than the amount of funds we have to accomplish it, it is important that we be as efficient as possible in our listing process. Therefore, as we work on proposed rules for the highest priority species in the next several years, we are preparing multi-species proposals when appropriate, and these may include species with lower priority if they overlap geographically or have the same threats as a species with an LPN of 2. In addition, we take into consideration the availability of staff resources when we determine which high-priority species will receive funding to minimize the amount of time and resources required to complete each listing action.
As explained above, a determination that listing is warranted but precluded also must demonstrate that expeditious progress is being made to add and remove qualified species to and from the Lists of Endangered and Threatened Wildlife and Plants. As with our “precluded” finding, the evaluation of whether progress in adding qualified species to the Lists has been expeditious is a function of the resources available for listing and the competing demands for those funds. (Although we do not discuss it in detail here, we also are making expeditious progress in removing species from the list under the Recovery program in light of the resource available for delisting, which is funded by a separate line item in the budget of the Endangered Species Program. During FY 2010, we have completed two proposed delisting rules and two final delisting rules.) Given the limited resources available for listing, we find that we made expeditious progress in FY 2010 in the Listing Program and are making expeditious progress in FY 2011. This progress included preparing and publishing the following determinations:
Our expeditious progress also includes work on listing actions that we funded in FY 2010 and FY 2011 but have not yet been completed to date. These actions are listed below. Actions in the top section of the table are being conducted under a deadline set by a court. Actions in the middle section of the table are being conducted to meet statutory timelines, that is, timelines required under the Act. Actions in the bottom section of the table are high-priority listing actions. These actions include work primarily on species with an LPN of 2, and, as discussed above, selection of these species is partially based on available staff resources, and when appropriate, include species with a lower priority if they overlap geographically or have the same threats as the species with the high priority. Including these species together in the same proposed rule results in considerable savings in time and funding, as compared to preparing separate proposed rules for each of them in the future.
We have endeavored to make our listing actions as efficient and timely as possible, given the requirements of the relevant law and regulations, and constraints relating to workload and personnel. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together. Given our limited budget for implementing section 4 of the Act, these actions described above collectively constitute expeditious progress.
We intend that any proposed listing determination for
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Wyoming Ecological Services Field Office.
The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531