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Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-400 series airplanes. This AD was prompted by reports of chafing between the wire harness along the wing leading edge and the inboard end rib of the wing leading edge due to insufficient clearance. This AD requires inspecting the wire harness along the leading edge for chafing damage, and repair if necessary; and relocating and installing new anchor nuts. We are issuing this AD to detect and correct chafing damage to the wire harness along the wing leading edge, which if not corrected, could lead to the loss of the airframe de-icing system, and could become a possible ignition source causing fire.
This AD becomes effective November 14, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 14, 2012.
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7301; fax (516) 794-5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
There have been several in-service reports of chafing between the wire harness along the wing leading edge and the wing leading edge inboard end rib. The chafing condition was found to be caused by insufficient clearance between the wire harness and the structure. Chafing and damage to this wire harness could lead to the loss of the airframe de-icing system, and could be a possible ignition source causing fire and the subsequent loss of the aeroplane.
This [Transport Canada Civil Aviation] Airworthiness Directive (AD) mandates [a detailed] inspection of the wire harness along the leading edge [for chafing damage, and repair if necessary] and the relocation [and installation of new] anchor nut[s].
We gave the public the opportunity to participate in developing this AD. We considered the comment received.
Horizon Air (Horizon) requested that we revise the proposed rule (77 FR 33125, June 5, 2012) to reflect the latest revision of the service information. Horizon pointed out that Bombardier Service Bulletin 84-57-24, dated September 30, 2011, referenced in that NPRM contained an error in a work step that needed to be corrected.
We agree. Bombardier has issued Service Bulletin 84-57-24, Revision A, dated August 6, 2012. This service bulletin was revised to correct a reference to a figure in a work step. We have changed this final rule to reference Bombardier Service Bulletin 84-57-24, Revision A, dated August 6, 2012, throughout. We have also added paragraph (i) of this final rule to give credit for actions performed before the effective date of this AD using Bombardier Service Bulletin 84-57-24, dated September 30, 2011.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously and minor editorial changes. We have determined that these changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 33125, June 5, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 33125, June 5, 2012).
We estimate that this AD will affect 83 products of U.S. registry. We also estimate that it will take about 9 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 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 parts. 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 this AD to the U.S. operators to be $63,495, or $765 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
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
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.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective November 14, 2012.
None.
This AD applies to Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers 4001 through 4382 inclusive.
Air Transport Association (ATA) of America Code 57: Wings.
This AD was prompted by reports of chafing between the wire harness along the wing leading edge and the inboard end rib of the wing leading edge due to insufficient clearance. We are issuing this AD to detect and correct chafing damage to the wire harness along the wing leading edge, which if not corrected, could lead to the loss of the airframe de-icing system, and could become a possible ignition source causing fire.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 3,000 flight hours or 18 months after the effective date of this AD, whichever occurs first: Perform a detailed inspection for chafing damage of the wire harness at the leading edge, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-57-24, Revision A, dated August 6, 2012. If any chafing damage is found: Before further flight, repair in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-57-24, Revision A, dated August 6, 2012.
Within 3,000 flight hours or 18 months after the effective date of this AD, whichever occurs first: Relocate and install new anchor nuts on the leading edge, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-57-24, Revision A, dated August 6, 2012.
This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 84-57-24, dated September 30, 2011.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to MCAI Canadian Airworthiness Directive CF-2012-05, dated January 13, 2012; and Bombardier Service Bulletin 84-57-24, Revision A, dated August 6, 2012; for related information.
(2) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Bombardier Service Bulletin 84-57-24, Revision A, dated August 6, 2012.
(ii) Reserved.
(3) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton,
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Direct final rule; correction; delay of effective date.
This action delays the effective date for a direct final rule that was published on August 22, 2012. In that rule, the FAA amends the scope of its regulations to allow launch operators that conduct certain amateur rocket launches an opportunity to voluntarily apply for a commercial space transportation license or experimental permit. The FAA has received several adverse comments to this rule, and delays the effective date to allow time for adequate analysis and a final determination. This document also corrects the regulatory identification number on the original publication.
The effective date for the direct final rule published on August 22, 2012, was scheduled to be October 9, 2012, and is delayed until November 8, 2012.
For technical questions, contact Shirley McBride, Senior Transportation Industry Analyst, Regulations and Analysis Division, AST-300, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7470; facsimile (202) 267-5463; email
On August 22, 2012, the FAA published the direct final rule entitled, “Voluntary Licensing of Amateur Rocket Operations” (77 FR 50584). In this rule, the FAA is amending the scope of its regulations to allow launch operators that conduct certain amateur rocket launches an opportunity to voluntarily apply for a commercial space transportation license or experimental permit. This rule received 4 adverse comments prior to comment period closing on September 21, 2012. The rule contained the effective date of October 9, 2012.
The original publication contained an incorrect regulatory identification number (RIN). This document contains the correct RIN 2120-AK16.
A direct final rule is based on the Administrative Procedure Act's good cause exception to prior notice and comment procedures, 5 U.S.C. 553. This exception is used where we have found that prior public comment procedure may be unnecessary because adverse comments are not expected. In determining whether an adverse comment is significant enough to end a rulemaking, we consider whether the comment would warrant a substantive response in a notice of proposed rulemaking (NPRM).
The effective date of a direct final rule is normally a minimum of 30 calendar days after the end of the comment period. This rule published with an effective date of 15 calendar days after the end of the comment period to accommodate NASA's deadline in funding licensed launches. However, we received 4 substantive comments that require further analysis and determination. The FAA needs additional time to address the comments received and decide on the appropriate action.
Accordingly, the effective date for Notice No. 400-4 is delayed until November 8, 2012.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving the fine particulate matter (PM
This final rule is effective on November 9, 2012.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2010-0140. All documents in the docket are listed in the
Asrah Khadr, (215) 814-2071, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On July 20, 2012 (77 FR 42686), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of the 2002 base year emissions inventory portion of the Maryland SIP revision. The formal SIP revision (#08-06) was submitted by the State of Maryland on April 3, 2008.
The 2002 base year emissions inventory submitted by MDE on April 3, 2008 includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are nitrogen oxides (NO
EPA is approving the 2002 base year PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2012. 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 pertaining to the PM
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) EPA-approved nonregulatory and quasi-regulatory material.
(l) EPA approves as a revision to the Maryland State Implementation Plan the 2002 base year emissions inventory for the Maryland portion of the Washington DC-MD-VA 1997 fine particulate matter (PM
Environmental Protection Agency (EPA).
Final rule.
This regulation amends the exemption from the requirement of a tolerance for residues alkyl amines polyalkoxylates under 40 CFR 180.920 and 40 CFR 180.930 to include the additional Chemical Abstract Service Registry Number (CAS Reg. No.) 1266162-49-5. BASF Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an amendment to an existing requirement of a tolerance.
This regulation is effective October 10, 2012. Objections and requests for hearings must be received on or before December 10, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0949 is available at
Elizabeth Fertich, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 347-8560; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0949 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 10, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any CBI) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-
•
•
•
In the
In this petition, BASF Corporation claims that the chemical represented by CAS Reg. No. 1266162-49-5 (poly(oxy-1,2-ethandiyl), α,α'-[[(2-propylheptyl)imino]di-2,1-ethanediyl]bis[ω-hydroxy-) is covered by the published tolerance exemption for alkyl amines polyalkoxylates and that no further data or review is required to amend the existing tolerance exemption to include the additional CAS Reg. No.
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert ingredient in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for alkyl amine polyalkoxylates including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with alkyl amine polyalkoxylates follows.
The Agency agrees with the petitioner that CAS Reg. No. 1266162-49-5 is an alkyl amine polyalkoxylate similar to the other alkyl amine polyalkoxylates present in the exemption for N,N-Bis-α-ethyl-ω-hydroxypoly(oxy-1,2-ethanediyl) C8-C18 saturated and unsaturated alkylamines; the poly(oxy-1,2-ethanediyl) content is 2-60 moles (CAS Reg. Nos. 10213-78-2, 25307-17-9, 26635-92-7, 26635-93-8, 288259-52-9, 58253-49-9, 61790-82-7, 61791-14-8, 61791-24-0, 61791-26-2, 61791-31-9, 61791-44-4, 68155-33-9, 68155-39-5, 68155-40-8, 70955-14-5, 73246-96-5). In 2009, in establishing the exemption for the alkyl amine polyalkoxylates, EPA assessed the safety of the alkyl amine polyalkoxylates generally using worst case exposure assumptions. (74 FR 28616) (FRL-8418-6). EPA concluded that that assessment showed that exempting the alkyl amine polyalkoxylates from the requirement from a tolerance would be safe. Inclusion of chemical described by the CAS Reg. No. 1266162-49-5 in the risk assessment for the alkyl amine polyalkoxylates would in no way alter that prior risk assessment given the generic findings on toxicity and the worst case exposure assumptions used in that risk assessment. Accordingly, based on the findings in that earlier rule, EPA has determined that there is a reasonable certainty that no harm to any population subgroup, including infants and children, will result from aggregate exposure to alkyl amine polyalkoxylates, including the chemical described by the CAS Reg. No.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established an MRL for alkyl amine polyalkoxylates.
Therefore, the exemption from the requirement of a tolerance under 40 CFR 180.920 and 180.930 for alkyl amine polyalkoxylates is amended to include CAS Reg. No. 1266162-49-5.
This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Federal Emergency Management Agency, DHS.
Final rule.
FEMA has scheduled one community for suspension because of its failure to adopt compliant floodplain management regulations under the National Flood Insurance Program (NFIP). If documentation is received from the community before the effective suspension date, indicating it has brought its floodplain management program into compliance with the NFIP requirements, FEMA will withdraw the suspension.
David Stearrett, Federal Insurance and Mitigation Administration, 1800 South Bell Street Arlington, VA 20598-3072, (202) 646-2953.
The National Flood Insurance Program (NFIP) enables property owners to purchase flood insurance that is generally not otherwise available. In return, communities agree to adopt and implement local floodplain management regulations that contribute to protecting lives and reducing the risk of property damage from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4022), prohibits flood insurance coverage authorized under the National Flood Insurance Program (42 U.S.C. 4001-4128) unless an appropriate public body adopts adequate floodplain management measures with effective administration and enforcement processes.
The community listed in this notice currently has floodplain management regulations that are scheduled to lapse October 31, 2012. If the regulations lapse as scheduled, the community will no longer meet the NFIP requirements set forth at 44 CFR Part 59
FEMA will not suspend the City; however, if the community submits the documentation required by 44 CFR 59.24(d) to show that it has corrected the deficiencies and remedied the violations identified in the Suspension letter to the maximum extent possible. This documentation must be received by FEMA before the actual suspension date. If the City successfully demonstrates its compliance with NFIP regulations, FEMA will continue its eligibility for the sale of NFIP insurance. In the interim, if you wish to determine whether FEMA has suspended the City on the suspension date, please contact the FEMA Region III office at (215) 931-5532. Additional information may also be found at
FEMA identified the special flood hazard areas (SFHAs) in this community by publishing a Flood Insurance Rate Map. The effective date of this map is indicated in the last column of the table. By law, no Federally regulated entity may provide financial assistance for acquisition or construction purposes for property located in a SFHA unless the community in which the property is located is participating in the NFIP (42 U.S.C. 4106(a)). The prohibition against certain types of Federal disaster assistance also becomes effective for the City on the date shown in the fourth column (42 U.S.C. 4106(b)).
The Administrator finds that notice and public comment procedure under 5 U.S.C. 553(b) is impracticable and unnecessary because the community listed in this final rule has been adequately notified. The community received a Letter from FEMA Region III Administrator on March 2, 2012, advising the City it must submit compliant ordinance by May 31, 2012. The city submitted its ordinance; however, it has a sunset clause dated for
FEMA addressed these notifications to the Mayor of the City Council indicating that we will suspend the City unless the City takes the required corrective actions before the scheduled suspension date. Because we have made these notifications, this final rule may take effect immediately on November 1, 2012.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Federal Maritime Commission.
Final rule.
The Federal Maritime Commission revises its rules of practice and procedure to update and clarify the rules and to reduce the burden on parties to proceedings before the Commission. The Commission also amends the regulation with respect to its former employees to reflect changes in a relevant statute and the regulation for filing of documents containing confidential materials.
Effective: November 12, 2012.
Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573-0001, Phone: (202) 523-5725, Email:
On March 1, 2012, the Federal Maritime Commission (Commission) published a Notice of Proposed Rulemaking in the
Two comments were received by the Commission from Winston & Strawn (Winston) and Cozen O'Connor (Cozen), law firms that have practiced before the Commission for many years. The Commission has reviewed these comments and adopts some recommendations.
Winston opposes reduction of the time limit for replies to non-dispositive motions from 14 days to 7 days stating that it is “unnecessary, unfair and unduly burdensome” on attorneys who handle many cases and travel as part of their practice. Winston believes that it will do little to shorten the duration of cases and there is no evidence that the present period is responsible for any material delay in Commission proceedings. Winston also opposes the proposed 30 and 15 page limits for dispositive motions and replies, respectively, on the ground that such limits will severely restrict the ability of parties to make their case, particularly those involving complex issues. Winston suggests that no page limits be imposed on non-dispositive motions and that the same limit as exceptions, i.e., 50 pages, be imposed for dispositive motions. Winston also opposes the proposed limits on discovery, arguing such a limit would reduce access to evidence. Winston believes that the proposed limits of 20 depositions and 50 interrogatories are “woefully
Independent of Winston's comments, the Commission previously considered the issues raised by Winston with respect to limits on discovery, page limitations, and time limits for replies and believes that the proposed rules reasonably accommodate the needs and requirements of the Commission and the parties to proceedings before the Commission. The Commission believes that the proposed deposition and interrogatory limitations reflect an accommodation recognizing the difference between federal court proceedings and the nature of Commission proceedings which tend to be heard mainly on a written or documentary record.
With respect to the time limit for replies to non-dispositive motions, in view of the new duty to confer prior to filing a non-dispositive motion, the responding party will have advance notice of the motion and the issues raised in the motion. Further, the nature of the subject matter typically involved in such motions often may require expedited consideration. To the extent deviation from such requirements becomes necessary in individual cases, the presiding officer has the requisite authority to issue appropriate orders. The same is true as to the proposed page limitations. Therefore, the Commission does not believe further modification to the proposed rule is needed.
The Commission also believes it unnecessary to further clarify that § 502.203 permits recording depositions both by stenographic and “video recordation.” Revised § 502.203 mirrors Federal Rules of Civil Procedure (FRCP) 30(b)(3)(A), and the conjunction “or” in the proposed rule is meant to operate inclusively.
Cozen advocates revising proposed § 502.66 consistent with FRCP 15(a)(1), to permit amendments to pleadings as a matter of right within 21 days of service of the original pleading with a response required within the later of the time left to respond to the original pleading or 14 days after the amended pleading. Cozen supports proposed § 502.72 permitting voluntary dismissal of a complaint, and suggests addition of a provision similar to FRCP 41 also permitting voluntary dismissal of counterclaims, crossclaims, and third-party complaints. Cozen also suggests that when a complainant voluntarily dismisses a complaint and refiles against the same respondent based on the same issues, liability be imposed against the complainant for the respondent's costs in responding to the first complaint. Cozen further recommends that the Commission confirm that a voluntary dismissal under proposed § 502.72 would no longer require Commission approval of any settlement as part of the dismissal.
Cozen supports the limitations on depositions and interrogatories, but believes the Commission should set the limit for depositions at 10, as provided in the FRCP, rather than 20 as proposed by the Commission, and interrogatories at 35, as opposed to 25 as provided in the FRCP or 50 as proposed by the Commission. Cozen further proposes sanctions for failure to appear at scheduled depositions. In addition, Cozen requests that the time limit on discovery be extended from 120 to 180 days. Cozen is concerned that the Commission's proposed § 502.201(b) would require initial disclosures to be made prior to the proposed § 502.201(h) conference; that the time period for disclosure under the Commission's proposed rules would be considerably shorter than those permitted under the FRCP; and that the parties are not permitted to stipulate to a longer period. Cozen suggests revising the proposed rules to require the discovery conference to occur within 21 days after the answer is filed, to require initial disclosures to be made at the earlier of 90 days after the respondent's appearance or 75 days after the filing of the answer, and to permit the parties to stipulate to a longer period for disclosures. Cozen also suggests various clarifications within proposed Rules 201 through 203 which are addressed below.
The Commission does not believe it should adopt the suggestion to allow amendment of pleadings as a matter of right. Although FRCP 15(a)(1) allows amendment to pleadings as of right in the federal district courts, the Commission's proceedings operate on specific time schedules not analogous to federal court cases. The Commission believes that such a rule could create unnecessary time pressure and further delays. The presiding officer has the requisite authority to permit amendments to pleadings when necessary.
The Commission adopts Cozen's request that the Commission modify proposed § 502.72 consistent with FRCP 41(c) to specify that voluntary dismissal also applies to counterclaims, crossclaims, and third-party claims inasmuch as this was the intent of the proposal.
The Commission believes that it cannot adopt Cozen's suggestion that complainants who voluntarily dismiss cases pay respondents' costs should complainant bring the case again, because the Commission lacks authority under the Shipping Act of 1984 to award such costs. Similarly, the Commission cannot award sanctions as proposed by Cozen for failure to attend a deposition.
As noted, in addition to supporting proposed § 502.72 allowing voluntary dismissals by a complainant, Cozen requests that the Commission confirm that this change was also intended to eliminate the requirement that settlement between private litigants be approved as a condition of dismissal. The Commission did not intend to eliminate the requirement for review of settlement when it proposed the new rule and is not changing its long-standing policy at this time.
As stated above in response to Winston's comments on limits on depositions and interrogatories, the Commission is not revising the limitations set out in the proposed rule.
The Commission believes there is merit to Cozen's suggestion that the 120-day proposed discovery period be increased. Cozen suggests that the time period for discovery be increased an additional 60 days for a total of 180 days for discovery. Cozen has substantial practical experience in this area and its concern comports with the Commission's own understanding of the time generally needed to complete discovery. However, while the Commission agrees that additional time is required, it does not agree that an additional 60 days is needed. Given that the Commission has proposed changing the discovery deadline to run from the service of an answer as opposed to the service of a complaint, ensuring that parties are present in the case to conduct discovery, the Commission increases the proposed 120-day period to 150 days from the date of service of
The Commission does not adopt Cozen's suggestions regarding delaying the discovery conference or submission of initial disclosures as the suggestion is not compatible with the time frame for completing discovery under the Commission's rules, a time limitation that does not exist in the federal rules. As to the question of stipulating to a longer period for initial disclosures, the rule does provide for the possibility of stipulation. However, the purpose for requiring initial disclosures is to facilitate and encourage focused and expeditious use and completion of discovery. Moreover, § 502.201(l) will require that “* * * a stipulation extending the time for any form of discovery must have presiding officer's approval if it would interfere with the time set for completing discovery * * *”
The Commission further agrees that proposed § 502.201(k) should be modified to clarify that the obligation to supplement responses also applies to expert witness information under § 502.201(d). However, the Commission does not adopt Cozen's suggestion that existing § 502.202(e), which gives parties the power to stipulate to the person before whom a deposition may be taken, be retained. Proposed § 502.202 mirrors FRCP 28 which does not allow such a stipulation. Retention of current § 502.202(e) would also conflict with the provisions in proposed § 502.202(c) disqualifying certain individuals. The Commission is unaware of any compelling reason to vary from the FRCP requirements in this instance.
After consideration of the comments, the Commission has determined to adopt the proposed Rules as final with a few modifications adopting some of the comments' suggestions.
Although not included in the Notice of Proposed Rulemaking, the Commission is amending § 502.5(b) to require that when a confidential filing is submitted, an original and two copies of a public version excluding the confidential materials be filed. Currently, only an original and one copy is required. Since some submitted filings are extensive and not easy to reproduce, the Commission has found one copy to be insufficient for proper maintenance of the docket.
Although not included in the Notice of Proposed Rulemaking, the Commission also amends § 502.32 to reflect changes in a relevant statute. Current § 502.32(c) is designed to expedite consultation with the Director of the Office of Government Ethics, as required by section 207(j) of Title 18 of the United States Code. Subsection j of 18 U.S.C. 207 was struck from section 207 in 1989 (Pub. L. 101-194 Ethics Reform Act) and replaced with a section on exceptions. Therefore, the statutory authority for the Commission to hold a disciplinary hearing and sanction a former officer or employee as laid out in 46 CFR 502.32(c)(2)-(11) and (d) no longer exists. Additionally, the requirement in 46 CFR 502.32(c)(2)(i) for the Chairman to report to the Director of the Office of Government Ethics (OGE) and to the Criminal Division, Department of Justice substantiated information regarding possible violations of 18 U.S.C. 207 has been superseded by the reporting requirements contained in the OGE regulations at 5 CFR 2641.103(a) and 5 CFR 2638.603 in addition to 28 U.S.C. 535. The Commission notes that 5 CFR 2641.103(a) specifically states that the criminal and civil enforcement of the provisions of 18 U.S.C. 207 is the responsibility of the Department of Justice. Reflecting the statutory change, the Commission revises paragraph (c) of section 502.32.
The revision to Subpart E is intended both to streamline the current rules for ease of use by the public and to provide parties to Commission proceedings with greater clarity as to the requirements pertaining to the conduct of proceedings, specifically motions, intervention, and dismissals. Also as described below, the revision sets out a new procedure for the conduct of Commission-initiated enforcement proceedings. Minor changes are also made to reorder sections and enhance clarity generally.
Section 502.62 governs the filing of private party complaints for formal adjudication and has been revised for clarification and modernized to request email addresses for parties and their representatives. Rules related to the filing of answers to complaints (currently found at 46 CFR 502.64) and statutes of limitations (currently found at 46 CFR 502.63) have been consolidated into § 502.62. Revised § 502.62 explains more fully what is required in an answer and also provides for the filing of counterclaims, crossclaims, and third-party complaints. Commission rules have not previously addressed these types of claims, though they have been filed and adjudicated. Revised § 502.62 references decisions on default for failure to answer a complaint, counterclaim, crossclaim, or third-party complaint. Administrative Law Judges (ALJs) have adjudicated decisions on default in the past in various fashions, but the final rule better defines when an initial decision on default may be issued. The new default rule is discussed in greater detail below.
Exhibit 1 to Subpart E currently contains a complaint form and a checklist of information required when filing a complaint. The final rule removes this form from the rules as the Commission plans to publish a revision of this form on its Web site along with other forms and further helpful information for complaint filers, with information oriented particularly to
Section 502.63 provides a new procedure at the initial stages of Commission enforcement proceedings designed to more efficiently utilize Commission resources, provide for expeditious resolution of cases where a respondent defaults or otherwise chooses not to appear, and ensures due process to respondents. Under current procedure, the Commission issues an Order of Investigation and Hearing that advises respondents of the issues under investigation, designates the Commission's Bureau of Enforcement (BOE) as a party to the proceeding to prosecute the case, and assigns the matter to the Office of Administrative Law Judges to conduct the proceeding and issue an initial decision. There is no requirement in the current procedural rules that a respondent answer or otherwise respond to the Order. Typically, the presiding officer issues an initial order to the parties followed by a scheduling order setting forth dates by which certain aspects of the case must be completed and generally setting a schedule for the proceeding. It is not uncommon, however, for a respondent to fail to appear or to initially appear
Under the revised rule, an enforcement action will continue to be instituted upon the Commission's issuance of an Order of Investigation and Hearing. The Order of Investigation and Hearing will set forth specific facts alleged by BOE supporting an assertion that the respondent has violated the Shipping Act, require an answer from the respondent, and identify the consequences of failure to answer or otherwise respond to the Order. Such a procedure is employed by various other federal agencies in conducting investigative adjudications including the Federal Trade Commission, Commodity Futures Trading Commission, Department of Housing and Urban Development, and the new Consumer Financial Protection Bureau (interim final rules). The Order of Investigation and Hearing will also identify the name and address of each respondent subject to the Order; recite the legal authority and jurisdiction for instituting the proceeding including designation of the statutory provisions and/or Commission regulations alleged to have been violated; include a clear and concise statement of facts sufficient to inform the respondent of the acts or practices alleged to constitute a violation of the law; include a statement of the civil penalties, cease and desist order, and any other appropriate penalty that may be imposed; specify the date or time period by or in which respondent must file an answer with the Commission and serve BOE; and a statement of the consequences for failure to file an answer.
The final rule contains a separate provision addressing the contents of an answer to an Order of Investigation and Hearing. The rule requires that a respondent must file an answer with the Commission and serve the answer on BOE within 25 days after being served with the Order. The rule further provides that the answer must contain a concise statement of the facts upon which each ground of defense is based and an admission, denial, or explanation of each fact alleged in the Order, or, if the respondent does not have sufficient knowledge of the facts to prepare a response, a statement to that effect. Factual allegations in the Order not answered or addressed will be deemed to be admitted.
The new section 502.64 requires parties to a Commission proceeding to participate in a preliminary conference to discuss whether the matter may be resolved through mediation. Under this provision, parties are required to contact the Director of the Office of Consumer Affairs & Dispute Resolution Services (CADRS) within fifteen (15) days of the respondent's filing of an answer to schedule the preliminary conference. The Director of CADRS or his or her designee will conduct the preliminary conference either in person or via telephone, video conference, or other forum convenient to the parties. The designee will have the ability to communicate with the parties prior to the preliminary conference to explore issues and to respond to questions regarding the preliminary conference.
The purpose of the preliminary conference is to provide parties information regarding mediation services, to explain the mediation process, and to explore the willingness of parties to resolve their dispute through mediation, including whether the parties wish to voluntarily agree to mediate. In addition, the new provision allows parties, if they so choose, to reconsider use of mediation at a later time in the proceeding even when a party or parties initially elected not to use mediation or when prior attempts to mediate the dispute were unsuccessful.
The preliminary conference will be subject to the Commission's confidentiality provisions set forth in 46 CFR 502.405 regardless of whether the parties decide to mediate a dispute or whether such mediation is successful in resolving the dispute.
The Commission has determined to exclude the Commission's enforcement proceedings from the mandatory preliminary conference requirement in the final rule.
The new rule on default clarifies the process that will occur when a party fails to participate or respond in a Commission proceeding. The rule is modeled on that of other agencies that employ a similar enforcement procedure. A defaulting respondent may petition the Commission to set aside a decision on default, which may be granted to prevent injustice upon a showing of good cause. The new rule requires that such a motion be filed within 22 days after service of the decision on default to coincide with the current time period for the filing of exceptions to an initial decision.
Section 502.68, addresses motions for leave to intervene previously found in § 502.72. This section has been modernized to reflect intervention of right and permissive intervention as provided in the FRCP. The rule requires that parties seek leave to intervene in proceedings by motion, rather than by petition. The standard recognizes the existing standard of the Commission's rule as well as that in FRCP 24 governing intervention.
The revised rule allows for permissive intervention by a federal or state government department or agency or the Commission's Bureau of Enforcement. The federal or state government or agency or the Commission's Bureau of Enforcement is required to show that its expertise is relevant to one or more issues involved in the proceeding and may assist in the consideration of those issues.
Section 502.69 reorders the subparts from current § 502.73 into a more logical fashion and adds two new paragraphs. Paragraph (f) clarifies when responses to written motions are permitted. Paragraph (g) defines dispositive motions, because dispositive and non-dispositive motions are treated differently pursuant to §§ 502.70 and 71.
Section 502.70 addresses dispositive motions. Because these motions may dispose of all or part of a proceeding, they are handled differently from non-dispositive motions. Dispositive motions must include specific information. Non-moving parties must file responses within 15 days. The moving party may file a reply within 7 days thereafter. No further reply may be
Section 502.71 addresses non-dispositive motions. These are frequently motions regarding discovery disputes or requesting an extension of a deadline. They do not tend to be as complex and do not require as much time to address as dispositive motions. Therefore, § 502.71 requires the parties to attempt to confer to try to resolve the dispute before filing the motion. If a motion is still required (e.g., to extend a date), the motion must state whether it is opposed. If the motion is opposed, the non-moving party must file a response within 7 days. A reply is only permitted upon a showing of extraordinary circumstances. This will allow non-dispositive motions to be resolved more quickly and efficiently.
Section 502.72 clarifies the process for seeking voluntary and involuntary dismissals. Without such a rule, parties were not always certain how to present these dismissals. The rule is similar to FRCP 41.
The Commission revises its discovery rules found in 46 CFR Subpart L to modernize and more closely conform them to the current version of the FRCP and to encourage focused and expeditious use and completion of discovery. The Shipping Act of 1984 provides that in an investigation or adjudicatory proceeding under the Act, “a party may use depositions, written interrogatories, and discovery procedures under regulations prescribed by the Commission that, to the extent practicable, shall conform to the Federal Rules of Civil Procedure (28 App. U.S.C.).” 46 U.S.C. 41303(a). In 1984, the Commission promulgated discovery rules based on the federal rules as they then existed. The Commission promulgated minor amendments to § 502.203 in 1993 and § 502.201 in 1999, but in all other respects the rules are unchanged since 1984. The FRCP on discovery, on the other hand, has been extensively revised since 1984.
As a general matter, to ensure that FMC proceedings are conducted as efficiently as possible, the Commission is not adopting the various deadlines from the FRCP. To ensure parties are present in the case, revised deadlines would run from the date of the service of the answer, as opposed to the complaint, including the deadline for filing initial disclosures (§ 502.201(b)), completion of discovery (§ 502.201(g)), and initial duty to confer (§ 502.201(h)). The Commission also does not adopt many of those rules that pertain to trials, as trial-type hearings are currently the exception in Commission proceedings. The Commission incorporates references to electronically stored documents and treats those similar to the FRCP in the context of discovery.
Section 502.201 governs discovery generally, defines the scope of discovery and its limits, and provides for limited initial disclosures to be made by all parties to any Commission proceeding within seven days of receipt of respondent's answer. The requirement to make initial disclosures is a new requirement in Commission proceedings. FRCP 26 requires initial disclosures in federal courts, and the procedural rules of other federal agencies, such as the Federal Trade Commission, require initial disclosure in proceedings. Revised § 502.201 requires the parties to confer within 14 days of receipt of respondent's answer, to complete discovery within 150 days of the answer, and requires supplementation of responses to discovery. Currently, discovery must be completed within 120 days of notice of the complaint filing. This time period has proven to be unrealistic, particularly because the actual date of receipt of an answer can vary greatly. Revised § 502.201 adopts the federal rule on the scope of discovery as it currently exists in FRCP 26(b)(1), and increases the time period to complete discovery.
Revised § 502.201 also requires the disclosure of expert witnesses. The substance of the requirement tracks the federal rule, except with respect to the time for disclosures to be provided. The federal rule requires disclosure of experts and their reports no later than 90 days before trial. This deadline is not suitable in view of the Commission's 150 day discovery period. Therefore, parties are required to address expert disclosures and discovery as part of the “duty to confer” requirement and, if experts will be used, schedule disclosure and exchange of reports in their proposed schedule.
Sections 502.202, 203, and 204 modernize Commission rules on depositions to conform with current FRCP 28, 29, 30, and 31. While the Commission's rules have followed the FRCP in other respects, there are currently no limitations on the number of depositions. The revised rules limit the number of depositions that may be taken without stipulation or leave of the presiding officer to 20.
Section 205 pertains to interrogatories and also conforms to FRCP 33. Under the revised rule, a party will be permitted to serve no more than 50 written interrogatories without stipulation or leave of the presiding officer.
Section 502.206 continues to echo FRCP 34, but incorporates reference to production of electronically stored information and establishes that responses to requests are due within 30 days, whereas the current rule does not specify a deadline for such a response.
Section 502.207 generally follows FRCP 36, although it does not allow the award of expenses if a party fails to admit a matter that is later proven true. Section 502.208 remains unchanged.
Section 502.209 continues to follow FRCP 32, but does not reference that rule in its entirety as certain provisions, such as FRCP 32(a)(5) (Limitations on use) are not typically relevant in Commission proceedings. References to the Federal Rules of Evidence are removed as they do not generally apply to administrative proceedings.
Section 502.210 is revised to more closely conform to FRCP 37(b)(2)(A),
As this rulemaking only affects the Commission's Rules of Practice and Procedure, this final rule is not subject to the general notice of proposed rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 553(b)(A). Therefore, this final rule is not subject to the Regulatory Flexibility Act, 5 U.S.C. 601
This final rule is not a “major rule” under 5 U.S.C. 804(2).
Administrative practice and procedure, Claims, Equal access to justice, Investigations, Lawyers, Maritime carriers, Penalties, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Maritime Commission amends 46 CFR part 502 as follows.
5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-596; 12 U.S.C. 1141j(a); 18 U.S.C. 207; 26 U.S.C. 501(c)(3); 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 40701-40706, 41101-41109, 41301-41309, 44101-44106; E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR 1964-1965 Comp. p. 306; 21 U.S.C. 853a.
(b) Whenever a confidential filing is submitted, there must also be submitted an original and two copies of a public version of the filing. * * *
(c) Reporting possible violations. Possible violations of section 207 of Title 18 of the United States Code, 18 U.S.C. 207, by the Commission's former officers and employees are required to be reported to the Attorney General and the Office of Government Ethics, pursuant to the regulations of the Office of Government Ethics at 5 CFR 2641.103(a) and 5 CFR 2638.603.
(a) Any person may commence a proceeding by filing a complaint (Rule 62) for a formal adjudication under normal or shortened procedures (subpart K) or by filing a claim for the informal adjudication of small claims (subpart S). A person may also file a petition for a rulemaking (Rule 51), for an exemption (Rule 74), for a declaratory order (Rule 75), or for other appropriate relief (Rule 76), which becomes a proceeding when the Commission assigns a formal docket number to the petition. The Commission may commence a proceeding for a rulemaking, for an adjudication (including Commission enforcement action under § 502.63), or a non-adjudicatory investigation upon petition or on its own initiative by issuing an appropriate order.
(b) In the order instituting a proceeding or in the notice of filing of complaint and assignment, the Commission must establish dates by which the initial decision and the final Commission decision will be issued. These dates may be extended by order of the Commission for good cause shown. [Rule 61.]
(a)
(2)
(3)
(i) The name, street address, and email address of each complainant, and the name, address, and email address of each complainant's attorney or representative, the name, address, and, if known, email address of each person against whom complaint is made;
(ii) A recitation of the legal authority and jurisdiction for institution of the proceeding, with specific designation of the statutory provisions alleged to have been violated;
(iii) A clear and concise factual statement sufficient to inform each respondent with reasonable definiteness of the acts or practices alleged to be in violation of the law; and
(iv) A request for the relief and other affirmative action sought.
(v) Shipping Act violation must be alleged. If the complaint fails to indicate the sections of the Act alleged to have been violated or clearly to state facts which support the allegations, the Commission may, on its own initiative, require the complaint to be amended to supply such further particulars as it deems necessary.
(4)
(i) Where reparation is sought, the complaint must set forth the injury caused by the alleged violation and the amount of alleged damages.
(ii) Except under unusual circumstances and for good cause shown, reparation will not be awarded upon a complaint in which it is not specifically requested, nor upon a new complaint by or for the same complainant which is based upon a finding in the original proceeding.
(iii) A complaint seeking reparation must be filed within three years after the claim accrues. Notification to the Commission that a complaint may or will be filed for the recovery of reparation will not constitute a filing within the applicable statutory period.
(iv) Civil penalties must not be requested and will not be awarded in complaint proceedings.
(5)
(6)
(7) A complaint is deemed filed on the date it is received by the Commission.
(b)
(2)
(i) The name, address, and email address of each respondent, and the name, address, and email address of each respondent's attorney or representative;
(ii) Admission or denial of each alleged violation of the Shipping Act;
(iii) A clear and concise statement of each ground of defense and specific admission, denial, or explanation of facts alleged in the complaint, or, if respondent is without knowledge or information thereof, a statement to that effect, and a statement showing that the complainant is entitled to relief;
(iv) Any affirmative defenses, including allegations of any additional facts on which the affirmative defenses are based; and
(3)
(4)
(5) A reply to an answer may not be filed unless ordered by the presiding officer.
(6)
(ii) A party may make a motion for initial decision on default. [Rule 62.]
(a) The Commission may issue an Order of Investigation and Hearing commencing an adjudicatory investigation against one or more respondents alleging one or more violations of the statutes that it administers.
(b)
(1) The name, street address, and, if known, email address of each person against whom violations are alleged;
(2) A recitation of the legal authority and jurisdiction for institution of the proceeding, with specific designation of the statutory provisions alleged to have been violated;
(3) A clear and concise factual statement sufficient to inform each respondent with reasonable definiteness of the acts and practices alleged to be in violation of the law;
(4) Notice of penalties, cease and desist order, or other affirmative action sought; and
(5) Notice of the requirement to file an answer and a statement of the consequences of failure to file an answer.
(c)
(2)
(i) The name, address, and email address of each respondent, and the name, address, and email address of each respondent's attorney or representative;
(ii) Admission or denial of each alleged violation of the Shipping Act;
(iii) A clear and concise statement of each ground of defense and specific admission, denial, or explanation of facts alleged in the complaint, or, if respondent is without knowledge or information thereof, a statement to that effect; and
(iv) Any affirmative defenses, including allegations of any additional facts on which the affirmative defenses are based.
(3)
(4)
(ii) The Bureau of Enforcement may make a motion for decision on default. [Rule 63.]
(a)
(2)
(b)
(c)
(d)
(a) A party to a proceeding may be deemed to be in default if that party fails:
(1) To appear, in person or through a representative, at a hearing or conference of which that party has been notified;
(2) To answer, to respond to a dispositive motion within the time provided, or otherwise to defend the proceeding; or
(3) To cure a deficient filing within the time specified by the Commission or the presiding officer.
(b) When a party is found to be in default, the Commission or the presiding officer may issue a decision on default upon consideration of the record, including the complaint or Order of Investigation and Hearing.
(c) The presiding officer may require additional information or clarification when needed to issue a decision on default, including a determination of the amount of reparations or civil penalties where applicable.
(d) A respondent who has defaulted may file with the Commission a petition to set aside a decision on default. Such a petition must be made within 22 days of the service date of the decision, state in detail the reasons for failure to appear or defend, and specify the nature of the proposed defense. In order to prevent injustice, the Commission may for good cause shown set aside a decision on default. [Rule 65.]
(a) Amendments or supplements to any pleading (complaint, Order of Investigation and Hearing, counterclaim, crossclaim, third-party complaint, and answers thereto) will be permitted or rejected, either in the discretion of the Commission or presiding officer. No amendment will be allowed that would broaden the issues, without opportunity to reply to such amended pleading and to prepare for the broadened issues. The presiding officer may direct a party to state its case more fully and in more detail by way of amendment.
(b) A response to an amended pleading must be filed and served in conformity with the requirements of subpart H and § 502.69 of this part, unless the Commission or the presiding officer directs otherwise. Amendments or supplements allowed prior to hearing will be served in the same manner as the original pleading, except that the presiding officer may authorize the service of amended complaints directly by the parties rather than by the Secretary of the Commission.
(c) Whenever by the rules in this part a pleading is required to be verified, the amendment or supplement must also be verified. [Rule 66.]
If a pleading (including a complaint, counterclaim, crossclaim, or third-party complaint filed pursuant to § 502.62) to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably prepare a response, the party may move for a more definite statement before filing a responsive pleading. The motion must be filed within 15 days of the pleading and must point out the defects complained of and the details desired. If the motion is granted and the order of the presiding officer is not obeyed within 10 days after service of the order or within such time as the presiding officer sets, the presiding officer may strike the pleading to which the motion was directed or issue any other appropriate order. If the motion is denied, the time for responding to the pleading must be extended to a date 10 days after service of the notice of denial. [Rule 67.]
(a)
(b)
(2) The motion must:
(i) Comply with all applicable provisions of subpart A of this part;
(ii) Indicate the type of intervention sought;
(iii) Describe the interest and position of the person seeking intervention, and address the grounds for intervention set forth in paragraph (c) of this section;
(iv) Describe the nature and extent of its proposed participation, including the use of discovery, presentation of evidence, and examination of witnesses;
(v) State the basis for affirmative relief, if affirmative relief is sought; and
(vi) Be served on existing parties by the person seeking intervention pursuant to subpart H of this part.
(3) A response to a motion to intervene must be served and filed within 15 days after the date of service of the motion.
(c)(1)
(2)
(ii)
(3) The timeliness of the motion will also be considered in determining whether a motion will be granted under paragraph (b)(2) of this section and should be filed no later than 30 days after publication in the
(d)
(2) The Commission or presiding officer may impose reasonable limitations on an intervenor's participation in order to:
(i) Restrict irrelevant or duplicative discovery, evidence, or argument;
(ii) Have common interests represented by a spokesperson; and
(iii) Retain authority to determine priorities and control the course of the proceeding.
(3) The use of discovery procedures by an intervenor whose motion was filed more than 30 days after publication in the
(a) In any adjudication, an application or request for an order or ruling not otherwise specifically provided for in this part must be by motion. After the assignment of a presiding officer to a proceeding and before the issuance of his or her recommended or initial decision, all motions must be addressed to and ruled upon by the presiding officer unless the subject matter of the motion is beyond his or her authority, in which event the matter must be referred to the Commission. If the proceeding is not before the presiding officer, motions must be designated as
(b) Motions must be in writing, except that a motion made at a hearing may be sufficient if stated orally upon the record.
(c) Oral argument upon a written motion may be permitted at the discretion of the presiding officer or the Commission.
(d) A repetitious motion will not be entertained.
(e) All written motions must state clearly and concisely the purpose of and the relief sought by the motion, the statutory or principal authority relied upon, and the facts claimed to constitute the grounds supporting the relief requested; and must conform with the requirements of subpart H of this part.
(f) Any party may file and serve a response to any written motion, pleading, petition, application, etc., permitted under this part except as otherwise provided respecting answers (§ 502.62), shortened procedure (subpart K of this part), briefs (§ 502.221), exceptions (§ 502.227), and reply to petitions for attorney fees under the Equal Access to Justice Act (§ 502.503(b)(1)).
(g)
(a) A dispositive motion as defined in § 502.69(g) of this subpart must include a concise statement of the legal basis of the motion with citation to legal authority and a statement of material facts with exhibits as appropriate.
(b) A response to a dispositive motion must be served and filed within 15 days after the date of service of the motion. The response must include a concise statement of the legal basis of the response with citation to legal authority and specific responses to any statements of material facts with exhibits as appropriate.
(c) A reply to the response to a dispositive motion may be filed within 7 days after the date of service of the response to the motion. A reply may not raise new grounds for relief or present matters that do not relate to the response and must not reargue points made in the opening motion.
(d) The non-moving party may not file any further reply unless requested by the Commission or presiding officer, or upon a showing of extraordinary circumstances.
(e)
(a)
(b)
(c)
(d)
(a)
(2)
(b)
(c)
The Commission may institute a proceeding by order to show cause. The order must be served upon all persons named therein, must include the information specified in § 502.143, must require the person named therein to answer, and may require such person to appear at a specified time and place and present evidence upon the matters specified. [Rule 73.]
(a)
(b)
(c)
(d)
(1) A short title for the proposed exemption or the title of the existing exemption;
(2) The identity of the party proposing the exemption or seeking revocation;
(3) A concise summary of the agreement or class of agreements or specified activity for which exemption is sought, or the exemption which is to be revoked;
(4) A statement that the petition and any accompanying information are available for inspection in the Commission's offices in Washington, DC; and
(5) The final date for filing comments regarding the proposal. [Rule 74.]
(a)(1) The Commission may, in its discretion, issue a declaratory order to terminate a controversy or to remove uncertainty.
(2) Petitions for the issuance thereof must: state clearly and concisely the controversy or uncertainty; name the persons and cite the statutory authority involved; include a complete statement of the facts and grounds prompting the petition, together with full disclosure of petitioner's interest; be served upon all parties named therein; and conform to the requirements of subpart H of this part.
(3) Petitions must be accompanied by remittance of a $241 filing fee.
(b) Petitions under this section must be limited to matters involving conduct or activity regulated by the Commission under statutes administered by the Commission. The procedures of this section must be invoked solely for the purpose of obtaining declaratory rulings which will allow persons to act without peril upon their own view. Controversies involving an allegation of violation by another person of statutes administered by the Commission, for which coercive rulings such as payment of reparation or cease and desist orders are sought, are not proper subjects of petitions under this section. Such matters must be adjudicated either by filing of a complaint under section 11 of the Shipping Act of 1984 (46 U.S.C. 41301-41302, 41305-41307(a)) and § 502.62, or by filing of a petition for investigation under § 502.76.
(c) Petitions under this section must be accompanied by the complete factual and legal presentation of petitioner as to the desired resolution of the controversy or uncertainty, or a detailed explanation why such can only be developed through discovery or evidentiary hearing.
(d) Responses to the petition must contain the complete factual and legal presentation of the responding party as to the desired resolution, or a detailed explanation why such can only be developed through discovery or evidentiary hearing. Responses must conform to the requirements of § 502.69 and must be served pursuant to subpart H of this part.
(e) No additional submissions will be permitted unless ordered or requested by the Commission or the presiding officer. If discovery or evidentiary hearing on the petition is deemed necessary by the parties, such must be requested in the petition or responses. Requests must state in detail the facts to be developed, their relevance to the issues, and why discovery or hearing procedures are necessary to develop such facts.
(f)(1) A notice of filing of any petition which meets the requirements of this section must be published in the
(2) In the case of petitions involving a matter limited to specifically named persons, participation by persons not named therein will be permitted only upon grant of intervention by the Commission pursuant to § 502.68.
(3) Petitions for leave to intervene must be submitted on or before the response date and must be accompanied by intervenor's complete response including its factual and legal presentation in the matter.
(g) Petitions for declaratory order which conform to the requirements of this section will be referred to a formal docket. Referral to a formal docket is not to be construed as the exercise by the Commission of its discretion to issue an order on the merits of the petition. [Rule 75.]
(a) Except when submitted in connection with a formal proceeding, all claims for relief or other affirmative action by the Commission, including appeals from Commission staff action, except as otherwise provided in this part, must be by written petition, which must state clearly and concisely the petitioner's grounds of interest in the subject matter, the facts relied upon and the relief sought, must cite by appropriate reference the statutory provisions or other authority relied upon for relief, must be served upon all parties named therein, and must conform otherwise to the requirements of subpart H of this part. Responses thereto must conform to the requirements of § 502.67.
(b) Petitions must be accompanied by remittance of a $241 filing fee. [Rule 76.]
(a) In complaint proceedings involving assessment agreements filed under section 5(e) of the Shipping Act of 1984 (46 U.S.C. 40301(e), 40305), the Notice of Filing of Complaint and Assignment will specify a date before which the initial decision will be issued, which date will not be more than eight months from the date the complaint was filed.
(b) Any party to a proceeding conducted under this section who desires to utilize the prehearing discovery procedures provided by subpart L of this part must commence doing so at the time it files its initial pleading, i.e., complaint, answer, or petition for leave to intervene. Discovery matters accompanying complaints must be filed with the Secretary of the Commission for service pursuant to § 502.113. Answers or objections to discovery requests must be subject to the normal provisions set forth in subpart L.
(c) Exceptions to the decision of the presiding officer, filed pursuant to § 502.227, must be filed and served no later than 15 days after date of service of the initial decision. Replies thereto must be filed and served no later than 15 days after date of service of exceptions. In the absence of exceptions, the decision of the presiding officer must be final within 30 days from the date of service, unless within that period, a determination to review is made in accordance with the procedures outlined in § 502.227. [Rule 77.]
(a) A brief of an amicus curiae may be filed only by leave of the Commission or the presiding officer granted on motion with notice to the parties, or at the request of the Commission or the presiding officer, except that leave must not be required when the brief is presented by the United States or any agency or officer of the United States. The brief may be conditionally filed with the motion for leave. A brief of an amicus curiae must be limited to questions of law or policy.
(b) A motion for leave to file an amicus brief must identify the interest of the applicant and must state the reasons why such a brief is desirable.
(c) Except as otherwise permitted by the Commission or the presiding officer, an amicus curiae must file its brief no later than 7 days after the initial brief of the party it supports is received at the Commission. An amicus curiae that is not supporting either party must file its brief no later than 7 days after the initial brief of the first party filing a brief is received at the Commission. The Commission or the presiding officer must grant leave for a later filing only for cause shown, in which event the period within which an opposing party may answer must be specified.
(d) A motion of an amicus curiae to participate in oral argument will be granted only in accordance with the requirements of § 502.241. [Rule 78.]
(a)
(b)
(1) The name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(2) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(3) An estimate of any damages claimed by the disclosing party who must also make available for inspection and copying the documents or other evidentiary material, unless privileged or protected from disclosure, on which the estimate is based, including materials bearing on the nature and extent of injuries suffered.
(c)
(d)
(2)
(i) A complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) The facts or data considered by the witness in forming them;
(iii) Any exhibits that will be used to summarize or support them;
(iv) The witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) A list of all other proceedings or cases in which, during the previous 4 years, the witness testified as an expert in a trial, an administrative proceeding, or by deposition; and
(vi) A statement of the compensation to be paid for the study and testimony in the proceeding.
(3)
(i) The subject matter on which the witness is expected to present evidence as an expert; and
(ii) Summary of the facts and opinions to which the witness is expected to testify.
(4)
(e)
(2)
(ii)
(A) The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(B) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(C) The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the proceeding, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(f)
(2) Drafts of any report or disclosure required by these rules are not discoverable regardless of the form in which the draft is recorded.
(3) Communications between the party's attorney and any expert witness required to provide a report are not discoverable regardless of the form of communications, except to the extent that the communications relate to compensation for the expert's study or testimony; identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
(4) A party may not by interrogatories or deposition discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for a proceeding and who is not expected to be presented as a witness; provided, however, that the presiding officer may permit such discovery and may impose such conditions as deemed appropriate upon a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(g)
(h)
(i)(1)
(2)
(j)
(i) Forbidding the disclosure or discovery;
(ii) Specifying terms, including time and place, for the disclosure or discovery;
(iii) Prescribing a discovery method other than the one selected by the party seeking discovery;
(iv) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(v) Designating the persons who may be present while the discovery is conducted;
(vi) Requiring that a deposition be sealed and opened only on Commission or presiding officer order;
(vii) Requiring that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a specified way; or
(viii) Requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the Commission or presiding officer directs.
(2)
(k)
(1) In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in written communication; or
(2) As ordered by the presiding officer.
(l)
(a)
(i) An officer authorized to administer oaths either by federal law or by the law in the place of examination; or
(ii) A person appointed by the Commission or the presiding officer to administer oaths and take testimony.
(b)
(i) Under an applicable treaty or convention;
(ii) under a letter of request, whether or not captioned a “letter rogatory”;
(iii) On notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or
(iv) Before a person authorized by the Commission or the presiding officer to administer any necessary oath and take testimony.
(2)
(i) On appropriate terms after an application and notice of it; and
(ii) Without a showing that taking the deposition in another manner is impracticable or inconvenient.
(3)
(4)
(c)
(a)
(2)
(i) The deposition would result in more than 20 depositions being taken under this rule or § 502.204 by any party; or
(ii) The deponent has already been deposed in the case.
(b)
(2)
(3)
(ii)
(4)
(5)
(A) The officer's name and business address;
(B) The date, time, and place of the deposition;
(C) The deponent's name;
(D) The officer's administration of the oath or affirmation to the deponent; and
(E) The identity of all persons present.
(ii)
(iii)
(6)
(c)
(2)
(3)
(d)
(2)
(ii)
(e)
(i) To review the transcript or recording; and
(ii) If there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
(2)
(f)
(2)
(A) Offer copies to be marked, attached to the deposition, and then used as originals, after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or
(B) Give all parties a fair opportunity to inspect and copy the originals after they are marked, in which event the originals may be used as if attached to the deposition.
(ii)
(3)
(a)
(2)
(i) The deposition would result in more than 20 depositions being taken under this rule or § 502.203 by any party;
(ii) The deponent has already been deposed in the case.
(3)
(4)
(5)
(b)
(1) Take the deponent's testimony in response to the questions;
(2) Prepare and certify the deposition; and
(3) Send it to the party, attaching a copy of the questions and of the notice.
(c)
(2)
(a)
(2)
(b)
(i) By the party to whom they are directed; or
(ii) If that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or representative, who must furnish the information available to the party.
(2)
(3)
(4)
(5)
(c)
(d)
(1) Specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) Giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. [Rule 205.]
(a)
(1) To produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(i) Any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations, stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(ii) Any designated tangible things; or
(2) To permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
(b)
(i) Must describe with reasonable particularity each item or category of items to be inspected;
(ii) Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
(iii) May specify the form or forms in which electronically stored information is to be produced.
(2)
(ii)
(iii)
(iv)
(v)
(A) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(B) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(C) A party need not produce the same electronically stored information in more than one form.
(c)
(a)
(2)
(3)
(4)
(5)
(6)
(b)
(a) Discovery procedures described in §§ 502.202 through 502.207, directed to Commission staff personnel must be permitted and must be governed by the procedures set forth in those sections except as modified by paragraphs (b) and (c) of this section. All notices to take depositions, written interrogatories, requests for production of documents and other things, requests for admissions, and any motions in connection with the foregoing, must be served on the Secretary of the Commission.
(b) The General Counsel must designate an attorney to represent any Commission staff personnel to whom any discovery requests or motions are directed. The attorney so designated must not thereafter participate in the Commission's decision-making process concerning any issue in the proceeding.
(c) Rulings of the presiding officer issued under paragraph (a) of this section must become final rulings of the Commission unless an appeal is filed within 10 days after date of issuance of such rulings or unless the Commission on its own motion reverses, modifies, or stays such rulings within 20 days of their issuance. Replies to appeals may be filed within 10 days. No motion for leave to appeal is necessary in such instances and no ruling of the presiding officer must be effective until 20 days from date of issuance unless the Commission otherwise directs. [Rule 208.]
(a)
(i) The party was present or represented at the taking of the deposition or had reasonable notice of it;
(ii) It is used to the extent it would be admissible if the deponent were present and testifying; and
(iii) The use is allowed by § 502.209(a)(2) through (7).
(2)
(3)
(4)
(i) That the witness is dead;
(ii) That the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(iii) That the party offering the deposition could not procure the witness's attendance by subpoena; or
(iv) On motion and notice, that exceptional circumstances make it desirable, in the interest of justice and with due regard to the importance of live testimony at a hearing, to permit the deposition to be used.
(5)
(6)
(7)
(b)
(c)
(d)
(2)
(i) Before the deposition begins; or
(ii) Promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
(3)
(ii)
(A) It relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
(B) It is not timely made during the deposition.
(iii)
(4)
(a)
(2) A motion to compel must include:
(i) A certification that the moving party has conferred in good faith or attempted to confer with the party failing to make initial disclosure or respond to discovery requests as provided in this subpart in an effort to obtain compliance without the necessity of a motion;
(ii) A copy of the discovery requests that have not been answered or for which evasive or incomplete responses have been given. If the motion is limited to specific discovery requests, only those requests are to be included;
(iii) If a disclosure has been made or an answer or response has been given, a copy of the disclosure, answer, or response in its entirety;
(iv) A copy of the certificate of service that accompanied the discovery request; and
(v) A request for relief and supporting argument, if any.
(3) A party may file a response to the motion within 7 days of the service date of the motion. Unless there is a dispute with respect to the accuracy of the versions of the discovery requests, responses thereto, or the disclosures submitted by the moving party, the response must not include duplicative copies of them.
(4) A reply to a response is not allowed unless requested by the presiding officer, or upon a showing of extraordinary circumstances.
(b)
(1) Direct that the matters included in the order or any other designated facts must be taken to be established for the purposes of the action as the party making the motion claims;
(2) Prohibit the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; or
(3) Strike pleadings in whole or in part; staying further proceedings until the order is obeyed; or dismissing the action or proceeding or any party thereto, or rendering a decision by default against the disobedient party.
(c)
(d)
By the Commission.
Federal Communications Commission.
Final rule.
In this document, the Commission modifies its rules to permit the certification and use of Terrestrial Trunked Radio (TETRA) equipment. These amendments are necessary in order to permit implementation of TETRA technology in the United States.
Effective November 9, 2012.
Tim Maguire, Mobility Division, Wireless Telecommunications Bureau at (202) 418-2155, or TTY (202) 418-7233.
This is a summary of the Commission's
1. The Commission, in effort to bring into conformity all of it's part 90 technical rules, via the
2. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), and Initial Regulatory Flexibility Analysis (IRFA) was included in the
3. The
4. The Commission will send a copy of this
5. The rules adopted in this
6. No parties have raised significant issues in response to the IRFA.
7. 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 and policies, if adopted.
8. Nationwide, there are a total of 22.4 million small businesses, according to SBA data. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”
9.
10. As of March 2010, there were 424,162 PLMR licensees operating 921,909 transmitters in the PLMR bands below 512 MHz. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that
11.
12. There are no projected reporting, recordkeeping or other compliance requirements.
13. 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.
14. None of the decisions in this
15. None.
16. Pursuant to sections 1, 4(i), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(f), 303(g), and 303(r), this
17. Part 90 of the Commission's rules
18. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:
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).
(b) * * *
(5) * * *
(a) For the frequency bands indicated below, operations using equipment designed to operate with a 25 kHz channel bandwidth may be authorized up to a 22 kHz bandwidth if the equipment meets the adjacent channel power (ACP) limits below. The table specifies a value for the ACP as a function of the displacement from the channel center frequency and a measurement bandwidth of 18 kHz.
(b)(1) Maximum adjacent power levels for frequencies in the 450-470 MHz band:
(2) In any case, no requirement in excess of −36 dBm shall apply.
(c)(1) Maximum adjacent power levels for frequencies in the 809-824/854-869 MHz band:
(2) In any case, no requirement in excess of −36 dBm shall apply.
(d) On any frequency removed from the assigned frequency by more than 75 kHz, the attenuation of any emission must be at least 43 + 10 log (P
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain DASSAULT AVIATION Model FALCON 2000, FALCON 2000EX, MYSTERE-FALCON 900 and FALCON 900EX airplanes; and all Model MYSTERE-FALCON 50 airplanes. This proposed AD was prompted by reports that collapse of the main landing gear (MLG) could cause wing tank structure failure, which could result in fuel spillage and consequent fire hazard. This proposed AD would require modification of the wing fuel tanks in the area of the wheel well. We are proposing this AD to prevent fuel spillage in the event of a MLG collapse, and consequent fire hazard.
We must receive comments on this proposed AD by November 26, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606; telephone 201-440-6700; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0193, dated October 5, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
In service experience has shown that, in case of main landing gear collapse due to overloads during take off or landing (e.g., during high-speed runway excursions), the wing tank structure can fail, leading to fuel spillage. * * *
This condition, if not corrected, could result, in case of main landing gear collapse, in a fuel spillage which may constitute a fire hazard.
To address this unsafe condition, Dassault Aviation have developed a structural modification of the wing fuel tanks in the area of the wheel well which introduces a dry bay by adding a sealed boundary in front of the rear spar between ribs 4 and 5.
For the reasons described above, this [EASA] AD requires accomplishment of the above-mentioned modification for the Right Hand (RH) and Left Hand (LH) wing fuel tanks.
Dassault Aviation has issued the following service information. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
• Dassault Mandatory Service Bulletin F50-496, Revision 2, dated March 10, 2010 (for Model MYSTERE-FALCON 50 airplanes), which includes the following appendices:
• Appendix 1, Revision 2, dated February 15, 2010.
• Appendix 2, Revision 3, dated February 15, 2009.
• Appendix 3, Revision 2, dated October 21, 2009.
• Appendix 4, Revision 1, dated October 20, 2009.
• Appendix 5, Revision 3, dated March 10, 2010.
• Dassault Mandatory Service Bulletin F900EX-329, Revision 3, dated March 10, 2010 (for Model FALCON 900EX airplanes), which includes the following appendices:
• Appendix 1, Revision 2, dated February 15, 2010.
• Appendix 2, Revision 3, dated February 15, 2009.
• Appendix 3, Revision 2, dated October 21, 2009.
• Appendix 4, Revision 1, dated October 20, 2009.
• Appendix 5, Revision 3, dated March 10, 2010.
• Dassault Mandatory Service Bulletin F900-388, Revision 2, dated March 10, 2010 (for Model MYSTERE-FALCON 900 airplanes), which includes the following appendices:
• Appendix 1, Revision 2, dated February 15, 2010.
• Appendix 2, Revision 3, dated February 15, 2009.
• Appendix 3, Revision 2, dated October 21, 2009.
• Appendix 4, Revision 1, dated October 20, 2009.
• Appendix 5, Revision 3, dated March 10, 2010.
• Dassault Mandatory Service Bulletin F2000-358, Revision 3, dated March 10, 2010 (for Model FALCON 2000 airplanes), which includes the following appendices:
• Appendix 1, Revision 2, dated February 15, 2010.
• Appendix 2, Revision 3, dated February 15, 2009.
• Appendix 3, Revision 2, dated October 21, 2009.
• Appendix 4, Revision 1, dated October 20, 2009.
• Appendix 5, Revision 3, dated March 10, 2010.
• Dassault Mandatory Service Bulletin F2000EX-171, Revision 3, dated March 10, 2010 (for Model FALCON 2000EX airplanes), which includes the following appendices:
• Appendix 1, Revision 2, dated February 15, 2010.
• Appendix 2, Revision 3, dated February 15, 2009.
• Appendix 3, Revision 2, dated October 21, 2009.
• Appendix 4, Revision 1, dated October 20, 2009.
• Appendix 5, Revision 3, dated March 10, 2010.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 753 products of U.S. registry. We also estimate that it would take about 640 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 $18,500 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 parts. 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 $54,893,700, or $72,900 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by November 26, 2012.
None.
This AD applies to the airplanes specified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category.
(1) Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes, all serial numbers, except those on which modification M3072 has been installed.
(2) DASSAULT AVIATION Model MYSTERE-FALCON 50 airplanes, all serial numbers.
(3) DASSAULT AVIATION Model MYSTERE-FALCON 900 and FALCON 900EX airplanes, all serial numbers, except those on which modification M5413 has been installed.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports that collapse of the main landing gear (MLG) could cause wing tank structure failure, which could result in fuel spillage and a consequent fire hazard. We are issuing this AD to prevent fuel spillage in the event of a MLG collapse, and consequent fire hazard.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 150 months after the effective date of this AD, do the modification of the right-hand and left-hand wing fuel tanks, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraph (g)(1), (g)(2), (g)(3), (g)(4), or (g)(5) of this AD, as applicable. The service information specified in paragraphs (g)(1) through (g)(5) of this AD contain a paragraph which states that each person applying the service bulletins must have successfully completed a training program. This training is recommended but is not required by this AD.
(1) For Model MYSTERE-FALCON 50 airplanes: Dassault Mandatory Service Bulletin F50-496, Revision 2, dated March 10, 2010, which includes the following appendices.
(i) Appendix 1, Revision 2, dated February 15, 2010.
(ii) Appendix 2, Revision 3, dated February 15, 2009.
(iii) Appendix 3, Revision 2, dated October 21, 2009.
(iv) Appendix 4, Revision 1, dated October 20, 2009.
(v) Appendix 5, Revision 3, dated March 10, 2010.
(2) For Model FALCON 900EX airplanes: Dassault Mandatory Service Bulletin F900EX-329, Revision 3, dated March 10, 2010, which includes the following appendices.
(i) Appendix 1, Revision 2, dated February 15, 2010.
(ii) Appendix 2, Revision 3, dated February 15, 2009.
(iii) Appendix 3, Revision 2, dated October 21, 2009.
(iv) Appendix 4, Revision 1, dated October 20, 2009.
(v) Appendix 5, Revision 3, dated March 10, 2010.
(3) For Model MYSTERE-FALCON 900 airplanes: Dassault Mandatory Service Bulletin F900-388, Revision 2, dated March 10, 2010, which includes the following appendices.
(i) Appendix 1, Revision 2, dated February 15, 2010.
(ii) Appendix 2, Revision 3, dated February 15, 2009.
(iii) Appendix 3, Revision 2, dated October 21, 2009.
(iv) Appendix 4, Revision 1, dated October 20, 2009.
(v) Appendix 5, Revision 3, dated March 10, 2010.
(4) For Model FALCON 2000 airplanes: Dassault Mandatory Service Bulletin F2000-358, Revision 3, dated March 10, 2010, which includes the following appendices.
(i) Appendix 1, Revision 2, dated February 15, 2010.
(ii) Appendix 2, Revision 3, dated February 15, 2009.
(iii) Appendix 3, Revision 2, dated October 21, 2009.
(iv) Appendix 4, Revision 1, dated October 20, 2009.
(v) Appendix 5, Revision 3, dated March 10, 2010.
(5) For Model FALCON 2000EX airplanes: Dassault Mandatory Service Bulletin F2000EX-171, Revision 3, dated March 10, 2010, which includes the following appendices.
(i) Appendix 1, Revision 2, dated February 15, 2010.
(ii) Appendix 2, Revision 3, dated February 15, 2009.
(iii) Appendix 3, Revision 2, dated October 21, 2009.
(iv) Appendix 4, Revision 1, dated October 20, 2009.
(v) Appendix 5, Revision 3, dated March 10, 2010.
This paragraph provides credit for the modifications required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the service information (which is not incorporated by reference in this AD) specified in paragraphs (h)(1) through (h)(5) of this AD, as applicable.
(1) For Model MYSTERE-FALCON 50 airplanes:
(i) Dassault Mandatory Service Bulletin F50-496, dated October 22, 2009, which includes the following appendices.
(A) Appendix 1, Revision 1, dated October 21, 2009.
(B) Appendix 2, Revision 2, dated October 21, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 2, dated October 22, 2009.
(ii) Dassault Mandatory Service Bulletin F50-496, Revision 1, dated February 15, 2010, which includes the following appendices.
(A) Appendix 1, Revision 2, dated February 15, 2010.
(B) Appendix 2, Revision 3, dated February 15, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 3, dated March 10, 2010.
(2) For Model FALCON 900EX airplanes:
(iii) Dassault Mandatory Service Bulletin F900EX-329, dated September 25, 2009, which includes the following appendices.
(A) Appendix 1, dated July 6, 2009.
(B) Appendix 2, dated July 6, 2009.
(C) Appendix 3, Revision 1, dated September 25, 2009.
(D) Appendix 4, dated July 6, 2009.
(E) Appendix 5, Revision 1, dated September 24, 2009.
(iv) Dassault Mandatory Service Bulletin F900EX-329, Revision 1, dated October 22, 2009, which includes the following appendices.
(A) Appendix 1, Revision 1, dated October 21, 2009.
(B) Appendix 2, Revision 2, dated October 21, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 2, dated October 22, 2009.
(v) Dassault Mandatory Service Bulletin F900EX-329, Revision 2, dated February 15, 2010, which includes the following appendices.
(A) Appendix 1, Revision 2, dated February 15, 2010.
(B) Appendix 2, Revision 3, dated February 15, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 3, dated March 10, 2010.
(3) For Model MYSTERE-FALCON 900 airplanes:
(i) Dassault Mandatory Service Bulletin F900-388, dated October 22, 2009, which includes the following appendices.
(A) Appendix 1, Revision 1, dated October 21, 2009.
(B) Appendix 2, Revision 2, dated October 21, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 2, dated October 22, 2009.
(ii) Dassault Mandatory Service Bulletin F900-388, Revision 1, dated February 15, 2010, which includes the following appendices.
(A) Appendix 1, Revision 2, dated February 15, 2010.
(B) Appendix 2, Revision 3, dated February 15, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 3, dated March 10, 2010.
(4) For Model FALCON 2000 airplanes:
(i) Dassault Mandatory Service Bulletin F2000-358, dated September 25, 2009, which includes the following appendices.
(A) Appendix 1, dated July 6, 2009.
(B) Appendix 2, dated July 6, 2009.
(C) Appendix 3, Revision 1, dated September 25, 2009.
(D) Appendix 4, dated July 6, 2009.
(E) Appendix 5, Revision 1, dated September 24, 2009.
(ii) Dassault Mandatory Service Bulletin F2000-358, Revision 1, dated October 30, 2009, which includes the following appendices.
(A) Appendix 1, Revision 1, dated October 21, 2009.
(B) Appendix 2, Revision 2, dated October 21, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 2, dated October 22, 2009.
(iii) Dassault Mandatory Service Bulletin F2000-358, Revision 2, dated February 15, 2010, which includes the following appendices.
(A) Appendix 1, Revision 2, dated February 15, 2010.
(B) Appendix 2, Revision 3, dated February 15, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 3, dated March 10, 2010.
(5) For Model FALCON 2000EX airplanes:
(i) Dassault Mandatory Service Bulletin F2000EX-171, dated July 6, 2009, which includes the following appendices.
(A) Appendix 1, dated July 6, 2009.
(B) Appendix 2, dated July 6, 2009.
(C) Appendix 3, dated July 6, 2009.
(D) Appendix 4, dated July 6, 2009.
(E) Appendix 5, dated July 6, 2009.
(ii) Dassault Mandatory Service Bulletin F2000EX-171, Revision 1, dated October 22, 2009, which includes the following appendices.
(A) Appendix 1, Revision 1, dated October 21, 2009.
(B) Appendix 2, Revision 2, dated October 21, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 2, dated October 22, 2009.
(iii) Dassault Mandatory Service Bulletin F2000EX-171, Revision 2, dated February 15, 2010, which includes the following appendices.
(A) Appendix 1, Revision 2, dated February 15, 2010.
(B) Appendix 2, Revision 3, dated February 15, 2009.
(C) Appendix 3, Revision 2, dated October 21, 2009.
(D) Appendix 4, Revision 1, dated October 20, 2009.
(E) Appendix 5, Revision 3, dated March 10, 2010.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2011-0193, dated October 5, 2011, and the service information specified in paragraphs (g)(1) through (g)(5) of this AD, for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede two existing airworthiness directives (AD) that apply to certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The existing AD, for certain Model 737-100, -200, and -200C series airplanes currently requires repetitive inspections of the aft end of each inboard flap track of the wing outboard flap, and corrective actions, if necessary. The existing AD, for certain Model 737-100, -200, -200C, -300, -400, and -500 series airplanes requires repetitive inspections for cracks in the upper flange of the inboard track at the rear spar attachments of each outboard flap, and corrective action, if necessary. That AD also requires, for certain airplanes, repetitive inspections for discrepancies of the rear spar attachments and cracks in the upper flange of the inboard track at the rear spar attachment of each outboard flap, and eventual rework of the flap track assembly and rear spar attachments, including replacement of the flap track with a new track, if necessary. Since we issued those ADs, we have received reports that the work sequence and procedures used during track installation could also cause loose or cracked tracks. This proposed AD would require an inspection for damage and stop-drill repairs along the flap track; an inspection for damage, cracking, and stop-drill repairs along the track webs; and an inspection for damage of the flap track web and flanges, and corrective actions if necessary. This proposed AD would also require, for certain airplanes, an inspection for signs of movement between the tapered shim and anti-fret strip, installation of the anti-fret strip, and corrosion of the tapered shim and anti-fret strip; an inspection for signs of movement, cracks and corrosion where the track is attached to the wing rear spar; an inspection for cracking of the outboard edge of the track; an inspection for cracking of the inner edge of the track; and related investigative and corrective actions if necessary. This proposed AD would also require repetitive overhauls of the flap track and repetitive post-overhaul inspections and corrective actions if necessary; an inspection to determine the part number of the flap track assembly, and replacement of affected parts if necessary; and would also add airplanes to the applicability. We are proposing this AD to detect and correct cracking and damage in the flap track, which could cause loss of the outboard trailing edge flap and consequent reduced controllability of the airplane.
We must receive comments on this proposed AD by November 26, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6440; fax 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On December 5, 2000, we issued AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), for certain Model 737-100, -200, and -200C series airplanes. That AD requires repetitive inspections of the aft end of each inboard flap track of the wing outboard flap, and corrective actions, if necessary. That AD resulted from reports of cracking of the aft end of an inboard flap track of the wing outboard flap found on a Model 737-200 series airplane having improved flap tracks installed. The inner and outer webs of the track, as well as the upper and lower flanges, were severed. We issued that AD to detect and correct damage of the aft end of each flap track, which could result in loss of the outboard trailing edge flap and consequent loss of controllability of the airplane.
On March 8, 2002, we issued AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002), for certain Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That AD requires, for certain airplanes, repetitive inspections for discrepancies of the rear spar attachments and cracks in the upper flange of the inboard track at the rear spar attachment of each outboard flap, and eventual rework of the flap track assembly and rear spar attachments, including replacement of the flap track with a new track, if necessary. For certain airplanes, that AD requires repetitive inspections for cracks in the upper flange of the inboard flap tracks at the rear spar attachments, and corrective action, if necessary. That AD resulted from several reports of cracking of the inboard track of the outboard flap. We issued that AD to detect and correct discrepancies of the inboard tracks of the outboard flaps, which could result in loss of the outboard trailing edge flaps and consequent reduced controllability of the airplane.
Since we issued ADs 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); and 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002); we have received reports that the work sequence and procedures used during track installation could also cause loose tracks, causing the track to move laterally at the rear spar joint when full torque is applied to the forward attach bolt, putting a side load on the inboard aft attach bolt. Because of friction caused by tightening to the specified torque value, the torque applied to the bolt is not sufficient to hold the track tight against the rear spar structure. Continued operation with a cracked or loose attachment at the rear spar could cause the track to break, which could result in the loss of the outboard trailing edge flap and consequent loss of controllability of the airplane.
We reviewed Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, for all Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This service information describes procedures for a detailed inspection for damage (cracks, nicks, corrosion pits, galling, pieces broken off) and stop-drill repairs along the full length of the upper and lower flanges of the flap track; a detailed inspection for damage, cracking, and stop-drill repairs along the full length of the track webs; an eddy current inspection for damage (including cracking) of the flap track web and flanges; and corrective actions if necessary. Corrective actions include repairing damage and replacing flap tracks.
Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, also describes, for certain airplanes, procedures for a detailed inspection for signs of movement between the tapered shim and anti-fret strip installation of the anti-fret strip, and corrosion of the tapered shim and anti-fret strip; a detailed inspection for signs of movement, cracks and corrosion of the area where the track is attached to the wing rear spar; an eddy current inspection for cracking of the outboard edge of the track adjacent to the outboard attach bolt; an ultrasonic inspection for cracking of the inner edge of the track adjacent to the outboard attach bolt; and related investigative and corrective actions if necessary. The related investigative actions (which include disassembly of the flap track-to-wing attachment) include the following inspections.
• A detailed inspection of the anti-fret strip for signs that show the strip is loose or damaged and to determine if the anti-fret strip is made of phenolic.
• A detailed inspection of the tapered shim for damage and corrosion, and to determine if the shim is made of laminated material and the shim width is less than 1.70 inches.
• A detailed inspection of the track in the area where it is fitted against the wing skin for corrosion on the surface and corrosion in the bolt holes.
• A detailed inspection of the bushing for corrosion.
• An eddy current inspection or magnetic particle inspection for cracking on the upper surface of the track flange adjacent to the inboard and outboard bolt holes.
• An eddy current inspection or magnetic particle inspection of the inboard and outboard bolt holes for cracking.
The corrective actions include installing a new anti-fret strip, tapered shim, or bushing; removing or repairing corrosion; and removing damage and replacing the flap track.
Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, also describes procedures for repetitive overhauls of the flap track and repetitive post-overhaul inspections and corrective actions if necessary.
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 these same type designs.
This proposed AD would retain all requirements of AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); and all requirements of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002). This proposed AD would require new inspections and overhauls of the flap track assembly. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.”
Since ADs 2000-25-07 Amendment 39-12041 (65 FR 78913, December 18, 2000); and 2002-05-07 Amendment 39-12675 (67 FR 11891, March 18, 2002); were issued, the AD format has been revised, and certain paragraphs have been re-arranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
The reference to “the service bulletin” in paragraph (e) of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002) has been spelled out with the full citation, “Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000,” in paragraph (o) of this proposed AD. Boeing Commercial Airplanes has received an Organization Designation Authorization (ODA). We have revised paragraphs (i) and (o) of this AD to delegate the authority to approve an alternative method of compliance for any repair required by this proposed AD to the Boeing Commercial Airplanes ODA rather than a Designated Engineering Representative (DER).
Note 2 of AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), has been changed to paragraph (h) of this proposed AD.
Note 3 of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002), has been changed to paragraph (k) of this proposed AD which provides credit for previous accomplishment of certain actions.
We have also revised certain headings throughout this AD.
Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, specifies procedures to inspect for installation of an anti-fret strip but does not specify on-condition actions if the anti-fret strip is missing. If an anti-fret strip is not found installed, this proposed AD would require that the related investigative actions specified for anti-fret strips that have signs of damage or corrosion are done, and corrective actions if necessary, including making and installing a new anti-fret strip, are done in accordance with paragraph 3.B.5 of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012.
Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, specifies procedures to remove certain flap track assemblies if found. This proposed AD would require an inspection to determine the part number of the flap track assembly and replacement of affected parts if necessary.
Since issuance of AD 2002-05-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), we have increased the labor rate used in the Costs of Compliance from $60 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
We estimate that this proposed AD affects 570 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for labor cost for repair, and parts cost for repair and replacement for the on-condition actions specified in this proposed AD. The labor cost of the replacement is $1,360 (16 work-hours × $85 per hour). We have no way of determining the number of aircraft that might need these repairs/replacements.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(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 directives (AD) 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); and 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002); and adding the following new AD:
The FAA must receive comments on this AD action by November 26, 2012.
This AD supersedes ADs 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); and 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002).
This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports that the work sequence and procedures used during installation of replacement tracks installed in accordance with AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); or AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002); could cause loose or cracked tracks. We are issuing this AD to detect and correct cracking and damage in the flap track, which could cause loss of the outboard trailing edge flap and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the inspection required by paragraph (a) of AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), with added references to a terminating action. For Model 737-100, -200, and -200C series airplanes on which the left- or right-hand inboard flap tracks of the wing outboard flap have a part number (P/N) listed in Table 1 of this AD: Do a detailed visual inspection to detect damage (corrosion, cracking) of the aft end of the left- and right-hand inboard flap tracks of the wing outboard flap, per Boeing All Operator Message (AOM) M-7200-00-01854, dated July 27, 2000, at the latest of the times specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD. Repeat the inspection thereafter at intervals not to exceed 1,200 flight cycles. Accomplishing the requirements of paragraph (p) of this AD terminates the requirements of this paragraph.
(1) Within 30 days after January 2, 2001 (the effective date of AD 2000-25-07 Amendment 39-12041 (65 FR 78913, December 18, 2000)).
(2) Within 1,200 flight cycles after the last documented inspection or overhaul of the aft end of each flap track.
(3) Before the accumulation of 15,000 total flight cycles.
This paragraph restates the definition specified by Note 2 of AD 2000-25-07 Amendment 39-12041 (65 FR 78913, December 18, 2000). For the purposes of this AD, a detailed visual inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate by the inspector. Inspection aids such as a mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
This paragraph restates the corrective actions required by paragraph (b) of AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), with added reference to organization designation authorization (ODA). If any damage (corrosion, cracking) is detected during any inspection required by paragraph (g) of this AD, before further flight, repair or rework the flap track per the “Repair and Rework Instructions” specified in Boeing AOM M-7200-00-01854, dated July 27, 2000. Where that AOM specifies that the manufacturer may be contacted for disposition of certain corrective actions (
This paragraph restates the initial inspection required by paragraph (a) of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002), with added references to terminating action. For Model 737-100, -200, and -200C series airplanes with line numbers (L/N) 1 through 869 inclusive, and those airplanes with L/Ns 870 through 1585 inclusive, which either still have their original flap tracks or which have had the original flap tracks replaced with certain tracks as specified in Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000; except airplanes on which any replacement flap tracks were installed as specified in Boeing Service Bulletin 737-57-1203, dated November 15, 1990, or production equivalent: Within 6 months after April 22, 2002 (the effective date of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002)), accomplish the requirements of paragraphs (j)(1) and (j)(2) of this AD, according to Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000. Accomplishing the requirements of paragraph (p) of this AD terminates the requirements of this paragraph.
(1) Perform a detailed visual inspection for discrepancies (
(2) Perform detailed visual, high frequency eddy current (HFEC), and ultrasonic inspections for cracking in the upper flange of the inboard track of each outboard flap at the rear spar attachments.
This paragraph restates the credit for certain previously accomplished actions specified by Note 3 of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002). This paragraph provides credit for the actions specified in paragraphs (j), (l), (m), and (n) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 737-57A1249, including Appendix A, dated December 16, 1999.
This paragraph restates the repetitive inspections required by paragraph (b) of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002). For airplanes subject to the requirements of paragraph (j) of this AD: If no discrepancy is found during any inspection required by paragraph (j) of this AD, thereafter, repeat the inspections specified in paragraph (j) of this AD at intervals not to exceed 9 months, until the actions required by paragraph (m) or (p) of this AD have been accomplished.
This paragraph restates the rework required by paragraph (c) of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002). For airplanes subject to the requirements of paragraph (j) of this AD: At the applicable time specified in paragraph (m)(1) or (m)(2) of this AD, accomplish rework of the flap track assembly and aft flap track attachments (including removal of the flap track; a detailed visual inspection for a missing, damaged, or migrated anti-fret strip and tapered shim of the rear spar attachments of the flap track; replacement of the anti-fret strip with a new aluminum anti-fret strip (or installation of an aluminum strip if no strip is installed), as applicable; replacement of the tapered shim with a new shim (or installation of a shim if no shim is installed); eddy current and ultrasonic inspections for fatigue cracking of the flap tracks; a detailed visual inspection for corrosion of the flap tracks; and rework of attachment holes), including replacement of the flap tracks, as applicable, by accomplishing all actions specified in Part II of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000. Do these actions according to the Accomplishment Instructions of Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000, except as provided by paragraph (o) of this AD. Accomplishment of the actions required by this paragraph terminates the repetitive inspections required by paragraph (l) of this AD. Accomplishing the requirements of paragraph (p) of this AD terminates the requirements of this paragraph.
(1) If no discrepancy is found during any inspection required by paragraph (j) or (l) of this AD: Do the rework within 24 months after April 22, 2002 (the effective date of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002).
(2) If any discrepancy is found during any inspection required by paragraph (j) or (l) of this AD: Do the rework prior to further flight.
This paragraph restates the repetitive inspections required by paragraph (d) of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002). For Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, except airplanes on which any replacement flap tracks were installed as specified in Boeing Service Bulletin 737-57-1203, dated November 15, 1990, or production equivalent: At the applicable time specified in paragraph (n)(1) or (n)(2) of this AD, and thereafter at least every 24 months, perform detailed visual, HFEC, and ultrasonic inspections for cracking in the upper flange of the inboard track of each outboard flap at the rear spar attachments, according to Part I of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000. Accomplishing the requirements of paragraph (p) of this AD terminates the requirements of this paragraph.
(1) For airplanes subject to paragraph (m) of this AD, do the inspections within 10 years after accomplishment of the rework according to paragraph (m) of this AD.
(2) For airplanes other than those identified in paragraph (n)(1) of this AD, do the inspections within 10 years since the airplane's date of manufacture, or within 6 months after April 22, 2002 (the effective date of AD 2002-05-07, Amendment 39-
This paragraph restates the repair instructions and exception to procedures required by paragraph (e) of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002). If any discrepancy is found during any action required by paragraph (j), (l), or (m) of this AD, and Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000, specifies to contact Boeing for appropriate action; or if any discrepancy is found during inspections according to paragraph (n) of this AD: Prior to further flight, repair according to a method approved by the Manager, Seattle ACO, FAA; or according to data meeting the type certification basis of the airplane approved by a Boeing Company DER or ODA who has been authorized by the Manager, Seattle ACO, to make such findings. For a repair method to be approved by the ODA, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the approval letter must specifically reference this AD.
For all airplanes: At the times specified in paragraph (q) of this AD: Do the inspections specified in paragraphs (p)(1), (p)(2), (p)(3), and (p)(4) of this AD, and do all applicable corrective actions, in accordance with paragraph 3.B.3. of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, except as required by paragraphs (r) and (v) of this AD. Performing these inspections terminates the requirements of paragraphs (g), (j) and (n) of this AD. Do all applicable corrective actions before further flight.
(1) Detailed inspection for damage (cracks, nicks, corrosion pits, galling, pieces broken off) and stop-drill repairs along the full length of the upper and lower flanges of the flap track.
(2) Detailed inspection for damage, cracking, and stop-drill repairs along the full length of the track webs.
(3) Eddy current inspection for damage (including cracking) of the flap track web and flanges.
(4) Inspection to determine the part number of the flap track assembly.
At the latest of the applicable times specified in paragraphs (q)(1), (q)(2), and (q)(3) of this AD, do the actions required by paragraph (p) of this AD.
(1) Within 96 months since the flap track was new or overhauled, or prior to the accumulation of 15,000 flight cycles on the flap track since new or overhauled; whichever occurs first.
(2) Within 180 days after the effective date of this AD.
(3) Within 24 months after the most recent inspection was performed in accordance with Part 1 of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1249, including Appendix A, dated December 16, 1999; or Revision 1, including appendix A, dated June 1, 2000.
If, during any inspection required by paragraph (p) of this AD, any flap track assembly having P/N 65-46428-31 or 65-46428-33 is found, before further flight, replace the flap track assembly with a new or serviceable flap track assembly, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, except as required by paragraph (v) of this AD.
For airplanes on which no damage is found in the flanges or the Web during any inspection required by paragraph (p) of this AD; and for airplanes on which a repair is done during any corrective action required by (p) of this AD; before further flight, do the inspections specified in paragraphs (s)(1) through (s)(4) of this AD, and do all applicable related investigative and corrective actions, in accordance with paragraphs 3.B.4 and 3.B.5 of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, except as required by paragraph (v) of this AD. If, during the inspection required by paragraph (s)(1) of this AD, an anti-fret strip is not found installed, before further flight, do the related investigative actions specified in Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, for an anti-fret strip that has signs of damage or corrosion and do all applicable corrective actions, including making and installing a new anti-fret strip, in accordance with paragraph 3.B.5 of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, except as required by paragraph (v) of this AD. Do all applicable related investigative and corrective actions before further flight.
(1) Detailed inspection for signs of movement between the tapered shim and anti-fret strip, installation of the anti-fret strip, and corrosion of the tapered shim and anti-fret strip.
(2) Detailed inspection for signs of movement, cracks and corrosion of the area where the track is attached to the wing rear spar.
(3) High frequency eddy current inspection for cracking of the outboard edge of the track adjacent to the outboard attach bolt.
(4) Ultrasonic inspection for cracking of the inner edge of the track adjacent to the outboard attach bolt.
Within 10,000 flight cycles on the flap track or 48 months, whichever occurs first after accomplishing the inspection required by paragraph (p) of this AD: Do an overhaul of the flap track, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, except as required by paragraph (v) of this AD. Repeat the overhaul thereafter at intervals not to exceed 20,000 flight cycles on the flap track or 96 months, whichever occurs first.
For airplanes on which any overhaul required by paragraph (t) of this AD is done: Do the inspections specified in paragraph (p) of this AD within 10,000 flight cycles on the flap track or 48 months after the most recent overhaul, whichever occurs first. Repeat the inspections specified in paragraph (p) of this AD thereafter at intervals not to exceed 10,000 flight cycles on the flap track or 48 months, whichever occurs first; except if an overhaul required by paragraph (t) of this AD is done, do the next inspection within 10,000 flight cycles or 48 months, whichever occurs first, after the overhaul.
Where Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, specifies to contact Boeing for appropriate action: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (y) of this AD.
As of the effective date of this AD, no person may install a flap track assembly, P/N 65-46428-31 or 65-46428-33, on any airplane.
This paragraph provides credit for the actions specified in paragraphs (p) through (t) of this AD, if those actions were performed before the effective date of this AD, using the service bulletins specified in paragraph (x)(1), (x)(2), or (x)(3) of this AD.
(1) Boeing Alert Service Bulletin 737-57A1271, dated September 11, 2003, which is not incorporated by reference.
(2) Boeing Service Bulletin 737-57A1217, Revision 1, dated July 30, 2008, which is not incorporated by reference.
(3) Boeing Service Bulletin 737-51A1217, Revision 2, dated January 17, 2011, which is not incorporated by reference.
(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by The
(4) AMOCs approved previously in accordance with ADs 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); and 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002); are approved as AMOCs for the corresponding requirements of this AD.
(1) For more information about this AD, contact Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6440; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 727 airplanes; Model 737-100, -200, and -200C series airplanes; and Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SR, and 747SP series airplanes. This proposed AD was prompted by a report of an activation of the control column shaker during takeoff. This proposed AD would require performing a general visual inspection to determine if a certain angle of attack (AOA) sensor with a paddle type vane is installed, and, for affected sensors, performing an operational test of the stall warning system, and replacing the AOA sensor with a new sensor if necessary. We are proposing this AD to prevent erroneous activation of the control column shaker during takeoff, which could result in runway overrun, failure to clear terrain or obstacles after takeoff, or reduced controllability of the airplane.
We must receive comments on this proposed AD by November 26, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Ray Mei, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, Seattle Aircraft Certification Office, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6467; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received a report of an erroneous activation of the control column shaker during takeoff of a Model 747-400 airplane. The control column shaker activation continued while the airplane was in flight, and engine-indicating and crew-alerting system (EICAS) messages ALT DISAGREE and IAS DISAGREE displayed. The flightcrew used the alternate air data computer (left ADC) and the altitude and airspeed indications cancelled. After landing, the right ADC was replaced. On the subsequent flight the control column shaker operated again at takeoff and the flightcrew had to do a rejected takeoff (RTO). Troubleshooting steps found that the right AOA sensor was unserviceable. Inspection of the AOA sensors showed that the set screw connected to the synchro transmitter was not correctly attached to the AOA sensor shaft. Certain Model 727 and 737 airplanes also use Conrac/Ametek/Gulton AOA sensors that are equivalent in design and construction to the defective AOA sensor on the Model 747-400 airplane. This condition, if not corrected, could result in runway overrun, failure to clear terrain or obstacles after takeoff, or reduced controllability of the airplane.
We reviewed the following service information:
• Boeing Special Attention Service Bulletin 727-34-0245, dated June 4, 2008 (for Model airplanes);
• Boeing Special Attention Service Bulletin 737-34-2102, dated June 5, 2008 (for Model 737-100, -200, and -200C series airplanes); and
• Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008 (for Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SR, and 747SP series airplanes).
The service information describes procedures for performing a general visual inspection to determine if a certain AOA sensor with a paddle type vane is installed; and performing an operational test, and replacing the AOA sensor with a new sensor if necessary.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD affects 1,013 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by November 26, 2012.
None.
This AD applies to The Boeing Company series airplanes, certificated in any category, as specified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.
(1) Model 727, 727C, -100, -100C, -200, and -200F series airplanes, identified in Boeing Special Attention Service Bulletin 727-34-0245, dated June 4, 2008.
(2) Model 737-100, -200, and -200C series airplanes, identified in Boeing Special Attention Service Bulletin 737-34-2102, dated June 5, 2008.
(3) Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SR, and 747SP series airplanes, identified in Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 3418, Stall Warning System.
This AD was prompted by a report of an erroneous activation of the control column shaker during takeoff. We are issuing this AD to prevent erroneous activation of the control column shaker during takeoff, which could result in runway overrun, failure to clear terrain or obstacles after takeoff, or reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 36 months after the effective date of this AD: Do a general visual inspection of the left and right angle of attack (AOA) sensor as applicable, to determine if a certain AOA sensor with a paddle type vane is installed, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(1) Boeing Special Attention Service Bulletin 727-34-0245, dated June 4, 2008 (for Model 727 airplanes).
(2) Boeing Special Attention Service Bulletin 737-34-2102, dated June 5, 2008 (for Model 737-100, -200, and -200C series airplanes).
(3) Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008 (for Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SR, and 747SP series airplanes).
If, during the inspection required by paragraph (g) of this AD, an AOA sensor with a paddle type vane is installed: Before further flight, do an operational test of the stall warning system, in accordance with Part 2 of the Accomplishment Instructions of the applicable service information specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(1) For group 2 airplanes identified in Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008: If you cannot get the values given in the table specified in Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008, before further flight, replace the AOA sensor, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008.
(2) For all airplanes, except those identified in paragraph (h)(1) of this AD: If the AOA sensor fails to activate the control column shaker in the operational test, replace the AOA sensor with a new AOA sensor, in accordance with Part 3 of the Accomplishment Instructions of the applicable service information specified in paragraph (h)(2)(i), (h)(2)(ii), or (h)(2)(iii) of this AD.
(i) Boeing Special Attention Service Bulletin 727-34-0245, dated June 4, 2008 (for Model 727 airplanes).
(ii) Boeing Special Attention Service Bulletin 737-34-2102, dated June 5, 2008 (for Model 737-100, -200, and -200C series airplanes).
(iii) Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008 (for Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SR, and 747SP series airplanes).
(1) The Manager, Seattle Aircraft Certification Office, (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Ray Mei, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, Seattle Aircraft Certification Office, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: (425) 917-6467; fax: (425) 917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Model 737-200, -200C, -300, -400, and -500 series airplanes. That proposed AD would have superseded an existing AD that applies to certain The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes. The existing AD currently requires repetitive inspections to find fatigue cracking of certain upper and lower skin panels of the fuselage, and follow-on and corrective actions if necessary. The existing AD also includes a terminating action for the repetitive inspections of certain modified or repaired areas only. That NPRM proposed to add new inspections for cracking of the fuselage skin along certain chem-milled lines, and corrective actions if necessary. That NPRM also proposed to reduce certain thresholds and intervals required by the existing AD. This action revises that NPRM by reducing the proposed repetitive inspection intervals. We are proposing this supplemental NPRM to detect and correct fatigue cracking of the skin panels, which could result in sudden fracture and failure of the skin panels of the fuselage, and consequent rapid decompression of the airplane. Since these actions impose an additional burden over that proposed in the previous NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this supplemental NPRM by November 26, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707,
You may examine the AD docket on the Internet at
Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to certain Model 737-200, -200C, -300, -400, and -500 series airplanes. That NPRM published in the
Since we issued the previous NPRM (76 FR 12619, March 8, 2011), extensive continued evaluation of the chem-mill step cracking has been done, which resulted in a determination that the repetitive inspection intervals and the compliance time for the inspections of the crown area and other known areas of fuselage skin cracking must be reduced in order to adequately address the identified unsafe condition.
We gave the public the opportunity to comment on the previous NPRM (76 FR 12619, March 8, 2011). The following presents the comments received on the previous NPRM and the FAA's response to each comment.
The National Transportation Safety Board and Jonathan W. Ketron support the content of the previous NPRM (76 FR 12619, March 8, 2011).
Alaska Airlines (ASA) asked that we change the previous NPRM (76 FR 12619, March 8, 2011) to also supersede AD 2003-14-06, Amendment 39-13225 (68 FR 42956, July 21, 2003). ASA explained that paragraph (g) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), allows accomplishing one-time internal inspections in accordance with paragraph (b) or paragraph (c) of AD 2003-14-06 in order to terminate the repetitive inspections required by paragraph (a) of AD 2004-18-06 (paragraph (g) of the previous NPRM). ASA added that the previous NPRM restates these required external inspections. ASA noted that AD 2003-14-06 was initially released to address inadequate phosphoric anodizing of the skin panels, leading to disbonding of internal doublers. ASA stated further that subsequent events showed that fatigue cracking of chem-milled skins cannot be solely attributed to improper anodizing or disbonded doublers. ASA added that the previous NPRM does not clearly address the requirements in AD 2003-14-06, which will remain in effect until after the final rule is released.
We do not agree to supersede AD 2003-14-06, Amendment 39-13255 (68 FR 42956, July 21, 2003). The one-time internal inspection in that AD is required for safety and is not related to the chem-milled step cracking addressed by this supplemental NPRM. In addition, the one-time inspection required by AD 2003-14-06 only terminates the external eddy current inspections required by paragraph (a) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), which is restated in paragraph (g) of this supplemental NPRM. All external detailed inspections are still required by paragraph (g) of this supplemental NPRM. We have made no change to this supplemental NPRM in this regard.
Boeing requested that paragraphs (g) and (h) of the previous NPRM (76 FR 12619, March 8, 2011) be revised to better distinguish between existing and new requirements. Specifically, Boeing stated that the language used in paragraphs (g) and (h) of the previous NPRM could be interpreted to mean that using Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, is optional for accomplishing the required actions at the inspection thresholds and intervals required by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004). Boeing requested clarification of the wording to indicate that the inspection, methods, thresholds, and “repeats” in accordance with Revision 3 of this service bulletin are now required.
We agree that clarification is necessary. Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, can be used for accomplishing the required actions in AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004). However, it is not required to use Revision 3 of this service bulletin to accomplish the requirements of the existing AD; rather, it is required to use that revision for the new actions
Consequently, we have revised paragraphs (g) and (h) of this supplemental NPRM to remove the sentence beginning “As of the effective date of this AD * * *” to clarify that using Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, is not required for accomplishing the requirements of the existing AD.
Boeing asked that we change the “internal” detailed inspection specified in paragraph (h)(1) of the previous NPRM (76 FR 12619, March 8, 2011) to an “external” detailed inspection. Boeing stated that this is a typographical error because it is a restatement of the requirements of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004).
We agree that the reference to an “internal” detailed inspection is a typographical error. We have changed paragraph (h)(1) of this supplemental NPRM to specify an “external” detailed inspection.
Boeing asked that we remove the reference to “paragraph (m)” in the third sentence of paragraph (g) of the previous NPRM (76 FR 12619, March 8, 2011). Boeing stated that paragraph (m) of the previous NPRM addresses disbond inspections, which should not terminate the detailed or eddy current inspection, as specified.
We find that clarification is necessary. Paragraph (m) of this supplemental NPRM states that accomplishing the optional terminating action “before the effective date of this AD” terminates the eddy current inspections required by paragraph (g) of this supplemental NPRM. In addition, paragraph (m) of this supplemental NPRM states that the detailed inspections specified in paragraph (g) of this supplemental NPRM are not terminated. Paragraph (m) of this supplemental NPRM states further that, “as of the effective date of this AD,” the optional terminating action does not terminate the repetitive eddy current inspections required by paragraph (g) of this supplemental NPRM.
We find it necessary to retain the reference to paragraph (m) of this supplemental NPRM in paragraph (g) to indicate that accomplishing the terminating action in paragraph (m) of this supplemental NPRM “before the effective date of this AD” terminates the eddy current inspections required by paragraph (g) of this supplemental NPRM. However, we have revised paragraph (m) of this supplemental NPRM to indicate that neither detailed nor eddy current inspections can be terminated by accomplishing the optional terminating action “on or after the effective date of this AD.”
Boeing asked that the preventative modification language specified in paragraph (w) of the previous NPRM (76 FR 12619, March 8, 2011) be clarified to specify that doing the modification terminates only the repetitive inspections of the chem-milled steps common to stringer 12. Boeing stated that Note (c) of Table 2, paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, specifies that accomplishing the preventative modification only terminates the inspections at stringer 12. Boeing added that there have been post-modification cracks reported at the chem-milled steps common to stringer 10, even though the modification doubler covers the area. Boeing noted that the internal modification doubler does not span the stringer 10 or stringer 13 chem-milled steps by three rows of fasteners; therefore, inspections should continue at those locations even though the modification doubler is common to them.
We agree that clarification is necessary. Doing the preventive modification of the chem-milled areas in the skin at stringer 12, as specified in Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, ends the repetitive inspections for the modified areas common to stringer 12 only. Cracking of the chem-milled steps has been found at locations where doublers do not extend a minimum of three fastener rows beyond the chem-milled step. We have changed paragraph (w) of this supplemental NPRM accordingly.
Boeing asked that the compliance time specified in paragraph (p)(1) of the previous NPRM (76 FR 12619, March 8, 2011) be changed. Boeing stated that it is unclear why airplanes that have accomplished paragraphs (i), (j)(1)(ii), (k), (l), or (m) of the previous NPRM (which are repairs and disbond inspections) must be inspected within 1,800 flight cycles after the effective date of the AD. Boeing added that airplanes identified in paragraph (p)(2) of the previous NPRM that have not accomplished those paragraphs are allowed to wait until 4,500 flight cycles after the last inspection, or 1,800 flight cycles after the effective date of the AD, whichever is later. Boeing questioned why the airplanes on which repairs have not been installed or a disbond inspection has not been accomplished have a different compliance time than airplanes that do have these repairs and inspections. Boeing noted that by using “whichever occurs later” in paragraph (p)(2) of the previous NPRM, an operator may accumulate up to 6,299 flight cycles (4,499 + 1,800) between inspections that were previously required at 4,500-flight-cycle intervals in accordance with AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004).
We agree that the compliance times required by paragraph (p) of this supplemental NPRM should be clarified. After further review of the new inspection requirements in paragraph (p) of this supplemental NPRM, we have determined that those inspections are not related to existing installed repairs or the disbond inspection. The compliance times should not be based on local repairs that may be installed on the airplanes. For areas that have repairs installed in accordance with paragraphs (i), (j)(1)(ii), (k), (l), and (m) of this AD, the inspection is already terminated for these areas only. Therefore, we have deleted paragraphs (p)(1) and (p)(2) of the previous NPRM (76 FR 12619, March 8, 2011), and included the following reduced compliance time in paragraph (p) of this supplemental NPRM: “Within 4,500 flight cycles after doing the most recent inspection required by paragraph (g) of this AD, or within 1,800 flight cycles after the effective date of this AD, whichever is earlier.”
Boeing also asked that the compliance time specified in paragraph (s) of the previous NPRM (76 FR 12619, March 8, 2011) be changed. Boeing stated that the repetitive interval should be changed to 1,800 flight cycles for inspections in areas of known cracking in the lower lobe and Section 41, and when both eddy current and detailed inspections are required, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
Boeing also noted that for inspections in areas with no known cracking, the threshold should be at the latest of 35,000 total flight cycles, or at the earliest of 4,500 flight cycles from the release of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16,
We agree that the compliance times should be changed based on the data provided by the manufacturer. We have moved the compliance times for the initial and repetitive inspections identified in paragraph (s) of the previous NPRM (76 FR 12619, March 8, 2011) to paragraphs (s)(1) and (s)(2) of this supplemental NPRM. We also reduced the repetitive inspection interval for known cracking in paragraph (s)(2) of this supplemental NPRM to 1,800 flight cycles.
Boeing also asked that the compliance times and repetitive intervals specified in paragraphs (t), (u)(1), and (u)(2) of the previous NPRM (76 FR 12619, March 8, 2011) be changed. Boeing requested that all compliance times (initial and repetitive) that specify 4,500 flight cycles be changed to 1,800 flight cycles. Boeing stated that the window belt skin area is equivalent to the crown skin area, and the initial threshold and repetitive interval should be the same as required for the crown area.
We agree that the compliance times should be changed based on the information provided. We have changed the compliance times and repetitive intervals in paragraphs (t), (u)(1), and (u)(2) of this supplemental NPRM accordingly.
Southwest Airlines (SWA) asked that we change paragraph (h) of the previous NPRM (76 FR 12619, March 8, 2011) to provide clarification whether the inspections identified in Figures 26, 27, and 31 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, are required. SWA asked whether an eddy current or external detailed inspection is necessary for certain locations if those inspection figures are required. SWA stated that paragraph (h) of the previous NPRM specifies an external detailed inspection of the lower lobe area and Section 41 of the fuselage, in accordance with Part 4 of the Accomplishment Instructions of that service bulletin. SWA added that Part 4 also specifies eddy current inspections every 1,800 flight cycles.
We agree that clarification is necessary. The subject inspections identified in Figures 26, 27, and 31 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, are specified in this supplemental NPRM; however, the inspections in those figures are required by paragraph (s), not paragraph (h), of this supplemental NPRM. No change to either paragraph (h) or (s) of this supplemental NPRM is necessary.
SWA also asked how paragraphs (s) and (u) of the previous NPRM (76 FR 12619, March 8, 2011) are related, and if paragraph (u) of the previous NPRM applies to airplane groups 4, 11, and 16. SWA noted that the inspections identified in paragraph (s) of the previous NPRM are applicable to Groups 1 through 21 and are done in accordance with Part 4 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; except as required by paragraph (u) of the previous NPRM. SWA also noted that the inspections identified in paragraph (u) of the previous NPRM are applicable to Groups 3, 5, 9, 10, 12, 14, 15, 17, 18, 19, 20, and 21, and are done in accordance with Part 2 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. SWA stated that it is unsure how Part 2 and Part 4 are related. SWA added that Part 2 addresses Groups 4, 11, and 16; however, those groups are not specified in paragraph (u) of the previous NPRM.
We agree that clarification is necessary because the exception in paragraph (s) of the previous NPRM (76 FR 12619, March 8, 2011) is a typographical error and should have identified paragraph (x) instead of paragraph (u) of the previous NPRM. We have changed paragraph (s) of this supplemental NPRM accordingly, which also addresses the commenter's concern about Groups 4, 11, and 16.
SWA asked that, to avoid mandating additional inspections in the previous NPRM (76 FR 12619, March 8, 2011), we exclude the inspection areas identified in AD 2009-21-01, Amendment 39-16038 (74 FR 52395, October 13, 2009). SWA stated that the inspection threshold and repetitive intervals required by AD 2009-21-01 are more restrictive for certain areas of the lower lobe skins than those in the previous NPRM.
We agree that the inspection threshold and repetitive intervals required by AD 2009-21-01, Amendment 39-16038 (74 FR 52395, October 13, 2009), are more restrictive for certain areas. Therefore, we have added a new paragraph (y)(5) to this supplemental NPRM (and reidentified subsequent paragraphs) to specify that inspections and corrective actions required by paragraph (g) of AD 2009-21-01 meet the corresponding provisions of paragraph (s) of this supplemental NPRM.
SWA asked that only nondestructive inspections (NDI) be used in areas where the previous NPRM (76 FR 12619, March 8, 2011) requires both external detailed and eddy current inspections every 1,800 flight cycles. SWA stated that paragraph (f) of AD 2008-19-03, Amendment 39-15670 (73 FR 56958, October 1, 2008), requires repetitive inspections along the chem-milled steps at stringers S-1 and S-2R, between STA 400 and STA 460. SWA added that for line numbers 1001 through 2552, the operator has the option of accomplishing repetitive external detailed inspections every 2,300 flight cycles, or NDI every 4,500 flight cycles. SWA noted that the previous NPRM reduces the repetitive inspection interval specified in Tables 1 through 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, from 4,500 flight cycles to 1,800 flight cycles. SWA made its request due to this reduced inspection interval.
We do not agree that only NDI can be used where both external detailed and eddy current inspections are required. The overall safety concern related to Model 737 fuselage skin panels addressed in this supplemental NPRM is mitigated by using detailed inspections in conjunction with eddy current inspections. We have made no change to the supplemental NPRM in this regard.
SWA asked that it be allowed to use a UTPA inspection to inspect areas where the previous NPRM (76 FR 12619, March 8, 2011) requires external NDI methods. SWA stated Boeing confirmed that it is satisfactory to inspect areas covered by the dorsal fin by internally using the UTPA inspection in lieu of the NDI methods, using information in the nondestructive test manual, in lieu of the external NDI methods.
We agree that a UTPA inspection might be able to be used instead of the external NDI method. However, we do not agree to include the UTPA inspection in this supplemental NPRM because we cannot include individual operators' methods of compliance. Under the provisions of paragraph (y) of this supplemental NPRM, we will consider requests for approval of a change to the inspection type if sufficient data are submitted to substantiate that the inspection would provide an acceptable level of safety. We have made no change to the supplemental NPRM in this regard.
SWA and British Airways asked that we allow a GVI in lieu of the detailed inspection specified in paragraphs (p) and (q) of the previous NPRM (76 FR 12619, March 8, 2011). SWA stated that both paragraphs specify doing external detailed and eddy current inspections of the crown area and other known areas of fuselage skin cracking in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. SWA noted that Part 1 provides doing a GVI with a reduced inspection interval of 1,000 flight cycles in non-lap splice areas as an alternative to the detailed inspection. SWA and British Airways stated that the previous NPRM does not identify the reference in Note (b) of Table 1 of paragraph 1.E., “Compliance,” of that service bulletin, which allows performing a GVI at a reduced inspection interval in lieu of the detailed inspection in areas away from the lapjoints. SWA also asked if the GVI applies to Figures 32 through 37 of this service bulletin.
We agree with the commenters' requests because we have determined that doing the GVI at a reduced inspection interval provides an acceptable level of safety. In addition, the GVI does apply to Figures 32 through 37 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, because the figures are part of the Accomplishment Instructions, which is the part of the service bulletin referred to in the requirements. We have revised paragraphs (p), (q), and (s) of this supplemental NPRM to allow this option.
US Airways asked that we allow the use of an alternative corrosion inhibiting compound (CIC) during repairs. US Airways stated that paragraphs (u) and (w) of the previous NPRM (76 FR 12619, March 8, 2011) refer to Parts 7 and 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; Parts 7 and 8 refer to Figures 10 and 24, respectively. US Airways added that the figures specify applying CIC BMS 3-23, Type 2, when completing repairs. US Airways noted that Boeing has approved newer CIC BMS 3-35, which is compatible with CIC BMS 3-23, and is identified in the applicable corrosion prevention manual. US Airways added that Boeing does not plan to add CIC BMS 3-35 to its FAA-approved repair documents. US Airways stated that adding this to the previous NPRM would avoid requests for approval of AMOCs.
We agree that CIC BMS 3-35 can be used as an alternative to CIC BMS 3-23. CIC BMS 3-35 has been qualified and approved as an AMOC for other repair situations that specify CIC BMS 3-23. We have added a new statement to paragraphs (u) and (w) of this supplemental NPRM to include the option of using CIC BMS 3-35 as an equivalent CIC.
The exception in paragraph (o) of this supplemental NPRM was included in the requirements of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004); however, it was inadvertently removed from the proposed requirements in the previous NPRM (76 FR 12619, March 8, 2011). We have included the exception in paragraphs (g) and (h) of this supplemental NPRM.
We have removed the reference to the Boeing 737 Non-Destructive Test Manual specified in paragraph (o) of this supplemental NPRM; the inspection identified in that paragraph may be done using Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
We have removed the definition of a “detailed inspection” in Note 1 of the previous NPRM (76 FR 12619, March 8, 2011) from this supplemental NPRM. That definition is provided in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
Due to a typographical error in paragraph (w) of the previous NPRM (76 FR 12619, March 8, 2011), we have changed the reference in paragraph (w) of this supplemental NPRM to paragraph (u), instead of paragraph (p) or (q), respectively.
We have revised the optional repair method specified in paragraph (k) of this supplemental NPRM to remove the reference to repairing any cracking per the applicable structural repair manual (SRM) identified in Table 1 of the previous NPRM (76 FR 12619, March 8, 2011). Instead, we have added a statement to paragraph (k) of this supplemental NPRM to specify that guidance on repairing any cracking can be found in the applicable SRM identified in paragraphs (k)(1) through (k)(4) of this supplemental NPRM.
We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the previous NPRM (76 FR 12619, March 8, 2011). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
This supplemental NPRM would require the actions proposed in the previous NPRM (76 FR 12619, March 8, 2011). However, this supplemental NPRM reduces the proposed repetitive inspection intervals and the compliance time for the inspections of the crown area and other known areas of fuselage skin cracking in the previous NPRM (76 FR 12619, March 8, 2011).
There are about 903 airplanes of U.S. registry affected by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004).
The inspections of the crown area that are required by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), take about 94 work hours per airplane to accomplish, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required inspections is $7,990 per airplane, per inspection cycle.
The inspections of the lower lobe area that are required by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), take about 96 work hours per airplane to accomplish, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required inspections is $8,160 per airplane, per inspection cycle.
Should an operator elect to install the preventive modification specified in AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), it will take about 108 work hours per airplane to accomplish, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the modification is $9,180 per airplane.
The new proposed inspections would affect about 701 airplanes of U.S. registry.
The new proposed inspections would take about 27 work hours per airplane, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the new actions specified in this proposed AD for U.S. operators is $1,608,795, or $2,295 per airplane, per inspection cycle.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(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 AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), and adding the following new AD:
We must receive comments by November 26, 2012.
(1) This AD supersedes AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004).
(2) AD 2002-07-08, Amendment 39-12702 (67 FR 17917, April 12, 2002); and AD 2003-14-06, Amendment 39-13225 (68 FR 42956, July 21, 2003); and AD 2009-21-01, Amendment 39-16038 (74 FR 52395, October 13, 2009); affect this AD.
This AD applies to The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes, certificated in any category, as listed in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by new findings of vertical cracks along chem-milled steps adjacent to the butt joints. We are issuing this AD to detect and correct fatigue cracking of the skin panels, which could result in sudden fracture and failure of the skin panels of the fuselage, and consequent rapid decompression of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (a) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004) with revised service information. For Groups 1 through 5 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001: Before the accumulation of 35,000 total flight cycles, or within 4,500 flight cycles after October 13, 2004 (the effective date of AD 2004-18-06), whichever is later, do external detailed and eddy current inspections of the crown area and other known areas of fuselage skin cracking, in accordance with Part 1 and Figure 1 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; except as provided by paragraph (o) of this AD. Repeat the external detailed and eddy current inspections at intervals not to exceed 4,500 flight cycles until paragraph (i), (j)(1)(ii), (k), (l), or (m) of this AD has been done, as applicable. Although paragraph 1.D. of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001, references a reporting requirement, such reporting is not required by this AD. Accomplishing the actions required by paragraph (p) or (q) of this AD ends the repetitive requirements in this paragraph.
This paragraph restates the requirements of paragraph (b) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004) with revised service information. For all airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001, do an external detailed inspection of the lower lobe area and section 41 of the fuselage for cracking, in accordance with Part 2 and Figure 2 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; except as provided by paragraph (o) of this AD. At the earlier of the times specified in paragraphs (h)(1) and (h)(2) of this AD, do the inspection specified in this paragraph, and repeat the inspection thereafter at intervals not to exceed 4,500 flight cycles until paragraph (j)(2) or paragraph (k), as applicable, of this AD has been done. Accomplishing the actions required by paragraph (s) of this AD ends the requirements in this paragraph.
(1) Within 9,000 flight cycles after doing the most recent external detailed inspection.
(2) Within 4,500 flight cycles after October 13, 2004 (the effective date of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004)), or before the accumulation of 40,000 total flight cycles, whichever occurs later.
This paragraph restates the requirements of paragraph (c) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004) with revised service information. For Groups 3 and 5 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001: If no cracking is found during any inspection required by paragraph (g) of this AD, doing the preventive modification of the chem-milled pockets in the upper skin as specified in Part 5 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or as specified in Part 7 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, except as required by paragraph (x) of this AD; ends the repetitive external detailed and eddy current inspections required by paragraph (g) of this AD for the modified area only. As of the effective date of this AD, use only Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
This paragraph restates the requirements of paragraph (d) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), with revised service information. If any cracking is found during any inspection required by paragraph (g), (h), (p), (q), or (s) of this AD, before further flight, do the actions specified in paragraphs (j)(1) and (j)(2) of this AD, as applicable, in accordance with the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. As of the effective date of this AD, use only Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. Where Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or Revision 3, dated July 16, 2009; specify to contact Boeing for repair instructions, before further flight, repair in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or in accordance with data meeting the type certification basis of the airplane if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) or any other person authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved the repair must meet the certification basis of the airplane and the approval must specifically refer to this AD.
(1) Except as provided by paragraph (k) of this AD, for cracking of the crown area, do the repair specified in either paragraph (j)(1)(i) or (j)(1)(ii) of this AD.
(i) Do a time-limited repair in accordance with Part 4 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with Part 6 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, except as required by paragraph (x) of this AD, then do the actions required by paragraph (l) of this AD at the times specified in that paragraph.
(ii) Do a permanent repair in accordance with Part 3 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with Part 5 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. Installation of a permanent repair ends the repetitive inspections required by paragraph (g) of this AD for the repaired area only. Installation of the lap joint repair specified in paragraph (g) of AD 2002-07-08, Amendment 39-12702 (67 FR 17917, April 12, 2002), is considered acceptable for compliance with the corresponding permanent repair specified in this paragraph for the repaired areas only.
(2) Except as provided by paragraph (k) of this AD, for cracking of the lower lobe area and Section 41, repair in accordance with Part 2 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with paragraph (j)(2)(i) or (j)(2)(ii) of this AD. Accomplishment of this repair ends the repetitive inspections required by paragraph (h) of this AD for the repaired area only. As of the effective date of this, do the repair specified in paragraph (j)(2)(i) or (j)(2)(ii) of this AD.
(i) Do a time-limited repair in accordance with Part 6 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, except as required by paragraph (x) of this AD, then do the actions required by paragraph (l) of this AD at the times specified in that paragraph.
(ii) Do a permanent repair in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
This paragraph restates the requirements of paragraph (e) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004) with revised service information. For cracking in any area specified in paragraphs (j)(1) and (j)(2) of this AD within the limitations of the applicable structural repair manual (SRM) specified in paragraphs (k)(1) through (k)(4) of this AD, repair any cracks, in accordance with a method approved by the Manager, Seattle ACO; or in accordance with data meeting the type certification basis of the airplane if it is approved by the Boeing Commercial Airplanes ODA or any other person authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved the repair must meet the certification basis of the airplane and the approval must specifically refer to this AD. Accomplishment of the applicable repair terminates the repetitive inspections required by paragraphs (g) and (h) of this AD for the repaired area only. Guidance on repairing the cracking can be found in the applicable SRM specified in paragraphs (k)(1) through (k)(4) of this AD.
(1) For Model 737-100, -200 series airplanes, Subject 53-30-3, Figure 48, of Boeing 737-100/-200 SRM D6-15565, Revision 102, dated September 10, 2010.
(2) For Model 737-300 series airplanes, Subject 53-00-01, Figure 229, of Boeing 737-300 SRM D6-37635, Revision 92, dated November 10, 2010.
(3) For Model 737-400 series airplanes, Subject 53-00-01, Figure 231, of Boeing 737-400 SRM, D6-38246, Revision 75, dated November 10, 2010.
(4) For Model 737-500 series airplanes, Subject 53-00-01, Figure 229, of Boeing 737-500 SRM, D6-38441, Revision 70, dated November 10, 2010.
This paragraph restates the requirements of paragraph (f) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004) with revised service information. If a time-limited repair is done, as specified in paragraph (j)(1)(i) or (j)(2)(i) of this AD: Do the actions specified in paragraphs (l)(1), (l)(2), and (l)(3) of this AD, at the times specified in paragraphs (l)(1), (l)(2), and (l)(3) of this AD, in accordance with the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
(1) Within 3,000 flight cycles after doing the repair: Do the actions specified in paragraph (l)(1)(i) or (l)(1)(ii) of this AD. Then repeat the applicable inspection specified in paragraph (l)(1)(i) or (l)(1)(ii) of this AD at intervals not to exceed 3,000 flight cycles until permanent rivets are installed in the repaired area, which ends the repetitive inspections for this paragraph. As of the effective date of this AD, do only the inspections specified in paragraph (l)(1)(ii) of this AD.
(i) For repairs done before the effective date of this AD: Do a detailed inspection of the repaired area for loose fasteners in accordance with Part 4 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001, or do the actions specified in paragraph (l)(1)(ii) of this AD. If any loose fastener is found, before further flight, replace with a new fastener, in accordance with the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001.
(ii) For repairs done after the effective date of this AD: Do a detailed inspection of the repaired area for loose, damaged, and missing fasteners, in accordance with Part 6 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. If any loose, missing, or damaged fastener is found, before further flight, replace with a new fastener, in accordance with Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
(2) At the applicable time specified in paragraph (l)(2)(i) and (l)(2)(ii) of this AD: Do inspections of the repaired area for cracking in accordance with Part 4 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001; or in accordance with Part 6 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July
(i) For repairs done before the effective date of this AD: Within 4,000 flight cycles after doing the repair, do the inspections.
(ii) For repairs done on or after the effective date of this AD: Within 3,000 flight cycles after doing the repair, do the inspections.
(3) At the earlier of the times specified in paragraphs (l)(3)(i) and (l)(3)(ii) of this AD: Make the repair permanent in accordance with Part 4 and Figure 20 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001, or do the permanent repair, in accordance with Part 5 of the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, which ends the repetitive inspections for the repaired area only. As of the effective date of this AD, only Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, can be used to make the repair permanent.
(i) Within 10,000 flight cycles after doing the repair in accordance with Boeing Alert Service Bulletin 737-53A1210, Revision 1, dated October 25, 2001.
(ii) At the later of the times specified in paragraphs (l)(3)(ii)(A) and (l)(3)(ii)(B) of this AD.
(A) Within 6,000 flight cycles after doing the repair.
(B) Within 1,000 flight cycles after the effective date of this AD.
This paragraph restates the requirements of paragraph (g) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004) with revised service information. Accomplishment of paragraph (b) or (c), as applicable, of AD 2003-14-06, Amendment 39-13225 (68 FR 42956, July 21, 2003), before the effective date of this AD ends the repetitive eddy current inspections required by paragraph (g) of this AD for that skin panel only; however, the repetitive external detailed inspections required by paragraph (g) of this AD are still required for all areas. Accomplishing paragraph (b) or (c), as applicable, of AD 2003-14-06, on or after the effective date of this AD, does not end either the repetitive detailed or eddy current inspections required by paragraph (g) of this AD.
This paragraph restates the requirements of paragraph (h) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004). Inspections, repairs, and preventive modifications done before October 13, 2004 (the effective date of AD 2004-18-06), in accordance with Boeing Alert Service Bulletin 737-53A1210, dated December 14, 2000, are acceptable for compliance with the corresponding actions required by paragraphs (g), (h), (i), (j), (k), and (l) of this AD.
This paragraph restates the requirements of paragraph (i) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004) with revised service information. For airplanes subject to the requirements of paragraphs (g) and (h) of this AD: Inspections are not required in areas that are spanned by an FAA-approved repair that has a minimum of 3 rows of fasteners above and below the chem-milled step. If an external doubler covers the chem-milled step, but does not span it by a minimum of 3 rows of fasteners above and below, in lieu of requesting approval for an alternative method of compliance (AMOC), one option to comply with the inspection requirement of paragraphs (g) and (h) of this AD is to inspect all chem-milled steps covered by the repair in accordance with the Work Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.
For Groups 1 through 5 and Groups 9 through 21 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, on which the inspections required by paragraph (g) of this AD have been done before the effective date of this AD: Within 4,500 flight cycles after doing the most recent inspection required by paragraph (g) of this AD, or within 1,800 flight cycles after the effective date of this AD, whichever is earlier; do external detailed and eddy current inspections of the crown area and other known areas of the fuselage skin cracking, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; except as provided by paragraph (o) of this AD. Repeat the external detailed and eddy current inspections thereafter at intervals not to exceed 1,800 flight cycles. Accomplishing the inspections required by this paragraph ends the repetitive inspections required by paragraph (g) of this AD. Before further flight, do all applicable corrective actions as specified in paragraph (j) of this AD. For the locations specified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; in lieu of doing detailed inspections, operators may do general visual inspections, provided that the general visual inspections are done at intervals not to exceed 1,000 flight cycles.
For Groups 1 through 5 and 9 through 21 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; on which the inspections required by paragraph (g) of this AD have not been done before the effective date of this AD: Before the accumulation of 28,000 total flight cycles, or within 1,800 flight cycles after the effective date of this AD, whichever is later, do external detailed and eddy current inspections of the crown area and other known areas of fuselage skin cracking, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, except as provided by paragraph (o) of this AD. Repeat the external detailed and eddy current inspections thereafter at intervals not to exceed 1,800 flight cycles. Accomplishing the inspections required by this paragraph ends the repetitive inspections required by paragraph (g) of this AD. Before further flight, do all applicable corrective actions as specified in paragraph (j) of this AD. For the locations specified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; in lieu of doing detailed inspections, operators may do general visual inspections, provided that the general visual inspections are done at intervals not to exceed 1,000 flight cycles.
For Group 1 through 5, and 9 through 21 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009: At the later of the times specified in paragraphs (r)(1) and (r)(2) of this AD, do external detailed and eddy current inspections for vertical cracks in the fuselage skin along the chem-milled steps of the butt joints, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. Repeat the inspections thereafter at intervals not to exceed 1,800 flight cycles or 1,800 flight hours, whichever occurs first. If any cracking is found, before further flight, repair in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. Doing the repair terminates the repetitive inspections specified in this paragraph for the repaired area only.
(1) Before the accumulation of 55,000 total flight cycles or 55,000 total flight hours, whichever occurs first.
(2) Within 1,800 flight cycles or 1,800 flight hours after the effective date of this AD, whichever occurs first.
For Groups 1 through 21 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009: At the applicable time specified in paragraph (s)(1) or (s)(2) of this AD, do external detailed and eddy current inspections, as applicable, for horizontal
(1) In areas of no known cracking where only a detailed inspection is accomplished: Do the inspection at the later of the times specified in paragraphs (s)(1)(i) and (s)(1)(ii) of this AD.
(i) Before the accumulation of 35,000 total flight cycles.
(ii) Within 9,000 flight cycles after the most recent inspection required by paragraph (h) of this AD, or within 1,800 flight cycles after the effective date of this AD, whichever is earlier.
(2) In areas of known cracking where both a detailed and eddy current inspection is accomplished: Do the inspection at the latest of the times specified in paragraphs (s)(2)(i) and (s)(2)(ii) of this AD.
(i) Before the accumulation of 35,000 total flight cycles.
(ii) Within 4,500 flight cycles after the most recent inspection required by paragraph (h) of this AD, or within 1,800 flight cycles after the effective date of this AD, whichever is earlier.
For Groups 4, 11, and 16 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009: Before the accumulation of 25,000 total flight cycles or within 1,800 flight cycles after the effective date of this AD, whichever is later, do external detailed and eddy current inspections for horizontal cracks along the chem-milled lines of the fuselage skin of the fuselage window belt area, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. Repeat the inspections thereafter at intervals not to exceed 1,800 flight cycles. If any cracking is found, before further flight, repair using a method approved in accordance with paragraph (y) of this AD. Doing the repair terminates the repetitive inspections specified in this paragraph for the repaired area only.
For Groups 3, 5, 9, 10, 12, 14, 15, 17, 18, 19, 20, and 21 airplanes identified in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009: Do the actions specified in paragraph (u)(1) or (u)(2) of this AD, as applicable. Part 7 (Figure 10) of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, specifies applying corrosion inhibiting compound (CIC) BMS 3-23 to the surfaces of the repaired area. As an option to using CIC BMS 3-23, operators may use CIC BMS 3-35, which is equivalent to CIC BMS 3-23.
(1) For airplanes on which the inspections required by paragraph (g) of this AD have been done before the effective date of this AD: Within 4,500 flight cycles after doing the most recent inspection required by paragraph (g) of this AD, or within 1,800 flight cycles after the effective date of this AD, whichever is earlier, do external detailed and eddy current inspections for horizontal cracks along the chem-milled lines of the fuselage skin of the fuselage window belt area, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. Repeat the inspections thereafter at intervals not to exceed 1,800 flight cycles. If any cracking is found, before further flight, repair in accordance with Part 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, except as required by paragraph (x) of this AD.
(2) For airplanes on which the inspections required by paragraph (g) of this AD have not been done before the effective date of this AD: Before the accumulation of 25,000 total flight cycles or within 1,800 flight cycles after the effective date of this AD, whichever is later, do external detailed and eddy current inspections for horizontal cracks along the chem-milled lines of the fuselage skin of the fuselage window belt area, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. Repeat the inspections thereafter at intervals not to exceed 1,800 flight cycles. If any cracking is found, before further flight, repair in accordance with Part 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, except as required by paragraph (x) of this AD.
For airplanes on which cracking is found during any inspection required by paragraph (p), (q), (r), or (s) of this AD, as applicable, doing the repair of the chem-milled area in the skin, as specified in Part 5 or Part 6 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, ends the repetitive external detailed and eddy current inspections required by paragraph (p), (q), (r), or (s) of this AD, as applicable, for the repaired area only.
For airplanes on which no cracking is found during any inspection required by paragraph (u) of this AD, doing the preventive modification of the chem-milled areas in the skin at stringer 12, as specified in Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, except as required by paragraph (x) of this AD, ends the repetitive external detailed and eddy current inspections required by paragraph (u) of this AD, for the modified areas common to stringer 12 only. Part 7 (Figure 10) of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, specifies applying CIC BMS 3-23 to the surfaces of the repaired area. As an option to using CIC BMS 3-23, operators may use CIC BMS 3-35, which is equivalent to CIC BMS 3-23.
Where Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, specifies to contact Boeing for repair instructions, before further flight, repair using a method approved in accordance with paragraph (y) of this AD.
(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes ODA that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously in accordance with AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), are approved as AMOCs for the corresponding provisions of this AD.
(5) Inspections and corrective actions required by paragraph (g) of AD 2009-21-01, Amendment 39-16038 (74 FR 52395, October 13, 2009), are approved as AMOCs for the corresponding provisions of paragraph (s) of this AD; but only for the areas of the lower lobe skin identified in AD 2009-21-01.
(1) For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
(3) You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.
Federal Emergency Management Agency, DHS.
Proposed rule; withdrawal.
The Federal Emergency Management Agency (FEMA) is withdrawing its proposed rule concerning proposed flood elevation determinations for Fairbanks North Star Borough, Alaska, and Incorporated Areas.
This withdrawal is effective on October 10, 2012.
You may submit comments, identified by Docket Nos. FEMA-B-1069 and B-1122, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
On September 15, 2009 and May 25, 2010, FEMA published a proposed rulemaking at 74 FR 47169 and 75 FR 29296, proposing flood elevation determinations along one or more flooding sources in Fairbanks North Star Borough, Alaska. FEMA is withdrawing the proposed rulemaking and intends to publish a Notice of Proposed Flood Hazard Determinations in the
42 U.S.C. 4104; 44 CFR 67.4.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of 90-day petition finding, request for information.
We (NMFS) announce a 90-day finding on a petition to list Nassau grouper (
Information and comments on the subject action must be received by December 10, 2012.
You may submit information, identified by the code 0648-XA984, addressed to: Jason Rueter, Fisheries Biologist, by any of the following methods:
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Jason Rueter, NMFS Southeast Region, 727-824-5350; or Lisa Manning, NMFS Office of Protected Resources, 301-427-8466.
On September 3, 2010, we received a petition from the WildEarth Guardians to list goliath grouper (
Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531
Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA-U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered because of any one or a combination of the following section 4(a)(1) factors: the present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
Court decisions clarify the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination whether a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
We evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioner's assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1).
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted
The Nassau grouper is a moderately large sea bass (family Serranidae) distributed in the Western North Atlantic from Bermuda, Florida, Bahamas, Yucatan Peninsula, and throughout the Caribbean to southern Brazil. It is not known from the Gulf of Mexico except at the Campeche Bank off the coast of the Yucatan, the Flower Gardens Bank off Texas, and off the Dry Tortugas and Key West, Florida (Beebe and Tee-van, 1933; Randall, 1965; Heemstra and Randall, 1993; Foley
Nassau grouper reach a maximum size of approximately 39 inches (100 cm) and 55 pounds (25 kg). They are late-maturing (between 4-7 years) and fairly long-lived (up to 29 years). Nassau grouper were originally considered to be amonandric protogynous hermaphrodites, meaning all males are produced by the sex change of adult females. Evidence of a change from adult female to adult male, however, is weak. Instead, available evidence indicates that the Nassau grouper is primarily gonochoristic (separate sexes) (Sadovy and Eklund, 1999). Nassau grouper are known to assemble in very large numbers, from a few dozen to historically over 100,000 individuals, at transient, site-specific areas each year to spawn, presumably cued by temperature and moon phase. Spawning is not known to occur outside of these aggregations. Aside from spawning, Nassau grouper are solitary fish.
We have determined, based on the information provided in the petition and readily available in our files, that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted. The petition contains a justification for the recommended measure, species taxonomic description, geographic distribution, preferred habitat characteristics, population status and trends, and threats contributing to the species' decline, and it is accompanied by appropriate supporting documentation. Below is a synopsis of our analysis of the information provided in the petition and readily available in our files.
The petition cites classifications made by NMFS, the International Union for Conservation of Nature (IUCN), and NatureServe to support its assertion that Nassau grouper is imperiled. The petitioner suggests historic and continued overfishing is the primary threat to Nassau grouper. Because commercial and recreational landings in the U.S. from 1986-1991 decreased in both pounds landed and average size, the Caribbean (1990), South Atlantic (1991), and Gulf of Mexico (1996) Fishery Management Councils, and the State of Florida (1993) all have prohibited the take and possession of Nassau grouper (NMFS, 2010). The IUCN estimates the population of Nassau grouper has declined by 60 percent over the last three generations (Cornish and Eklund, 2003). The petition also cites the IUCN's conclusion that Nassau grouper is suffering from a “high rate of decline in population size” (Cornish and Eklund, 2003). This decline was estimated by weighing estimates of the original Nassau population to coral reef area (rather than population size) to give an overall decline figure. This method assumes that pristine densities of Nassau grouper were the same at all localities. This is probably not likely to have been the case but it enables a single figure to be derived (60 percent decline of Nassau grouper), which is likely more representative of the global situation than the alternative, which would be to say that the decline lies between 55 and 99.5% (the lowest and highest documented decline rates) (Cornish and Eklund, 2003). Additionally, NatureServe (2009) estimates the global abundance of Nassau grouper to be as low as 10,000 worldwide, with numbers still declining. This estimate by NatureServe is based on the occurrence of at least 28 extant spawning aggregations in the western Atlantic, most of which are assumed to each represent hundreds to thousands of individuals (Smith, 1972; Aguilar-Perera, 1990). Conversely, the declining trend is based on spawning aggregations that are absent, disappearing, or becoming increasingly rare throughout the range with several spawning aggregations having vanished completely (Sobel, 1996).
Heavy fishing of spawning aggregations leading to recruitment overfishing is thought to be a major reason for the “catastrophic” decline in populations of Nassau grouper (Colin, 1996; Beets and Hixon, 1994). The spawning aggregations are particularly vulnerable to fishing pressure as they are spatially and temporally predictable. The aggregations form on or near the full moons during November through February when water temperatures are 25-26 degrees Celsius (Colin, 1992). Targeting of spawning aggregations can cause local populations to be extirpated in a matter of a few years (Morris
The petitioner claims that throughout the Caribbean, inadequate regulations have led to heavy fishing of the spawning aggregations. Numerous examples exist of the discovery of spawning aggregations, followed by heavy exploitation, and then loss of the spawning aggregation in subsequent years (see Sadovy, 1992 for examples). In other countries, heavy fishing of aggregations led to a fishery composed of primarily juveniles or to the species being considered fishery extinct (Sadovy, 1992). Because there was no evident increase in the number of Nassau grouper following the fishing ban imposed in the Atlantic and Caribbean, Sadovy and Eklund (1999) state an increase is unlikely given presumed illegal capture. In the U.S., where harvest has been prohibited, regulations have not totally prevented harvest of grouper. For example, harvest has been prohibited since 1990 in Puerto Rico yet Nassau grouper landings averaged 12,539 pounds annually between 1991-2010. Further, in waters off the continental U.S., population levels are low relative to historical levels, having shown little response to a fishing moratorium established in 1992 (NMFS, 2010).
The information presented by the petitioner and otherwise available to us indicates that Nassau grouper populations in many Caribbean countries declined as a result of overexploitation and inadequacy of regulatory mechanisms. Much of the data we and the petition use are quite dated with some more than two decades old, and we are concerned about relying on such old information for this finding; however, we believe the seriousness of these threats and the lack of a response
In addition to the information on overutilization and inadequacy of existing regulatory mechanisms, the petitioner provided information addressing the other ESA section 4(a)(1) listing factors: the present and threatened destruction, modification, or curtailment of habitat or range, and the other natural or manmade factors that may be affecting the continued existence of Nassau grouper. However, because we have determined that the information provided on overutilization and inadequacy of existing regulatory mechanisms presents substantial information indicating the petitioned action may be warranted, we do not find a need to conduct a detailed analysis of the other submitted information here.
We have determined after reviewing the information contained in the petition, as well as information readily available in our files, that there is substantial information indicating that the petitioned action may be warranted, based on the threats of overutilization for commercial, recreational, scientific or education purposes, and inadequacy of existing regulatory mechanisms. Because we have found that substantial information was presented on the above factors, we will commence a status review of the species. During our status review, we will fully address all five of the listing factors set out in section 4(a)(1). At the conclusion of the status review, we will determine whether the petitioned action is warranted. As previously noted, a “may be warranted” finding does not prejudge the outcome of the status review.
As required by section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we are to commence a review of the status of the species and make a determination within 12 months of receiving the petition as to whether the petitioned action is warranted. We intend that any final action resulting from this review be as accurate and as effective as possible. Therefore, we open a 60-day public comment period to solicit information from the public, government agencies, the scientific community, industry, and any other interested parties on the status of Nassau grouper throughout its range including: (1) Status of historical and current spawning aggregation sites; (2) historical and current distribution, abundance, and population trends; (3) biological information (life history, genetics, population connectivity, etc.); (4) management measures, regulatory mechanisms designed to protect spawning aggregations, and enforcement information; (5) any current or planned activities that may adversely impact the species; and (6) ongoing or planned efforts to protect and restore the species and their habitats. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents. Section 4(b)(1)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.11(b)) require that a listing determination be made solely on the basis of the best scientific and commercial data, without consideration of possible economic or other impacts of the determination. During the 60-day public comment period we are seeking information related only to the status of Nassau grouper throughout its range.
On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife Service, published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). The intent of the peer review policy is to ensure listings are based on the best scientific and commercial data available. The Office of Management and Budget issued its Final Information Quality Bulletin for Peer Review on December 16, 2004. The Bulletin went into effect June 16, 2005, and generally requires that all “influential scientific information” and “highly influential scientific information” disseminated on or after that date be peer reviewed. Because the information used to evaluate this petition may be considered “influential scientific information,” we solicit the names of recognized experts in the field that could take part in the peer review process for this status review (see
A complete list of references is available upon request from the Southeast Regional Office, Protected Resource Division (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This proposed rule would establish opening dates and adjust quotas for the 2013 fishing season for the Atlantic commercial shark fisheries. Quotas would be adjusted as allowable based on any over- and/or underharvests experienced during the 2011 and 2012 Atlantic commercial shark fishing seasons. We propose to keep the porbeagle shark fishery closed in 2013 due to the small quota and
Written comments will be accepted until October 28, 2012.
You may submit comments on this document, identified by NOAA-NMFS-2012-0175, by any of the following methods:
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Guý DuBeck or Karyl Brewster-Geisz at 301-427-8503.
The Atlantic commercial shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The 2006 Consolidated HMS Fishery Management Plan (FMP) and its amendments under the Magnuson-Stevens Act are implemented by regulations at 50 CFR part 635. For the Atlantic commercial shark fisheries, the 2006 Consolidated HMS FMP and its amendments established, among other things, commercial quotas for species and species complexes, accounting measures for under- and overharvests for the shark fisheries, and adaptive management measures such as flexible opening dates for the fishing season and inseason adjustments to shark trip limits, which provide flexibility in management in the furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas.
This proposed rule would adjust the quota levels for the different shark species and complexes for the 2013 Atlantic commercial shark fishing season based on over- and underharvests that occurred during the 2011 and 2012 fishing seasons, consistent with existing regulations at § 635.27(b)(1)(i). Over- and underharvests are accounted for in the same region and/or fishery in which they occurred the following year, depending on stock status. Shark stocks that are overfished, have overfishing occurring, or that have an unknown stock status, or complexes that contain one or more stocks that are overfished, have overfishing occurring, or that have an unknown stock status, will not have underharvest carried over in the following year. Stocks that are not overfished and have no overfishing occurring will have any underharvest carried over in the following year, up to 50 percent of the base quota.
Although there were underharvests in the sandbar shark, non-sandbar large coastal shark, blacknose shark, blue shark, and pelagic shark (other than porbeagle or blue sharks) fisheries, those underharvests cannot be carried over to the 2013 fishing season because those stocks have been determined to be overfished, overfished with overfishing occurring, or have an unknown status. Porbeagle sharks have been declared to be overfished with overfishing occurring, and the quota was overharvested in 2011 and 2012. Thus, for all of these species, the 2013 proposed quota would be equal to the appropriate base quota minus any overharvests that occurred in the 2011 and 2012 fishing seasons.
However, since the non-blacknose small coastal shark complex has been determined not to be overfished and has no overfishing occurring, the underharvest (up to 50 percent of the base quota) from the 2012 fishing season can be applied to the 2013 quota.
This rule proposes adjustments to the base commercial quotas due to over- and underharvests that occurred in 2011 and 2012, where allowable, taking into consideration the stock status as required under existing regulations.
The quotas in this proposed rule are based on dealer reports received as of August 22, 2012. In the final rule, we will adjust the quotas based on dealer reports received as of October 31, 2012. Thus, all of the 2013 proposed quotas for the respective shark complexes/species are subject to further adjustment for any overharvests reflected after considering the October 31 dealer reports. All dealer reports that are received after October 31, 2012, will be used to adjust the 2014 quotas, as appropriate. In addition, the 5-year quota reduction to account for overharvest of the non-sandbar large coastal shark and sandbar shark fisheries established in Amendment 2 to the 2006 Consolidated HMS FMP ends on December 31, 2012, and quotas will increase to annual base levels established in Amendment 2 to the 2006 Consolidated HMS FMP. We also propose to adjust the non-blacknose small coastal shark quota due to underharvest from the 2012 fishing season, and to adjust the porbeagle shark quota to account for overharvest from the 2011 and 2012 fishing season.
Due to the small quota and difficulties in accurately monitoring such a small quota, we propose to keep the porbeagle shark fishery closed in 2013. The porbeagle shark fishery landings in 2012 exceeded the quota by 259 percent with the addition of late reports in December 2011, which must be accounted for in 2013. The combined overharvest in 2011 and 2012 for the porbeagle shark fishery would result in a very small quota (0.5 mt dw; 1,001 lb dw). The proposed 2013 quotas by species and species group are summarized in Table 1.
The 2013 proposed commercial quotas within the shark research fishery are 50.0 mt dw (110,230 lb dw) for non-sandbar large coastal sharks and 116.6 mt dw (257,056 lb dw) for sandbar sharks. Since the 5-year quota reduction to account for overharvest of the non-sandbar large coastal shark and sandbar shark fisheries ends on December 31, 2012, the 2013 proposed quotas increase to the levels established in Amendment 2 to the 2006 Consolidated HMS FMP.
Within the shark research fishery, as of August 22, 2012, preliminary reported landings of non-sandbar large coastal sharks were at 24 percent (9.1 mt dw) of their 2012 quota levels, and sandbar shark reported landings were at 28 percent (24.7 mt dw) of their 2012 quota levels. Reported landings have not exceeded the 2012 quota to date. Therefore, based on preliminary estimates and consistent with the current regulations at § 635.27(b)(1)(vii), we are not proposing to adjust 2013 quotas in the shark research fishery based on any overharvests.
Under § 635.27(b)(1)(i), because sandbar sharks and scalloped hammerhead sharks within the non-sandbar large coastal shark complex have been determined to be either overfished or overfished with overfishing occurring, underharvests for these species and/or complexes would not be applied to the 2013 quotas. Therefore, we propose 2013 quotas for non-sandbar large coastal sharks and sandbar sharks within the shark research fishery of 50.0 mt dw (110,230 lb dw) and 116.6 mt dw (257,056 lb dw), respectively. NMFS has analyzed the environmental effects of this base quota in the Environmental Impact Statement for Amendment 2. This base quota of 116.6 mt dw was implemented in Amendment 2, but the quota was reduced to 87.9 mt dw for 5 years to account for large overharvest in 2007.
The 2013 proposed quota for non-sandbar large coastal sharks in the Gulf of Mexico region is 439.5 mt dw (968,922 lb dw). Since the 5-year quota reduction for overharvest of the non-sandbar large coastal shark fishery ends on December 31, 2012, the 2013 quotas would revert to the levels established in Amendment 2 to the 2006 Consolidated HMS FMP.
As of August 22, 2012, preliminary reported landings for non-sandbar large coastal sharks in the Gulf of Mexico region were at 94 percent (369.8 mt dw) of their 2012 quota levels. Reported landings have not exceeded the 2012 quota to date. Therefore, based on preliminary estimates and consistent with the current regulations at § 635.27(b)(1)(vii), we are not proposing to adjust 2013 quotas in the non-sandbar large coastal sharks in the Gulf of Mexico region, because there have not been any overharvests.
Given the status of scalloped hammerhead sharks within the non-sandbar large coastal shark complex, any underharvests cannot be accounted for pursuant to § 635.27(b)(1)(iii). Therefore, we propose 2013 quotas for non-sandbar large coastal sharks in the Gulf of Mexico region of 439.5 mt dw (968,922 lb dw), consistent with Amendment 2 levels.
The 2013 proposed quota for non-sandbar large coastal sharks in the Atlantic region is 188.3 mt dw (415,126 lb dw). Since the 5-year quota reduction for overharvest of the non-sandbar large coastal shark fishery ends on December 31, 2012, the 2013 quotas would increase to the levels established in Amendment 2 to the 2006 Consolidated HMS FMP.
As of August 22, 2012, preliminary reported landings for non-sandbar large coastal sharks in the Atlantic region were at 18 percent (32.9 mt dw) of their 2012 quota levels. To date, reported landings do not exceed the quota. As such, we propose a 2013 commercial non-sandbar large coastal sharks quota in the Atlantic region of 188.3 mt dw (415,126 lb dw).
The 2013 proposed annual commercial quotas for non-blacknose small coastal sharks, blacknose sharks, blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle or blue sharks) are 332.4 mt dw (732,809 lb dw), 19.9 mt dw (43,872 lb dw), 273 mt dw (601,856 lb dw), 0.5 mt dw (1,001 lb dw), and 488 mt dw (1,075,856 lb dw), respectively.
As of August 22, 2012, preliminary reported landings of non-blacknose small coastal sharks, blacknose sharks, blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle and blue sharks) were at 40 percent (133.8 mt dw), 55 percent (10.9 mt dw), 3 percent (8.6 mt dw), 259 percent (1.9 mt dw), and 20 percent (99.7 mt dw), of their 2012 quota levels, respectively. As described above, while we may adjust quotas for underharvests only when allowable depending on the stock status, we will adjust quotas for overharvests.
Non-blacknose small coastal sharks have not been declared to be overfished, to have overfishing occurring, or to have an unknown status. Pursuant to § 635.27(b)(1)(i), any underharvests for the non-blacknose small coastal sharks therefore could be applied to the 2013 quotas. During the 2012 fishing season to date, the non-blacknose small coastal shark quota has been underharvested by 110.8 mt dw (244,269 lb dw). Accordingly, we propose to increase the 2013 non-blacknose small coastal shark quota to adjust for anticipated underharvests in 2012 as allowed. The proposed 2013 adjusted base annual quota for non-blacknose small coastal sharks is 332.4 mt dw (732,809 lb dw) (221.6 mt dw annual base quota + 110.8 mt dw 2012 underharvest = 332.4 mt dw 2013 adjusted annual quota).
Porbeagle sharks have been declared to be overfished with overfishing occurring. Pursuant to § 635.27(b)(1)(i), any overharvests of porbeagle sharks would be applied to the 2013 quotas. In the final rule establishing the 2012 quotas, we accounted for an overharvest of porbeagle sharks of 1.0 mt dw (2,163 lb dw) using data that was reported as of October 31, 2011. Between that date and December 31, 2011, porbeagle sharks were overharvested by an additional 227 lb dw (less than 0.1 mt dw). As of August 22, 2012, an additional 1.1 mt dw (2,520 lb dw) has been overharvested above the 2012 porbeagle shark quota. The proposed 2013 adjusted annual commercial porbeagle quota is 0.5 mt dw (1,001 lb dw) (1.7 mt dw annual base quota − < 0.1 mt dw 2011 overharvest − 1.1 mt dw 2012 overharvest = 0.5 mt dw 2012 adjusted annual quota), but we propose to keep the fishery closed in 2013 due to the small quota and difficulties in accurately monitoring such a small quota.
Blacknose sharks and other pelagic species are overfished, have overfishing occurring, or have an unknown status. As of August 22, 2012, the 2012 commercial quota had not been reached or exceeded. Therefore, the 2013 proposed quotas would be the base annual quotas for blacknose sharks, blue sharks, and pelagic sharks (other than blue and porbeagle sharks), or (19.9 mt dw (43,872 lb dw), 273 mt dw (601,856 lb dw), and 488 mt dw (1,075,856 lb dw), respectively.
For each fishery, we considered the seven “Opening Fishing Season Criteria” listed at § 635.27(b)(1)(ii). These include:
(A) The available annual quotas for the current fishing season for the different species/complexes based on any over- and/or underharvests experienced during the previous commercial shark fishing seasons; (B) Estimated season length based on available quota(s) and average weekly catch rates of different species/complexes in the Atlantic and Gulf of Mexico regions from the previous years; (C) Length of the season for the different species/complexes in the previous years and whether fishermen were able to participate in the fishery in those years; (D) Variations in seasonal distribution, abundance, or migratory patterns of the different species/complexes based on scientific and fishery information; (E) Effects of catch rates in one part of a region precluding vessels in another part of that region from having a reasonable opportunity to harvest a portion of the different species/complexes quotas; (F) Effects of the adjustment on accomplishing the objectives of the 2006 Consolidated HMS FMP and its amendments; and/or, (G) Effects of a delayed opening with regard to fishing opportunities in other fisheries.
Thus, we examined the 2011 and 2012 over- and/or underharvests of the different species/complexes to determine the effects of the 2013 proposed quotas on fishermen across regional fishing area. The potential season length and previous catch rates were examined to ensure that equitable fishing opportunities would be provided to fishermen. Lastly, we examined the seasonal variation of the different species/complex and the effects on fishing opportunities.
In addition to these criteria, we also considered other relevant factors, such as general input from the public and potential management measures in Amendment 5 to the 2006 Consolidated HMS FMP before arriving at the proposed opening dates for the 2013 Atlantic shark fisheries.
We propose that the 2013 Atlantic commercial shark fishing season for the non-sandbar large coastal sharks fishery in the Gulf of Mexico and Atlantic, shark research, non-blacknose small coastal sharks, blacknose sharks, blue sharks, and pelagic sharks (other than porbeagle and blue sharks) in the northwestern Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, open on or about January 1, 2013, with the publication of the final rule for this action.
In the Gulf of Mexico non-sandbar large coastal shark fishery, opening the fishing season again on or about January 1 would provide, to the extent practicable, equitable opportunities across the fisheries management region as it did for the 2012 fishing season. This opening date is consistent with all the criteria listed in § 635.27(b)(1)(ii), but particularly with the requirement that we consider the length of the season for the different species/complexes in the previous years and whether fishermen were able to participate in the fishery in those years (§ 635.27(b)(1)(ii)(C)).
In the Atlantic region, we delayed the opening of the non-sandbar large coastal shark fishery until July 15 in 2010, 2011, and 2012, in order to allow for more equitably distributed shark fishing opportunities, as intended by
If that occurs, we would file with the Office of the Federal Register for publication notification of any inseason adjustments to reduce retention limits to between 0-36 sharks per trip. We could later increase the commercial retention limits per trip, such as on or about July 15, 2013, to provide fishermen in the North Atlantic area an opportunity to retain non-sandbar large coastal sharks when they are prevalent in that area, if warranted considering all relevant factors. Based on the fishing rates in the 2009 fishing season, if we open the fishery earlier than July 15 and do not adjust the commercial retention limits throughout the season, then fishermen in the South Atlantic area would likely catch the entire Atlantic quota before the sharks migrate to the North Atlantic area.
We also propose not to open the porbeagle fishery in 2013. The porbeagle fishery landings in 2012 exceeded the quota by 259 percent with the addition of late reports in December 2011, which must be accounted for in 2013. The combined overharvest in 2011 and 2012 for the porbeagle fishery would result in a very small quota (0.5 mt dw; 1,001 lb dw). Due to the small quota and difficulties in accurately monitoring such a small quota, we propose to keep the fishery closed in 2013. This proposal is based on the availability of the annual quota based on overharvests in the previous fishing seasons (§ 635.27(b)(1)(ii)(A)).
At this time, we would be implementing the proposed quotas based on current regulations. Other future actions, such as the anticipated Amendment 5 to the 2006 Consolidated HMS FMP, which would address several recent shark stock assessments, could affect the quotas implemented in the 2013 shark season rule. Any changes to the quotas would be addressed in any such later Amendment.
All of the shark fisheries, except for porbeagle sharks (which would remain closed the entire year), would remain open until December 31, 2013, or until we determine that the fishing season landings for sandbar shark, non-sandbar large coastal sharks, blacknose sharks, non-blacknose small coastal sharks, blue sharks, or pelagic sharks (other than porbeagle or blue sharks) have reached, or are projected to reach, 80 percent of the available quota. At that time, consistent with § 635.28(b)(1), we will file for publication with the Office of the Federal Register a notice of closure for that shark species group and/or region that will be effective no fewer than 5 days from date of filing. From the effective date and time of the closure until we announce, via a notice in the
Comments on this proposed rule may be submitted via
Public hearings on this proposed rule are not currently scheduled. If you would like to request a public hearing, please contact Guý DuBeck or Karyl Brewster-Geisz by phone at 301-427-8503.
The NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.
These proposed specifications are exempt from review under Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the
In compliance with section 603(b)(1) of the RFA, section 603(b)(1) of the RFA requires that we explain the purpose of the rule. This rule, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, is being proposed to adjust the 2013 proposed quotas for non-sandbar large coastal sharks, sandbar sharks, blacknose sharks, non-blacknose small coastal sharks, blue sharks, porbeagle sharks, or pelagic sharks (other than porbeagle or blue sharks) based on any over- and/or underharvests from the previous fishing year. These adjustments are being implemented according to the regulations implementing the 2006 Consolidated HMS FMP and its amendments. Thus, we would expect few, if any, economic impacts to fishermen other than those already analyzed in the 2006 Consolidated HMS FMP and its amendments, based on the quota adjustments. Not opening the porbeagle shark fishery in 2013 is due to the difficulties in accurately monitoring the small quota. This would have beneficial ecological impacts for porbeagle sharks, while the negative economic impacts are described below. An additional purpose is to use implemented management measures to allow inseason adjustments in the trip limits to slow the fishery down during the season, as necessary. This management measure would provide, to the extent practicable, equitable opportunities across the fishing management region while also considering the ecological needs of the species.
Under section 603(b)(2) of the RFA, we must explain the rule's objectives, which are to: (1) Adjust the annual quotas for porbeagle sharks due to overharvests in 2011 and 2012, and for non-blacknose small coastal sharks due to underharvests in 2012; (2) establish
Section 603(b)(3) of the RFA requires Federal agencies to provide an estimate of the number of small entities to which the rule would apply. We consider all HMS permit holders to be small entities because they either had average annual receipts of less than $4.0 million for fish-harvesting, average annual receipts of less than $6.5 million for Charter/headboat, 100 or fewer employees for wholesale dealers, or 500 or fewer employees for seafood processors. These are the Small Business Administration (SBA) size standards for defining a small versus large business entity in this industry.
The commercial shark fisheries are comprised of fishermen who hold shark directed or incidental limited access permits (LAP) and the related industries, including processors, bait houses, and equipment suppliers, all of which we consider to be small entities according to the size standards set by the SBA. The proposed rule would apply to the approximately 213 directed commercial shark permit holders, 265 incidental commercial shark permit holders, and 96 commercial shark dealers as of August 2012.
This proposed rule does not contain any new reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). Similarly, this proposed rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements as domestically implemented, domestic laws, and FMPs. These include, but are not limited to, the Magnuson-Stevens Act, the Atlantic Tunas Convention Act, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act (ESA), the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act.
In compliance with section 603(c) of the RFA, each IRFA must also contain a description of any significant alternatives to the proposed rule which would accomplish the stated objectives of applicable statutes and minimize any significant economic impact of the proposed rule on small entities. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of significant alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule for small entities. In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act and the ESA, we cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are considered small entities. We do not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act.
This rulemaking does not establish management measures to be implemented, but rather implements previously adopted and analyzed measures with adjustments, as specified in Amendment 2 and Amendment 3 to the 2006 Consolidated HMS FMP and the Environmental Assessment (EA) that accompanied the 2011 shark quota specifications rule (75 FR 76302; December 8, 2010). Thus, NMFS proposes to adjust quotas established and analyzed in Amendment 2 and Amendment 3 to the 2006 Consolidated HMS FMP by subtracting the underharvest or adding the overharvest as allowable. Similarly, the ranges of management measures are consistent with the requirements of the Magnuson-Stevens Act that were previously analyzed in the EA with the 2011 shark quota specifications rule. Thus, NMFS has limited flexibility to modify the management measures or quotas in this rule, the impacts of which were analyzed in previous regulatory flexibility analyses.
Based on the 2010 ex-vessel price ($0.67/large coastal shark lb, $0.68/small coastal shark lb, $1.21/pelagic lb, and $13.48/lb for shark fins), fully harvesting the unadjusted 2013 Atlantic shark commercial baseline quotas could result in total fleet revenues of $6,242,548. We propose to keep the porbeagle shark fishery closed in 2013, which results in the total revenue loss of $7,061 (if we kept it open, but reduced it by the overharvests of 2011 and 2012, the net revenue loss in the fishery would amount to $5,175). The upward adjustment due to the underharvests in 2012 non-blacknose small coastal shark fishery would result in a $330,740 gain in revenues. These revenues are similar to the gross revenues analyzed in Amendment 2 and Amendment 3 to the 2006 Consolidated HMS FMP. The IRFAs for those amendments concluded that the economic impacts on these small entities, resulting from rules such as this one that adjust the trip limits inseason through proposed and final rulemaking, are expected to be minimal. Amendments 2 and 3 to the 2006 Consolidated HMS FMP and the EA with the 2011 shark quota specifications rule assumed we would be conducting annual rulemakings and considered the IRFAs in the economic and other analyses at the time.
For this rule, we reviewed the criteria at § 635.27(b)(ii) to determine when opening each fishery would provide equitable opportunities for fishermen while also considering the ecological needs of the different species. The opening of the fishing season could vary depending upon the available annual quota, catch rates, and number of fishing participants during the year. For the 2013 fishing season, we are proposing to open the non-sandbar large coastal shark fishery in the Gulf of Mexico and Atlantic, shark research, blacknose shark, non-blacknose small coastal shark, and pelagic shark fisheries on the effective date of the final rule for this action (expected to be on or about January 1). The direct and indirect economic impacts would be neutral on a short- and long-term basis, because we are proposing not to change the opening dates of these fisheries from the status quo.
Opening the non-sandbar large coastal sharks in the Atlantic region on the effective date of the final rule for this action (expected to be on or about January 1) would result in short-term, direct, moderate, beneficial economic impacts as fishermen and dealers in the south Atlantic would be able to fish for non-sandbar large coastal sharks starting on or about January. South Atlantic fishermen would be able to fish earlier in the 2013 fishing season compared to the 2010, 2011, and 2012 fishing seasons, which did not start until July 15. South Atlantic fishermen commented during the public comment period for the 2011 and 2012 shark specification rulemaking that they felt that opening the fishery in July was not fair to them because, by July, the sharks have migrated north and are no longer available. With the implementation of the HMS electronic reporting system in 2013, we should be able to monitor the quota on a real-time basis. This ability, along with the inseason adjustment criteria in § 635.24(a)(8), should allow us the flexibility to further provide
In the North Atlantic area, a potential January 1 and July 15 opening for the non-sandbar large coastal sharks would have direct, minor, beneficial economic impacts in the short-term for fishermen as they would have access to the non-sandbar large coastal shark quota in 2013. Fishermen in the North Atlantic area did not have or had limited access to the non-sandbar large coastal shark quota in 2009. There would be indirect, minor, beneficial economic impacts in the short- and long-term for shark dealers and other entities that deal with shark products in this region as they would also have access to non-sandbar large coastal shark products in 2013. Thus, allowing the split season in 2013 would cause neutral cumulative economic impacts, since it would allow for a more equitable distribution of the quotas among constituents in this region, which was the original intent of Amendment 2.
We also propose to keep the porbeagle fishery closed in 2013. This action would cause direct and indirect moderate, adverse, short-term economic impacts on shark fishermen and other entities that rely on porbeagle sharks. The long-term economic impacts would be neutral if we open the porbeagle shark fishery in 2014 because the fishery would open in 2014 under the annual base quota of 1.7 mt dw.
16 U.S.C. 971
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC;
Comments regarding these information collections are best assured of having their full effect if received by November 9, 2012. Copies of the submission(s) may be obtained by calling (202) 720-8681.
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC;
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Corrected Notice of Intent to prepare an environmental impact statement for the Blackfoot Travel Plan. The original notice was published in the
The Helena National Forest (HNF) is submitting a corrected Notice of Intent (NOI) in regard to the Blackfoot Travel Plan Environmental Impact Statement (EIS) that is being prepared. This NOI includes the correction of the previous Blackfoot Travel Plan NOI and includes a new alternative, alternative 3 and a potential programmatic plan amendment to the Helena National Forest Plan regarding the standard for elk hiding cover/open road density index. The plan amendment would be signed as a separate decision to the Blackfoot Travel Plan EIS. The proposed programmatic plan amendment would establish a new standard for elk security for the herd units located within the project area. As a result, HNF Forest Plan Standard 4a would be amended as it relates to the Blackfoot travel planning area. This programmatic plan amendment was not explicitly stated in the previous two
The Draft EIS is currently being prepared and will consider public scoping comments that have been received to date; all previous comments on this project will be retained and considered. The Draft EIS will include more details regarding the programmatic plan amendment and alternative 3 and will be available for public comment and review in January of 2013, with a Final EIS expected in July of 2013. At this time, there is no formal notice and comment period that will provide the commenter appeal rights, but comments specific to this new information are welcome and will be fully considered.
Comments can be sent to the Helena National Forest Lincoln Ranger District, 1569 Hwy 200 Lincoln, MT 59639. Comments may also be sent via email to
Amber Kamps, Lincoln District Ranger, 1569 Hwy 200, Lincoln, MT 59639, (406) 362-7002 or at the Helena National Forest Web page at
The proposed action would:
Department of Commerce.
Notice of Membership on the Departmental Performance Review Board.
In accordance with 5 U.S.C., 4314 (c)(4), Department of Commerce (DOC) announces the appointment of persons to serve as members of the Departmental Performance Review Board (DPRB). The DPRB provides an objective peer review of the initial performance ratings, performance-based pay adjustments and bonus recommendations, higher-level review requests and other performance-related actions submitted by appointing authorities for Senior Executive Service (SES) members whom they directly supervise, and makes recommendations based upon its review. The term of the new members of the DPRB will expire December 31, 2014.
Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Director, 14th and Constitution Avenue NW., Washington, DC 20230, (202) 482-3600.
The names and position titles of the members of the DPRB are set forth below by organization:
Department of Commerce.
Notice of Membership on the Office of the Secretary Performance Review Board.
In accordance with 5 U.S.C., 4314(c)(4), Department of Commerce (DOC) announces the appointment of persons to serve as members of the Office of the Secretary (OS) Performance Review Board (PRB). The OS PRB is responsible for reviewing performance ratings, pay adjustments and bonuses of Senior Executive Service (SES) members. The term of the new members of the OS PRB will expire December 31, 2014.
Denise A. Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Director, 14th and Constitution Avenue NW., Washington, DC 20230, (202) 482-3600.
The names, position titles, and type of appointment of the members of the OS/PRB are set forth below by organization:
National Institute of Standards and Technology, Department of Commerce.
Notice of closed meeting.
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. app., notice is hereby given that the Panel of Judges of the Malcolm Baldrige National Quality Award will meet on Monday, November 5, 2012, 8:30 a.m. to 5:30 p.m., Tuesday, November 6, 2012, 8:30 a.m. to 5:30 p.m., Wednesday, November 7, 2012, 8:30 a.m. to 5:30 p.m., Thursday, November 8, 2012, 8:30 a.m. to 5:30 p.m., and Friday, November 9, 2012, 8:30 a.m. to 5:30 p.m. The Panel of Judges is composed of twelve members prominent in the fields of quality, innovation, and performance management and appointed by the Secretary of Commerce, assembled to advise the Secretary of Commerce on the conduct of the Baldrige Award. The purpose of this meeting is to conduct final judging of the 2012 applicants. The applications under review by Judges contain trade secrets and proprietary commercial information submitted to the Government in confidence.
The meeting will convene Monday, November 5, 2012, at 8:30 a.m. Eastern time and adjourn Friday, November 9, 2012, at 5:30 p.m. Eastern time. The entire meeting will be closed to the public.
The meeting will be held at the National Institute of Standards and Technology, Administration Building, Gaithersburg, Maryland 20899.
Dr. Harry Hertz, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, Gaithersburg, Maryland
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on April 5, 2012, that the meeting of the Judges Panel may be closed in accordance with 5 U.S.C. 552b(c)(4) because the meeting is likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential and 5 U.S.C. 552b(c)(9)(B) because for a government agency the meetings are likely to disclose information that could significantly frustrate implementation of a proposed agency action. The meeting, which involves examination of Award applicant data from U.S. companies and other organizations and a discussion of these data as compared to the Award criteria in order to recommend the 2012 Baldrige Award recipients, may be closed to the public.
Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of availability and request for public comment.
NOAA Office of Oceanic and Atmospheric Research (OAR) publishes this notice on behalf of the NOAA Science Advisory Board (SAB) to announce the availability of the draft report of the SAB Satellite Task Force (here called the SATTF) for public comment. The draft report of the SATTF has been prepared at NOAA's request made in September 2011. The NOAA National Environmental Satellite, Data, and Information Service (NESDIS) asked the SAB to review the existing and planned satellite programs and consider proposed alternatives to them. This report provides findings and recommendations from the SATTF on this topic.
Comments on this draft report must be received by 5 p.m. on November 9, 2012.
The Draft Report of the SATTF will be available on the NOAA Science Advisory Board Web site at
Dr. Cynthia Decker, Executive Director, Science Advisory Board, NOAA, 1315 East-West Highway-R/SAB, Silver Spring, Maryland 20910. (Phone: 301-734-1156, Fax: 301-734-1459) during normal business hours of 9 a.m. to 5 p.m. Eastern Time, Monday through Friday, or visit the NOAA SAB Web site at
For more information on the charge of the SATTF, please visit the SAB Web site:
The SAB is chartered under the Federal Advisory Committee Act and is the only Federal Advisory Committee with the responsibility to advise the Under Secretary of NOAA on long- and short-term strategies for research, education, and application of science to resource management and environmental assessment and prediction.
NOAA welcomes all comments on the content of the draft report. We also request comments on any inconsistencies perceived within the report, and possible omissions of important topics or issues. This draft report is being issued for comment only and is not intended for interim use. For any shortcoming noted within the report, please propose specific remedies. Suggested changes will be incorporated where appropriate, and a final report will be posted on the SAB Web site prior to the November 2012 SAB meeting.
Please follow these instructions for preparing and submitting comments. Using the format guidance described below will facilitate the processing of comments and assure that all comments are appropriately considered. Overview comments should be provided first and should be numbered. Comments that are specific to particular pages, paragraphs or lines of the section should follow any overview comments and should identify the page and line numbers to which they apply. Please number each page of your comments.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of initiation of 5-year review; request for information.
NMFS announces 5-year reviews of Kemp's ridley (
To allow us adequate time to conduct this review, we must receive your information no later than December 10, 2012. However, we will continue to accept new information about any listed species at any time.
You may submit comments on this document, identified by NOAA-NMFS-2012-0196, by any of the following methods:
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Larissa Plants, Office of Protected Resources, 301-427-8471.
Section 4(c)(2)(A) of the ESA requires that we conduct a review of listed species at least once every five years. The regulations in 50 CFR 424.21 require that we publish a notice in the
To ensure that the 5-year review is complete and based on the best available scientific and commercial information, we are soliciting new information from the public, governmental agencies, Tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the status of Kemp's ridley, olive ridley, leatherback, and hawksbill sea turtles. The 5-year review considers the best scientific and commercial data and all new information that has become available since the listing determination or most recent status review. Categories of requested information include: (1) Species biology including, but not limited to, population trends, distribution, abundance, demographics, and genetics; (2) habitat conditions including, but not limited to, amount, distribution, and suitability; (3) conservation measures that have been implemented that benefit the species; (4) status and trends of threats; and (5) other new information, data, or corrections including, but not limited to, taxonomic or nomenclatural changes, identification of erroneous information contained in the List of Endangered and Threatened Species, and improved analytical methods.
Any new information will be considered during the 5-year review and will also be useful in evaluating the ongoing recovery program for these sea turtles. For example, information on conservation measures will assist in tracking implementation of recovery actions.
16 U.S.C. 1531
Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of open meeting.
This notice sets forth the schedule of a forthcoming meeting of the DoC NOAA National Climate Assessment and Development Advisory Committee (NCADAC).
This meeting will be a conference call. Public access will be available at the office of the U.S. Global Change Research Program, Conference Room A, Suite 250, 1717 Pennsylvania Avenue NW., Washington, DC 20006. The public will not be able to dial into the call. Please check the National Climate Assessment Web site for additional information at
The meeting will be open to public participation with a 10-minute public comment period from 4:45-4:55 p.m. The NCADAC expects that public statements presented at its meetings will not be repetitive of previously submitted verbal or written statements. In general, each individual or group making a verbal presentation will be limited to a total time of two minutes. Written comments should be received in the NCADAC DFO's office by Friday, October 19, 2012, to provide sufficient time for NCADAC review. Written comments received by the NCADAC DFO after Friday, October 19, 2012, will be distributed to the NCADAC, but may not be reviewed prior to the meeting date.
These meetings are physically accessible to people with disabilities. Requests for special accommodations may be directed no later than 12 p.m. on Friday, October 19, 2012, to Dr. Cynthia Decker, Designated Federal Official, National Climate Assessment and Development Advisory Committee, NOAA, Rm. 11230, 1315 East-West Highway, Silver Spring, Maryland 20910, (Phone: 301-734-1156, Fax: 301-713-1459, Email:
Please refer to the Web page
The National Climate Assessment and Development Advisory Committee was established in December 2010. The committee's mission is to synthesize and summarize the science and information pertaining to current and future impacts of climate change upon the United States; and to provide advice and recommendations toward the development of an ongoing, sustainable national Assessment of global change impacts and adaptation and mitigation strategies for the Nation. Within the scope of its mission, the committee's specific objective is to produce a National Climate Assessment.
Dr. Cynthia Decker, Designated Federal Official, National Climate Assessment and Development Advisory Committee, NOAA, Rm. 11230, 1315 East-West Highway, Silver Spring, Maryland 20910, (Phone: 301-734-1156, Fax: 301-713-1459, Email:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to Dr. Glenn R. VanBlaricom (VanBlaricom) to incidentally harass, by Level B harassment only, several species of marine mammal incidental to abalone research surveys on San Nicolas Island (SNI).
This authorization is effective for a period of 1 year from the date of issuance.
A copy of the IHA and related documents may be obtained by visiting the Internet at:
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR part 216 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 U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) 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 marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On October 26, 2011, NMFS received a complete application from VanBlaricom for the taking, by Level B harassment only, of marine mammals incidental to research surveys investigating the black abalone (
Authorization for incidental take, by Level B harassment only, was requested for small numbers of California sea lions (
Long-term study of abalone population trends began in 1979 due to interest in relocation of southern sea otters (
Research is conducted by counting black abalone in plots along permanent transect lines in rocky intertidal habitats at each of the nine study sites (see Figure 1 of VanBlaricom's application for a map of the study sites). Survey work is typically done by two field biologists working on foot (sites are
Marine mammals likely to be affected by abalone research activity are those that are hauled out on land near study sites. Past experience has shown that those animals disturbed by researchers may flush into the water, or move some distance away from the researchers without flushing into the water. Variable numbers of California sea lions, harbor seals, and elephant seals typically haul out near six of the nine study sites, and rarely near a seventh. Thus, of the nine study sites used for the abalone surveys, only two may currently be approached without the possibility of disturbing at least one species of pinniped. Breeding activity of the three relatively common pinniped species occurs at five of the nine sites. Periods of breeding and lactation for California sea lions and harbor seals occur from approximately February 15 through October 15, while elephant seal pups are born, nursed, and weaned from approximately January through March, with pups departing for foraging areas at sea at about 30 days post-weaning.
Annual black abalone surveys typically require that each of the nine permanent sites be visited between one and three times per year. As a result of additional studies planned for SNI, one site would be visited five times per year, and two additional sites would be visited four times each. Each visit to a given study site generally takes no more than 4 hours, after which the site is vacated and can be re-occupied by any marine mammals that were disturbed by the presence of researchers. One annual visit to each site is typically for maintenance purposes, is conducted in a month when pinnipeds are absent or are present in reduced numbers, and takes approximately 30 minutes.
We published a notice of receipt of the application and proposal for an IHA in the
Many of the beaches in the Channel Islands provide resting, molting or breeding places for pinnipeds. On SNI, three pinniped species (northern elephant seal, harbor seal, and California sea lion) can be expected to occur on land in the vicinity of abalone research sites either regularly or in large numbers during certain times of the year. In addition to the three species commonly encountered at SNI, Guadalupe fur seals (
The FR notice of proposed IHA (77 FR 12246; February 29, 2012) summarizes the population status and abundance of these species and provides detailed life history information. Further information on the biology and distribution of these species and others in the region can be found in the FR notice or in NMFS' Marine Mammal Stock Assessment Reports, which are available online at
Variable numbers of California sea lions, harbor seals, and elephant seals, depending on the time of year and the specific site, typically haul out near six of the nine study sites used for abalone research, and rarely near a seventh, with breeding activity occurring at five of the nine sites. Pinnipeds likely to be affected by abalone research activity are those that are hauled out on land at or near study sites.
Incidental harassment may result if hauled out animals are disturbed by the presence of abalone researchers. Although marine mammals are never deliberately approached by abalone survey personnel, approach may be unavoidable if pinnipeds are hauled out in the immediate vicinity of the permanent abalone study plots. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of researchers (e.g., turning the head, assuming a more upright posture) to flushing from the haul-out site into the water. We do not consider the alerting reactions to constitute behavioral harassment, or Level B harassment takes, but rather assume that pinnipeds that move greater than 1 m or change the speed or direction of their movement in response to the presence of researchers are behaviorally harassed, and thus subject to Level B harassment taking. Animals that respond to the presence of researchers by becoming alert, but do not move or change the nature of locomotion as described, are not considered to have been subject to behavioral harassment.
Even those reactions constituting Level B harassment would result at most in temporary, short-term disturbance. In any given study season (i.e., October to March), the researchers will make 4-6 visits to SNI, although each site is not visited during every visit to SNI. Visits to each site are thus separated by a matter of weeks, within the season, and are typically not visited at all during the summer months. Each site visit typically lasts no more than 4 hours. Therefore, disturbance of pinnipeds resulting from the presence of researchers lasts only for short periods of time and is separated by significant amounts of time in which no disturbance occurs. Because such disturbance is sporadic, rather than chronic, and of low intensity, individual marine mammals are unlikely to incur any detrimental impacts to vital rates or ability to forage and, thus, loss of fitness. Correspondingly, even local populations, much less the overall stocks of animals, are extremely unlikely to accrue any significantly detrimental impacts. The FR notice of proposed IHA (77 FR 12246; February 29, 2012) provides a more detailed description of the potential effects of these activities on marine mammals.
We do not anticipate any detrimental effects to marine mammal habitat as a result of the specified activities, beyond rendering the areas immediately around each of the nine study sites less desirable as haul-out sites for a matter of hours per year.
VanBlaricom has complied with the mitigation and monitoring required under previous authorizations. During the course of these activities, VanBlaricom has not exceeded the take levels authorized. A full summary of previous monitoring may be found in the FR notice (77 FR 12246; February 29, 2012).
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must, where applicable, 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 on the availability of such species or stock for taking for certain subsistence uses (where relevant).
Several mitigation measures will be implemented as part of the SNI abalone research activities in order to reduce the potential for harassment and the intensity of any harassment that does occur. The primary method of mitigating the risk of disturbance to pinnipeds, which will be in use at all times, is the selection of judicious routes of approach to abalone study sites, avoiding close contact with pinnipeds hauled out on shore, and the use of extreme caution upon any unavoidable approach. In no case will marine mammals be deliberately approached by abalone survey personnel, and in all cases every possible measure will be taken to select a pathway of approach to study sites that minimizes the number of marine mammals potentially harassed. Each visit to a given study site will last for approximately 4 hours, after which the site is vacated and can be re-occupied by any marine mammals that may have been disturbed by the presence of abalone researchers.
In addition, potential disturbances to females with dependent pups (in the cases of California sea lions and harbor seals) will be mitigated to the greatest extent practicable by avoiding visits to sites with pinnipeds present from March-September, during periods of breeding and lactation for those species. During this period, abalone research will either not occur or will be confined to those sites (2, 3, 4, and 9) where pinniped breeding and post-partum nursing does not occur. Limiting visits to the breeding and lactation sites to periods when these activities do not occur (October-February) will reduce the possibility of incidental harassment and disruption of reproductive behavior and the potential for injury, serious injury, or mortality of dependent California sea lion pups and harbor seal pups to near zero.
Northern elephant seal pups are present at four sites (5-8) during winter months. Risks of injury or mortality of elephant seal pups by mother/pup separation or trampling are limited to the period from January through March when pups are born, nursed, and weaned, ending about 30 days post-weaning when pups depart land for foraging areas at sea. However, elephant seals have a much higher tolerance of nearby human activity than sea lions or harbor seals. Also, elephant seal pupping typically occurs on the sandy beaches at SNI, approximately 50 m or more away from the abalone study sites. Possible take of northern elephant seal pups will be minimized, as for other species, by using a very careful approach to the study sites and avoiding the proximity of hauled-out seals and any seal pups during collection of abalone population data. As described previously, elephant seals show very low sensitivity to the presence of researchers, and no juvenile elephant seal was harassed during the December 2005-January 2009 period.
One individual Guadalupe fur seal was seen on two separate occasions during the summer months in the mid-1980s. Since the original sightings, no individuals of this species have been seen during abalone research. However, to ensure that Guadalupe fur seals are not affected by these activities, work will be immediately suspended if an individual is seen. Guadalupe fur seals are distinctive in appearance and behavior, and can be readily identified at a distance without any possibility of disturbance.
We have carefully evaluated the applicant's planned mitigation measures and considered a range of other measures in the context of ensuring that we prescribe 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 adverse impacts as planned; and (3) the practicability of the measure for applicant implementation, including consideration of personnel safety and practicality of implementation.
Based on our evaluation of the mitigation measures, we have determined that these mitigation measures provide the means of effecting the least practicable impact 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, where applicable, 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 ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that would 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.
Currently, all biological research activities at SNI are subject to approval and regulation by the Environmental Planning and Management Department (EPMD), U.S. Navy (Navy). The Navy owns SNI and closely regulates all civilian access to, and activity on, the island, including biological research. Therefore, monitoring activities will be closely coordinated with Navy marine mammal biologists located on SNI. In addition, status and trends of pinniped aggregations at SNI are monitored by the NMFS Southwest Fisheries Science Center (SWFSC). Also, long-term studies of pinniped population dynamics, migratory and foraging behavior, and foraging ecology at SNI are conducted by staff at Hubbs-Sea World Research Institute (HSWRI).
Monitoring requirements in relation to VanBlaricom's abalone research surveys will include observations made by the applicant and his associates. Information recorded will include species counts (with numbers of pups/juveniles), numbers of observed disturbances, and descriptions of the disturbance behaviors during the abalone surveys. Observations of unusual behaviors, numbers, or distributions of pinnipeds on SNI will be reported to EPMD, SWFSC, and HSWRI so that any potential follow-up observations can be conducted by the appropriate personnel. In addition, observations of tag-bearing pinniped carcasses as well as any rare or unusual species of marine mammals will be reported to EPMD and SWFSC.
If at any time serious injury or mortality of the species for which take is authorized should occur, or if harassment of any other marine mammal occurs, and such action may be a result of the specified abalone research, VanBlaricom will suspend research activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.
A draft final report must be submitted to NMFS Office of Protected Resources within 60 days after the conclusion of the field season. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. A final report must be submitted within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report.
With respect to the activities described here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. The planned mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by injury, serious injury, or mortality is considered remote. The distribution of pinnipeds hauled out on beaches is not uniform between sites or at different times of the year. The number of marine mammals disturbed may vary by month and location, and it is likely that only those animals hauled out closest to the actual survey transect plots contained within each research site would be disturbed by the presence of researchers and alter their behavior or attempt to move out of the way. VanBlaricom plans to visit site 8 five times, sites 5 and 7 four times each, and sites 1, 4, 6, and 9 two times each. No marine mammals have been observed at sites 2 and 3, and unlimited visits are allowed to those sites.
We consider an animal to have been harassed if it moved greater than 1 m in response to the researcher's presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. Animals that become alert without such movements are not considered harassed. Estimated potential incidental take is based on the number of visits proposed for each site, the maximum number of animals observed at each site (October-February), and the observed susceptibility to harassment for each species (see FR notice; 77 FR 12246; February 29, 2012). We conservatively estimate that the maximum total possible numbers of individuals that may be incidentally harassed as a result of the planned activity would be 3,340 California sea lions, 212 harbor seals, and nine northern elephant seals (each constituting less than 2 percent of the relevant populations).
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, we consider 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, intensity, and duration of Level B harassment; and (4) the context in which the take occurs.
Based on VanBlaricom's application and monitoring reports for previous field seasons, as well as the analysis contained herein, we have determined that the impact of the described abalone research at SNI will result, at most, in a temporary modification in behavior for small numbers of California sea lions, harbor seals, and northern elephant seals, in the form of movement away from the researchers and/or flushing from the beach. The numbers of authorized take for each of the three species are considered small relative to the relevant stocks or populations (each less than 2 percent). In addition, no take by injury, serious injury or mortality is anticipated or authorized, and take by harassment will be at the lowest level practicable due to incorporation of the mitigation and monitoring measures mentioned previously in this document. We have determined that the anticipated takes will not have an adverse on annual rates of recruitment or survival for these species or stocks, and therefore will have a negligible impact on the affected species or stocks.
No subsistence uses of marine mammals are implicated by this action.
The described abalone research and issuance of the accompanying IHA will not affect ESA-listed marine mammal species or critical habitat under NMFS' jurisdiction.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As a result of these determinations, we have issued an IHA to VanBlaricom to conduct the described activities for a period of one year, provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
United States Patent and Trademark Office, Commerce.
Notice of Interim Patent Term Extension.
The United States Patent and Trademark Office has issued an order granting interim extension under 35 U.S.C. 156(d)(5) for a one-year interim extension of the term of U.S. Patent No. 5,454,779.
Mary C. Till by telephone at (571) 272-7755; by mail marked to her attention and addressed to the Commissioner for Patents, Mail Stop Hatch-Waxman PTE, P.O. Box 1450, Alexandria, VA 22313-1450; by fax marked to her attention at (571) 273-7755; or by email to
Section 156 of Title 35, United States Code, generally provides that the term of a patent may be extended for a period of up to five years if the patent claims a product, or a method of making or using a product, that has been subject to certain defined regulatory review, and that the patent may be extended for interim periods of up to one year if the regulatory review is anticipated to extend beyond the expiration date of the patent.
On September 6, 2012, the Regents of the University of California timely filed an application under 35 U.S.C. 156(d)(5) for an interim extension of the term of U.S. Patent No. 5,454,779. The patent claims the medical device, ResQPump® in connection with the ResQPOD® ITD. The application indicates that a Premarket Approval Application, PMA No. P110024, for the medical device has been filed, and is currently undergoing regulatory review before the Food and Drug Administration for permission to market or use the product commercially.
Review of the application indicates that, except for permission to market or use the product commercially, the subject patent would be eligible for an extension of the patent term under 35 U.S.C. 156, and that the patent should be extended for one year as required by 35 U.S.C. 156(d)(5)(B). Because it is apparent that the regulatory review period will continue beyond the original expiration date of the patent, October 3, 2012, interim extension of the patent term under 35 U.S.C. 156(d)(5) is appropriate.
An interim extension under 35 U.S.C. 156(d)(5) of the term of U.S. Patent No. 5,454,779 is granted for a period of one year from the original expiration date of the patent.
Bureau of Consumer Financial Protection.
Notice and request for comment.
The Bureau of Consumer Financial Protection (Bureau), 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 information collections, as required by the Paperwork Reduction Act of 1995. The Bureau is soliciting comments concerning its proposed information collections titled, “Generic Clearance for Collection of Information on Compliance Costs and Other Effects of Regulations.” A proposed collection has been submitted to the Office of Management and Budget (OMB) for review and approval. A copy of the submission, including copies of a proposed collection and supporting documentation, may be obtained by contacting the agency contact listed below.
Written comments are encouraged and must be received on or before November 9, 2012 to be assured of consideration.
You may submit comments, identified by agency name and Generic Clearance for Collection of Information on Compliance Costs and Other Effects of Regulations, to:
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Requests for additional information should be directed to Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552, (202) 435-9011, or through the internet at
The collections seek qualitative information on the impact of regulations on providers of consumer financial products and services (Providers). The Bureau seeks to better understand the compliance activities, burdens, and other economic costs and benefits associated with its potential rules and existing regulations. Additional input from Providers would give the Bureau a more nuanced understanding of costs, which it can use to provide solutions for reducing undue regulatory burden on Providers. To that end, the Bureau anticipates seeking to use the information from these collections to:
• Inform the Bureau's various rulemaking initiatives announced in the Bureau's regulatory agenda, most of which concern the mortgage industry;
• Inform other rulemakings specifically required or authorized by the Dodd-Frank Act;
• Inform the Bureau's perspective on the appropriate approach to regulation of various industries in its jurisdiction;
• Supplement available information used for mandated analyses that the Bureau is required to perform for potential new rules, such as analyses required under section 1022 of the Act, the Regulatory Flexibility Act, and the Paperwork Reduction Act;
• Review impacts of the rules the Bureau inherited from other agencies;
• Perform reviews of significant new rules the Bureau adopts, as the Bureau is generally required to do within five years; and
• Develop new tools and solutions that can help Providers more easily implement and maintain compliance systems for consumer financial regulations.
These information collections will ask Providers of various sizes and mixes of business activity about their compliance systems and processes and how regulations and regulatory changes impact different aspects of their business operations. Collection methods may include structured interviews, focus groups, conference calls, and written questionnaires—delivered via email or administered through an online survey. In some cases, the Bureau may also conduct case studies to gather more in-depth and granular information from a targeted sample of institutions.
The information and data collected would aid the Bureau in determining what rules prove to be unduly burdensome on Providers and to identify the causes of such burden. In doing so, the Bureau would be better positioned to develop potential policy solutions that will reduce burden on Providers, without sacrificing the benefits of regulations on both consumers and Providers.
An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless the information collection displays a currently valid OMB control number.
The Bureau published a 60-day
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of reinstatement request for an information collection requirement regarding an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning bid guarantees, performance and payment bonds, and alternative payment protections.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the Federal Acquisition Regulations (FAR), and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before December 10, 2012.
Submit comments identified by Information Collection 9000-0045, Bid Guarantees, Performance, and Payment Bonds, and Alternative Payment Protections by any of the following methods:
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Ms. Cecelia Davis, Procurement Analyst, Contract Policy Division, GSA (202) 219-0202 or email
FAR Subparts 28.1 and 28.2; FAR clauses at 52.228-1, 52.228-2, 52.228-13, 52.228-15, 52.228-16; and associated FAR standard forms implement the statutory requirements of the Miller Act (40 U.S.C. 3131 et seq.), which requires performance and payment bonds for any construction contract exceeding $150,000, unless it is impracticable to require bonds for work performed in a foreign country, or it is otherwise authorized by law. In addition, the note to 40 U.S.C. 3132, entitled “Alternatives to Payment Bonds Provided by the Federal Acquisition Regulation,” is implemented in the FAR, which requires alternative payment protection for construction contracts that exceed $30,000 but do not exceed $150,000. Although not required by statute, under certain circumstances the FAR permits the Government to require bonds on other than construction contracts. The information collected under this clearance provides the Government with a form of security that the contractor will not withdraw a bid or assures that the contractor will perform its obligations under a contract.
The estimated annual reporting burden is slightly increased since published in the
Department of Defense.
Notice of Advisory Committee closed meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C. App 2, Section 1), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102-3.150, the Department of Defense announces the following closed meeting notice pertaining to the following federal advisory committee: U.S. Strategic Command Strategic Advisory Group.
November 15, 2012, from 8 a.m. to 5 p.m. and November 16, 2012, from 8 a.m. to 11:30 a.m.
Dougherty Conference Center, Building 432, 906 SAC Boulevard, Offutt AFB, Nebraska 68113.
Mr. Bruce Sudduth, Designated Federal Officer, (402) 294-4102, 901 SAC Boulevard, Suite 1F7, Offutt AFB, NE 68113-6030.
Uniformed Services University of the Health Sciences (USU), Department of Defense.
Quarterly meeting notice.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended) and the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), this notice announces the following meeting of the Board of Regents of the Uniformed Services University of the Health Sciences.
Friday, November 9, 2012, from 8 a.m. to 11:30 a.m. (Open Session) and 11:30 a.m. to 12:30 p.m. (Closed Session).
Everett Alvarez Jr. Board of Regents Room (D3001), Uniformed Services University of the Health
Janet S. Taylor, Designated Federal Officer, 4301 Jones Bridge Road, Bethesda, Maryland 20814; telephone 301-295-3066. Ms. Taylor can also provide base access procedures.
Department of the Air Force, DoD.
Notice To Alter a System of Records.
The Department of the Air Force proposes to alter a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective on November 13, 2012 unless comments are received which result in a contrary determination. Comments will be accepted on or before November 9, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
• Federal Rulemaking Portal:
•
Mr. Charles J. Shedrick, Department of the Air Force Privacy Office, Air Force Privacy Act Office, Office of Warfighting Integration and Chief Information Officer, ATTN: SAF/CIO A6, 1800 Air Force Pentagon, Washington, DC 20330-1800, or by phone at (202) 404-6575.
The Department of the Air Force's notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on October 2, 2012, 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).
Patent Infringement and Litigation Records (November 12, 2008, 73 FR 66875).
Delete entry and replace with “Air Force Legal Operations Agency, Commercial Law and Litigation Directorate, 1500 W. Perimeter Rd., Ste. 1780, Joint Base Andrews, MD 20742-0001.”
Delete entry and replace with “Social Security Number (SSN), name, home address, phone numbers or other personal contact information that may be submitted by individual, letters; messages; forms; reports; contracts; bids; photographs; legal opinions; petitions; answers; discovery documents; memoranda; infringement studies; validity studies; procurement information; license agreements; other documents that may include contract determinations, witness statements, and engineering and technical reports.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force; 10 U.S.C. 8037, Judge Advocate General, Deputy Judge Advocate General: Appointment and Duties; 10 U.S.C. 2386, Copyrights, Patents, Designs; 22 U.S.C. 2356, Foreign Assistance, acquisition; 28 U.S.C. 1498, Patent and
Delete entry and replace with “Case files are maintained in file folders and electronic storage media.”
Delete entry and replace with “Retained in office files for three years after end of year in which the case was closed, then retired to Washington National Records Center, Washington, DC 20409, for retention up to twenty five years thereafter, then destroyed by tearing into pieces, shredding, pulping, macerating, or burning. Records in computer storage are destroyed by degaussing or overwriting.”
Delete entry and replace with “Air Force Legal Operations Agency, Commercial Law and Litigation Directorate, 1500 W. Perimeter Rd., Ste. 1780, Joint Base Andrews, MD 20742-0001.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to or visit the Air Force Legal Operations Agency, Commercial Law and Litigation Directorate, 1500 W. Perimeter Rd., Ste. 1780, Joint Base Andrews, MD 20742-0001.”
For verification purposes, individuals should provide their full name, SSN, any details which may assist in location of 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)'.
Delete entry and replace with “Individuals seeking to access records about themselves contained in this system should address written requests to or visit the Air Force Legal Operations Agency, Commercial Law and Litigation Directorate, 1500 W. Perimeter Rd., Ste. 1780, Joint Base Andrews, MD 20742-0001.
For verification purposes, individuals should provide their full name, SSN, any details which may assist in location 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)'.”
Department of the Army, DoD.
Notice to delete a System of Records; correction.
On Wednesday, October 3, 2012 (77 FR 60412), the Department of Defense/Department of the Army (DOA) published a notice announcing its intent to delete a System of Records titled A0351 AMC, Student/Faculty Records: AMC Schools Systems, as the records had been transferred to the Training and Doctrine Command (TRADOC). After publication of the notice in the
This correction is effective October 10, 2012.
Mr. Leroy Jones, Jr., Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22315-3827 or by phone at 703-428-6185.
Department of Energy.
Notice of meetings.
The Industry Advisory Board (IAB) to the International Energy Agency (IEA) will meet on October 17 and 18, 2012, at the headquarters of the IEA in Paris, France in connection with a joint meeting of the IEA's Standing Group on Emergency Questions (SEQ) and the IEA's Standing Group on the Oil Market (SOM) on October 17; and in connection with a meeting of the SEQ on October 18.
October 17-18, 2012.
9, rue de la Fédération, Paris, France.
Priya Aiyar, Deputy General Counsel for Environment and Nuclear Programs, Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, 202-586-5072.
In accordance with section 252(c)(1)(A)(i) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(i)) (EPCA), the following notice of meetings is provided:
Meetings of the Industry Advisory Board (IAB) to the International Energy Agency (IEA) will be held at the headquarters of the IEA, 9, rue de la Fédération, Paris, France, on October 17, 2012, beginning at 9:30 a.m., and continuing on October 18. The purpose of this notice is to permit attendance by representatives of U.S. company members of the IAB at a joint meeting of the IEA's Standing Group on Emergency Questions (SEQ) and the IEA's Standing Group on the Oil Market (SOM) which is scheduled to be held at the headquarters of the IEA on October 17 commencing at 9:30 a.m.; and a meeting of the SEQ, which is scheduled to be held at the headquarters of the IEA on October 18 commencing at 9:30 a.m. The IAB will also hold a preparatory meeting among company representatives at the same location at
The agenda of the joint session of the SEQ and the SOM on October 17 is under the control of the SEQ and the SOM. It is expected that the SEQ and the SOM will adopt the following agenda:
The agenda of the SEQ meeting on October 18 is under the control of the SEQ. It is expected that the SEQ will adopt the following agenda:
As provided in section 252(c)(1)(A)(ii) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(ii)), the meetings of the IAB are open to representatives of members of the IAB and their counsel; representatives of members of the IEA's Standing Group on Emergency Questions and the IEA's Standing Group on the Oil Markets; representatives of the Departments of Energy, Justice, and State, the Federal Trade Commission, the General Accounting Office, Committees of Congress, the IEA, and the European Commission; and invitees of the IAB, the SEQ, the SOM, or the IEA.
a.
b.
c.
d. Submitted By: Free Flow Power Corporation on behalf of its subsidiary limited liability corporation, Missouri 12, LLC.
e.
f.
g.
h. Potential
i.
j. Free Flow Power filed its request to use the Traditional Licensing Process on August 17, 2012. Free Flow Power provided public notice of its request on August 13, 2012. In a letter dated September 18, 2012, Free Flow Power's request to use the Traditional Licensing Process was approved.
k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service and NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; (b) NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920; and (c) the Pennsylvania State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Free Flow Power as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act, section 305 of the Magnuson-Stevens Fishery Conservation and Management Act, and section 106 of the National Historic Preservation Act.
m. Free Flow Power filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
o. Register online at
a.
b.
c.
d.
e.
f.
g.
h. Potential
i.
j.
k. With this notice, we are initiating informal consultation with: (1) The U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and (2) the State Historic Preservation Officer, as required by section 106, National Historical Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating FPL Energy as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.
m. FPL Energy filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room, or may be viewed on the Commission's Web site (
Register online at
o. With this notice, we are soliciting comments on the PAD and Commission staff's Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, as well as study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission. Documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
All filings with the Commission must include on the first page, the project name (West Buxton Hydroelectric Project and number (P-2531-067), and bear the appropriate heading: “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by December 8, 2012.
p. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, this meeting will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
Commission staff will hold two scoping meetings in the vicinity of the project at the time and place noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:
SD1, which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the Web at
The potential applicant and Commission staff will conduct an Environmental Site Review of the project on Thursday, November 1, 2012, starting at 2:00 p.m. All participants should meet at NextEra Energy's Saco River Maintenance Facility, located at 3 Company Road, Hollis, ME 04042. All participants are responsible for their own transportation. Anyone with questions about the site visit should contact Mr. Frank Dunlap of NextEra Energy at (207) 629-1817 on or before October 24, 2012.
At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.
The meetings will be recorded by a stenographer. The transcripts will be placed in the public record for the project.
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission and Commission staff may attend upcoming New York Independent System Operator, Inc. (NYISO) meetings, as well as other subcommittee or working group meetings that are not currently scheduled, but that are typically scheduled on short notice or meetings that are scheduled on short notice based on items arising from the agenda as posted on the NYISO Web site.
• October 17, 2012 (Rensselaer, NY).
• November 14, 2012 (Rensselaer, NY).
• December 5, 2012 (Rensselaer, NY).
• January 16, 2013 (Rensselaer, NY).
• February 13, 2013 (Rensselaer, NY).
• March 13, 2013 (Rensselaer, NY).
• April 10, 2013 (Rensselaer, NY).
• May 8, 2013 (Rensselaer, NY).
• June 19, 2013 (Rensselaer, NY).
• July 17, 2013 (Rensselaer, NY).
• August 14, 2013 (Rensselaer, NY).
• September 18, 2013 (Rensselaer, NY).
• October 31, 2012 (Rensselaer, NY).
• November 28, 2012 (Rensselaer, NY).
• December 19, 2012 (Rensselaer, NY).
• January 30, 2013 (Rensselaer, NY).
• February 27, 2013 (Rensselaer, NY).
• March 27, 2013 (Rensselaer, NY).
• April 24, 2013 (Rensselaer, NY).
• May 29, 2013 (Rensselaer, NY).
• June 11, 2013 (Rensselaer, NY).
• July 31, 2013 (Rensselaer, NY).
• August 28, 2013 (Rensselaer, NY).
• September 25, 2013 (Rensselaer, NY).
• October 23, 2012 (Rensselaer, NY).
• November 20, 2012 (Rensselaer, NY).
• December 11, 2012 (Rensselaer, NY).
• Various additional dates.
• October 18, 2012 (Rensselaer, NY).
• November 15, 2012 (Rensselaer, NY).
• December 6, 2012 (Rensselaer, NY).
• January 17, 2013 (Rensselaer, NY).
• February 28, 2013 (Rensselaer, NY).
• March 14, 2013 (Rensselaer, NY).
• April 11, 2013 (Rensselaer, NY).
• May 9, 2013 (Rensselaer, NY).
• June 20, 2013 (Rensselaer, NY).
• July 18, 2013 (Rensselaer, NY).
• August 15, 2013 (Rensselaer, NY).
• September 19, 2013 (Rensselaer, NY).
• Various dates.
• Various dates.
• Various dates.
• Various dates.
• Various dates.
• Various dates.
For additional meeting information, see:
The discussions at each of the meetings described above may address matters at issue in pending proceedings before the Commission including the following:
The meetings are open to stakeholders. For more information, contact Travis Allen, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502-8796 or
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that on September 28, 2012, pursuant to sections 206 and 212 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 and 385.212 and sections 206, 306, and 309 of the Federal Power Act (FPA), 16 USC 824(e) and § 825(h), Arkansas Electric Cooperative Corporation, Mississippi Delta Energy Agency, and its two members, Clarksdale Public Utilities Commission of the City of Clarksdale, Mississippi, and Public Service Commission of Yazoo City of the City of Yazoo City, Mississippi, and South Mississippi Electric Power Association (Complainants) filed a formal complaint against Entergy Services, Inc. (Respondent) alleging that, Respondent has not properly implemented the rate redetermination (Update) procedures contained in its Open Access Transmission Tariff (OATT), and, therefore, the 2012 Update filed in Docket No. ER12-1895-000 would impose rates and charges that are contrary to the OATT on file with the Commission and are unjust and unreasonable in violation of the FPA.
The Complainants certify that copies of the complaint were served on the contacts for the Respondent as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, American Transmission Company LLC (ATC), by its corporate manager, ATC Management Inc. (collectively, ATCLLC) (Complainant) filed a formal complaint against Midwest Independent Transmission System Operator, Inc. (MISO) and Xcel Energy Services Inc., on behalf of its operating company affiliates Northern States Power Company Wisconsin (NSPW) and Northern States Power Company Minnesota (NSPM) (collectively, Xcel Energy) (Respondent), pursuant to section 306 of the Federal Power Act, 16 U.S.C. 825e (2006), and Rule 206 of the Commission's Rules of Practice and Procedure, 18 CFR 385.206 (2012). The complaint alleges that, pursuant to relevant provisions of the MISO Tariff and the MISO Transmission Owners Agreement, ATC and the Xcel Energy
ATCLLC certifies that copies of the complaint were served on the contacts for Xcel Energy and the state public utility commissions of Minnesota and Wisconsin.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 2, 2012, pursuant to section 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 and sections 206 of the Federal Power Act (FPA), 16 U.S.C. 824(e), North American Natural Resource, Inc. (NSANR) filed a formal complaint against PJM Interconnection, L.L.C, (PJM), American Electric Power Service Corporation (AEP), and AEP's wholly owned subsidiary Indiana Michigan Power Company (I & M) alleging, that contrary to sections 1.7A.02, 1.3A, 1.17A, 1.26, 212.4, 217.3, 205, 206 and 217 of PJM's Open Access Transmission Tariff (OATT), the Interconnection Construction Service Agreement (ICSA) between AEP and NANR, the Interconnection Service Agreement (ISA) between AEP and NANR, the Commission's Order No. 2003
NANR certifies that copies of the complaint were served on the contacts for PJM, AEP, and I & M as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 2, 2012, New York Association of Public Power (Complainant) amended its September 11, 2012 filed Complaint against Niagara Mohawk Power Corporation and New York Independent System Operator, Inc. (Respondents) submitting workpapers of Jonathan A. Lesser, the witness for the Complainant, in support of the Complaint.
The Complainant certifies that copies were served on the parties shown on the official service listed compiled by the Commission.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, Prairie Power, Inc. filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, Indiana Municipal Power Agency filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, Missouri Joint Municipal Electric Utility Commission filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, Northern Illinois Municipal Power filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, Southern Illinois Power Cooperative filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, Kentucky Municipal Power Agency filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214).
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, Illinois Electric Agency filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 1, 2012, American Municipal Power, Inc. filed its Revised and Superseding Proposed Revenue Requirement for reactive supply service under Midwest Independent Transmission System Operator, Inc. Tariff Schedule 2.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 28, 2012, Michael I. Wheatley and Drummond E. Garrison submitted for filing, an application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, and 18 CFR 45.8 of Federal Energy Regulatory Commission's (Commission) Regulations.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 27, 2012, Avalon Wind, LLC, Avalon Wind 2, LLC, Catalina Solar, LLC, Catalina Solar 2, LLC, Pacific Wind Lessee, LLC, Pacific Wind 2, LLC, Valentine Solar, LLC, and EDF Renewable Development, Inc., (collectively, Petitioners) pursuant to section 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure 18 CFR 385.207, filed a petition for declaratory order requesting the Commission to confirm their priority to firm transmission rights to the capacity of the Antelope Valley line, which encompasses two generation-tie lines to be constructed and jointly owned by the Petitioners to connect the full planned capacity of the Petitioners' wind and solar generation projects to the integrated transmission grid.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On June 15, 2012, Liberty University, Inc., filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Scott's Mill Hydropower Project (project) to be located on the James River, in the City of Lynchburg, Virginia. The proposed project would be located in Amherst and Bedford Counties, Virginia. The project would not occupy any federal land. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) The existing 15-foot-high, 925-foot-long Scott's Mill dam, impounding a 316-acre reservoir with a normal maximum water surface elevation of 511 feet mean sea level; (2) a new powerhouse containing four generating units with a total installed capacity of 4.8 megawatts; (3) a new 500-foot-long underground transmission line; and (4) appurtenant facilities. The project would have an estimated annual generation of 10,500 megawatt-hours, and would be sold to a local utility.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
On May 22, 2012, Natural Currents Energy Services, LLC filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Alexandria Bay Hydroelectric Project, which would be located on the St. Lawrence River in Jefferson County, New York. The proposed project would not use a dam or impoundment. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of: (1) Installation of 50 NC Sea Dragon tidal turbines at a rated capacity of 100 kilowatts, (2) an estimated 2.5 kilometers in length of additional transmission infrastructure, and (3) appurtenant facilities. Initial estimated production would be a minimum of 17,520 megawatt hours per year with the installation of 50 units.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget (OMB) responses to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Rick Westlund (202) 566-1682, or email at
EPA ICR Number 2071.05; NESHAP for Printing, Coating and Dyeing of Fabrics and Other Textiles; 40 CFR part 63 subparts A and OOOO; was approved on 09/12/2012; OMB Number 2060-0522; expires on 09/30/2015; Approved without change.
EPA ICR Number 0997.10; NSPS for Petroleum Dry Cleaners; 40 CFR part 60 subparts A and JJJ; was approved on 09/14/2012; OMB Number 2060-0079; expires on 09/30/2015; Approved without change.
EPA ICR Number 2040.05; NESHAP for Refractory Products Manufacturing; 40 CFR part 63 subparts A and SSSSS; was approved on 09/14/2012; OMB Number 2060-0515; expires on 09/30/2015; Approved without change.
EPA ICR Number 1541.10; NESHAP for Benzene Waste Operations; 40 CFR part 61 subparts A and FF; was approved on 09/14/2012; OMB Number 2060-0183; expires on 09/30/2015; Approved without change.
EPA ICR Number 1100.14; NESHAP for Radionuclides; 40 CFR part 61
EPA ICR Number 1745.07; Criteria for Classification of Solid Waste Disposal Facilities and Practices (Renewal); 40 CFR part 257 subpart B; was approved on 09/14/2012; OMB Number 2050-0154; expires on 09/30/2015; Approved without change.
EPA ICR Number 1775.06; Hazardous Remediation Waste Management Requirements (HWIR-Media) (Renewal); 40 CFR parts 264 and 270; and 40 CFR 271.21; was approved on 09/14/2012; OMB Number 2050-0161; expires on 09/30/2015; Approved without change.
EPA ICR Number 2042.05; NESHAP for Semiconductor Manufacturing; 40 CFR part 63 subparts A and BBBBB; was approved on 09/14/2012; OMB Number 2060-0519; expires on 09/30/2015; Approved without change.
EPA ICR Number 1951.05; NESHAP for Paper and Other Web Coating; 40 CFR part 63 subparts A and JJJJ; was approved on 09/14/2012; OMB Number 2060-0511; expires on 09/30/2015; Approved without change.
EPA ICR Number 1976.05; NESHAP for Reinforced Plastic Composites Production; 40 CFR part 63 subparts A and WWWW; was approved on 09/14/2012; OMB Number 2060-0509; expires on 09/30/2015; Approved without change.
EPA ICR Number 1954.05; NESHAP for the Surface Coating of Large Household and Commercial Appliances; 40 CFR part 63 subparts A and NNNN; was approved on 09/14/2012; OMB Number 2060-0457; expires on 09/30/2015; Approved without change.
EPA ICR Number 1938.05; NESHAP for Municipal Solid Waste Landfills; 40 CFR part 63 subparts A and AAAA; was approved on 09/14/2012; OMB Number 2060-0505; expires on 09/30/2015; Approved without change.
EPA ICR Number 1891.06; NESHAP for Publicly-Owned Treatment Works; 40 CFR part 63 subparts A and VVV; was approved on 09/14/2012; OMB Number 2060-0428; expires on 09/30/2015; Approved without change.
EPA ICR Number 2027.05; NESHAP for Flexible Polyurethane Foam Fabrication; 40 CFR part 63 subparts A and MMMMM; was approved on 09/15/2012; OMB Number 2060-0516; expires on 09/30/2015; Approved without change.
EPA ICR Number 2437.02; NSPS for Oil and Natural Gas Production and Natural Gas Transmission and Distribution; 40 CFR part 60 subparts A and OOOO; was approved on 09/17/2012; OMB Number 2060-0673; expires on 09/30/2015; Approved without change.
EPA ICR Number 2439.02; NESHAP for Natural Gas Transmission and Storage; 40 CFR part 63 subparts A and HHH; was approved on 09/17/2012; OMB Number 2060-0670; expires on 09/30/2015; Approved without change.
EPA ICR Number 2438.02; NSPS for Onshore Natural Gas Processing Plants; 40 CFR part 60 subparts A, KKK and LLL; was approved on 09/17/2012; OMB Number 2060-0672; expires on 09/30/2015; Approved without change.
EPA ICR Number 2373.05; Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated Greenhouse Gases, Subparts I, L, DD, SS, and QQ (Technical Correction); 40 CFR part 98, subparts I, L, DD, QQ and SS; was approved on 09/18/2012; OMB Number 2060-0650; expires on 12/31/2013; Approved with change.
EPA ICR Number 1852.05; Exclusion Determinations for New Nonroad Spark-ignited Engines, New Nonroad Compression-ignited Engines, and New On-road Heavy Duty Engines (Renewal); 40 CFR part 85 subpart R; 40 CFR part 89 subpart J; 40 CFR part 90 subpart J; 40 CFR part 91 subpart K; 40 CFR part 92 subpart J; 40 CFR part 94 subpart J; 40 40 CFR 1039.5, 1045.5, 1048.5, 1051.5 and 1054.5; CFR part 1068 subpart C; was approved on 09/20/2012; OMB Number 2060-0395; expires on 09/30/2015; Approved without change.
EPA ICR Number 2440.02; NESHAP for Oil and Natural Gas Production; 40 CFR part 63 subparts A and HH; was approved on 09/21/2012; OMB Number 2060-0671; expires on 09/30/2015; Approved without change.
EPA ICR Number 2029.05; NESHAP for Asphalt Processing and Asphalt Roofing Manufacturing; 40 CFR part 63 subparts A and LLLLL; was approved on 09/21/2012; OMB Number 2060-0520; expires on 09/30/2015; Approved without change.
EPA ICR Number 1995.05; NESHAP for Coke Oven Pushing, Quenching, and Battery Stacks; 40 CFR part 63 subparts A and CCCCC; was approved on 09/21/2012; OMB Number 2060-0521; expires on 09/30/2015; Approved without change.
EPA ICR Number 1736.06; EPA's Natural Gas STAR Program (Renewal); was approved on 09/21/2012; OMB Number 2060-0328; expires on 09/30/2015; Approved without change.
EPA ICR Number 2465.01; NSPS for Greenhouse Gas Emissions for New Electric Utility Generating Units; in 40 CFR part 60 subparts A and TTTT; OMB filed comment on 09/04/2012.
EPA ICR Number 1801.10; NESHAP for the Portland Cement Manufacturing Industry; in 40 CFR part 63 subparts A and LLL; OMB filed comment on 09/21/2012.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Trade Secret Claims for Emergency Planning and Community Right-to-Know Act” (EPA ICR No. 1428.09, OMB Control No. 2050-0078) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before November 9, 2012.
Submit your comments, referencing Docket ID Number EPA-HQ-SFUND-2006-0361, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Sicy Jacob, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-8019; fax number: (202) 564-2620; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Trade secrecy protection is provided for specific chemical identities contained in reports submitted under each of the following: (1) Section 303 (d)(2)—Facility notification of changes that have or are about to occur, (2) Section 303 (d)(3)—Local Emergency Planning Committee (LEPC) requests for facility information to develop or implement emergency plans, (3) Section 311—Material Safety Data Sheets (MSDSs) submitted by facilities, or lists of those chemicals submitted in place of the MSDSs, (4) Section 312—Emergency and hazardous chemical inventory forms (Tier I and Tier II), and (5) Section 313 Toxic chemical release inventory form.
Environmental Protection Agency (EPA).
Notice.
The Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (
Comments identified by the specific PMN number or TME number, must be received on or before November 9, 2012.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0709, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the TMEs received by EPA during this period: The EPA case number assigned to the TME, the date the TME was received by EPA, the projected end date for EPA's review of the TME, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the TME, and the chemical identity.
In Table III. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
Environmental protection, Chemicals, Hazardous substances, Imports, Notice of commencement, Premanufacturer, Reporting and recordkeeping requirements, Test marketing exemptions.
Environmental Protection Agency (EPA).
Notice.
An Exposure Modeling Public Meeting (EMPM) will be held for one day on October 30, 2012. This notice announces the location and time for the meeting and sets forth the tentative agenda topics.
The meeting will be held on October 30, 2012 from 9 a.m. to 4 p.m. Requests to participate in the meeting must be received on or
To request accommodation of a disability, please contact the person listed under
The meeting will be held at the Environmental Protection Agency, Office of Pesticide Programs (OPP), One Potomac Yard (South Building), Fourth Floor Conference Center (S-4370-80), 2777 S. Crystal Drive, Arlington, VA 22202.
Katrina White, Environmental Fate and Effects Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 308-4536; fax number:
You may be potentially affected by this action if you are required to conduct testing of chemical substances under the Toxic Substances Control Act (TSCA), the Federal Food, Drug, and Cosmetic Act (FFDCA), or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Agriculture, forestry, fishing and hunting (NAICS code 11).
• Utilities (NAICS code 22).
• Professional, scientific and technical (NAICS code 54).
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2009-0879, is available at
On a biannual interval, an Exposure Modeling Public Meeting will be held for presentation and discussion of current issues related to modeling pesticide fate, transport, and exposure of risk assessment in a regulatory context. Meeting dates and abstract requests are announced through the “empmlist” forum on the LYRIS list server at
You may submit a request to participate in this meeting to the person listed under
1. Development and evaluation of the Pesticide Root Zone Model (PRZM) for estimating pesticide concentrations in groundwater.
2. Status of Drinking Water intake Watershed PCA development exercise.
3. RQ calculations for specific listed terrestrial mammals, birds, reptiles, and amphibians: Model Parameterization and Knowledge base Development.
4. Standard Operating Procedure for calculating degradation kinetics.
5. Aquatic exposure modeling using field studies.
6. Rice modeling: A case study.
7. Evaluation of a simplified SWAT model approach for prediction of insecticide concentrations in a small watershed in northwestern Oregon.
8. iSTREEM®—a Web-based river chemical concentration estimation model.
9. Development and validation of an approach for modeling pyrethroid insecticides in wastewater treatment processes.
10. Monitoring and modeling the fate and transport of a pesticide metabolite from groundwater recharge to drinking water.
11. Comparison of multiple source ground spray deposition curves for determination of buffers in simulation models.
12. Using groundwater monitoring data to evaluate the Tier 1 use of drinking water exposure models.
Environmental protection, Buffers, Degradation kinetics, Drinking water, Exposure assessment, Groundwater, Pesticide exposure model, PRZM, Pyrethroids, Rice model, SWAT, Watershed PCA.
Environmental Protection Agency (EPA).
Notice.
The Director of the Water Quality Protection Division, EPA Region 6 today provides notice that the National Pollutant Discharge Elimination System (NPDES) General Permit No. GMG290000 for existing and new sources and new dischargers in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category, located in and discharging to the Outer Continental Shelf offshore of Louisiana and Texas was reissued on September 28, 2012, with an effective date of October 1, 2012. The discharge of produced water to that portion of the Outer Continental Shelf from Offshore Subcategory facilities located in the territorial seas of Louisiana and Texas is also authorized by this permit.
This permit was issued September 28, 2012, is effective on October 1, 2012, and expires September 30, 2017. This effective date is necessary to provide dischargers with the immediate opportunity to comply with Clean Water Act requirements in light of the expiration of the 2007 permit on September 30, 2012. In accordance with 40 CFR part 23, this permit shall be considered issued for the purpose of judicial review on October 24, 2012. Under section 509(b) of the CWA, judicial review of this general permit can be held by filing a petition for review in the United States Court of Appeals within 120 days after the permit is considered issued for judicial review. Under section 509(b)(2) of the CWA, the requirements in this permit may not be challenged later in civil or criminal proceedings to enforce these requirements. In addition, this permit may not be challenged in other agency proceedings. Deadlines for submittal of notices of intent are provided in Part I.A.2 of the permit.
Ms. Diane Smith, U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
The draft permit was proposed in the
1. Change the deadline to file eNOIs for continuous coverage from 90 days from the effective date of the permit to January 31, 2013;
2. Permit coverage and compliance start when an eNOI is filed;
3. Add characterization study for water-based drilling mud;
4. Allow discharges of hydrate control fluids without toxicity testing requirements for discharges containing methanol up to 20 bbl/event and ethylene glycol up to 200 bbl/event;
5. Change the toxicity re-testing criteria to include increase of critical dilution;
6. Add chlorine and bromine to the exclusion list of toxicity test for chemically treated miscellaneous discharges;
7. Delete the provision of “Alternative to Visual or Remote Inspection” but allow “other monitoring device” to be used for visual or remote inspection;
8. Exclude routine biocide treatment of cooling water intake structure velocity monitoring system from conditions established for chemically treated seawater;
9. Change the entrainment monitoring frequency from monthly to quarterly after the 24-month study period;
10. Change the first NetDMR reporting period end date from October 31, 2013, to December 31, 2013, and change the annual reporting period from October through September to January through December;
11. Allow paper DMR to be submitted within 60 days after the reporting period, if paper DMRs are required;
12. Allow electronic records to be used for inspection purposes; and
13. Allow biocides to be added to sump/drain systems.
State certification under section 401 of the CWA; consistency with the Texas Coastal Management Program; and compliance with National Environmental Policy Act, Endangered Species Act, Magnuson-Stevens Fishery Conservation and Management Act, Historic Preservation Act, and Regulatory Flexibility Act requirements are discussed in the Region's responses to comments.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of meeting.
Email your name, organization and contact information to
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices
A. Federal Reserve Bank of St. Louis (Glenda Wilson, Community Affairs Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 19, 2012.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1.
2.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 2, 2012.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 19, 2012.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
30-Day notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act (PRA) of 1995, the Office of the Secretary (OS), Department of Health and Human Services, will submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for renewal of the approved information collection assigned OMB control number 0937-0166, scheduled to expire on December 31, 2012. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Submit your comments, including the OMB control number 0937-0166 and document identifier HHS-OS-17579-30D, to
Department of Health and Human Services, Office of the Assistant Secretary for Health, Presidential Commission for the Study of Bioethical Issues.
Notice of meeting.
The Presidential Commission for the Study of Bioethical Issues will conduct its eleventh meeting in November. At this meeting, the Commission will continue discussing topics related to the ethical issues associated with the development of medical countermeasures for children.
The meeting will take place Monday and Tuesday, November 5-6, 2012.
Divinity School of The University of Chicago, 1025 E. 58th Street, Chicago, IL 60637. Telephone (773) 702-8200.
Hillary Wicai Viers, Communications Director, Presidential Commission for the Study of Bioethical Issues, 1425 New York Avenue NW., Suite C-100, Washington, DC 20005. Telephone: 202-233-3960. Email:
Pursuant to the Federal Advisory Committee Act of 1972, Public Law 92-463, 5 U.S.C. app. 2, notice is hereby given of the eleventh meeting of the Presidential Commission for the Study of Bioethical Issues (the Commission). The meeting will be held from 9 a.m. to approximately 4:15 p.m. on Monday, November 5, 2012, and from 9 a.m. to approximately 11:30 a.m. on Tuesday, November 6, 2012, in Chicago, Ill. The meeting will be open to the public with attendance limited to space available. The meeting will also be webcast at
Under authority of Executive Order 13521, dated November 24, 2009, the President established the Commission. The Commission is an advisory panel of the nation's leaders in medicine, science, ethics, religion, law, and engineering. The Commission advises
The main agenda item for the Commission's eleventh meeting is to continue discussing topics related to the ethical issues associated with the development of medical countermeasures for children.
The draft meeting agenda and other information about PCSBI, including information about access to the webcast, will be available at
The Commission welcomes input from anyone wishing to provide public comment on any issue before it. Respectful debate of opposing views and active participation by citizens in public exchange of ideas enhances overall public understanding of the issues at hand and conclusions reached by the Commission. The Commission is particularly interested in receiving comments and questions during the meeting that are responsive to specific sessions. Written comments will be accepted at the registration desk and comment forms will be provided to members of the public in order to write down questions and comments for the Commission as they arise. To accommodate as many individuals as possible, the time for each question or comment may be limited. If the number of individuals wishing to pose a question or make a comment is greater than can reasonably be accommodated during the scheduled meeting, the Commission may make a random selection.
Anyone planning to attend the meeting who needs special assistance, such as sign language interpretation or other reasonable accommodations, should notify Esther Yoo by telephone at (202) 233-3960, or email at
Written comments will also be accepted in advance of the meeting and are especially welcome. Please address written comments by email to
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Paul Tran at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, email
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The Maternal and Child Health Bureau (MCHB) intends to continue to collect performance data for Special Projects of Regional and National Significance (SPRANS), Community Integrated Service Systems (CISS), and other grant programs administered by MCHB.
The Health Resources and Services Administration (HRSA) proposes to continue using reporting requirements for SPRANS projects, CISS projects, and other grant programs administered by MCHB, including national performance measures previously approved by OMB, and in accordance with the “Government Performance and Results Act (GPRA) of 1993” (Pub. L. 103-62). This Act requires the establishment of measurable goals for federal programs that can be reported as part of the budgetary process, thus linking funding decisions with performance. Performance measures for MCHB discretionary grants were initially approved in January 2003. Approval from OMB is being sought to continue the use of these measures. Some of these measures are specific to certain types of programs and will not apply to all grantees. Through the experience of utilizing these measures, we are enhancing them to better reflect program goals. Specifically, additional outcome measures that can be utilized by grantees that predominantly provide infrastructure services are being developed for submission to OMB.
The estimated response burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by email to
The NTP Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM) announces availability of an Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) test method evaluation report (TMER) that provides recommendations for identifying chemical eye hazards with fewer animals.
ICCVAM concludes that using a classification criterion of one or more positive animals in a three-animal test to identify chemicals and products that are eye hazards will maintain hazard classification equivalent to that provided by current testing procedures, while using up to 50% to 83% fewer animals. ICCVAM recommends consideration of this classification criterion together with eye safety testing procedures that use a maximum of three animals per test substance. This recommendation also harmonizes the number of animals used for eye safety testing across U.S. regulatory agencies and international test guidelines.
The report and recommendations have been transmitted to Federal agencies for their review and response to ICCVAM.
Dr. William S. Stokes, Director, NICEATM, National Institute of Environmental Health Sciences (NIEHS), P.O. Box 12233, Mail Stop: K2-16, Research Triangle Park, NC 27709. Phone: 919-541-2384, Fax: 919-541-0947, Email:
The process for developing the ICCVAM recommendations began with a critical review of the analysis (Haseman
ICCVAM considered the analysis (Haseman
ICCVAM is an interagency committee composed of representatives from 15 Federal regulatory and research agencies that require, use, generate, or disseminate toxicological and safety testing information. ICCVAM conducts technical evaluations of new, revised, and alternative safety testing methods and integrated testing strategies with regulatory applicability and promotes the scientific validation and regulatory acceptance of testing methods that more accurately assess the safety and hazards of chemicals and products and that reduce, refine (enhance animal well-being and lessen or avoid pain and distress), or replace animal use. The ICCVAM Authorization Act of 2000 (42 U.S.C. 285
SACATM was established in response to the ICCVAM Authorization Act (Section 285
CPSC. 2010. Federal Hazardous Substances Act Regulations. 16 CFR 1500. Available:
Haseman J.K., Allen D.G., Lipscomb E.A., Truax J.F., Stokes WS. 2011. Using fewer animals to identify chemical eye hazards: revised criteria necessary to maintain equivalent hazard classification. Regul Toxicol Pharmacol 61: 98-104.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2) notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c) (4) and 552b(c) (6), Title 5 U.S.C., as amended. The purpose of this meeting is to evaluate requests for development resources for potential new cancer diagnostics. The outcome of the evaluation will be information for consideration by an internal NCI committee that will decide whether NCI/DCTD should support the requests and make available contract resources for development of the potential diagnostics to improve the treatment of cancer. The research proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the proposed research projects, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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 Substance Abuse and Mental Health Services Administration (SAMHSA) is requesting approval from the Office of Management and Budget (OMB) for a revision of the 2014 and 2015 Community Mental Health Services Block Grant (MHBG) and Substance Abuse Prevention and Treatment Block Grant (SABG) Guidance and Instructions into a uniform block grant application.
Currently, the SABG and the MHBG differ on a number of their practices (e.g., data collection at individual or aggregate levels) and statutory authorities (e.g., method of calculating MOE, stakeholder input requirements for planning, set asides for specific populations or programs, etc.). Historically, the Centers within SAMHSA that administer these block grants have had different approaches to application requirements and reporting. To compound this variation, states have had different structures for accepting, planning, and accounting for the block grants and the prevention set aside within the SABG. As a result, how these dollars are spent and what is known about the services and clients that receive these funds varies by block grant and by state.
In addition, between 2014 and 2015, 32 million individuals who are uninsured will have the opportunity to enroll in Medicaid or private health insurance. This expansion of health insurance coverage will have a significant impact on how State Mental Health Authorities (SMHAs) and State Substance Abuse Authorities (SSAs) use their limited resources. Many individuals served by these authorities are funded through federal block grant funds. SAMHSA proposes that block grant funds be directed toward four purposes: 1) to fund priority treatment and support services for individuals without insurance or who cycle in and out of health insurance coverage; 2) to fund those priority treatment and support services not covered by Medicaid, Medicare or private insurance offered through the exchanges and that demonstrate success in improving outcomes and/or supporting recovery; 3) to fund universal, selective and targeted prevention activities and services; and 4) to collect performance and outcome data to determine the ongoing effectiveness of behavioral health prevention, treatment and recovery
States should begin planning now for FY 2014 when more individuals will have additional opportunities to be insured. To ensure sufficient and comprehensive preparation, SAMHSA will use FY 2013 to continue to work with states to plan for and transition the Block Grants to these four purposes. This transition includes fully exercising SAMHSA's existing authority regarding states' and jurisdictions' (subsequently referred to as “states”) use of block grant funds, and a shift in SAMHSA staff functions to support and provide technical assistance for states receiving block grant funds as they move through these changes.
The proposed MHBG and SABG build on ongoing efforts to reform health care, ensure parity and provide states with new tools, new flexibility, and state/territory-specific plans for available resources to provide their residents the health care benefits they need. The planning section of the block grant application provides a process for states to identify priorities for individuals who need behavioral health services in their jurisdictions, develop strategies to address these needs, and decide how to expend block grant funds. In addition, the planning section of the block grant requests additional information from states that could be used to assist them in their reform efforts. The plan submitted by each state will provide information for SAMHSA and other federal partners to use in working with states to improve their behavioral health systems over the next two years as health care and economic conditions evolve.
The FY 2014-2015 block grant application provides states the flexibility to submit one rather than two separate block grant applications if they choose. It also allows states to develop and submit a bi-annual rather than an annual plan, recognizing that the demographics and epidemiology do not often change on an annual basis. These options may decrease the number of applications submitted from four in two years to one.
Over the next several months, SAMHSA will assist states (individually and in smaller groups) as they develop their block grant applications. While there are some specific statutory requirements that SAMHSA will look for in each submitted application, SAMHSA intends to approach this process with the goal of assisting states in setting a clear direction for system improvements over time, rather than as a simple effort to seek compliance with minimal requirements.
Consistent with previous applications, the FY 2014-2015 application has sections that are required and other sections where additional information is requested, but not required. The FY 2014-2015 application requires states to submit a face sheet, a table of contents, a behavioral health assessment and plan, reports of expenditures and persons served, executive summary, and funding agreements, assurances, and certifications. In addition, SAMHSA is requesting information on key areas that are critical to the state's success in addressing health reform and parity. States will continue to receive their annual grant funding if they only chose to submit the required section of their state plans or choose to submit separate plans for the MHBG or SABG. Therefore, as part of this block grant planning process, SAMHSA is asking states to identify their technical assistance needs to implement the strategies they identify in their plans for FY 2014 and 2015.
To facilitate an efficient application process for states in FY 2014-2015, SAMHSA convened an internal workgroup to develop the block grant planning section. In addition, SAMHSA consulted with representatives from the State Mental Health and State Substance Abuse Authorities to receive input regarding proposed changes to the block grant. Comments were requested from federal partners including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), the Office of National Drug Control Policy (ONDCP), and the Assistant Secretary for Financial Resources (ASFR). Other stakeholder groups consulted with included NASADAD and NASMHPD. Based on these discussions with states, federal partners, and stakeholder groups, SAMHSA is proposing the following revisions to the block grant application.
SAMHSA has not made major revisions to the FY 2014-2015 application. The proposed revisions are based primarily on previous instructions provided in the FY 2012-2013 application guidance. In building on the FY 2012-2013 guidance, SAMHSA proposed revisions to expand the areas of focus (environmental factors) for states to describe their comprehensive plans to provide treatment, services, and supports for individuals with behavioral health needs. These revisions will enable SAMHSA to assess the extent to which states plan for and implement provisions of the Affordable Care Act and determine whether block grants funds are being directed toward the four purposes of the grant.
The proposed revisions reflect changes within the planning section of the application. The most significant of these changes relate to prevention, particularly primary prevention; data and quality; enrollment of individuals and providers; and descriptions of good and modern behavioral health services. States are encouraged to address each of the focus areas. SAMHSA has provided a set of guiding questions to stimulate and direct the dialogue that states may engage in to determine the various approaches used to develop their responses to each of the focus areas.
The proposed revisions are described below:
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At this point in time, many states will know which mental health and substance abuse services are covered in their benchmark plans offered by QHPs and Medicaid programs. SMHAs and SSAs should be focused on two main areas related to EHBs: monitoring what is covered and aligning block grants and state funds for what is not covered. These include: 1) ensuring that QHPs and Medicaid programs are including EHBs as per the state benchmark plan; 2) ensuring that individuals are aware of the covered mental health and substance abuse benefits; 3) ensuring that people will utilize the benefits despite concerns that employers will learn of mental health and substance abuse diagnosis of their employees; and 4) monitoring utilization of mental health and substance abuse benefits in light of utilization review, medical necessity, etc.
SAMHSA expects states to implement policies and procedures that are designed to ensure that block grant funds are used in accordance with the four priority categories identified above. Consequently, states may have to reevaluate their current management and oversight strategies to accommodate the new priorities. They may also need to become more proactive in ensuring that state-funded providers are enrolled in the Medicaid program and have the ability to determine if clients are enrolled or eligible to enroll in Medicaid. Additionally, compliance review and audit protocols may need to be revised to provide for increased tests of client eligibility and enrollment.
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SAMHSA expects that states will build on this well-documented, effective system of care approach to serving children and youth with behavioral health needs. Given the multi-system involvement of these children and youth, the system of care approach provides the infrastructure to improve care coordination and outcomes, manage costs and better invest resources. The array of services and supports in the system of care approach includes non-residential (e.g., wraparound service planning, intensive care management, outpatient therapy, intensive home-based services, substance use disorder intensive out patient services, continuing care, mobile crisis response, etc.), supportive services (e.g., peer youth support, family peer support, respite services, mental health consultation, supported education and employment, etc.), and residential services (e.g., therapeutic foster care, crisis stabilization services, inpatient medical detoxification, etc.).
Although the statutory dates for submitting the block grant application, plan and annual report remain unchanged, SAMHSA requests that the MHBG and SABG applications be submitted on the same date. In addition, the dates for submitting the plans have changed to better comport with most states fiscal and planning years (July 1st through June 30th of the following year).
SAMHSA received 232 comments from 36 individuals or organizations. The comments expressed general support for the option to submit a combined plan for mental and substance use disorders (M/SUD) for both block grants, the movement to the behavioral health barometer, the expressed four priorities for the block grants, the two-year planning cycle, and tribal consultation. Many comments were duplicative and include requests that SAMHSA eliminate any reference to
SAMHSA received some comments about the “Behavioral Health Advisory Council Composition by Member Type” table indicating that the reference to members from diverse racial and LGBTQ populations is potentially confusing and creates a dilemma as to which category members should be ascribed, the term ‘leading state experts' is also confusing and somewhat arbitrary, and the membership categorization for “Federally Recognized Tribe Representatives” could be confused with council members who happen to be tribal members. SAMHSA agrees with the recommendations that the request for a number of individuals and providers from diverse racial, ethnic, and LGBTQ backgrounds in the table will skew the calculation of the percentage of consumers/state members. SAMHSA has moved this information request, as well as the request to identify any member who is an individual in recovery from SUD or advocating for SUD services to the bottom of the table and removed it from the calculation. “Leading state expert” is deleted. Federally Recognized Tribal Representatives are individuals who are officially designated by the tribe to sit on the Council.
SAMHSA added clarifying language within the prevention section, that clarifies that states will be allowed to use some of their current Mental Health Block Grant to support mental health promotion and mental illness prevention activities related to adults with serious mental illnesses and children with serious emotional disturbances and their families. In addition, the 20% set aside funds of the Substance Abuse Block Grant must be used for substance abuse primary prevention activities by the state. Many evidenced-based substance abuse programs have a positive impact on the prevention of substance use and abuse as well as other health and social outcomes such as education, juvenile justice involvement, violence prevention and mental health.
SAMHSA reduced the number of questions in the prevention planning section, in the Primary and Behavioral Health Care Integration Activities section, and in the Technical Assistance needs section..
SAMHSA has renumbered and, in some instances, renamed tables throughout the document to eliminate the redundancy in the table numbers between the planning and reporting sections and improve user navigation. SAMHSA also revised the table entitled `Behavioral Health Advisory Council Composition by Member Type.' In addition, SAMHSA enhanced the tables of contents in the reporting sections to facilitate user navigation.
The estimated annualized burden for a uniform application is 37,429 hours. Burden estimates are broken out in the following tables showing burden separately for Year 1 and Year 2. Year 1 includes the estimates of burden for the uniform application and annual reporting. Year 2 includes the estimates of burden for the application update and annual reporting. The reporting burden remains constant for both years.
Link for the application:
Written comments and recommendations concerning the proposed information collection should be sent by November 9, 2012 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oklahoma (FEMA-4078-DR), dated August 22, 2012, 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 Oklahoma 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 August 22, 2012.
Cleveland County for Individual Assistance.
Office of the Chief Information Officer HUD.
Notification of modification to, and deletion of existing system of records notification.
Pursuant to the provision of the Privacy Act of 1974, as amended (5 U.S.C. 552a), the Department of Housing and Urban Development (HUD) is providing notice of its intent to modify and delete one of its system of records notifications, the HUD/HS-10, Home Equity Conversion Mortgage (HECM) system. HUD/HS-10, HECM is being modified and replaced by the new HECM program system, Home Equity Reverse Mortgage Information Technology (HERMIT). The modifications for the existing system of
Interested persons are invited to submit comments regarding this notice to the Rules Docket Clerk, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410-3000. Communications should refer to the above docket number and title. FAX comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 8:00 a.m. and 5:00 p.m. weekdays at the above address.
Inquiries pertaining to Privacy Act records, contact Donna Robinson-Staton, Chief Privacy Officer, telephone number (202) 402-8073, 451 Seventh Street SW., Washington, DC 20410 (Attention: Capitol View Building, 4th Floor) [The above telephone numbers are not toll free numbers.] A telecommunications device for hearing- and speech-impaired persons (TTY) is available by calling the Federal Information Relay Service's toll-free telephone number (800) 877-8339.
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, notice is given that HUD proposes to modify an existing system of records, the HUD/HS-10, Home Equity Conversion Mortgage system. This notice provide a summary of the modified system of records. The system will be identified by a new naming convention “HSG/HWAT.01'' that has been established by the Department to refer to a program component system. The system of records is revising its routine use category to balance the privacy interests of those entities requiring access to system records to allow HUD's Federal Housing Administration (FHA) to carry out its HECM program activities. The system also refines its sections for category of individual, and category of records to provide clarification of the types of records collected and maintained by the system. Additionally, the system contains personally identifiable information received from mortgagees and housing counseling agencies approved to administer FHA HECM program requirements. The information in the system includes (but is not limited to) individual level data regarding borrowers who participate in the HECM program: Name, title, property addresses, birthdates, Social Security Numbers, phone numbers and (dates of death, when applicable). In addition the information in the system includes (but is not limited to) business level data regarding the mortgagee that administers FHA HECM loans: banking information, Tax Identification Number, routing and accounts numbers, mortgagee reference number, and accounting data. The HERMIT system is expected to improve the overall effectiveness of the program operations by providing comprehensive insurance servicing, claims payments, notice servicing, accounting and reporting functionalities. The report of the system of records modification/deletion was submitted to the Office of Management and Budget (OMB), the Senate Committee on Homeland Security and Governmental Affairs, and the House Committee on Government Reform pursuant to Paragraph 4c of Appendix l to OMB Circular No. A-130, “Federal Agencies Responsibilities for Maintaining Records About Individuals,” July 25, 1994 (59 FR 37914).
5 U.S.C. 552a; 88 Stat. 1896; 42 U.S.C. 3535(d).
Home Equity Reverse Mortgage Information Technology (HERMIT) Service Provider formerly HUD/HS-10, Home Equity Conversion System
External hosting location at the following address: 21701 Filigree Ct., Building D, Ashburn, VA 20147; Housing and Urban Development (HUD) workstations at 451 Seventh Street SW., Washington, DC 20410; HUD National Servicing Center 2 West 2nd Street, Suite 400, Tulsa, OK 74103; HUD Atlanta Homeownership Center, Five Points Plaza 40 Marietta Street, Atlanta, GA 30303-2806; HUD Philadelphia Homeownership Center, The Wanamaker Building, 100 Penn Square East, Philadelphia, PA 19107-3389; HUD Denver Homeownership Center Processing & Underwriting—20th FL 1670 Broadway Denver, CO 80202; Santa Ana Homeownership Center, Santa Ana Federal Building, 34 Civic Center Plaza, Room 7015, Santa Ana, CA 92701-4003.
HECM mortgagees and HECM mortgagors for Home Equity Conversion Mortgages insured under HUD's HECM mortgage insurance program, and FHA-Approved Housing Counselors who participate in the HECM program.
The categories of records in the HERMIT system are as follows:
(1) Insurance-in-Force (IIF)/Premiums: HECM insurance-in-force and premium records which include PII data pertaining borrowers' full names, property addresses, birthdates, Social Security Numbers, phone numbers and dates of death; case-level details on the HECM housing counseling certificate, Maximum Claim Amount (MCA), property appraised values, initial and monthly mortgage insurance premiums (IMIP & MMIP), set asides, note interest rates and expected interest rates and case statuses and sub-case statuses; payment plan types, and other financial account data such as Principal Limits, monthly interest accruals, late charge and interest charge fees, historical transaction records for HECM cases, property taxes and hazard insurance amounts, business partners' banking information (routing and account numbers); and accounting data
(2) HECM Claims: Borrowers' names, addresses, social security numbers; maximum claim amount, due and payable approvals; death notifications, deed-in-lieu; foreclosure actions, extension approvals, interest rates and account statuses; payment and other financial account data such as unpaid loan balances, interest accrued, service fees, expenses incurred for foreclosure and acquisition, protection and preservation, attorney fees, special assessments; disbursements for taxes, insurance, utilities, eviction fees, and any other miscellaneous disbursements; MIP, appraisals, closing costs; claims filed and paid; indemnifications and claim blocks; business partner banking information (Tax Identification Number, routing and account numbers), mortgagee reference number; accounting data including established accounts receivables and payables; and information for reporting and assumption of servicing activities in cases of investor claim or default.
(3) HECM Loan Servicing: Borrowers' and authorized contacts' names and addresses, birthdates, age, Social Security Numbers, phone numbers; email addresses; marital status, gender, preferred language, banking information (institutional information, routing, account numbers and account type) maximum loan amounts, premium collection, interest rates and account statuses; payment and other financial account data such as loan balance, loan history, interest accrued, fees incurred, claims filed and paid, real estate property information, property taxes and insurance amounts, accounting data including debits and credits to HUD accounts based on transaction events, vendor information; and information for reporting and assuming servicing activities in case of servicer or investor claim or default.
Section 255 of the National Housing Act of 1934 authorizes the FHA reverse mortgage program for the elderly, the Home Equity Conversion Mortgage (HECM) program (12 U.S.C.1715Z-20). The Housing and Community Development Act of 1987 (42 U.S.C. 3543—Sec. 3543) specifically provides authority to collect Social Security Numbers.
HERMIT provides FHA with a comprehensive service that integrates and automates five operations of the HECM program (insurance servicing; claims payment; notes servicing, accounting, and reporting). The HECM program promotes continued homeownership for the elderly by allowing elderly borrowers to access the equity in their homes while continuing to live in the property. HERMIT allows the Secretary to maintain the “public trust” over the HECM program by seamlessly, accurately and timely managing the HECM program in an automated environment. HERMIT allows HECM program personnel to collect and maintain the data necessary to support activities related to the endorsement of loans, including collection of initial and monthly premiums. The claims process includes the filing of claims for insurance benefits and disbursement of funds to lenders of loans insured under the HECM program. Servicing activities include maintaining the data necessary to support performance requirements of servicing for FHA insured and Secretary-held first and second mortgages. The major activities include acceptance of assignment and title review, servicing requests for HECM endorsed cases from Mortgagees (due and payable, short sale, over-allowables for preservation and protection costs, subordination extension requests and partial releases), accounting functions, collections according to the Fair Debt Collection Practices Act, disbursement of payment, annual recertification, foreclosure activities, bankruptcy activities, and compliance monitoring. The new HERMIT replacement system will permit HECM mortgagees to: (1) Interact with one, integrated HUD HECM system; (2) Interact with HUD's National Servicing Center (NSC) through a new, automated workflow process; and, (3) Replace manual claims filing processes with an online, automated claims filing procedure.
In addition to those disclosures generally permitted under subsection (b) of the Privacy Act of 1974, 5 U.S.C. 522a(b), other routine uses are as follows:
(1) To servicing mortgagee to give notice of miscalculations or other errors in subsidy computation, to pay claims, or for other servicing-related functions.
(2) To taxing authorities, insurance companies, homeowners associations or condominium associations for maintaining the property while HUD is the servicer of record to ensure property taxes are current.
(3) To the U.S. Department of the Treasury for collection and disbursement transactions (Pay.gov, ACH and check).
(4) To title insurance companies or financial institutions to allow HUD to respond to inquiries for payoff figures on HECM assigned loans.
(5) To recorders' offices for recording legal documents and responses to bankruptcy courts or other legal responses required during the servicing of the insured loan to allow HUD to release mortgage liens, respond to bankruptcies or deaths of mortgagors to protect the interest of the Secretary of HUD.
(6) To the Federal Bureau of Investigation (FBI) to investigate possible fraud revealed in the course of servicing efforts to allow HUD to protect the interest of the Secretary.
(7) To an Administrative Law Judge and to the interested parties to the extent necessary for conducting administrative proceedings where HUD is a party.
(8) To welfare agencies for fraud investigation to allow HUD to respond to state government inquiries when a HECM mortgagor is committed to a nursing home.
Electronic files are stored in case files on servers and backup files are stored on tapes. Electronic files are replicated at a disaster recovery offsite location in case of loss of computing capability or other emergency at the primary facility. HERMIT has no hard “Paper” copies.
Access to electronic records are granted by user ID and password to users who have a need to know such records. In addition to the safeguards provided by access controls all electronic data is encrypted while stored on any systems media within HERMIT or in any transport mode. Servers are contained in a secured facility with 24x7 security guards including electronic access and surveillance capabilities (CCTV and recorders, motion detectors, hand geometry readers, fiber vault) at an offsite location. HERMIT has no hard “Paper” copies.
Name, SSN, identification number, home telephone number, personal email address, FHA Case Number and Mortgagee TIN.
Records are held in accordance with HUD's Records Disposition Schedules Handbook (2225.6) Appendix 20(Single Family Home Mortgage Insurance Program Records) and Appendix 21(Financial Management Information Systems. Paper records are not in use. Electronic records are held consistent with standards for paper records. Archival tape media is kept for 7 years and the tapes are in rotation. Tapes that are faulty and need to be disposed of follow HUD's IT Security Handbook (2400.25), pursuant to NIST SP 800-88 guidelines section 2.1.
Director, Office of Housing Finance and Budget; Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410.
Individuals seeking to determine whether this system of records contains information about them, or those seeking access to such records, should address inquiries to Chief Privacy Officer, Department of Housing and Urban Development, 451 Seventh Street SW., Room 4156, Washington, DC 20410. (Attention: Capitol View Building, 4th Floor) Requestors must provide identity verification by providing two proofs of official identification. Your verification of identity must include your original signature and must be notarized.
The Department's rules for contesting the contents of records and appealing initial denials, by the individual concerned, appear in 24 CFR § 16. If additional information or assistance is needed, it may be obtained by contacting:
(i) In relation to contesting contents of records, the Privacy Act Officer at the appropriate location;
(ii) In relation to appeals of initial denials, the HUD Departmental Privacy Appeals Officer, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410.
Mortgagors, mortgagees, taxing authorities, insurance companies and Housing counselors. The mortgagors and mortgagees collect the personal information from program participants and enters the information into the HUD the Single Family Computerized Home Underwriting Management System (CHUMs). The HERMIT system interfaces CHUMS for its information.
None.
Office of the Secretary, National Business Center, Federal Consulting Group.
Notice and request for comments.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the National Business Center, Department of the Interior announces that it has submitted a request for proposed extension of an information collection for the American Customer Satisfaction Index (ACSI) Government Customer Satisfaction Surveys to the Office of Management and Budget (OMB), and requests public comments on this submission. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collection request, but may respond after 30 days; therefore, public comments should be submitted to OMB by November 9, 2012, in order to be assured of consideration.
Send your written comments by facsimile to (202) 395-5806 or email (
To request additional information or copies of the form(s) and instructions, please write to the Federal Consulting Group, Attention: Richard Tate, 1849 C St. NW., MS 314, Washington, DC 20240-0001, or call (202) 513-7655, or email to
The Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. The Office of the Secretary, National Business Center, Federal Consulting Group has submitted a request to OMB to renew its approval of this collection of information for three years.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it is operating under a currently valid OMB control number. The OMB control number for this collection is 1090-0007. The control number will be displayed on the surveys used. For expeditious administration of the surveys, the expiration date will not be displayed on the individual instruments. Response is not required to obtain a benefit.
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(2) Annual reporting and recordkeeping burden:
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The CFI Group, a leader in customer satisfaction and customer experience management, offers a comprehensive model that quantifies the effects of quality improvements on citizen satisfaction. The CFI Group has developed the methodology and licenses it to the American Customer Satisfaction Index, an independent organization which produces the American Customer Satisfaction Index (ACSI). This national indicator is developed for different economic sectors each quarter, which are then published in The Wall Street Journal. The ACSI was introduced in 1994 by Professor Claes Fornell under the auspices of the University of Michigan, the American Society for Quality (ASQ), and the CFI Group. It monitors and benchmarks customer satisfaction across more than 200 companies and many U.S. Federal agencies.
The ACSI is the only cross-agency methodology for obtaining comparable measures of customer satisfaction with Federal government programs and/or services. Along with other economic objectives—such as employment and growth—the quality of output (goods and services) is a part of measuring living standards. The ACSI's ultimate purpose is to help improve the quality of goods and services available to American citizens.
ACSI surveys conducted by the Federal Consulting Group are subject to the Privacy Act of 1974, Public Law 93-579, December 31, 1974 (5 U.S.C. 552a). The agency information collection is an integral part of conducting an ACSI survey. The contractor will not be authorized to release any agency information upon completion of the survey without first obtaining permission from the Federal Consulting Group and the participating agency. In no case shall any new system of records containing privacy information be developed by the Federal Consulting Group, participating agencies, or the contractor collecting the data. In addition, participating Federal agencies may only provide information used to randomly select respondents from among established systems of records provided for such routine uses.
There is no other agency or organization which is able to provide the information that is accessible through the surveying approach used in this information collection. Further, the information will enable Federal agencies to determine customer satisfaction metrics with discrimination capability across variables. Thus, this information collection will assist Federal agencies in improving their customer service in a targeted manner which will make best use of resources to improve service to the public.
This survey asks no questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
As required under 5 CFR 1320.8(d), a
The Departments invite comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agencies, including whether the information will have practical utility;
(b) The accuracy of the agencies' estimate of the burden of the collection and 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 through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information techniques.
“Burden” means the total time, effort, and financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install, and utilize technology and systems for the purpose of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
All written comments, with names and addresses, will be available for public inspection. If you wish us to withhold your personal information, you must prominently state at the beginning of your comment what personal information you want us to withhold. We will honor your request to the extent allowable by law. If you wish to view any comments received, you may do so by scheduling an appointment with the National Business Center, Federal Consulting Group by calling (202) 513-7655. A valid picture identification is required for entry into the Department of the Interior.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (we, the Service), announce the availability of a draft comprehensive conservation plan and environmental assessment (CCP/EA) for Patuxent Research Refuge (Patuxent RR), located in Prince George's and Anne Arundel Counties, Maryland, for public review and comment. The draft CCP/EA describes our proposal for managing the refuge for the next 15 years.
Also available for public review and comment are the draft findings of appropriateness and draft compatibility determinations for uses to be allowed upon initial completion of the plan, if alternative B is selected. These are included as appendix C in the draft CCP/EA.
To ensure consideration, please send your comments no later than November 26, 2012. We will announce upcoming public meetings in local news media, via our project mailing list, and on our regional planning Web site:
You may submit comments or requests for copies or more information by any of the following methods. You may request hard copies or a CD-ROM of the documents.
Brad Knudsen, Refuge Manager, 301-437-5580 (phone), or Bill Perry, Planning Team Leader, 413-253-8688 (phone);
With this notice, we continue the CCP process for Patuxent RR. We started this process through a notice in the
Patuxent RR was established in 1936 by Executive Order by President Franklin D. Roosevelt “to effectuate further the purposes of the Migratory Bird Conservation Act” and “as a wildlife experiment and research refuge.” The total approved acquisition boundary encompasses 12,841 acres between Baltimore, Maryland, and Washington, DC—an area with one of the highest densities of development in the United States. Currently, about 10,000 of Patuxent RR's 12,841 acres are forest, but the refuge also contains grasslands, freshwater marshes, shrub and early successional forest, and open water. It provides important habitat for a variety of migratory birds of conservation concern. The refuge also offers unique opportunities for environmental education and interpretation in an urban setting and is home to the U.S. Geological Survey (USGS) Patuxent Wildlife Research Center, a leading international research institute for wildlife and applied environmental research.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Refuge Administration Act.
We started pre-planning for the Patuxent RR CCP in December 2009. In February 2010, we distributed our first newsletter and press release announcing our intent to prepare a CCP for the refuge. In February and March 2010, we had a formal public scoping period. The purpose of the public scoping period was to solicit comments from the community and other interested parties on the issues and impacts that should be evaluated in the draft CCP/EA. To help solicit public comments, we held two public meetings at the refuge during the formal public scoping period. Throughout the rest of the planning process, we have conducted additional outreach by participating in community meetings, events, and other public forums, and by requesting public input on managing the refuge and its programs. We received comments on topics such as the potential effects of climate change, habitat management, reforesting, environmental education programs, and other public uses of the refuge. We have considered and evaluated all of the comments we received and addressed them in various ways in the alternatives presented in the draft CCP/EA.
During the public scoping process, we, the Maryland Department of Natural Resources, other governmental partners, and the public raised several issues. To address these issues, we developed and evaluated three alternatives in the draft CCP/EA. A full description of each alternative is in the draft CCP/EA. All alternatives include measures to control invasive species, monitor and abate diseases affecting wildlife and plant health, coordinate with USGS to house and support research efforts, protect cultural resources, continue existing projects managed by outside programs, and minimize impacts from the shooting ranges located on the refuge. There are also several actions that are common to both alternatives B and C. These include using green technology to update refuge buildings and grounds, constructing additional space for environmental education and interpretation classes, and collaborating with stakeholders on a redesign of the shooting ranges.
There are other actions that differ among the alternatives. The draft CCP/EA describes each alternative in detail and relates it to the issues and concerns that arose during the planning process. Below, we provide summaries for the three alternatives.
Alternative A (current management) satisfies the National Environmental Policy Act (40 CFR 1506.6(b)) requirement of a “no action” alternative, which we define as “continuing current management.” It describes our existing management priorities and activities, and serves as a baseline for comparing and contrasting alternatives B and C. It would maintain our present levels of approved refuge staffing and the biological and visitor programs now in place. We would continue to manage for and maintain a diversity of habitats, including forests, forested wetlands, pine-oak savannah, grasslands, and scrub-shrub on the refuge. The refuge would continue to provide an active visitor use program that supports environmental education and interpretation, hunting, fishing, and wildlife observation and photography.
This alternative is the Service-preferred alternative. It combines the
Alternative C would focus on maximizing interior forest habitat. This would require active management to restore a majority of impoundments and grasslands into forested areas that would support forest interior-dwelling species, in addition to other species of conservation concern. Alternative C also focuses on accommodating wildlife-dependent public uses while minimizing non-wildlife-dependent uses, particularly by expanding wildlife observation, viewing, and photography opportunities and reducing the number of special events and interpretive programming.
In addition to any methods in
•
We consider comments substantive if they:
• Question, with reasonable basis, the accuracy of the information in the document;
• Question, with reasonable basis, the adequacy of the EA;
• Present reasonable alternatives other than those presented in the EA; and/or
• Provide new or additional information relevant to the EA.
After this comment period ends, we will analyze the comments and address them in the form of a final CCP and, if appropriate, a finding of no significant impact.
Before including your address, phone number, email 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.
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service (Service), announce a public meeting of the Sport Fishing and Boating Partnership Council (Council). A Federal advisory committee, the Council was created in part to foster partnerships to enhance public awareness of the importance of aquatic resources and the social and economic benefits of recreational fishing and boating in the United States. This meeting is open to the public, and interested persons may make oral statements to the Council or may file written statements for consideration.
The meeting will take place Wednesday, November 7, 2012, from 8:30 a.m. to 5 p.m., and Thursday, November 8, 2012, from 8:30 a.m. to 1 p.m. (Central Standard Time). For deadlines and directions on registering to attend the meeting, submitting written material, and/or giving an oral presentation, please see “Public Input” under
The meeting will be held at the Texas A & M University—Corpus Christi, Harte Research Institute; 6300 Ocean Drive, Corpus Christi, TX 78412-5869.
Douglas Hobbs, Council Coordinator, 4401 North Fairfax Drive, Mailstop 3103-AEA, Arlington, VA 22203; telephone (703) 358-2336; fax (703) 358-2548; or email
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that the Sport Fishing and Boating Partnership Council will hold a meeting.
The Council was formed in January 1993 to advise the Secretary of the Interior, through the Director of the Service, on nationally significant recreational fishing, boating, and aquatic resource conservation issues. The Council represents the interests of the public and private sectors of the sport fishing, boating, and conservation communities and is organized to enhance partnerships among industry, constituency groups, and government. The 18-member Council, appointed by the Secretary of the Interior, includes the Service Director and the president of the Association of Fish and Wildlife Agencies, who both serve in ex officio capacities. Other Council members are directors from State agencies responsible for managing recreational fish and wildlife resources and individuals who represent the interests of saltwater and freshwater recreational fishing, recreational boating, the recreational fishing and boating industries, recreational fisheries resource conservation, Native American tribes, aquatic resource outreach and education, and tourism. Background information on the Council is available at
The Council will hold a meeting to consider:
• Finalizing the Council Strategic Work Plan for the 2012-2014 term.
• Issues regarding the Boating Infrastructure Grant Program, Clean Vessel Act Grant Program, and the Sport Fish Restoration Boating Access Program.
• The Rigs to Reefs Program and the Interior Department implementation of its “Idle Iron” policy for decommissioning and removing unused oil and gas production infrastructure.
• The on-going effort to assist the Service in crafting a strategic vision for its fishery and aquatic resource conservation efforts.
• An update on the activities of the Federal Interagency Council on Outdoor Recreation (FICOR) in implementing the America's Great Outdoors Initiative.
• An update from the Recreational Boating & Fishing Foundation on progress in implementing Council recommendations to improve the activities and operations of the Foundation.
• An update on the implementation of the National Ocean Policy.
• An update on activities of the Service's Wildlife and Sport Fish Restoration Program.
• Other miscellaneous Council business.
The final agenda will be posted on the Internet at
In order to attend this meeting, you must register by close of business on the dates listed above in “Public Input.” Please submit your name, time of arrival, email address, and phone number to the Council Coordinator (see
Interested members of the public may submit relevant information or questions for the Council to consider during the meeting. Written statements must be received by the date listed above in “Public Input,” so that the information may be made available to the Council for their consideration prior to this teleconference. Written statements must be supplied to the Council Coordinator in one of the following formats: One hard copy with original signature, and one electronic copy via email (acceptable file formats are Adobe Acrobat PDF, MS Word, MS PowerPoint, or rich text file).
Individuals or groups requesting to make an oral presentation during the meeting will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator, in writing (preferably via email; see
Summary minutes of the meeting will be maintained by the Council Coordinator (see
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species, marine mammals, or both. With some exceptions, the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) prohibit activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before November 9, 2012. We must receive requests for marine mammal permit public hearings, in writing, at the address shown in the
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358-2280; or email
Brenda Tapia, (703) 358-2104 (telephone); (703) 358-2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) to include the addax (
The applicant requests amendment to include the addax (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess barasingha (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the radiated tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, genera and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to export live, captive-bred Mississippi gopher frog (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the radiated tortoise (
The applicant requests amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) to include crocodylidae and spotted pond turtle (
The applicant requests a permit to export the sport-hunted trophy/trophies of one addax (
The applicant requests a permit to export the sport-hunted trophy/trophies of one scimitar-horned oryx (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import one of two female walruses (
Concurrent with publishing this notice in the
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from CEP-M Purchase, LLC, for competitive oil and gas lease WYW159617 for land in Campbell County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. 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 lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from CEP-M Purchase, LLC, for competitive oil and gas lease WYW159206 for land in Campbell County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. 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 lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from CEP-M Purchase, LLC, for competitive oil and gas lease WYW145566 for land in Campbell County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. 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 lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from CEP-M Purchase, LLC, for competitive oil and gas lease WYW145583 for land in Campbell County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. 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 lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16-2/3 percent, respectively. The lessee has paid the required $500 administrative fee and $159 to reimburse the Department for the cost of this
National Park Service, Interior.
Notice of availability of the Final Environmental Impact Statement for Stehekin River Corridor Implementation Plan, Lake Chelan National Recreation Area.
The National Park Service, in cooperation with the Federal Highway Administration, has prepared a Final Environmental Impact Statement (FEIS) for the Stehekin River Corridor Implementation Plan (SRCIP) and Lake Chelan National Recreation Area Land Protection Plan (LPP). The SRCIP/FEIS identifies and analyzes five alternatives for sustainable management of park facilities (e.g., roads, bridges, trails, maintenance yard) in response to increased flooding and erosion issues in the lower Stehekin River watershed. When approved, the SCRIP will implement several actions called for in the 1995 General Management Plan (GMP), including removal of park maintenance and residential facilities from floodplain areas, construction of recreational facilities and relocation of segments of the primary eastern access road to the adjoining North Cascades National Park, and protection of water quality and scenery along the lower Stehekin River. The updated Lake Chelan National Recreation Area LPP revises acquisition priorities and is intended to accommodate willing sellers of threatened private property.
Recent major floods and resultant channel changes on the lower Stehekin River have intensified flood and erosion threats to NPS facilities and are impacting natural resources within Lake Chelan NRA. The three largest recorded Stehekin River floods have occurred within the past 16 years, and in response, the NPS has spent more than $3 million to protect public roads and facilities and to repair flood damage. Roads, visitor facilities and private development once thought to be safe from the river are now threatened.
Because of the current impacts and future risks associated with these unprecedented conditions, the primary purposes of the actions proposed within the SRCIP are to: (1) Sustainably operate and maintain NPS administrative facilities, public access (roads and trails), and campgrounds; (2) protect water quality, scenic values, habitat, and natural processes of the Stehekin River; and (3) partner with the Stehekin Community to provide services, facilities and experiences for visitors. The SRCIP is needed to (1) respond to the increased magnitude and frequency of flooding, (2) implement and clarify 1995 GMP guidance, (3) sustain public facilities while protecting natural resources, (4) manage limited funding, and to (5) respond to private landowners.
The SRCIP/FEIS describes and analyzes five management alternatives, including continuation of current management actions. This includes a new Alternative 5, which is derived from modifications to Alternative 2 as presented in the Draft EIS (which evaluated four alternatives), based on responses to public comments. All five alternatives have in common certain actions previously identified in the 1995 GMP, including relocation of the NPS maintenance area and some housing out of the channel migration zone; resurfacing of the road from Stehekin Landing to Milepost 9.2 (just above Stehekin Valley Ranch), including paving from Harlequin Bridge to Milepost 9.2; and construction of the Lower Valley Trail. Alternatives 2-5 would also add new campsites at different locations to supplement sites at Harlequin Bridge that are seasonally flooded.
Alternative 1 (continue current management) and Alternative 4 would retain the Stehekin Valley Road access through McGregor Meadows. To protect the road from flood damage and to provide access to private residences, about 5,600 cubic yards of fill would be placed in the floodplain. Under both alternatives, new rock structures (barbs) could be placed along the river.
Alternatives 2 and 3 would relocate 1.9 and 1.75 miles, respectively, of the Stehekin Valley Road from the floodplain in McGregor Meadows, while retaining private access to the area via a 0.75-mile-long reduced maintenance road. Alternatives 2, 3 and 5 differ in where the reroute rejoins to the existing road, with the Alternative 2 and 5 alignments outside of the channel
Alternatives 2-5 would revise the Lake Chelan NRA Land Protection Plan. Alternatives 2, 3 and 5 would focus more on exchange and acquisition of properties threatened by the river (provided there are willing sellers), and would cluster future development in areas outside of the channel migration zone. The 1995 LPP placed a higher value on scenic resources along the Stehekin Valley Road. In Alternative 4, less emphasis would be placed on exchange and acquisition priorities in the floodplain, and therefore far fewer private parcels would be high priority for purchase or exchange. Alternative 5 focuses on exchange/acquisition in the most vulnerable areas threatened by the river and introduces two new criteria for prioritizing potential exchange/acquisition lands, including scenic resources and threats within debris flow hazard zones.
National Park Service, Interior.
Notice of Availability of the Final Environmental Impact Statement for Cattle Point Road Relocation, San Juan Island National Historical Park.
Pursuant to the National Environmental Policy Act of 1969 (Pub. L. 91-190, as amended), and the Council on Environmental Quality Regulations (40 CFR parts 1500-1508), the National Park Service (NPS) and the Federal Highway Administration (FHWA), in cooperation with San Juan County, Washington and the Washington State Department of Natural Resources, have prepared a Final Environmental Impact Statement (Final EIS) for alternatives designed to respond to coastal bluff erosion that threatens a segment of the Cattle Point Road located in San Juan Island National Historical Park (Park), Washington. The Final EIS identifies and analyzes three action alternatives for realignment of the road through the park for use by residents and visitors traveling to the east end of the Cattle Point peninsula. The potential environmental consequences of these alternatives (and a no-action alternative which would continue current road management), and appropriate measures to minimize or avoid harm, are identified and analyzed.
A Notice of Intent to begin the conservation planning and environmental impact analysis for the project was published in the
The Notice of Availability of the Draft EIS was published in the
Life expectancy (relative to coastal erosion) of each of the three action alternatives is estimated at approximately 100 years.
The “agency preferred” alternative is
Not sooner than 30 days after publication by the Environmental Protection Agency of its notice of filing of the Final EIS in the
60-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Ocean Energy Management (BOEM) is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns the paperwork requirements in the regulations under “Renewable Energy and Alternate Uses of Existing Facilities on the Outer Continental Shelf.”
Submit written comments by December 10, 2012.
Please send your comments on this ICR to the BOEM Information Collection Clearance Officer, Arlene Bajusz, Bureau of Ocean Energy Management, 381 Elden Street, HM-3127, Herndon, Virginia 20170 (mail); or
Arlene Bajusz, Office of Policy, Regulations, and Analysis at (703) 787-1025 to request additional information about this ICR or copies of the referenced forms.
Respondents operate commercial and noncommercial technology projects that include installation, construction, operation and maintenance, and decommissioning of offshore facilities, as well as possible onshore support facilities. The BOEM must ensure that these activities and operations on the OCS are performed in a safe and pollution-free manner, do not interfere with the rights of other users on the OCS, and balance the protection and development of OCS resources. Therefore, BOEM needs information concerning the proposed activities, facilities, safety equipment, inspections and tests, and natural and manmade hazards near the site, as well as assurance of fiscal responsibility.
The BOEM uses forms to collect some information to ensure proper and efficient administration of OCS renewable energy leases and grants and to document the financial responsibility of lessees and grantees. Forms BOEM-0002, BOEM-0003, BOEM-0004, and BOEM-0006 are used by renewable energy entities on the OCS to designate an operator and to assign or relinquish a lease or grant. Form BOEM-0005 is used to procure and submit a bond for the purpose of meeting financial assurance requirements as set forth in the regulations. The BOEM maintains the submitted forms as official lease and grant records pertaining to operating responsibilities, ownership, and financial responsibility.
We will protect information considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and under regulations at 30 CFR 585.113, addressing disclosure of data and information to be made available to the public and others. No items of a sensitive nature are collected. Responses are mandatory or required to obtain a benefit.
Agencies must also estimate the non-hour cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased: (i) Before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
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 Guy B. Snowden, Diane P. Snowden, FCF Realty, LLC, and Falls Creek Farm, LLC, pursuant to sections 309(b), 309(d) and 404 of the Clean Water Act, 33 U.S.C. 1319(b), 1319(d) and 1344, to obtain injunctive relief and impose civil penalties against the Defendants for violating the Clean Water Act by 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 perform mitigation, and to pay a civil penalty. The proposed Consent Decree also calls for the Defendants to establish a conservation easement to preserve wetlands and associated upland habitat.
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 Joshua M. Levin, Senior Attorney, United States Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, P.O. Box 7611, Washington, DC 20044, and refer to
The proposed Consent Decree may be examined electronically at the Clerk's Office, United States District Court for the District of Connecticut, Richard C. Lee Federal Building, 141 Church Street, New Haven, CT 06510. In addition, the proposed Consent Decree may be examined electronically at
On October 1, 2012, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Wyoming in the lawsuit entitled
The United States filed this lawsuit under the Clean Air Act. The United States' complaint seeks injunctive relief and civil penalties for violations of the Act's chemical accident prevention requirements at the defendant's refinery in Sinclair, Wyoming. The proposed consent decree requires the defendant to perform injunctive relief and pay a $378,000 civil penalty.
The publication of this notice opens a period for public comment on the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $9.50 (25 cents per page reproduction cost) payable to the United States Treasury.
On October 2, 2012, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Alaska in the lawsuit entitled
The United States filed this proposed consent decree simultaneously with a complaint under the Clean Air Act. Pursuant to Section 167 of the Clean Air Act, 42 U.S.C. 7477, the United States' complaint, on behalf of the United States Environmental Protection Agency, seeks injunctive relief to prevent violations of the Clean Air Act's (CAA's) Prevention of Significant Deterioration (PSD) requirements at Unit 2 of the Defendants' coal fired power plant in Healy, Alaska. The proposed consent decree would require Golden Valley Electric Association, Inc. (GVEA) and the Alaska Industrial Development and Export Authority (AIDEA) to perform specified injunctive relief at the plant to address certain emissions. Pursuant to the terms of the consent decree, a civil penalty of $115,000 would be paid and $250,000 in funds would be devoted to an environmental mitigation project relating to stove change-outs in Fairbanks and the Denali Borough, Alaska. The proposed consent decree would resolve the alleged PSD claim as well as certain other CAA claims on Unit 2 at the Healy power plant.
The publication of this notice opens a period for public comment on the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $15.50 (25 cents per page reproduction cost) payable to the United States Treasury.
On September 28, 2012, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Puerto Rico in the lawsuit entitled
The proposed Consent Decree memorializes a proposed settlement between the United States and Suiza Dairy Corporation, to resolve alleged violations of Section 112(r) of the Clean Air Act at dairies in Rio Piedras (the “Rio Piedras Facility”) and Aguadilla (the “Aguadilla Facility”), Puerto Rico.
The proposed settlement provides for Suiza to: (1) Implement over 40 compliance measures at each of the two dairies; (2) perform supplemental environmental projects (“SEPs”) that will significantly reduce the inventory of anhydrous ammonia at each facility, improve the monitoring and alarm system at the Aguadilla facility, and provide training and/or equipment to medical personnel for treatment of patients exposed to anhydrous ammonia; (3) pay a civil penalty of $275,000; and (4) conduct community emergency drills comprising the simulation of an emergency response to an anhydrous ammonia release. The injunctive relief, SEPs, and community emergency drills are collectively valued at approximately $3,750,000.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $11.25 (25 cents per page reproduction cost) payable to the United States Treasury.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR Part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street, NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Judith H. Lock, Executive Officer, Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616-6975.
Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice.
Notice of meeting.
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) announces a meeting of the Federal Advisory Committee on Juvenile Justice (FACJJ).
The meeting will take place at the Office of Justice Programs, 810 Seventh Street NW., Washington, DC 20531, on Thursday, October 18, 2012, from 8:30 a.m. to 5 p.m. ET, and Friday, October 19, from 8:30 a.m. to 1 p.m. ET.
Robin Delany-Shabazz, Designated Federal Official, OJJDP,
The Federal Advisory Committee on Juvenile Justice (FACJJ), established pursuant to Section 3(2)A of the Federal Advisory Committee Act (5 U.S.C. App.2), will meet to carry out its advisory functions under Section 223(f)(2)(C-E) of the Juvenile Justice and Delinquency Prevention Act of 2002. The FACJJ is composed of representatives from the states and territories. FACJJ member duties include: reviewing Federal policies regarding juvenile justice and delinquency prevention; advising the OJJDP Administrator with respect to particular functions and aspects of OJJDP; and advising the President and Congress with regard to State perspectives on the operation of OJJDP
For security purposes, members of the public who wish to attend must pre-register online at
National Aeronautics and Space Administration (NASA).
Notice of availability of the Draft Environmental Impact Statement (DEIS) for the NASA Sounding Rockets Program (SRP) at Poker Flat Research Range (PFRR), Alaska.
Pursuant to the National Environmental Policy Act, as amended, (NEPA) (42 U.S.C. 4321 et. seq.), the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA (40 CFR Parts 1500-1508), and NASA's NEPA policy and procedures (14 CFR Part 1216, subpart 1216.3), NASA has prepared and issued a DEIS for its continued use of the University of Alaska Fairbanks (UAF) owned and managed PFRR, outside of Fairbanks, Alaska. The U.S. Fish and Wildlife Service (USFWS), Bureau of Land Management (BLM), and UAF have served as Cooperating Agencies in preparing the DEIS. The purpose of this notice is to apprise interested agencies, organizations, tribal governments, and individuals of the availability of the DEIS and to invite comments on the document. In cooperation with BLM, UAF, and USFWS, NASA will hold public meetings as part of the DEIS review process. The meeting locations and dates identified at this time are provided under
Interested parties are invited to submit comments on environmental issues and concerns, preferably in writing, within sixty (60) days from the date of publication in the
Comments submitted by mail should be addressed to Joshua Bundick, Manager, Poker Flat Research Range EIS, NASA Goddard Space Flight Center's Wallops Flight Facility, Mailstop: 250.W, Wallops Island, Virginia 23337. Comments may be submitted via email to
The DEIS may be reviewed at the following locations:
(a) ARLIS, 3211 Providence Drive, Anchorage, Alaska, 99508 (907-272-7547).
(b) Z.J. Loussac Public Library, 3600 Denali Street, Anchorage, Alaska, 99503 (907-343-2975).
(c) Elmer E. Rasmuson Library, 310 Tanana Loop, Fairbanks, Alaska, 99775 (907-474-7481).
(d) Noel Wien Library, 1215 Cowles Street, Fairbanks, Alaska 99701 (907-459-1020).
(e) Juneau Public Library, 292 Marine Way, Juneau, Alaska 99801 (907-586-5249).
(f) NASA Headquarters Library, Room 1J20, 300 E Street SW., Washington, DC 20546-0001 (202-358-0168).
A limited number of hard copies of the DEIS are available, on a first request basis, by contacting the NASA point of contact listed under
Joshua Bundick, Manager, Poker Flat Research Range EIS, NASA Wallops Flight Facility, Mailstop: 250.W, Wallops Island, Virginia 23337; telephone (757) 824-2319; fax (757) 824-1819; email:
Additional information about NASA's SRP and UAF's PFRR may be found on the internet at
Since the late 1960s, NASA, other government agencies, and educational institutions have conducted suborbital rocket launches from the PFRR. While the PFRR is owned and managed by the Geophysical Institute of UAF, the NASA SRP has exclusively funded and managed the support contract with PFRR for more than 25 years. The PFRR is the only high-latitude, auroral-zone rocket launching facility in the United States where a sounding rocket can readily study the aurora borealis and the sun-earth connection.
In recent years, concerns raised by agencies and organizations regarding the potential impact of its operations at PFRR prompted NASA to review its 2000 SRP Final Supplemental Environmental Impact Statement (FSEIS). In doing so, NASA determined that while the overall environmental analysis in the 2000 SRP FSEIS remains sufficient to support the Agency's broad decision to continue the SRP at PFRR, potential changes in both operations and the environmental context of the launch corridor north of the site warranted preparation of additional site-specific environmental analysis. Accordingly, the DEIS tiers from the programmatic 2000 FSEIS and provides a focused analysis of SRP operations at PFRR.
The PFRR EIS will serve as a decision-making tool not only for NASA but also for its two Federal Cooperating Agencies, BLM and USFWS. Directly north of the PFRR facility are its downrange flight zones, over which rockets are launched and within which spent stages and payloads impact the ground. Within these flight zones are BLM's Steese National Conservation Area and White Mountain National Recreational Area, and the USFWS-managed Arctic and Yukon Flats National Wildlife Refuges. Historically, the managing entities have issued UAF annual or multi-year special-use authorizations and agreements for impact of rockets and recovery operations on these lands.
BLM and USFWS are currently considering if and how future authorizations for rocket landing and recovery would be issued for the properties under their management. As such, the DEIS considers the effects of each agency's respective permitting actions.
The DEIS evaluates the environmental consequences of five alternative means for continuing sounding rocket launches at PFRR. The alternatives differ primarily in the level of effort that would be exerted to locate and recover past and future launch related items in downrange lands. Two alternatives also include a restriction on planning rocket motor or payload impacts within designated Wild or Scenic Rivers.
NASA and its Cooperating Agencies plan to hold public meetings in Alaska to discuss the SRP at PFRR and to solicit comments on the DEIS.
The public meetings are currently scheduled for:
Times and locations of additional meetings, particularly those with interior Villages, will be coordinated with the respective governing bodies and published locally as they are scheduled. NASA will consider all comments received in developing its Final EIS; comments received and responses to comments will be included in the Final document. In conclusion, written public input on environmental issues and concerns associated with NASA's SRP launches at PFRR are hereby requested.
National Endowment for the Arts, National Foundation on the Arts and the Humanities.
Notice of meeting.
Pursuant to section 10 (a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that a meeting of the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue NW., Washington, DC 20506. Agenda times are approximate.
October 26, 2012 from 9 a.m. to 11:30 a.m. in Room M-09.
Office of Public Affairs, National Endowment for the Arts, Washington, DC 20506, at 202/682-5570.
The meeting, on Friday, October 26th, will be open to the public on a space available basis. The meeting will begin with opening remarks, swearing in of new Council member Paul W. Hodes, and voting on recommendations for funding and rejection and guidelines, followed by updates by the Chairman. There will also be the following presentations: from 9:45 a.m. to 10:30 a.m.—London Cultural Olympiad/2012 Summer Olympics Presentation (Elizabeth Streb, Director of STREB Lab for Action Mechanics); from 10:30 a.m. to 11 a.m.—NEA/Bureau of Economic Analysis Partnership Presentation (David Wasshausen, Division Chief, U.S. Department of Commerce/Bureau of Economic Analysis); from 11 a.m. to 11:15 a.m.—Media Arts Presentation (Sue Schardt, Executive Director of The Association of Independents in Radio); 11:15 a.m. to 11:30 a.m.—concluding remarks and voting results. The meeting will adjourn at 11:30 a.m.
For information about webcasting of the open session of this meeting, go to the Podcasts, Webcasts, & Webinars tab at
If, in the course of the open session discussion, it becomes necessary for the Council to discuss non-public commercial or financial information of intrinsic value, the Council will go into closed session pursuant to subsection (c)(4) of the Government in the Sunshine Act, 5 U.S.C. 552b, and in accordance with the February 15, 2012 determination of the Chairman. Additionally, discussion concerning purely personal information about individuals, such as personal biographical and salary data or medical information, may be conducted by the Council in closed session in accordance with subsection (c)(6) of 5 U.S.C. 552b.
Any interested persons may attend, as observers, Council discussions and reviews that are open to the public. If you need special accommodations due to a disability, please contact the Office of Accessibility, National Endowment for the Arts, 1100 Pennsylvania Avenue NW., Washington, DC 20506, 202/682-5733, Voice/TTY 202/682-5496, at least seven (7) days prior to the meeting.
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that sixteen meetings of the Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue NW., Washington, DC 20506 as follows (ending times are approximate):
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 15, 2012, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Nuclear Regulatory Commission.
Weeks of October 8, 15, 22, 29, November 5, 12, 2012.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of October 8, 2012.
There are no meetings scheduled for the week of October 15, 2012.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of November 12, 2012.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—301-415-1292. Contact person for more information: Rochelle Bavol, 301-415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301-415-6200, TDD: 301-415-2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an email to
By letter dated March 25, 2010, Exelon Nuclear Texas Holdings, LLC, (Exelon) submitted an application for an Early Site Permit (ESP) for the Victoria County Station (VCS) site located in Victoria County, Texas to the U.S. Nuclear Regulatory Commission (NRC or the Commission) in accordance with the requirements contained in part 52 of Title 10 of the Code of Federal Regulations (10 CFR), “Licenses, Certifications and Approvals for Nuclear Power Plants.”
A notice acknowledging receipt and availability of this application was published in the
By letter dated August 28, 2012, Exelon requested that the VCS ESP application be withdrawn from the docket. Pursuant to the requirements in 10 CFR part 2, the Commission grants Exelon its request to withdraw the VCS ESP application.
Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records are accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE is proposing to make non-substantive clarifications to its Schedule of Fees. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
On July 25 of this year, the Exchange submitted a rule filing to relocate various fees within the Exchange's Schedule of Fees (the “old fee schedule”) to group fees so that the Exchange's fees would be easily located within the fee schedule (the “re-formatted fee schedule”).
First, on the old fee schedule, there was a footnote to the crossing order execution fees for Select Symbols
Second, on the old fee schedule, an execution fee of $0.20 per contract was specified for Non-Select Symbols
When the fee schedule was re-formatted, a single definition of “Response to Crossing Orders” that reflects the definition for Regular Orders in Select Symbols and Special Non-Select Penny Pilot Symbols and all complex orders was added to the Preface of the fee schedule. Because the defined terms in the Preface apply to all symbols, including Non-Select Symbols, it appears as though regular customer orders received after the commencement of an auction in Non-Select Symbols are now being charged the $0.20 response fee when that is not the case. Accordingly, the Exchange proposes to amend the Preface of the fee schedule to clearly indicate that the current definition of “Responses to Crossing Order” is applicable to Regular Orders in Select Symbols and Special Non-Select Penny Pilot Symbols and all complex orders and to add the appropriate definition for Non-Select Symbols as follows:
➢ “Responses to Crossing Order” (other than Regular Orders in Non-Select Symbols) is any contra-side interest submitted after the commencement of an auction in the Exchange's Facilitation Mechanism, Solicited Order Mechanism, Block Order Mechanism or PIM.
➢ “Responses to Crossing Order” (for Regular Orders in Non-Select Symbols) is any response message entered with respect to a specific auction in the Exchange's Facilitation Mechanism, Solicited Order Mechanism, Block Order Mechanism or PIM.
The Exchange believes that its proposal to amend its Schedule of Fees is consistent with Section 6(b) of the Securities and Exchange Act of 1934 (the “Exchange Act”)
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email 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”)
FINRA is proposing to amend Section 1 of Schedule A to the FINRA By-Laws to adjust the rate of FINRA's Trading Activity Fee (“TAF”) for round turn transactions in security futures.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA's primary member fee structure consists of the following: the Personnel Assessment; the Gross Income Assessment; and the TAF. These fees are used to fund FINRA's regulatory activities, including examinations; financial monitoring; and FINRA's policymaking, rulemaking, and
FINRA initially adopted the TAF in 2002 as a replacement for an earlier regulatory fee based on trades reported to Nasdaq's Automated Confirmation Transaction system then in place.
For transactions in security futures held in securities accounts, members must pay to FINRA a fee for each round turn transaction (treated as including one purchase and one sale of a contract of sale for future delivery) of a security future.
On June 1, 2012, the NFA submitted an NFA Interpretive Notice to the Commodity Futures Trading Commission (“CFTC”) regarding the NFA's assessment fee on diminutive notional value contracts and security futures products.
To ensure that the TAF does not create a disincentive to holding security futures in securities accounts, FINRA is proposing to amend the TAF rate for security future transactions from $0.04 per contract for each round turn transaction to $0.00008 per contract for each round turn transaction, with a minimum fee of $0.01 per round turn transaction. FINRA believes that amending the TAF rate on security futures transactions to match the rate charged on such transactions by the NFA will ensure that transaction fees do not influence the decision on whether to hold security futures in a futures or in a securities account.
The implementation date of the proposed rule change will be October 1, 2012. FINRA will announce the implementation date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email 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 August 9, 2012, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-ICC-2012-12 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The purpose of proposed rule change is to provide for the clearance of the following twenty additional investment grade Standard North American Corporate Single Name CDS contracts: Nucor Corporation; V.F. Corporation; The Procter & Gamble Company; Encana Corporation; Weatherford International Ltd.; Chevron Corporation; Nexen Inc.; Energy Transfer Partners, L.P.; Apache Corporation; Kimco Realty Corporation; Prudential Financial, Inc.; Prologis, L.P.; HCP, Inc.; Lincoln National Corporation; The Travelers Companies, Inc.; Textron Financial Corporation; Textron Inc.; The Williams Companies, Inc.; Pacific Gas and Electric Company; and Starwood Hotels & Resorts Worldwide, Inc. (the “Additional Single Names”).
As with the Standard North American Corporate Single Names currently cleared, ICC plans to provide for the clearance of contracts with a restructuring type of no restructuring, standardized maturity dates up to the 10-year tenor and both standardized coupons. One of the Additional Single Names (Starwood Hotels & Resorts Worldwide, Inc.) was recently added by Markit as one of the one hundred twenty-five single constituents of its Markit CDX North American Investment Grade Series 18 Index, and is not currently being cleared by ICC. Another of the Additional Single Names (Textron Financial Corporation) is a constituent of the Series 8 through 12 of the Markit CDX North American Investment Grade Index, and has not been cleared previously by ICC. All other Additional Single Names are not constituents of Series 8 through 18 of the Markit CDX North American Investment Grade Index. The Additional Single Names do not require any changes to the body of the ICC Rules. ICC will clear the Additional Single Names pursuant to ICC's existing Rules. The Additional Single Names do not require any changes to the ICC risk management framework including the ICC margin methodology, guaranty fund methodology, pricing parameters, or pricing model. The only change submitted was the inclusion of the Additional Single Names to Schedule 502 of the ICC Rules. The Additional Single Names were reviewed by the ICC Risk Department, the ICC Trading Advisory Committee, and the ICC Risk Committee.
Section 19(b)(2)(C) of the Act
Section 17A(b)(3)(F) of the Act
The proposed rule change is consistent with the requirements of Section 17A(b)(3)(F) and other requirements of the Act.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Liberty
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
U.S. Small Business Administration.
Amendment 8.
This is an amendment of the Presidential declaration of a major disaster for the State of LOUISIANA (FEMA-4080-DR), dated 08/31/2012.
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 LOUISIANA, dated 08/31/2012 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 the Military Reservist Economic Injury Disaster Loan Program (MREIDL), dated 10/01/2012
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, Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of Public Law 106-50, the Veterans entrepreneurship and Small Business Development Act of 1999, and the Military Reservist and Veteran Small Business Reauthorization Act of 2008, this notice establishes the application filing period for the Military Reservist Economic Injury Disaster Loan Program (MREIDL).
Effective 10/01/2012, small businesses employing military reservists may apply for economic injury disaster loans if those employees are called up to active duty during a period of military conflict or have received notice of an expected call-up, and those employees are essential to the success of the small business daily operations.
The purpose of the MREIDL program is to provide funds to an eligible small business to meet its ordinary and necessary operating expenses that it could have met, but is unable to meet, because an essential employee was called-up or expects to be called-up to active duty in his or her role as a military reservist. These loans are intended only to provide the amount of working capital needed by a small business to pay its necessary obligations as they mature until operations return to normal after the essential employee is released from active duty. For information/applications contact 1-800-659-2955 or visit
Applications for the Military Reservist Economic Injury Disaster Loan Program may be filed at the above address.
The Interest Rate for eligible small businesses is 4.000.
The number assigned is 13332 0.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the State of Mississippi (FEMA-4081-DR), dated 09/01/2012.
Submit completed loan applications to:
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 Mississippi, dated 09/01/2012 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 Mississippi (FEMA-4081-DR), dated 09/11/2012.
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 Mississippi, dated 09/11/2012, 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 OKLAHOMA dated 10/01/2012.
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 13330 5 and for economic injury is 13331 0.
The State which received an EIDL Declaration # is Oklahoma.
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 Louisiana (FEMA-4080-DR), dated 09/12/2012.
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 LOUISIANA, dated 09/12/2012, 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 UTAH dated 10/01/2012.
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 13326 6 and for economic injury is 13327 0.
The States which received an EIDL Declaration # are Utah, Arizona, Nevada.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of OKLAHOMA
dated 10/01/2012.
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 13328 5 and for economic injury is 13329 0.
The State which received an EIDL Declaration # is Oklahoma.
Department of State.
This notice is to inform the public that the Secretary of State determined, on September 14, 2012, pursuant to Section 1245(d)(4)(D) of the National Defense Authorization Act for Fiscal Year 2012 (NDAA) (Pub. L. 112-81), as amended by the Iran Threat Reduction and Syria Human Rights Act (Pub. L. 112-158), that as of September 14, 2012, each of the following countries has qualified for the 180-day exception outlined in section 1245(d)(4)(D): Belgium, Czech Republic, France, Germany, Greece, Italy, Japan,
Carlos Pascual, Special Envoy and Coordinator, Bureau of Energy Resources, (202) 647-8543.
Federal Aviation Administration (FAA), DOT.
Request for public comment.
The Federal Aviation Administration is requesting public comment on the release of land at the Smyrna-Rutherford County Airport, Smyrna, Tennessee. This property, approximately 166 acres on the east side of the airport, and 56 acres on the west side of the airport will change to a non-aeronautical use. This action is taken under the provisions of 49 U.S.C. Section 47107(h)(2) requiring public notice before a waiver of property used for an aeronautical purpose is granted.
Comments must be received on or before
Documents are available for review at the Smyrna—Rutherford County Airport, 278 Doug Warpoole Road, Smyrna, Tennessee 37167 and the FAA Airports District Office, 2862 Business Park Drive, Building G, Memphis, TN 38118. Written comments on the Sponsor's request must be delivered or mailed to: Mr. Phillip J. Braden, Manager, Memphis Airports District Office, 2862 Business Park Drive, Building G, Memphis, TN 38118.
In addition, a copy of any comments submitted to the FAA must be mailed or delivered to Mr. John R. Black, Executive Director, Smyrna-Rutherford County Airport Authority, 278 Doug Warpoole Road, Smyrna, Tennessee 37167
Mr. Michael Thompson, Program Manager, Federal Aviation Administration, Memphis Airports District Office, 2862 Business Park Drive, Building G, Memphis, TN 38118. The application may be reviewed in person at this same location, by appointment.
The FAA proposes to rule and invites public comment on the request to release property at the Smyrna-Rutherford County Airport, Smyrna, Tennessee under the provisions of 49 U.S.C. 47107(h)(2).
On October 1, 2012, the FAA determined that the request to release property at Smyrna-Rutherford County Airport meets the procedural requirements of the Federal Aviation Administration. The FAA may approve the request, in whole or in part, no later than
The following is a brief overview of the request:
The Smyrna-Rutherford County Airport is proposing the release of approximately 166 acres on the east side of the airport, and 56 acres on the west side of the airport so the property can be designated as available for non-aeronautical lease at the airport. This property is located as follows:
Any person may inspect, by appointment, the request in person at the FAA office listed above under
In addition, any person may, upon appointment and request, inspect the request, notice and other documents germane to the request in person at the Tennessee Department of Transportation, Division of Aeronautics.
Federal Aviation Administration (FAA), DOT.
Request for public comment.
The Federal Aviation Administration is requesting public comment on the release of land at the McKellar-Sipes Regional Airport, in the city of Jackson, TN. This property, approximately 4.0 acres, will change to a non-aeronautical use. This action is taken under the provisions of 49 U.S.C. Section 47107(h)(2) requiring public notice before a waiver of property designated to be used for an aeronautical purpose is granted.
Comments must be received on or before November 9, 2012.
Documents are available for review at the McKellar-Sipes Regional Airport, 308 Grady Montgomery Drive, Jackson, TN. 38301 and the FAA Airports District Office, 2862 Business Park Drive, Building G, Memphis, TN 38118. Written comments on the Sponsor's request must be delivered or mailed to: Mr. Phillip J. Braden, Manager, Memphis Airports District Office, 2862 Business Park Drive, Building G, Memphis, TN 38118.
In addition, a copy of any comments submitted to the FAA must be mailed or delivered to Mr. Steve Smith, Executive Director, Jackson—Madison County Airport Authority, 308 Grady Montgomery Drive, Jackson, TN. 38301.
Mr. Michael Thompson, Program Manager, Federal Aviation Administration, Memphis Airports District Office, 2862 Business Park Drive, Building G, Memphis, TN 38118. The application may be reviewed in person at this same location, by appointment.
The FAA proposes to rule and invites public comment on the request to release property at the McKellar-Sipes Regional Airport, Jackson, TN Under the provisions of 49 U.S.C. 47107(h)(2).
On October 1, 2012, the FAA determined that the request to release property at McKellar-Sipes Regional Airport meets the procedural requirements of the Federal Aviation Administration. The FAA may approve the request, in whole or in part, no later than November 9, 2012.
The following is a brief overview of the request:
The McKellar-Sipes Regional Airport is proposing the release of approximately 4.0 acres of airport property so the property can be used to accommodate the construction of a new Madison County Fire Department vehicle maintenance facility. This property is located on Technology Center Drive adjacent to the Tennessee Technology Center outside of the airport perimeter fence.
Any person may inspect, by appointment, the request in person at
In addition, any person may, upon appointment and request, inspect the request, notice and other documents germane to the request in person at the Tennessee Department of Transportation, Division of Aeronautics.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA.
This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to the proposed State Route 11 and Otay Mesa East Land Port of Entry in the City and County of San Diego, State of California. These actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before April 8, 2013. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.
Manuel E. Sánchez, Senior Transportation Engineer/Border Engineer, Federal Highway Administration—California Division, 401 B Street, Suite 800, San Diego, CA 92101, Regular Office Hours: 6:30 a.m. to 4:00 p.m., Telephone: (619) 699-7336, Email:
Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the following highway project in the State of California: The State Route 11 and the Otay Mesa East Port of Entry in City and County of San Diego, California. The selected Tier II Preferred Modified Two Interchange Alternative consists of SR-11, which will be constructed as a 2.1-mile, four-lane toll highway, with two lanes in each direction, plus auxiliary lanes and connectors from Harvest Road for approximately 1.5 miles, before curving to the southeast near Alta Road and continuing for approximately 0.6 mile to connect with the new Otay Mesa Port Of Entry (POE)/Commercial Vehicle Enforcement Facility (CVEF) site. SR-11 will cross four local surface streets: Sanyo Avenue, Enrico Fermi Drive, Alta Road, and Siempre Viva Road. Modifications to SR-905 to accommodate its connections with SR-11 will occur between the SR-905/SR-125/SR-11 Interchange and the SR-905/Britannia Boulevard Interchange. These modifications will include the construction of two-lane connectors between the two highways, the addition of an auxiliary lane between La Media Road and the eastbound SR-11 connector, and the tapering of these connectors to match SR-905 in the vicinity of the Britannia Boulevard Interchange. On the westbound side of SR-905, the proposed project will also construct a ramp from SR-11 to tie into the planned SR-905 and SR-125 off-ramps to La Media Road. SR-11 will include a full interchange at Enrico Fermi Drive and partial interchange at Siempre Viva Road, as well as an undercrossing at Sanyo Avenue and an overcrossing at Alta Road. The POE will occupy approximately 101 acres, and will accommodate northbound and southbound commercial and passenger traffic, as well as pedestrians and bicycles. The proposed project also includes a new CVEF, which will occupy approximately 18 acres east of SR-11 along the northern POE boundary. Total new R/W acquisition associated with the Modified Two Interchange Alternative would be approximately 236.6 acres.
The actions by the FHWA and other Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS) for the project, approved on March 29, 2012, in the FHWA Record of Decision (ROD) issued on September 24, 2012, and other key documents. The FEIS and ROD are available by contacting FHWA at the address provided above. The FHWA FEIS can be viewed and downloaded from the project Web site at:
The FEIS can also be viewed at public libraries in the project area.
Pending federal actions include:
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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Executive Orders: E.O. 11990, Protection of Wetlands; E.O. 11988, Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 13175, Consultation and Coordination with Indian Tribal Governments; E.O. 13112, Invasive Species. Nothing in this notice creates a cause of action under these Executive Orders.
23 U.S.C. 139(
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 17 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce.
The exemptions are effective October 10, 2012. The exemptions expire on October 10, 2014.
Elaine M. Papp, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On August 14, 2012, FMCSA published a notice of receipt of Federal diabetes exemption applications from 17 individuals and requested comments from the public (77 FR 48587). The public comment period closed on September 13, 2012, and no comments were received.
FMCSA has evaluated the eligibility of the 17 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 17 applicants have had ITDM over a range of 1 to 22 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the August 14, 2012,
FMCSA did not receive any comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized
Based upon its evaluation of the 17 exemption applications, FMCSA exempts Victor E. Angelo, Jr. (PA), David M. Atkins (SC), Roger A. Black (IN), Dominick Bravata (IL), Barry J. Drews (MI), Donald T. Farris (MS), Mark A. Hadrava (MN), Mason L. Hall (SD), Chad E. Hasler (MT), Norman A. Latondresse (RI), Robert C. Lister (OH), Roy E. Macomber (WA), Timothy J. Peterson (NE), Jim R. Phillippi (NE), Daryl E. Rohn, Jr. (WA), Robert E. Smith (GA) and Steven A. Wilson (FL) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the 1/exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated December 23, 2011, the McCreary County Heritage Foundation, Inc. (MCHF), on behalf of the Big South Fork Scenic Railway (BSFSRY), has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR 215.303. FRA assigned the petition Docket Number FRA-2012-0003.
Specifically, MCHF/BSFSRY seeks a waiver of compliance from the railroad freight car safety standards found at 49 CFR 215.303, which requires stenciling on restricted freight cars in clearly legible letters “R” followed by the basis of the restriction. This request is made for seven flatcars that were modified as “open air” and enclosed passenger cars (Car Numbers K&T 1001, 1002, 1003, 1004, 1005, 1006, and 1007) and one caboose (Car Number K&T Cab. 1).
As information, MCHF/BSFSRY also requested a Special Approval to continue in service the same cars in accordance with 49 CFR 215.203(c). The ages of these cars are more than 50 years from their original construction dates, and therefore, are restricted per 49 CFR 215.203(a), unless MCHF/BSFSRY receives a Special Approval from FRA.
MCHF/BSFSRY states that it is a 501(c)3 not-for-profit organization. This tourist railroad operates on a 7-mile portion of former Kentucky & Tennessee Railway right-of-way out of Stearns, KY. Operation of BSFSRY is entirely for historical, educational, and excursion purposes by employees of MCHF. BSFSRY is a non-insular tourist operation and does not interchange any of the equipment subject to this petition with the general system of railroads.
MCHF was incorporated in Kentucky in 1987. Since 2000 MCHF has operated BSFSRY as a historical tourist railroad for the purpose of providing an opportunity or the public to view and experience a ride on the historic Kentucky & Tennessee Railway into the river gorge of the Big South Fork of the Cumberland River. The cars are operated at a maximum speed of 15 mph, typically 16-30 times a month from April through October, and average 80 miles per week. Special trains are operated 6-12 times a month in October, November, and December, and these cars travel an average of 50 miles per week. These cars carry no more than 15 tons of payload (passengers and modifications), which is less than 30 percent of their original design capacities of 40 to 60 tons. The caboose subject to this petition is used as a passenger car for small private parties. A BSFSRY attendant is always onboard the caboose.
BSFSRY states that the cars subject to this petition do not interchange with any railroad and as such are in captive service. The stenciling requirement would affect the appearance of the renovated cars that have been preserved for historical, educational, and interpretive purposes.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by November 26, 2012 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated June 15, 2012, the National Railroad Passenger Corporation (Amtrak) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR 242.403-(b), (c)(1)-(3), (d), (e)(1)-(4), (e)(6)-(11), (e)(13) and f(1)-(2). FRA assigned the petition Docket Number FRA-2012-0054.
The Confidential Close Call Reporting System (C3RS) pilot project for Amtrak was initially approved by FRA on May 11, 2010. In Docket Number FRA-2010-27678, Amtrak requested and was granted a waiver of certain provisions of 49 CFR Part 240, which governs the certification of locomotive engineers, to support the pilot project. On May 11, 2010, FRA granted the waiver for a period of 5 years. The railroad now requests a similar waiver from the conductor certification regulations for purposes of participating in the C3RS pilot project. Amtrak, the Brotherhood of Locomotive Engineers and Trainmen, and the United Transportation Union desire to shield the reporting employee and the railroad from punitive sanctions that would otherwise arise, as provided in selected sections of 49 CFR Part 242, to encourage conductor reporting of close calls and protect conductors and Amtrak from discipline or sanctions arising from the incidents reported pursuant to the Memorandum of Understanding for the C3RS, dated May 11, 2010.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate Docket Number and may be submitted by any of the following methods:
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Communications received within November 26, 2012 of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Indiana Northeastern Railroad Company (IN) has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
IN has certified that: (1) No local traffic has moved over the Line for at least two years; (2) overhead traffic on the Line, if any, can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on November 8, 2012, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to applicant's representative: Carl M. Miller, Miller & Harants, 618 Professional Park Drive, New Haven, IN 46774.
If the verified notice contains false or misleading information, the exemption is void
IN has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by October 12, 2012. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1 (800) 877-3339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), IN shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by filing of a notice of consummation by October 9, 2013, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
On September 19, 2012, Idaho Northern & Pacific Railroad Company (INPR) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to discontinue overhead trackage rights over a 53.09-mile line of railroad owned by Union Pacific Railroad Company, between milepost 519.0 at Weiser, and milepost 465.91, at Caldwell Junction, in Canyon, Payette and Washington Counties, Idaho.
The interest of railroad employees will be protected by the conditions set forth in
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by January 7, 2013.
Because this is a discontinuance proceeding and not an abandonment, trail use/rail banking and public use conditions are not appropriate. Similarly, no environmental or historic documentation is required under 49 CFR 1105.6(c)(2) and 1105.8(b).
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) to subsidize continued rail service will be due no later than 10 days after service of a decision granting the petition for exemption. Each OFA must be accompanied by the filing fee, which is currently set at $1,600.
All filings in response to this notice must refer to Docket No. AB 433 (Sub-No. 4X) and must be sent to: (1) Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001; and (2) Karl Morell, 655 Fifteenth Street NW., Suite 225, Washington, DC 20005. Replies to the petition are due on or before October 29, 2012.
Persons seeking further information concerning discontinuance procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or refer to the full abandonment and discontinuance regulations at 49 CFR 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of two entities whose property and interests in property are blocked pursuant to Executive Order 13619 of July 11, 2012, “Blocking Property of Persons Threatening the Peace, Security, or Stability of Burma” and Executive Order 13464 of April 30, 2008, “Blocking Property and Prohibiting Certain Transactions Related to Burma.”
The designation by the Director of OFAC of the two entities named in this notice, pursuant to Executive Order 13619 and Executive Order 13464, is effective July 11, 2012.
Assistant Director, Sanctions Compliance and Evaluation, 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 July 11, 2012, President Barack Obama signed Executive Order 13619, “Blocking Property of Persons Threatening the Peace, Security, or
Section 1(a) of E.O. 13619 blocks, with certain exceptions, all property and interests in property that are in, that hereafter come within, the United States, or that are or hereafter come within the possession or control of any United States person, including any foreign branch, of persons determined by the Secretary of the Treasury, in consultation with or at the recommendation of the Secretary of State, to satisfy any of the criteria set forth in subparagraphs (a)(i)-(a)(vi) of Section 1. On July 11, 2012, the Director of OFAC, in consultation with or at the recommendation of the Department of State designated, pursuant to one or more of the criteria set forth in Section 1, subparagraphs (a)(i)-(a)(vi) of E.O. 13619, the following entity, whose name has been added to the list of Specially Designated Nationals and Blocked Persons and whose property and interests in property are blocked pursuant to E.O. 13619:
On April 30, 2008, President George W. Bush signed Executive Order 13464 “Blocking Property and Prohibiting Certain Transactions Related to Burma” (“E.O. 13464”), pursuant to,
Section 1 of E.O. 13464 blocks, with certain exceptions, all property and interests in property that are in, that hereafter come within, the United States, or that are or hereafter come within the possession or control of any United States person, including their overseas branches, of the persons listed in the annex to E.O. 13464, as well as those persons determined by the Secretary of the Treasury, after consultation with the Secretary of State, to satisfy any of the criteria set forth in subparagraphs (b)(i)-(b)(iii) of Section 1. On July 11, 2012, the Director of OFAC, after consultation with the Department of State, designated, pursuant to one or more of the criteria set forth in Section 1, subparagraphs (b)(i)-(b)(iii) of E.O. 13464, the following entity, whose name has been added to the list of Specially Designated Nationals and Blocked Persons and whose property and interests in property are blocked pursuant to E.O. 13464:
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)).
Written comments should be received on or before December 10, 2012 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.
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The Department of the Treasury and the Internal Revenue Service, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity 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
Currently, the IRS is seeking comments concerning the following forms, and reporting and record-keeping requirements:
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
United States Mint, Department of the Treasury.
Notice.
Because of the recent increase in the market price of silver, the United States Mint is raising the price of its American Eagle Silver Proof and Uncirculated Coins and the America the Beautiful Five Ounce Silver Uncirculated Coins
B.B. Craig, Associate Director for Sales and Marketing; United States Mint; 801 9th Street NW., Washington, DC 20220; or call 202-354-7500.
31 U.S.C. 5111, 5112 & 9701.
a. Persons in Cuba
b. Persons in Eurasia and the Baltics
c. Persons in Iraq
d. In exceptional circumstances, persons identified by a United States Embassy in any location
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service, determine endangered species status for the Alabama pearlshell (
This rule becomes effective on November 9, 2012.
This final rule, final economic analysis, and the coordinates from which the maps were generated are included in the administrative record for this critical habitat designation and are available on the Internet at
Don Imm, Field Supervisor, U.S. Fish and Wildlife Service, Panama City Field Office, 1601 Balboa Avenue, Panama City, FL 32405; telephone 850-769-0552; facsimile 850-763-2177. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
This document consists of: (1) A final rule to list the Alabama pearlshell (
It is our intent to discuss in this final rule only those topics directly relevant to the listing and designation of critical habitat for the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe under the Act (16 U.S.C. 1531
On October 4, 2011, we published the proposed rule to list and designate critical habitat for these eight mussels (76 FR 61482). Federal actions for these species prior to October 4, 2011, are outlined in the proposed rule. Publication of the proposed rule opened a 60-day comment period, which closed on December 5, 2011. On March 27, 2012 (77 FR 18173), we reopened the comment period for 30 days, from March 27 through April 26, 2012, in order to announce the availability of and receive comments on a draft economic analysis, and to extend the comment period on the proposed listing and critical habitat designation.
North American freshwater mussel fauna is the richest in the world and historically numbered around 300 species (Williams
These eight species are all freshwater bivalve mussels of the families Margaritiferidae and Unionidae. The Alabama pearlshell is a member of the family Margaritiferidae, while the round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe belong to the family Unionidae. These mussels are endemic to (found only in) portions of three Coastal Plain rivers that drain south-central and southeastern Alabama and northwestern Florida: the Escambia (known as the Escambia River in Florida and the Conecuh River in Alabama), the Yellow, and the Choctawhatchee. All three rivers originate in Alabama and flow across the Florida panhandle before emptying into the Gulf of Mexico, and are entirely contained within the East Gulf Coastal Plain Physiographic Region. The Alabama pearlshell is also known from three locations in the Mobile River Basin; however, only one of those is considered to be currently occupied.
Freshwater mussels generally live embedded in the bottom of rivers, streams, and other bodies of water. They siphon water into their shells and across four gills that are specialized for respiration and food collection. Food items include detritus (disintegrated organic debris), algae, diatoms, and bacteria (Strayer
Sexes in margaritiferid and unionid mussels are usually separate. Males release sperm into the water column, which females take in through their siphons during feeding and respiration. Fertilization takes place inside the shell. The eggs are retained in the gills of the female until they develop into mature larvae called glochidia. The glochidia of most freshwater mussel species, including all eight species addressed in this rule, have a parasitic stage during which they must attach to the gills, fins, or skin of a fish to transform into a juvenile mussel. Depending on the mussel species, females release glochidia either separately, in masses known as conglutinates, or in one large mass known as a superconglutinate. The duration of the parasitic stage varies by mussel species, water temperature, and perhaps host fish species. When the transformation is complete, the juvenile mussels drop from their fish host and sink to the stream bottom where, given suitable conditions, they grow and mature into adults.
Recent distributions are based on surveys conducted from 1995 to 2012. Historical distributions are based on collections made prior to 1995. Historical distribution data from museum records and surveys dated between the late 1800s and 1994 are sparse, and most of these species were more than likely present throughout their respective river basins. Knowledge of historical and current distribution and abundance data were summarized from Butler 1989; Williams
Assessing the state of a freshwater mussel population is challenging. We looked at trends in distribution (range) by comparing recent occurrence data to historical data, and we examined recent abundance (numbers). One difficulty of investigating population trends over time in these species is the lack of historical collection data within the drainages. Athearn (1964, p. 134) noted the streams of western Florida were inadequately sampled, particularly the lower Choctawhatchee, Yellow, and the lower Escambia Rivers. Blalock-Herod
Another difficulty is the lack basic information for some historical collections, including specific locality, total number of species or individuals collected, or collection date. For these reasons, the only accurate comparison that can be made of so many different sources of historical and recent collection data is whether a particular species was detected (present) or not (absent) during the survey. When examining occurrence data, we considered sampled areas in close proximity as the same sight. Generally, areas sampled that are within 2 river km (1.2 mi) (approximately) of each other are considered the same site, and sampled areas that are more than 2 km apart are considered different sites. Occurences are based on live animals and shell material. The occurrence data we examined using GIS mapping software. A summary historical and recent occurrence data, and current abundance is presented in Table 1.
We also considered each species' relative abundance in comparison to other mussel species with which they co-occur. In addition, we relied on various published documents whose authors are considered experts on these species. These publications either described the status of these species or assigned a conservation ranking, and include Williams
Most of the eight species have experienced a decline in populations and numbers of individuals within populations, but not all have experienced a decline in range. Recent, targeted surveys for the Alabama pearlshell and southern kidneyshell show a dramatic decline in historical range. The Choctaw bean, narrow pigtoe, fuzzy pigtoe, southern sandshell, and tapered pigtoe still occur in much of their historical range; however, they no longer occur at many locations at which they were historically known, and their numbers appear to be declining. The round ebonyshell's current range is larger than its historical range, but this is attributed to the use of dive equipment in recent surveys that allowed access to the species' deep, main channel habitat. Despite this range extension, the species still has a very limited distribution and is considered to be extremely rare.
The Alabama pearlshell (
The Alabama pearlshell is one of five North American species in the family Margaritiferidae. The family is represented by only two genera,
The Alabama pearlshell typically inhabits small headwater streams with mixed sand and gravel substrates, occasionally in sandy mud, with slow to moderate current. Very little is known about the life-history requirements of this species. However, Shelton (1995, p. 5 unpub. report) suggests that the Alabama pearlshell, as opposed to the Louisiana pearlshell, which occurs in large colonies, typically occurs in low numbers. The Alabama pearlshell is also believed to occur in male-female pairs. Of the 68 Alabama pearlshell observed by Shelton (1995, p. 5 unpub. report), 85 percent occurred in pairs. Males were always located upstream of the females and were typically not more than 1 meter (m) apart, and juveniles were usually found just a few inches apart. The species is believed to be a long-term brooder, where gravid females have been observed in December. The host fish and other aspects of its life history are currently unknown.
Historically, the Alabama pearlshell occurred in portions of the Escambia River drainage, and has also been reported from two systems in the Alabama River drainage. The Alabama pearlshell's known historical and current occurrences, by water body and county, are shown in Table 2 below.
The Amos Mill population, discovered in 2010, represents a new record, and possibly the only known surviving population in the Sepulga River drainage. The Burnt Corn and Otter Creek populations reaffirm historical records that had not been reported in nearly 30 years. Two of the Sandy Creek locations, discovered in 2011, are new populations. Since the late 1990s, more than 70 locations within the Alabama River Basin were surveyed for mollusks (McGregor
Recent data suggest that, of the nine remaining populations, the largest may occur in Little Cedar and Otter Mill creeks. In 2011, Fobian and Pritchett reported new populations at two locations in an unnamed tributary to Sandy Creek. Although this is not the first report from the Sandy Creek basin, it is the first for the two unnamed tributaries. In 2010, Buntin and Fobian (2011 pers. comm.) reported 10 live individuals from Otter Creek. This is the first time since 1981 that the pearlshell has been reported from this drainage. Also in 2010, Powell and Ford reported three live individuals, and several relic shells, from Amos Mill Creek, in Escambia County, AL. This is the first report of the pearlshell from this drainage, and county, and the first live individual from the Sepulga River system in nearly 50 years. Little Cedar Creek supported good numbers of Alabama pearlshell in the late 1990's (54 individuals reported in 1998). However, during a qualitative search of the same area in 2005, only two live pearlshell were found (Powell 2005 pers. obs.), and in 2006, three live pearlshells were observed (Johnson 2006 in litt.). Live Alabama pearlshell have not been observed in Hunter Creek since 1998, when eight live individuals were reported (Shelton 1999 in litt.). During two visits to the stream in 1999, Shelton found no evidence of the species (Shelton 1999
Evidence suggests that much of the rangewide decline of this species has occurred within the past few decades. Specific causes of the decline and disappearance of the Alabama pearlshell from historical stream localities are unknown. However, they are likely related to past and present land use patterns. Many of the small streams historically inhabited by the Alabama pearlshell are impacted to various degrees by nonpoint-source pollution.
The round ebonyshell (
Very little is known about the habitat requirements or life history of the round ebonyshell. It occurs in small to medium rivers, typically in stable substrates of sand, small gravel, or sandy mud in slow to moderate current. It is believed to be a short-term brooder, and gravid females have been observed in the spring and summer. The fish host(s) for the round ebonyshell is currently unknown (Williams
The round ebonyshell is known only from the main channel of the Escambia-Conecuh River and is the only mussel species endemic to the drainage (Williams
The round ebonyshell has a very restricted distribution (Williams and Butler 1994, p. 61), with its current range (based on live individuals and shell material) confined to approximately 144 km (89 mi) of the Escambia-Conecuh River main channel. The round ebonyshell is also considered to be extremely rare (Williams
The southern kidneyshell (
Very little is known about the habitat requirements or life history of the southern kidneyshell. It is typically found in medium creeks to small rivers in firm sand substrates with slow to moderate current (Williams
The southern kidneyshell is endemic to the Escambia, Choctawhatchee, and Yellow River drainages in Alabama and Florida (Williams
Since 1995, the southern kidneyshell has been detected at only 10 locations within the Choctawhatchee River drainage. The species appears to have been common historically (in 1964, H. D. Athearn collected 98 individuals at one site on the West Fork Choctawhatchee), but it is currently considered one of the most imperiled species in the United States (Blalock-Herod
The Choctaw bean (
Very little is known about the habitat requirements or life history of the Choctaw bean. It is found in medium creeks to medium rivers in stable substrates of silty sand to sandy clay with moderate current. It is believed to be a long-term brooder, with females gravid from late summer or autumn to the following summer. Its fish host is currently unknown (Williams
The Choctaw bean is known from the Escambia, Yellow, and Choctawhatchee River drainages in Alabama and Florida (Williams
The Choctaw bean persists in most of its historic range. However, it has experienced localized extirpations and its numbers are low, particularly in the Escambia and Yellow river drainages. Of 7 historical sites known to support the species within the Escambia River drainage, 1 location currently supports the species. Also, its numbers within the drainage are very low; a total of 14 individuals have been collected since 1995. Within the Yellow River drainage, the Choctaw bean is currently known from 4 locations which yielded 15 individuals total. In the Choctawhatchee River drainage, 3 of 10 historical sites examined recently continue to support the species. The Choctaw bean continues to persist in most areas and is currently known from a total of 37 locations throughout the drainage.
Heard (1975, p. 17) assessed the status of the Choctaw bean in 1975 and stated that it was formerly abundant in the main channel of the Choctawhatchee River in Florida, but has become quite rare. McGregor (2004, p. 103) considered the Choctaw bean vulnerable to extinction due to its limited distribution and habitat degradation, and classified it as a species of high conservation concern in Alabama. Williams
The tapered pigtoe (
The tapered pigtoe is found in medium creeks to medium rivers in stable substrates of sand, small gravel, or sandy mud, with slow to moderate current (Williams
The tapered pigtoe is endemic to the Choctawhatchee River drainage in Alabama and Florida (Williams
The tapered pigtoe appears to be absent from portions of its historic range and found only in isolated locations (Blalock-Herod
Due to its limited distribution, rarity, and habitat degradation, Blalock-Herod
The narrow pigtoe (
Little is known about the habitat requirements or life history of the narrow pigtoe. It is found in medium creeks to medium rivers, in stable substrates of sand, sand and gravel, or silty sand, with slow to moderate current. It is believed to be a short-term brooder, with females gravid during spring and summer. The host fish for the narrow pigtoe is currently unknown (Williams
The narrow pigtoe is endemic to the Escambia River drainage in Alabama and Florida, and to the Yellow River drainage in Florida (Williams
The narrow pigtoe still occurs in much of its historic range, but may be extirpated from localized areas. In the Escambia River drainage, the narrow pigtoe occurs in nearly all of its historical range and is currently known from 28 locations. It was not detected at 3 out of 10 historical sites examined recently in the drainage. The species is rare in the Yellow River drainage; a total of 23 individuals from 4 locations have been collected since 1995.
McGregor (2004, p. 55) considered the narrow pigtoe vulnerable to extinction because of its limited distribution, rarity, and susceptibility to habitat degradation, and classified it as a species of highest conservation concern in Alabama. Williams
The southern sandshell (
The southern sandshell is typically found in small creeks and rivers in stable substrates of sand or mixtures of sand and fine gravel, with slow to moderate current. It is a long-term brooder, and females are gravid from late summer or autumn to the following spring (Williams
The southern sandshell is endemic to the Escambia River drainage in Alabama, and the Yellow and Choctawhatchee River drainages in Alabama and Florida (Blalock-Herod
The southern sandshell persists in its historic range; however, its range is fragmented and numbers appear to be declining (Williams
The southern sandshell is classified as a species of highest conservation concern in Alabama by Blalock-Herod (2004, p. 60), and considered threatened throughout its range by Williams
The fuzzy pigtoe (
The fuzzy pigtoe is found in medium creeks to medium rivers in stable substrates of sand and silty sand with slow to moderate current. The reproductive biology of the fuzzy pigtoe was studied by White
The fuzzy pigtoe is endemic to the Escambia, Yellow, and Choctawhatchee River drainages in Alabama and Florida (Williams
Within the Escambia River drainage, the fuzzy pigtoe was detected at 15 of the 21 historic locations surveyed since 1995; however, its status in the drainage is difficult to assess as 9 historical sites have not been surveyed since 1995, and at least 3 other sites have vague localities. The fuzzy pigtoe is exceedingly rare in the Yellow River drainage, where it is currently known from 1 of 4 historic locations. A single individual collected in 2010 in the main channel in Florida is the only recent record of the species in the drainage. Its range in the Yellow River drainage has declined, and the species may no longer occur in the upper portion of the drainage in Alabama. In the Choctawhatchee River drainage, the fuzzy pigtoe stills occurs in nearly all of its historic range and is currently known from a total of 50 locations; however, the species has become extirpated in localized areas. Fifteen of the 18 historic locations in the drainage were surveyed recently, and 8 continue to support fuzzy pigtoe populations. At one site on Limestone Creek, a once abundant population may have disappeared—a total of 42 live fuzzy pigtoes were collected in 1988; the surveyor revisited the site in 1993, and found only 1 live and 4 dead specimens and noted that the creek appeared to have more sand and that mussels were not as abundant (Butler 1988 and 1993
The fuzzy pigtoe is considered vulnerable to extinction because of its limited distribution and dwindling habitat by McGregor (2004, p. 101), who classified it as a species of high conservation concern in Alabama. Williams
We requested written comments from the public on the proposed listing and designation of critical habitat for the eight mussels during two comment periods. The first comment period associated with the publication of the proposed rule (76 FR 61482) opened on October 4, 2011, and closed on December 5, 2011. We also requested comments on the proposed listing and critical habitat rule and the associated draft economic analysis during a comment period that opened March 27, 2012, and closed on April 26, 2012 (77 FR 18173). We did not receive any requests for a public hearing, so none were held. We also contacted all appropriate State and Federal agencies (including the States of Alabama and Florida, from whom we directly requested comments), county governments, elected officials, scientific organizations, and other interested parties and invited them to comment. Articles concerning the proposed rule and inviting public comment were published by seven local newspapers.
During the first comment periods, we received five comment letters directly addressing the proposed listing and critical habitat designation. During the second comment period, we received four comment letters addressing the proposed listing and critical habitat designation and the draft economic analysis. All substantive information provided during both comment periods has either been incorporated directly into this final determination or is addressed below.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we requested the expert opinions of four knowledgeable individuals with expertise on freshwater mussel conservation and biology, and with familiarity of the eight species and the three river basins in which they occur. We received written responses from two of the four peer reviewers we contacted.
We reviewed all comments received from the two peer reviewers for substantive and new information regarding the proposal to list and designate critical habitat for the eight mussels. The peer reviewers generally concurred with our conclusions and provided additional information, clarifications, and suggestions to improve the final listing and critical habitat rule. One peer reviewer provided several narrative comments, and we addressed most of those below; however, a few minor comments are directly incorporated into this final rule. Another peer reviewer submitted a marked-up copy of the proposed rule, noting errors and suggestions; we adopted most of the suggested changes and incorporated them directly into this final rule. Peer reviewer comments are addressed in the following summary and incorporated into this final rule as appropriate.
(1)
(2)
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Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the State of Florida regarding the proposal to list and designate critical habitat for the eight mussels are addressed below. No comments were received from the State of Alabama.
(14)
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This comment provides new information on the administrative effort required on the part of the NAS for maintenance of its INRMP. Review and updating of this INRMP occurs annually and would therefore occur regardless of critical habitat designation. However, incremental administrative effort may be required to consider the impact of activities covered under the INRMP on critical habitat. As discussed in section 4.1 of the DEA, the Service does not anticipate the critical habitat designation will generate recommendations for conservation efforts beyond those it would recommend due to the listing of the species. As a result, incremental economic impacts of critical habitat associated with consultation on the Navy's INRMP would be limited to additional administrative effort. The FEA is therefore revised to incorporate additional administrative costs to Units AP2 and GCM1 associated with the annual formal consultation on the NAS's INRMP.
(18)
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The southern kidneyshell's occurrence in the Yellow River is based on a single specimen collected in 1919, from Hollis Creek in Covington County, Alabama. The Hollis Creek segment was re-surveyed in 2012, and the surveyor noted the stream is small and intermittent, and is unlikely to support listed mussels (see comment 12); this may indicate habitat degradation or hydrology alteration or both since the collection. At this time, we do not believe that southern kidneyshell critical habitat should include the Yellow River drainage (including GCM5) because it is not essential to the conservation of the species and does not contain the physical or biological features needed to support the species.
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After consideration of the comments we received during the public comment periods (see above), we made changes to the final listing rule. Many small, nonsubstantive changes and corrections, not affecting the determination (e.g., updating the Background section in response to comments, minor clarifications) were made throughout the document. Below is a summary list of more substantive changes made to this document.
(1) The total length of critical habitat was revised to 2,404 km (1,494 mi.) due to the removal of Hollis Creek, the exemption of a small section of Hunter Creek, and the accidental omission of one segment (Corner Creek) in a spreadsheet used to sum unit lengths for the proposed rule. Corner Creek was featured in the unit descriptions and maps of the proposed rule, but was inadvertently left out of the spreadsheet.
(2) The status of the southern sandshell was revised to a threatened species based on a peer reviewer's comment and new survey data.
(3) Unit AP2 was revised to remove a 0.4 km (0.25 mi) segment of Hunter Creek in Covington County, Alabama. This segment was determined to be exempt under section 4(a)(3) of the Act because it receives management under an approved INRMP created by the U.S. Navy (see comment 17 and our response).
(4) Table 1 was added to address peer review comment 3.
(5) The
(6) Information related to dam height and fish passage for Point A, Gantt, and Elba dams was added, and information related to the operation of Elba dam on the Pea River was revised.
In addition to these changes and additions, several errors in the proposed rule were corrected. These include:
(1) Renumbering of tables. The proposed rule contained two Tables 1 and 2; the second tables 1 and 2 were renumbered to Tables 10 and 11 in this document.
(2) Adding 1 km (1 mi) to the length of AP2. The length was recalculated and revised to 96 km (155 mi).
(3) Removing a portion of GCM5. Hollis Creek from its confluence with the Yellow River upstream 5.5 km (3.5 mi) to County Road 42, Covington County, Alabama, was erroneously included as critical habitat in the proposed rule, and we have removed it from this final rule; the length of unit GCM 5 was revised to 247 km (153 mi.).
(4) Adding 5 km (3.0 mi) to GCM6. This corrects an accidental omission of the Corner Creek segment length from the total length of critical habitat in the proposed rule. This happened due to its omission from a spreadsheet used to calculate the total length of units. The Corner Creek segment was, however, included in the critical habitat description in the proposed rule. The corrected length of the unit is 897 mi (557 km).
(5) Correcting other small errors in Table 10. Specifically, for southern sandshell,in unit GCM1, we revisedthe total length to 2,222 km (1,379 mi); for southern kidneyshell, we changed unit GCM5 to GCM6 and revised its total length to 1,975 km (1,226 mi); and for fuzzy pigtoe, we changed unit GCM2 to GCM1 and revised its total length to 2,222 km (1,379 mi).
(6) Changing the term “protected” to “managed” in Table 11 to more accurately define the various types of public lands.
(7) Where appropriate, updating occurrence information to incorporate data from a status survey completed in March of 2012.
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be listed as 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; or (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 is discussed below.
The habitats of freshwater mussels are vulnerable to habitat modification and water quality degradation from a number of activities associated with modern civilization. The primary cause of the decline of these eight mussels has been the modification and destruction of their stream and river habitat, with sedimentation as the leading cause. Their stream habitats are subject to pollution and alteration from a variety of sources including adjacent land use
Nonpoint-source pollution from land surface runoff originates from virtually all land use activities and includes sediments, fertilizer, herbicide and pesticide residues; animal wastes; septic tank leakage and gray water discharge; and oils and greases. Current activities and land uses that can negatively affect populations of these eight mussels include unpaved road crossings, improper silviculture and agriculture practices, highway construction, housing developments, pipeline crossings, and cattle grazing. These activities can result in physical disturbance of stream substrates or the riparian zone, excess sedimentation and nutrification, decreased dissolved oxygen concentration, increased acidity and conductivity, and altered flow. Limited range and low numbers make these eight mussels vulnerable to land use changes that would result in increases in nonpoint-source pollution.
Sedimentation is one of the most significant pollution problems for aquatic organisms (Williams and Butler 1994, p. 55), and has been determined to be a major factor in mussel declines (Ellis 1936, pp. 39-40). Impacts resulting from sediments have been noted for many components of aquatic communities. For example, sediments have been shown to abrade or suffocate periphyton (organisms attached to underwater surfaces); affect respiration, growth, reproductive success, and behavior of aquatic insects and mussels; and affect fish growth, survival, and reproduction (Waters 1995, pp. 173-175). Heavy sediment loads can destroy mussel habitat, resulting in a corresponding shift in mussel fauna (Brim Box and Mossa 1999, p. 100). Excessive sedimentation can lead to rapid changes in stream channel position, channel shape, and bed elevation (Brim Box and Mossa 1999, p. 102). Sedimentation has also been shown to impair the filter feeding ability of mussels. When in high silt environments, mussels may keep their valves closed more often, resulting in reduced feeding activity (Ellis 1936, p. 30), and high amounts of suspended sediments can dilute their food source (Dennis 1984, p. 212). Increased turbidity from suspended sediment can reduce or eliminate juvenile mussel recruitment (Negus 1966, p. 525; Brim Box and Mossa 1999, pp. 101-102). Many mussel species use visual cues to attract host fishes; such a reproductive strategy depends on clear water. For example, increased turbidity may impact the southern sandshell life
Biologists conducting mussel surveys within the drainages have reported observations of excessive sedimentation in the streams and rivers of the three basins. While searching for the Alabama pearlshell in headwater streams of the Escambia and Alabama drainages, D. N. Shelton (1996, pp. 1-5 unpub. report) reported many streams within the study area had experienced heavy siltation, and that all species of mollusks appeared to be adversely affected. M. M. Gangloff (Gangloff and Hartfield 2009, p. 253) observed large amounts of sand and silt in the mainstem Pea and Choctawhatchee rivers during a 2006-2007 survey, and considered this a possible reason for the decline of mussels in the drainage.
In 2009-2010, The Nature Conservancy completed an inventory and prioritization of impaired sites in the Yellow River watershed in Alabama and Florida (Herrington
Potential sediment sources within a watershed include virtually any activity that disturbs the land surface. Current sources of sand, silt, and other sediment accumulation in south-central Alabama and western Florida stream channels include unpaved road runoff, agricultural lands, timber harvest, livestock grazing, and construction and other development activities (Williams and Butler 1994, p. 55; Bennett 2002, p. 5 and references therein; Hoehn 1998, pp. 46-47 and references therein). The Choctawhatchee, Pea, and Yellow Rivers Watershed Management Plan (CPYRWMP) and the Conecuh-Sepulga-Blackwater Rivers Watershed Protection Plan (CSBRWPP) document water quality impairments to the Alabama portion of the watersheds. Both plans identify elevated levels of sediment as one of the primary causes of impairment (CPYRWMP, p. 156; CSBRWPP, p. 110). In the Choctawhatchee and Yellow river drainages, four out of the nine streams in which sediment loads were calculated by the Geological Survey of Alabama had significant sediment impairment (CPYRWMP, p. 157). In Alabama, runoff from unpaved roads and roadside gullies is considered the main source of sediment transported into the streams of the drainages (Bennett 2002, p. 5 and references therein; CPYRWMP, p. 145). Unpaved roads are constructed primarily of sandy materials and are easily eroded and transported to stream corridors. In addition, certain silvicultural and agricultural activities cause erosion, riparian buffer degradation, and increased sedimentation. Uncontrolled access to streams by cattle can result in destruction of riparian vegetation, bank degradation and erosion, and localized sedimentation of stream habitats.
Land surface runoff also contributes nutrients (for example, nitrogen and phosphorus from fertilizers, sewage, and animal manure) to rivers and streams, causing them to become eutrophic. Excessive nutrient input stimulates excessive plant growth (algae, periphyton attached algae, and nuisance plants). This enhanced plant growth can cause dense mats of filamentous algae that can expose juvenile mussels to entrainment or predation and be detrimental to the survival of juvenile mussels (Hartfield and Hartfield 1996,
Because of their sedentary characteristics, mussels are extremely vulnerable to toxic effluents (Sheehan
States maintain water-use classifications through issuance of National Pollutant Discharge Elimination System (NPDES) permits to industries, municipalities, and others that set maximum limits on certain pollutants or pollutant parameters. The Alabama Department of Environmental Management (ADEM) has designated the water use classification for most portions of the Escambia, Yellow, and Choctawhatchee Rivers as “Fish and Wildlife” (F&W), and a few portions (mostly lakes) as “Swimming” (S). The F&W designation establishes minimum water quality standards that are believed to protect existing species and water uses like fishing and recreation within the designated area, while the S classification establishes higher water quality standards that are protective of human contact with the water. The Florida Department of Environmental Protection (FDEP) classifies all three river drainages as Class III waters. The Class III designation establishes minimum water quality standards that are believed to protect species and uses such as recreation. The Choctawhatchee and Shoal Rivers are also designated as Outstanding Florida Waters (OFW) by the State of Florida. The designation prevents the discharge of pollutants, which would lower existing water quality or significantly degrade the OFW.
Section 303(d) of the Clean Water Act (33 U.S.C. 1251 et seq.) requires States to identify waters that do not fully support their designated use classification. These impaired water bodies are placed on the State's 303(d) list, and a total maximum daily load (TMDL) must be developed for the pollutant of concern. A TMDL is an estimate of the total load of pollutants that a segment of water can receive without exceeding applicable water quality criteria. Alabama's 303(d) list identifies a total of 25 impaired stream segments within the Escambia, Yellow, and Choctawhatchee River basins that either support populations of the eight species or that flow into streams that support them. The list identifies metals (mercury and lead), organic enrichment, pathogens, siltation, excess nutrients, or unknown toxicity as reasons for impairment (ADEM 2010b, pp. 4-8). Various potential point and non-point pollution sources are identified, such as atmospheric deposition, pasture grazing, feedlots, municipal, industrial, urban runoff, agriculture, and land development. Florida's 303(d) list identifies a total of 22 impaired stream segments within the basins that either support populations of seven of the species (the Alabama pearlshell does not occur in Florida) or that flow into streams that support them. The list identifies coliform bacteria, low dissolved oxygen (nutrients), and mercury (in fish tissue) as reasons for inclusion (FDEP 2010b, pp. 4-6).
While the negative effects of point-source discharges on aquatic communities in Alabama and Florida have been reduced over time by compliance with State and Federal regulations pertaining to water quality, there has been less success in dealing with nonpoint-source pollution impacts. Because these contaminant sources stem from urban surface runoff, private landowner activities (construction, grazing, agriculture, silviculture), and public construction works (bridge and highway construction and maintenance), they are often more difficult to regulate.
These mussels require stable stream and river habitats and activities that cause channel instability can negatively impact their populations. Activities such sand and gravel mining, the removal of large woody material, off-road vehicles use, and land use changes are known to cause channel destabilization. Activities that destabilize stream beds and channels can result in drastic alterations to stream geomorphology and consequently to the stream's ecosystem.
Instream gravel mining has been implicated in the destruction of mussel populations (Stansbery 1970, p. 10; Hartfield 1993, pp. 138-139). Instream sand and gravel mining can cause severe bank erosion, channel widening, destruction of riparian habitats, and other geomorphic changes (Kanehl and Lyons 1992, pp. 26-27; Brown
Operations that remove large woody material from channels, either for navigation and maintenance (desnagging) or for the recovery of pre-cut submerged timber (deadhead
Low flow conditions provide access to stream margins and channels for off-road vehicles. The practice of driving off-road vehicles within stream channels has been observed in the upper Conecuh and Choctawhatchee river drainages (Metcalf 2012 pers. com). These vehicles may destabilize stream banks, increase sedimentation rates, and may also directly crush mussels (Stringfellow and Gagnon 2001, p. 3).
Land use activities such as land clearing and development can cause channel instability by accelerating stormwater runoff into streams. Increased runoff rates can result in bank erosion and bed scour (Brim Box and Mossa 1999, p. 103), and can lead to channel incision (Booth 1990, p. 407; Doyle
The damming of rivers has been a major factor contributing to the demise of freshwater mussels (Bogan 1993, p. 604). Dams eliminate or reduce river flow within impounded areas, trap silts and cause sediment deposition, alter water temperature and dissolved oxygen levels, change downstream water flow and quality, affect normal flood patterns, and block upstream and downstream movement of mussels and their host fishes (Bogan 1993, p. 604; Vaughn and Taylor 1999, pp. 915
Three significant mainstem impoundments are situated within the three drainages, all in Alabama. Constructed in 1923 for hydroelectric power generation, Point A Lake and Gantt Lake dams are located on the mainstem of the Conecuh River in Covington County, Alabama. The downstream dam, Point A, is 41 ft. high, and Gantt dam is 35 ft. high. Combined, these two dams impound approximately 3,400 acres at normal pool. Both impoundments have limited storage capacity and are operated as modified run-of-river projects with daily peaking. For example, when inflows to Gantt are greater than 1,500 cubic feet per second (cfs), the outflow matches the inflow at Point A. However, during the summer months, when inflows can fall below 1,500 cfs, a portion of the inflow may be stored and released when power generation is in high demand. Regardless of the inflow, Point A dam has a minimum continuous discharge requirement of 500 cfs and a requirement to meet a dissolved oxygen level of no less than 4.0 milligram per liter (mg/l).
The Elba dam on the Pea River mainstem near Elba, Alabama, was constructed in 1903 for power generation. The dam generates power during peak periods and stores some water, but does not have a reservoir, only a widened channel which is roughly one and a half to two times wider upstream of the dam than downstream. The 29 ft. high structure is a barrier to to upstream fish migration (Williams
All three dams are barriers to upstream fish migration and to the movement of potential mussel host species. The Service (2003 pp. 13392-3) noted that Point A Dam and Elba Dam prevent threatened Gulf sturgeon (
The potential exists for more dams to be constructed within the three drainages, and at least four additional impoundments are proposed. These include proposed impoundments on Murder Creek and Big Escambia Creek in the Escambia River drainage in Alabama, the Yellow River mainstem in Florida, and the Little Choctawhatchee River in Alabama. These proposed projects have implications for populations of all eight species. Given projected population increases and the need for municipal water supply, other proposals for impoundment construction are expected in the future.
In summary, the loss and degradation of habitat from various forms of pollution, stream bed destabilization, and impoundments are a threat to the continued existence of these eight species. Degradation from sedimentation and contaminants is a threat to the habitat and water quality necessary to support these species throughout their entire ranges. Sedimentation can cause mortality by suffocation; impair the ability to feed, respire, and reproduce; and destabilize substrate. Contaminants associated with municipal and industrial effluents (metals, ammonia, chlorine) and with agriculture and silviculture (pesticides) are lethal to mussels, particularly to the highly sensitive early life stages. These mussels require stabile stream and river channels, and quickly disappear from areas destabilized by gravel mining, the removal of large woody material, off-road vehicle use, and increased surface runoff. The effects of impoundments are more subtle, but can cause severe alternations to mussel habitat both upstream and downstream of the dam, and can impair dispersal and breeding ability. While recent surveys for these species have documented several new populations, they have also documented a decline in (and the loss of) many of the known populations due to human impact. Therefore, we have determined that the present or threatened destruction, modification, or curtailment of habitat and range is a threat with severe impact to the Alabama pearlshell, round ebonyshell, southern kidneyshell, and Choctaw bean, and is a threat with moderate impact to the tapered pigtoe, narrow
None of the eight mussels are commercially valuable species, and the streams and rivers that they inhabit are not subject to harvesting activities for commercial mussel species. Although the eight species have been taken for scientific and private collections in the past, collecting is not considered a factor in the decline of these species. Such activity may increase as their rarity becomes known; however, we have no specific information indicating that overcollection is currently a threat. Therefore, we find that overutilization for commercial, recreational, scientific, or educational purposes is not a threat to the eight mussels at this time.
Diseases of freshwater mussels are poorly known, and we have no specific information indicating that disease poses a threat to populations of these eight species. Juvenile and adult mussels are prey items for some invertebrate predators and parasites (for example, nematodes and mites), and provide prey for a few vertebrate species (for example, raccoons, muskrats, otters, and turtles) (Hart and Fuller 1974, pp. 225-240). However, we have no evidence of any specific declines in these species due to predation. Therefore, diseases and predation of freshwater mussels remain largely unstudied and are not considered a threat to the eight mussels at this time.
There is no information on the sensitivity of the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, or fuzzy pigtoe to aquatic pollutants. Current State and Federal regulations regarding pollutants are designed to be protective of aquatic organisms; however, freshwater mussels may be more susceptible to some pollutants than test organisms commonly used in bioassay tests. A multitude of bioassay tests conducted on 16 mussel species (summarized by Augspurger
Ammonia is an important aquatic pollutant because of its relatively high toxicity and common occurrence in riverine systems. This has application to the expected sources of these chemicals in the environment. Significant sources of nutrient enrichment leading to elevated ammonia include industrial wastewater, municipal wastewater treatment plant effluents, and urban and agricultural runoff (chemical fertilizers and animal wastes) (Augspurger
As indicated in the Factor A discussion above, sedimentation is considered the most significant threat to these eight species. Best management practices (BMPs) for sediment and erosion control are often recommended or required for construction projects; however, compliance, monitoring, and enforcement of these recommendations are often poorly implemented. Although unpaved roads likely contribute the majority of sediment to the streams and rivers in the basins, other sources including forestry, row crops, and construction contribute to the total sediment load.
States are required under the Clean Water Act to establish a TMDL for the pollutants of concern that the water body can receive without exceeding the applicable standard (see discussion under Factor A). However, the Federal Clean Water Act is not fully utilized in the protection of these river systems. For example, of the 51 impaired water bodies identified within the drainages, less than one-fourth currently have approved TMDLs (ADEM 2010c, pp. 3-6; FDEP 2010b, pp. 4-6).
In summary, some regulatory mechanisms exist that protect aquatic species; however, these regulations are not effective at protecting mussels and their habitats from sedimentation and contaminants. Pollution from non-point sources is the greatest threat to these eight mussels (see Factor A discussion); however, this type of pollution is difficult to regulate and not effectively controlled by State and Federal water quality regulations. Therefore, we find current existing regulatory mechanisms are inadequate to protect the eight mussels throughout their ranges. This threat is current and is projected to continue into the future.
The Gulf coastal region is prone to extreme hydrologic events. Extended droughts result from persistent high-pressure systems, which inhibit moisture from the Gulf of Mexico from reaching the region (Jeffcoat
During high flows, flood scour can dislodge mussels where they may be injured, buried, or swept into unsuitable habitats, or mussels may be stranded and perish when flood waters recede (Vannote and Minshall 1982, p. 4105; Tucker 1996, p. 435; Hastie
During drought, stream channels may become disconnected pools where mussels are exposed to higher water temperatures, lower dissolved oxygen levels, and predators, or channels may become dewatered entirely. Johnson
There is a growing concern that climate change may lead to increased frequency of severe storms and droughts (McLaughlin
The linear nature of their habitat, reduced range, and small population sizes make these eight mussels vulnerable to contaminant spills. Spills as a result of transportation accidents are a constant, potential threat as numerous highways and railroads cross the stream channels of the basins. Also, more than 400 oil wells are located within Conecuh and Escambia Counties, Alabama. In Conecuh County, most of these wells are concentrated in the Cedar Creek drainage, which supports at least two populations of the Alabama pearlshell. These wells are subject to periodic spills either directly at the well site or associated with the transport of the oil. For example, on February 5, 2010, an oil spill occurred in the headwaters of Feagin Creek. Feagin Creek is located between two known pearlshell locations, Little Cedar and Amos Mill creeks. The resulting spill discharged more than 150 gallons of oil into Feagin Creek. Although there were no known populations of the pearlshell in Feagin Creek, this type of spill could have easily occurred in one of the adjacent watersheds that supports the pearlshell. Since 2000, there have been 13 spills reported in Conecuh, 36 in Escambia, and 33 in Covington Counties, Alabama.
Population fragmentation and isolation prohibits the natural interchange of genetic material among populations. Low numbers of individuals within the isolated populations have greater susceptibility to deleterious genetic effects, including inbreeding depression and loss of genetic variation (Lynch 1996, pp. 493-494). Small, isolated populations, therefore, are more susceptible to environmental pressures, including habitat degradation and stochastic events, and thus are the most susceptible to extinction (Primack 2008, pp. 151-153). It is unknown if any of the eight mussel species are currently experiencing a loss of genetic diversity. However, surviving populations of the Alabama pearlshell, round ebonyshell, and southern kidneyshell do have highly restricted or reduced ranges, fragmented habitats, and extremely small population sizes.
As mentioned in the
The Asian clam (
The flathead catfish (
In summary, a variety of natural or manmade factors currently are a threat to these eight mussels. Stochastic events such as droughts and floods have occurred in these three river drainages in the past, and climate change may increase the frequency and intensity of
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe. Section 3(6) of the Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range,” and section 3(20) of the Act defines a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” As described in detail above, these eight species are currently at risk throughout all of their respective ranges due to ongoing threats of habitat destruction and modification (Factor A), inadequacy of existing regulatory mechanisms (Factor D), and other natural or manmade factors affecting their continued existence (Factor E). Specifically, these factors include excessive sedimentation, municipal and industrial effluents, pesticides, excessive nutrients, impoundment of stream channels, recurring drought and flooding, contaminant spills, and the introduced Asian clam. In addition, existing regulatory mechanisms are inadequate to ameliorate some of the threats affecting these mussels and their habitats. Based on the best available science, these threats are currently impacting these species and are projected to continue and potentially worsen in the future. These eight mussels are also at increased threat due to the loss of genetic viability and the reduction or absence of fish hosts (described under Factor E); however, these threats are not currently known to be imminent.
Species with small ranges, few populations, and small or declining population sizes, are the most vulnerable to extinction (Primack 2008, p. 137). The effects of certain factors, particularly habitat degradation and loss, catastrophic events, and introduced species, increase in magnitude when population size is small (Soulé 1980, pp. 33, 71; Primack 2008, pp. 133-135, 152). The impact of habitat degradation, catastrophic events, and introduced species are more severe to the Alabama pearlshell, round ebonyshell, southern kidneyshell, and Choctaw bean than the other four species, which have few or isolated populations coupled with low numbers of individuals and limited or reduced ranges. Nonetheless, the tapered pigtoe, narrow pigtoe, southern sandshell and fuzzy pigtoe, which still occur in much of their historical ranges have been eliminated from historic streams and main channel locations and have declining numbers of individuals. When combining the effects of historical, current, and future habitat loss and degradation; historical and ongoing drought; and the exacerbating effects of small and declining population sizes and curtailed ranges, the Alabama pearlshell, round ebonyshell, southern kidneyshell, and Choctaw bean are in danger of extinction throughout all of their ranges, and the tapered pigtoe, narrow pigtoe, southern sandshell and fuzzy pigtoe are likely to become endangered within the foreseeable future throughout all of their ranges. In addition, any factor (i.e., habitat loss or natural and manmade factors) that results in a further decline in habitat or individuals may be problematic for the long-term recovery of these species.
Therefore, based on the best available scientific and commercial information, we are listing the Alabama pearlshell, round ebonyshell, southern kidneyshell, and Choctaw bean as endangered species throughout all of their ranges, and the tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe as threatened species throughout all of their ranges. In the proposed rule we examined all available information on the eight species to determine if any significant portions of their ranges may warrant a different status. However, because of their limited and curtailed ranges, and uniformity of the threats throughout them, we find there are no significant portions of any of the species' ranges that warrant a different determination of status.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection measures required of Federal agencies and the prohibitions against certain activities involving listed wildlife are discussed in Effects of Critical Habitat Designation and are further discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprised of species experts, Federal and State agencies, nongovernment organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.
Once these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, under to section 6 of the Act, the States of Alabama and Florida will be eligible for Federal funds to implement management actions that promote the protection or recovery of these eight mussel species. Information on our grant programs that are available to aid species recovery can be found at:
Please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, 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 destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include: The management of and any other landscape-altering activities on Federal lands administered by the Department of Defense and U.S. Forest Service; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; licensing of hydroelectric dams, and construction and management of gas pipeline and power line rights-of-way approved by the Federal Energy Regulatory Commission; construction and maintenance of roads or highways funded by the Federal Highway Administration; and land management practices administered by the Department of Agriculture.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered wildlife, and at 17.32 for threatened wildlife. With regard to endangered wildlife, a permit must be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
It is our policy, as published in the
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.
(2) Introduction of nonnative species that compete with or prey upon these eight mussel species, such as the zebra mussel (
(3) The unauthorized release of biological control agents that attack any life stage of these species.
(4) Unauthorized modification of the channel or water flow of any stream or water body in which these species are known to occur.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Panama City Ecological Services Field Office (see
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) Which 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 ensure, 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 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) of the Act 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.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in critical habitat if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the specific elements of physical or biological features that provide for a species' life-history processes, are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, 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. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. 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.
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 sources of information include the articles in peer-reviewed journals, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions 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 synergistic implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah and Lovejoy 2005, p.4). Current climate change predictions for terrestrial areas in the Northern Hemisphere indicate warmer air temperatures, more intense precipitation events, and increased summer continental drying (Field
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 needed 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
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and the 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 (PBFs) essential to the conservation of the species, and 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 historic, geographical, and ecological distributions of a species.
We derive the specific physical or biological features essential for Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe from studies of these species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
We have determined that Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe require the following physical or biological features:
The Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe are all historically associated with the Escambia, Yellow, and Choctawhatchee river drainages in Alabama and Florida. The Alabama pearlshell is also known from three locations in the Mobile River Basin; however, only one of those is considered to be currently occupied. The eight mussels are found embedded in stable substrates composed mainly of fine to coarse sand, with occasional patches of clay or gravel (Williams
Freshwater mussels, such as these eight species, filter algae, detritus, and bacteria from the water column (Williams
The Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe are riverine species that depend upon adequate water flow. Continuously flowing water is a habitat feature associated with all of the eight species. Flowing water maintains the stream bottom habitats where these species are found, transports food items to the sedentary juvenile and adult life stages, transports sperm to the adult females, provides oxygen for respiration, and removes wastes. Populations of the narrow pigtoe were recently discovered in Gantt and Point A Lakes (Williams
The ranges of standard physical and chemical water quality parameters (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the eight species have not been investigated. However, as relatively sedentary animals, mussels must tolerate the full range of such parameters that occur naturally within the streams where they persist. Both the amount (flow) and the physical and chemical conditions (water quality) where each of the eight species currently exists vary widely according to season, precipitation events, and seasonal human activities within the watershed. Conditions across their historical ranges vary even more due to watershed size, geology, geography, and differences in human population densities and land uses. In general, each of the species survives in areas where the magnitude, frequency, duration, and seasonality of water flow are adequate to
We currently believe that most numeric standards for pollutants and water quality parameters (for example, dissolved oxygen, pH, heavy metals) that have been adopted by the States under the Clean Water Act represent levels that are essential to the conservation of each of these eight mussels. However, some States' standards may not adequately protect mollusks, or are not being appropriately measured, monitored, or achieved in some reaches (see Factors A and D above). The Service is currently in consultation with the EPA to evaluate the protectiveness of criteria approved in EPA's water quality standards for threatened and endangered species and their critical habitats as described in the memorandum of agreement that our agencies signed in 2001 (66 FR 11201, February 22, 2001). Other factors that can potentially alter water quality are droughts and periods of low flow, non-point-source runoff from adjacent land surfaces (for example, excessive amounts of sediments, nutrients, and pesticides), point-source discharges from municipal and industrial wastewater treatment facilities (for example, excessive amounts of ammonia, chlorine, and metals), and random spills or unregulated discharge events. This could be particularly harmful during drought conditions when flows are depressed and pollutants are more concentrated. Therefore, adequate water quality is essential for normal behavior, growth, and viability during all life stages of the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe.
Freshwater mussels require a host fish for transformation of larval mussels (glochidia) to juvenile mussels (Williams
Juvenile mussels require stable bottom habitats for growth and survival. Excessive sediments or dense growth of filamentous algae can expose juvenile mussels to entrainment or predation and be detrimental to the survival of juvenile mussels (Hartfield and Hartfield 1996, p. 373). Geomorphic instability can result in the loss of habitats and juvenile mussels due to scouring or deposition (Hartfield 1993, p. 138). Therefore, based on the information above, we identify stable bottom substrate with low to moderate amounts of filamentous algae growth to be a physical or biological feature for the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of these eight mussel species in areas occupied at the time of listing, focusing on the features' primary constituent elements (PCEs). Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we have determined that the primary constituent elements specific to the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe are:
(1) Geomorphically stable stream and river channels and banks (channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation).
(2) Stable substrates of sand or mixtures of sand with clay or gravel with low to moderate amounts of fine sediment and attached filamentous algae.
(3) A hydrologic flow regime (magnitude, frequency, duration, and seasonality of discharge over time) necessary to maintain benthic habitats where the species are found, and to maintain connectivity of rivers with the floodplain, allowing the exchange of nutrients and sediment for habitat maintenance, food availability, and spawning habitat for native fishes.
(4) Water quality, including temperature (not greater than 32 ºC), pH (between 6.0 to 8.5), oxygen content (not less than 5.0 mg/L), hardness, turbidity, and other chemical characteristics necessary for normal behavior, growth, and viability of all life stages.
(5) The presence of fish hosts. Diverse assemblages of native fish species will serve as a potential indication of host fish presence until appropriate host fishes can be identified. For the fuzzy pigtoe and tapered pigtoe, the presence of blacktail shiner (
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by these species at the time of listing contain features that are essential to their conservation and that may require special management considerations or protections. None of the portions of the critical habitat units for these species below has been designated as critical habitat for other mussel species that are already listed under the Act. None of the areas is presently under special management or protection provided by a legally operative management plan or agreement for the conservation of these species.
Many of the threats to the eight mussels and their habitat are pervasive and common in all of the nine units that we are designating as critical habitat
As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of these species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied (that is those occupied at the time of listing)—are necessary to ensure the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing (2012). We also are designating specific areas outside the geographical area occupied by the species at the time of listing, that were historically occupied but are presently unoccupied, because we have determined that such areas are essential for the conservation of these species.
We began our analysis by considering historical and current ranges of each of the eight species. Sources of this information include research published in peer-reviewed articles and books, agency reports, museum collections, and surveys by biologists (see Background section). We then identified the specific areas that are occupied by each of the eight mussels and that contain one or more of the physical or biological features. We defined occupied habitat as those stream reaches known to be currently occupied by any of the eight species. To identify the currently occupied stream reaches, we used survey data collected from 1995 to 2012. Several surveys were conducted in the basins between the years of 1995 to 2012 (Shelton 1995 unpub. report; Shelton 1999 in litt.; Blalock-Herod
We then evaluated occupied stream reaches to delineate the probable upstream and downstream extent of each species' distribution. Known occurrences for some mussel species are extremely localized, and rare mussels can be difficult to locate. In addition, creek and river habitats are highly dependent upon upstream and downstream channel habitat conditions for their maintenance. Therefore, where more than one occurrence record of a particular species was found within a stream reach, we considered the entire reach between the uppermost and lowermost locations as occupied habitat.
We then considered whether this essential area was adequate for the conservation of each of the eight species. Small, isolated, aquatic populations are subject to chance catastrophic events and to changes in human activities and land use practices that may result in their elimination. Larger, more contiguous populations can reduce the threat of extinction due to habitat fragmentation and isolation. For these reasons, we believe that conservation of the Alabama pearlshell and southern kidneyshell requires expanding their ranges into currently unoccupied portions of their historical habitat. Given that threats to these two species are compounded by their limited distribution and isolation, it is unlikely that currently occupied habitat is adequate for their conservation. The range of each has been severely curtailed, their occupied habitats are limited and isolated, and population sizes are small. For example, the Alabama pearlshell is no longer believed to occur in the Limestone Creek system (Monroe County), several tributaries in the Murder Creek system, or in the Patsaliga Creek drainage. The southern kidneyshell once occurred in all three river basins, but is currently known only from the Choctawhatchee basin. While occupied units provide habitat for current populations, these species are at high risk of extirpation and extinction from stochastic events, whether periodic natural events or potential human-induced events (see Summary of Factors Affecting the Species). The inclusion of essential unoccupied areas will provide habitat for population reintroduction and will decrease the risk of extinction. Based on the best scientific data available, areas not currently occupied by the Alabama pearlshell and southern kidneyshell are essential for their conservation, with one exception. We eliminated from consideration the Yellow River drainage as critical habitat for the southern kidneyshell. Its occurrence in the Yellow River is based on a 1919 collection of one specimen from Hollis Creek in Covington County, Alabama. However, we believe this single, historical collection is not sufficient to support the conclusion that any portions of the Yellow River drainage are essential to the conservation of the southern kidneyshell at this time. Otherwise, all of the stream habitat areas designated as critical habitat that are currently not known to be occupied contain sufficient physical or biological features (e.g., geomorphically stable channels, perennial water flows, adequate water quality, and appropriate benthic substrates) to support life-history functions of the mussels. The stream reaches also lack major anthropogenic disturbance, and have potential for reoccupation by the species through future reintroduction efforts. Based on the above factors, all unoccupied stream reaches included in the designations for the Alabama pearlshell and southern kidneyshell are essential to their conservation.
Following the identification of occupied and unoccupied stream reaches, the next step was to delineate the probable upstream and downstream extent of each species' distribution. We used USGS 1:100,000 digital stream maps to delineate the boundaries of critical habitat units according to the criteria explained below. The upstream boundary of a unit in a stream is the first perennial, named tributary confluence; a road-crossing bridge; or a permanent barrier to fish passage (such as a dam) above the upstream-most current occurrence record. Many of the Alabama pearlshell survey sites are located near watershed headwaters. In these areas, the upstream boundary of a unit is the point where the stream and its tributaries are no longer perennially flowing streams. The confluence of a
Because mussels are naturally restricted by certain physical conditions within a stream or river reach (i.e., flow, substrate), they may be unevenly distributed within these habitat units. Uncertainty on upstream and downstream distributional limits of some populations may have resulted in small areas of occupied habitat excluded from, or areas of unoccupied habitat included in, the designation. We recognize that both historical and recent collection records upon which we relied are incomplete, and that there may be river segments or small tributaries not included in this designation that harbor small, limited populations of one or more of the eight species considered in this designation, or that others may become suitable in the future. The exclusion of such areas does not diminish their potential individual or cumulative importance to the conservation of these species. However, with proper management, each of the nine critical habitat units are capable of supporting one or more of these mussel species, and will serve as source populations for artificial reintroduction into designated stream units, as well as assisted or natural migration into adjacent undesignated streams within each basin. The habitat areas contained within the units described below constitute our best evaluation of areas needed for the conservation of these species at this time. Critical habitat may be revised for any or all of these species should new information become available.
Using the criteria above, we delineated a total of nine critical habitat units—two units (AP1, AP2) for the Alabama pearlshell, and seven Gulf Coast mussels units (GCM1 through GCM7) for one or more of the other seven mussel species. We depicted the Alabama pearlshell units separately as this species tends to inhabit headwater stream environments and seldom co-occurs with the other seven species, although some critical habitat in the downstream portions of Unit AP2 overlaps with the upstream portions of Unit GCM1 in the Escambia River drainage. The round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe often co-occur within the same stream segments, so most of the GCM critical habitat units are designated for more than one species. Unit GCM2: Point A Lake and Gantt Lake Reservoirs is the only exception, which is designated for the narrow pigtoe only.
When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas because such lands lack physical or biological features for these eight mussel species. The areas designated as critical habitat listed below include only stream channels within the ordinary high-water line and do not do not include manmade structures (such as buildings, aqueducts, runways, dams, roads, and other paved areas) and the land on which they are located, with the exception of the impoundments created by Point A and Gantt Lake dams (impounded water, not the actual dam structures). The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological featues in the adjacent critical habitat.
Units are designated based on sufficient elements of physical or biological features being present to support life-history processes of these eight mussel species. Some units contain all of the identified elements of physical or biological features and support multiple life-history processes. Some segments contain only some elements of the physical or biological features necessary to support each species' particular use of that habitat.
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
We are designating nine units as critical habitat for the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. The occupancy and stream length of designated critical habitat units by species is shown in Table 10.
The designated critical habitat includes the creek and river channels within the ordinary high-water line only. For this purpose, we have applied the definition found at 33 CFR 329.11, and consider the ordinary high-water line on nontidal rivers to be the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.
States were granted ownership of lands beneath navigable waters up to the ordinary high-water line upon achieving Statehood (
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for each species, below.
Unit AP1 encompasses 92 km (57 mi) of the Big Flat Creek drainage, in Monroe and Wilcox Counties, AL. The unit is within the Mobile River basin. It includes the mainstem of Big Flat Creek from State Route 41 upstream 56 km (35 mi), Monroe County, AL; Flat Creek from its confluence with Big Flat Creek upstream 20 km (12 mi), Monroe County, AL; and Dailey Creek from its confluence with Flat Creek upstream 17 km (11 mi), Wilcox County, AL.
Unit AP1 is within the geographical area occupied at the time of listing (2012) for the Alabama pearlshell. Based on collection records, the species was last collected in the Big Flat Creek system in 1995, when Shelton (1995, p. 3 unpub. report) documented a fresh dead individual. Although it is likely that the Alabama pearlshell has always been rare in Big Flat Creek, the unit currently supports healthy populations of several other native mussel species, indicating the presence of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. A diverse fish fauna, including potential fish host(s) for the Alabama pearlshell, are known from the Big Flat Creek drainage, indicating the potential presence of PCE 5.
Threats to the Alabama pearlshell and its habitat may require special management of the physical or biological features including maintaining natural stream flows and protecting water quality from excessive point- and non-point-source pollution. For example, runoff from agricultural and industrial sites can alter water quality through added nutrients and sediment. Runoff from unpaved roads can also add sediments, and poorly designed road culverts can degrade habitats and limit distribution of the species. Some culverts can isolate pearlshell populations by acting as a barrier for dispersion and movement of host fish(es).
Unit AP2 encompasses 155 km (96 mi) of the Burnt Corn Creek, Murder Creek, and Sepulga River drainages within the Escambia River drainage in Escambia and Conecuh Counties, AL. It includes the mainstem of Burnt Corn Creek from its confluence with Murder Creek upstream 66 km (41 mi), Conecuh County, AL; the mainstem of Murder Creek from its confluence with Jordan Creek upstream 17 km (11 mi) to the confluence of Otter Creek, Conecuh County, AL; Jordan Creek from its confluence with Murder Creek upstream 12 km (7 mi), Conecuh County, AL; Otter Creek from its confluence with Murder Creek upstream 9 km (5.5 mi), Conecuh County, AL; Hunter Creek from its confluence with Murder Creek upstream 4.4 km (2.7 mi) to the NOLF Evergreen northern boundary, Conecuh County, AL; Hunter Creek from the NOLF Evergreen southern boundary upstream 3.0 km (1.9 mi), Conecuh County, AL; Sandy Creek from County
Unit AP2 is mostly within the geographical area occupied at the time of listing (2012) for the Alabama pearlshell. The Alabama pearlshell currently occurs in Jordan, Hunter, Otter, Sandy, Little Cedar, Bottle, and Amos Mill creek drainages. Although it historically occurred in the mainstem of Murder Creek, it has not been collected there since 1991. Therefore, this short reach of Murder Creek is considered unoccupied by the Alabama pearlshell, but essential to the conservation of the species. This unoccupied reach retains the physical or biological features of a natural stream channel and supports other native mussel species. It has potential for reoccupation by the pearlshell, particularly if threats can be identified and mitigated.
The unit currently supports healthy populations of several other native mussel species, indicating the elements of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with the pearlshell. A diverse fish fauna, including potential fish host(s) for the Alabama pearlshell, are known from these drainages, indicating the potential presence of PCE 5.
Threats to the Alabama pearlshell and its habitat that may require special management of the physical or biological featues include alteration and maintenance of natural stream flows (including the construction of impoundments), and protecting water quality from excessive point- and non-point-source pollution.
Unit GCM1 encompasses 558 km (347 mi) of the lower Escambia River mainstem and 12 tributary streams in Escambia and Santa Rosa Counties, FL, and Escambia, Covington, Conecuh, and Butler Counties, AL. The unit consists of the main channel of the Escambia-Conecuh River from the confluence of Spanish Mill Creek, Escambia and Santa Rosa counties, FL, upstream 204 km (127 mi) to the Point A Lake dam, Covington County, AL; Murder Creek from its confluence with the Conecuh River, Escambia County, AL, upstream 62 km (38 mi) to the confluence of Cane Creek, Conecuh County, AL; Burnt Corn Creek from its confluence with Murder Creek, Escambia County, AL, upstream 59 km (37 mi) to County Road 20, Conecuh County, AL; Jordan Creek from its confluence with Murder Creek, upstream 5.5 km (3.5 mi) to Interstate 65, Conecuh County, AL; Mill Creek from its confluence with Murder Creek upstream 2.5 km (1.5 mi) to the confluence of Sandy Creek, Conecuh County, AL; Sandy Creek from its confluence with Mill Creek upstream 5.5 km (3.5 mi) to County Road 29, Conecuh County, AL; Sepulga River from its confluence with the Conecuh River upstream 69 km (43 mi) to the confluence of Persimmon Creek, Conecuh County, AL; Bottle Creek from its confluence with the Sepulga River upstream 5.5 km (3.5 mi) to County Road 42, Conecuh County, AL; Persimmon Creek from its confluence with the Sepulga River, Conecuh County, upstream 36 km (22 mi) to the confluence of Mashy Creek, Butler County, AL; Panther Creek from its confluence with Persimmon Creek upstream 11 km (7 mi) to State Route 106, Butler County, AL; Pigeon Creek from its confluence with the Sepulga River, Conecuh and Covington Counties, upstream 89 km (55 mi) to the confluence of Three Run Creek, Butler County, AL; and Three Run Creek from its confluence with Pigeon Creek upstream 9 km (5.5 mi) to the confluence of Spring Creek, Butler County, AL.
Unit GCM1 is within the geographical area occupied at the time of listing (2012) for the round ebonyshell, southern kidneyshell, Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe. The southern kidneyshell is not currently known to occur in the unit; however, this portion of the Escambia River system is within the species' historical range, and we consider it essential to the southern kidneyshell's conservation due to the need to re-establish the species within other portions of its historical range in order to reduce threats from stochastic events. The unit currently supports populations of round ebonyshell, Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe, indicating the presence of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with these five species. A diverse fish fauna, including potential fish host(s) for the fuzzy pigtoe, are known from the Escambia River drainage, indicating the potential presence of PCE 5.
Threats to the five species and their habitat that may require special management of the physical or biological features include the potential of significant changes in the existing flow regime and water quality due to two upstream impoundments. As discussed in Summary of Factors Affecting the Species, mollusk declines downstream of dams are associated with changes and fluctuation in flow regime, scouring and erosion, reduced dissolved oxygen levels and altered water temperatures, and changes in resident fish assemblages. These alterations can cause mussel declines for many miles downstream of the dam.
Unit GCM2 encompasses 21 km (13 mi) of the Point A Lake and Gantt Lake reservoir system in Covington County, AL. Both lakes are impoundments on the Conecuh River main channel in the Escambia River drainage. The unit extends from Point A Lake dam, Covington County upstream 21 km (13 mi) to the Covington-Crenshaw County line in Alabama.
Unit GCM2 is within the geographical area occupied at the time of listing (2012) for the narrow pigtoe. As mentioned in discussion of essential physical or biological features for the narrow pigtoe, we attribute its occurrence in these two impoundments to the small size of the reservoirs and to the operational regime of the dams. This allows for water movement through the system, and prevents silt accumulation in some areas. The largest narrow pigtoe population occurs in the middle reach of Gantt Lake, where the reservoir narrows and becomes somewhat riverine. Although the natural state of the river's hydrological flow regime is modified, it does retain the presence of the physical or biological features necessary to maintain the benthic habitats where the species are found. The persistence of the narrow pigtoe within these reservoirs indicates the presence of an appropriate fish host. Although its fish host(s) is unknown, other mussels of the genus
Threats to the narrow pigtoe and its habitat that may require special management of the physical or biological features include the potential of significant changes in water levels due to periodic drawdowns of the reservoirs for maintenance to the dams. Within the two reservoirs, mussels occur in shallow areas near the shore, where they are susceptible to exposure when water levels are lowered. A drawdown of Point A Lake in 2005, and Gantt Lake in 2006, exposed and killed a substantial number of mussels (Johnson 2006
Unit GCM3 encompasses 149 km (92 mi) of Patsaliga Creek and two tributary streams in Covington, Crenshaw, and Pike Counties, AL, within the Escambia River basin. The unit consists of the Patsaliga Creek mainstem from its confluence with Point A Lake at County Road 59, Covington County, AL, upstream 108 km (67 mi) to Crenshaw County Road 66-Pike County Road 1 (the creek is the county boundary), AL; Little Patsaliga Creek from its confluence with Patsaliga Creek upstream 28 km (17 mi) to Mary Daniel Road, Crenshaw County, AL; and Olustee Creek from its confluence with Patsaliga Creek upstream 12 km (8 mi) to County Road 5, Pike County, AL.
Unit GCM3 is within the geographical area occupied at the time of listing (2012) for the Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe. The southern kidneyshell is not currently known to occur in the unit; however, this portion of the Patsaliga Creek system is within the species' historic range. We consider it essential to the conservation of the southern kidneyshell due to the need to re-establish the species within other portions of its historic range in order to reduce threats from stochastic events. The unit does currently support populations of Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe, indicating the presence of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with these four species. A diverse fish fauna, including a potential fish host for the fuzzy pigtoe, are known from the Patsaliga Creek drainage, indicating the potential presence of PCE 5.
Prior to construction of the Point A Lake and Gantt Lake dams in 1923, Patsaliga Creek drained directly to the Conecuh River main channel. It now empties into Point A Lake and is effectively isolated from the main channel by the dams. The dams are barriers to upstream fish movement, particularly to anadromous fishes. Therefore, a potential threat that may require special management of the physical or biological features includes the absence of fish hosts.
Unit GCM4 encompasses 137 km (85 mi) of the Conecuh River mainstem and two tributary streams in Covington, Crenshaw, Pike, and Bullock Counties, AL, within the Escambia River drainage. The unit consists of the Conecuh River from its confluence with Gantt Lake reservoir at the Covington-Crenshaw County line upstream 126 km (78 mi) to County Road 8, Bullock County, AL; Beeman Creek from its confluence with the Conecuh River upstream 6.5 km (4 mi) to the confluence of Mill Creek, Pike County, AL; and Mill Creek from its confluence with Beeman Creek, upstream 4.5 km (3 mi) to County Road 13, Pike County, AL.
Unit GCM4 is is within the geographical area occupied at the time of listing (2012) Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe. The southern kidneyshell is not currently known to occur in the unit; however, this portion of the Conecuh River is within the species' historic range, and we consider it to be essential to the conservation of the southern kidneyshell due to the need to re-establish the species within other portions of its historic range in order to reduce threats from stochastic events. The unit does currently support populations of Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe, indicating the presence of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. In addition, other mussel species requiring similar PCEs co-occur with these four species. A diverse fish fauna, including a potential fish host for the fuzzy pigtoe, are known from the upper Escambia River drainage, indicating the potential presence of PCE 5.
The Point A Lake and Gantt Lake dams on the Conecuh River mainstem are barriers to upstream fish movement, particularly to anadromous fishes. Therefore, a potential threat that may require special management of the physical or biological features includes the absence of fish hosts.
Unit GCM5 encompasses 247 km (153 mi) of the Yellow River mainstem, the Shoal River mainstem, and three tributary streams in Santa Rosa, Okaloosa, and Walton Counties, FL, and Covington County, AL. The unit consists of the Yellow River from the confluence of Weaver River (a tributary located 0.9 km (0.6 mi), downstream of State Route 87), Santa Rosa County, FL, upstream 157 km (97 mi) to County Road 42, Covington County, AL; the Shoal River from its confluence with the Yellow River, Okaloosa County, FL, upstream 51 km (32 mi) to the confluence of Mossy Head Branch, Walton County, FL; Pond Creek from its confluence with Shoal River, Okaloosa County, FL, upstream 24 km (15 mi) to the confluence of Fleming Creek, Walton County, FL; and Five Runs Creek from its confluence with the Yellow River upstream 15 km (9.5 mi) to County Road 31, Covington County, AL.
Unit GCM5 is within the geographical area occupied at the time of listing (2012) for the Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe. The southern kidneyshell was known from the Yellow River drainage; however, its occurrence in the basin is based on the collection of one specimen in 1919 from Hollis Creek in Alabama. We believe this single, historical record is not sufficient to consider this unit as essential to the conservation of the southern kidneyshell. Therefore, we are not designating Unit GCM5 as critical habitat for the southern kidneyshell at this time. The unit does currently support populations of Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe, indicating the presence of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with these four species. A diverse fish fauna are known from the Yellow River
Unit GCM6 encompasses 897 km (557 mi) of the Choctawhatchee River mainstem, the lower Pea River mainstem, and 29 tributary streams in Walton, Washington, Bay, Holmes, and Jackson Counties, FL, and Geneva, Coffee, Dale, Houston, Henry, Pike, and Barbour Counties, AL. The unit consists of the Choctawhatchee River from the confluence of Pine Log Creek, Walton County, FL, upstream 200 km (125 mi) to the point the river splits into the West Fork Choctawhatchee and East Fork Choctawhatchee rivers, Barbour County, AL; Pine Log Creek from its confluence with the Choctawhatchee River, Walton County, upstream 19 km (12 mi) to the confluence of Ditch Branch, Washington and Bay Counties, FL; an unnamed channel forming Cowford Island from its downstream confluence with the Choctawhatchee River upstream 3 km (2 mi) to its upstream confluence with the river, Washington County, FL; Crews Lake from its western terminus 1.5 km (1 mi) to its eastern terminus, Washington County, FL (Crews Lake is a relic channel southwest of Cowford Island, and is disconnected from the Cowford Island channel, except during high flows); Holmes Creek from its confluence with the Choctawhatchee River, Washington County, FL, upstream 98 km (61 mi) to County Road 4, Geneva County, AL; Alligator Creek from its confluence with Holmes Creek upstream 6.5 km (4 mi) to County Road 166, Washington County, FL; Bruce Creek from its confluence with the Choctawhatchee River upstream 25 km (16 mi) to the confluence of an unnamed tributary, Walton County, FL; Sandy Creek from its confluence with the Choctawhatchee River, Walton County, FL, upstream 30 km (18 mi) to the confluence of West Sandy Creek, Holmes and Walton County, FL; Blue Creek from its confluence with Sandy Creek, upstream 7 km (4.5 mi) to the confluence of Goose Branch, Holmes County, FL; West Sandy Creek from its confluence with Sandy Creek, upstream 5.5 km (3.5 mi) to the confluence of an unnamed tributary, Walton County, FL; Wrights Creek from its confluence with the Choctawhatchee River, Holmes County, FL, upstream 43 km (27 mi) to County Road 4, Geneva County, AL; Tenmile Creek from its confluence with Wrights Creek upstream 6 km (3.5 mi) to the confluence of Rice Machine Branch, Holmes County, FL; West Pittman Creek from its confluence with the Choctawhatchee River upstream 6.5 km (4 mi) to Fowler Branch, Holmes County, FL; East Pittman Creek from its confluence with the Choctawhatchee River upstream 4.5 km (3 mi) to County Road 179, Holmes County, FL; Parrot Creek from its confluence with the Choctawhatchee River upstream 6 km (4 mi) to Tommy Lane, Holmes County, FL; the Pea River from its confluence with the Choctawhatchee River, Geneva County, AL, upstream 91 km (57 mi) to the Elba Dam, Coffee County, AL; Limestone Creek from its confluence with the Pea River upstream 8.5 km (5 mi) to Woods Road, Walton County, FL; Flat Creek from the Pea River upstream 17 km (10 mi) to the confluence of Panther Creek, Geneva County, AL; Eightmile Creek from its confluence with Flat Creek, Geneva County, AL, upstream 15 km (9 mi) to the confluence of Dry Branch (first tributary upstream of County Road 181), Walton County, FL; Corner Creek from its confluence with Eightmile Creek upstream 5 km (3 mi) to State Route 54, Geneva County, AL; Natural Bridge Creek from its confluence with Eightmile Creek Geneva County, AL, upstream, 4 km (2.5 mi) to the Covington-Geneva County line, AL; Double Bridges Creek from its confluence with the Choctawhatchee River, Geneva County, AL, upstream 46 km (29 mi) to the confluence of Blanket Creek, Coffee County, AL; Claybank Creek from its confluence with the Choctawhatchee River, Geneva County, AL, upstream 22 km (14 mi) to the Fort Rucker military reservation southern boundary, Dale County, AL; Claybank Creek from the Fort Rucker military reservation northern boundary, upstream 6 km (4 mi) to County Road 36, Dale County, AL; Steep Head Creek from the Fort Rucker military reservation western boundary, upstream 4 km (2.5 mi) to County Road 156, Coffee County, AL; Hurricane Creek from its confluence with the Choctawhatchee River upstream 14 km (8.5 mi) to State Route 52, Geneva County, AL; Little Choctawhatchee River from its confluence with the Choctawhatchee River, Dale and Houston Counties upstream 20 km (13 mi) to the confluence of Newton Creek, Houston County, AL; Panther Creek from its confluence with the Little Choctawhatchee River, upstream 4.5 km (2.5 mi) to the confluence of Gilley Mill Branch, Houston County, AL; Bear Creek from its confluence with the Little Choctawhatchee River, upstream 5.5 km (3.5 mi) to County Road 40 (Fortner Street), Houston County, AL; West Fork Choctawhatchee River from its confluence with the Choctawhatchee River, Dale County, AL, upstream 54 km (33 mi) to the fork of Paul's Creek and Lindsey Creek, Barbour County, AL; Judy Creek from its confluence with West Fork Choctawhatchee River upstream 17 km (11 mi) to County Road 13, Dale County, AL; Sikes Creek from its confluence with West Fork Choctawhatchee River, Dale County, AL, upstream 8.5 km (5.5 mi) to State Route 10, Barbour County, AL; Paul's Creek from its confluence with West Fork Choctawhatchee River upstream 7 km (4.5 mi) to one mile upstream of County Road 20, Barbour County, AL; Lindsey Creek from its confluence with West Fork Choctawhatchee River upstream 14 km (8.5 mi) to the confluence of an unnamed tributary, Barbour County, AL; an unnamed tributary to Lindsey Creek from its confluence with Lindsey Creek upstream 2.5 km (1.5 mi) to 1.0 mile upstream of County Road 53, Barbour County, AL; and East Fork Choctawhatchee River from its confluence with the Choctawhatchee River, Dale County, AL, upstream 71 km (44 mi) to County Road 71, Barbour County, AL.
Unit GCM6 is within the geographical area occupied at the time of listing (2012) for the southern kidneyshell, Choctaw bean, tapered pigtoe, southern sandshell, and fuzzy pigtoe. The unit currently supports populations of the five species, indicating the elements of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with these five species. A diverse fish fauna is known from the Choctawhatchee River, including a potential fish host for the fuzzy pigtoe and tapered pigtoe, indicating the potential presence of PCE 5.
Not included in this unit are two oxbow lakes now disconnected from the Choctawhatchee River main channel in Washington County, Florida. Horseshoe Lake has a record of southern kidneyshell from 1932, and Crawford Lake has records of Choctaw bean and tapered pigtoe from 1934. It is possible these oxbow lakes had some connection to the main channel when the collections were made over 75 years ago. The three species are not currently known to occur in Horseshoe or Crawford lakes, and we do not consider them essential to the conservation of the southern kidneyshell, Choctaw bean, or tapered pigtoe.
Threats to the five species and their habitat that may require special management of the physical or biological features include the potential of significant changes in the existing
Unit GCM7 encompasses 234 km (145 mi) of the upper Pea River mainstem and six tributary streams in Coffee, Dale, Pike, Barbour, and Bullock Counties, AL. This unit is within the Choctawhatchee River basin and includes the stream segments upstream of the Elba Dam. The unit consists of the Pea River from the Elba Dam, Coffee County, upstream 123 km (76 mi) to State Route 239, Bullock and Barbour Counties, AL; Whitewater Creek from its confluence with the Pea River, Coffee County upstream 45 km (28 mi) to the confluence of Walnut Creek, Pike County, AL; Walnut Creek from its confluence with Whitewater Creek upstream 14 km (9 mi) to County Road 26, Pike County, AL; Big Creek (Coffee County) from its confluence with Whitewater Creek, Coffee County, upstream 30 km (18 mi) to the confluence of Smart Branch, Pike County, AL; Big Creek (Barbour County) from its confluence with the Pea River upstream 10 km (6 mi) to the confluence of Sand Creek, Barbour County, AL; Pea Creek from its confluence with the Pea River upstream 6 km (4 mi) to the confluence of Hurricane Creek, Barbour County, AL; and Big Sandy Creek from its confluence with the Pea River upstream 6.5 km (4 mi) to County Road 14, Bullock County, AL.
Unit GCM7 is within the geographical area occupied at the time of listing (2012) for the southern kidneyshell, Choctaw bean, tapered pigtoe, southern sandshell, and fuzzy pigtoe. The unit currently supports populations of the five species, indicating the elements of essential physical or biological features, and contains PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with these five species. A diverse fish fauna is known from the upper Pea River, including potential fish host(s) for the fuzzy pigtoe and tapered pigtoe, indicating the potential presence of PCE 5.
The Elba Dam on the Pea River mainstem is a barrier to upstream fish movement, particularly to anadromous fishes. Therefore, a potential threat that may require special management of the physical or biological feature includes the absence of potential host fishes.
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 designated critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeal have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
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. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.
As a result of section 7 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, or 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 alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(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 with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
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 or biological features to an extent that appreciably reduces the conservation value of critical habitat for Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, or fuzzy pigtoe. As discussed above, the role of critical habitat is to support life-history needs and provide for the conservation of these species.
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, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore should result in consultation for these eight mussel species include, but are not limited to:
(1) Actions that would significantly alter channel geomorphology. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, desnagging, and destruction of riparian vegetation. These activities may lead to changes in water flows and levels that would degrade or eliminate the mussels or their fish host and/or their habitats. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the mussels or their fish host.
(2) Actions that would significantly alter the existing flow regime. Such activities could include, but are not limited to impoundment, water diversion, water withdrawal, water draw-down, and hydropower generation. These activities could eliminate or reduce the habitat necessary for growth and reproduction of these mussels.
(3) Actions that would significantly alter water chemistry, quality, or temperature. Such activities could include, but are not limited to, release of chemicals, biological pollutants, or heated effluents into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions to levels that are beyond the tolerances of the mussels or their fish host and result in direct or cumulative adverse affects to these individuals and their life cycles.
(4) Actions that would significantly alter stream bed material composition and quality by increasing sediment deposition or filamentous algal growth. Such activities could include, but are not limited to, construction projects, livestock grazing, timber harvest, and other watershed and floodplain disturbances that release sediments or nutrients into the water. These activities could eliminate or reduce habitats necessary for the growth and reproduction of these mussels by causing excessive sedimentation and burial of the species or their habitats, or nutrification leading to excessive filamentous algal growth. Excessive filamentous algal growth can cause reduced nighttime dissolved oxygen levels through respiration, and prevent juvenile mussels from settling into stream sediments.
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:
• An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
• A statement of goals and priorities;
• A detailed description of management actions to be implemented to provide for these ecological needs; and
• 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 listed species. We analyzed INRMPs developed by military installations located within the range of the proposed critical habitat designation for southern kidneyshell, Choctaw bean, tapered pigtoe, southern sandshell, and fuzzy pigtoe to determine if they meet the criteria for exemption from critical habitat under section 4(a)(3) of the Act. The following areas are Department of Defense lands with completed, Service-approved INRMPs within the proposed critical habitat designation.
The U.S. Army-operated Fort Rucker Aviation Center, located in Daleville, Alabama, owns lands that include portions of the proposed critical habitat designation (specifically unit GCM6, Choctawhatchee River and Lower Pea River Drainage). Portions of Claybank and Steep Head creeks are on lands within the Fort Rucker military reservation. Fort Rucker has completed an INRMP (US Army 2009) that guides conservation activities on the installation through 2014. The INRMP specifically addresses maintaining and improving water quality through reduction in sedimentation and erosion control, land management practices, and improved treatment facilities. (US Army 2009, pp. 82-83, 90, 128-129). In addition, the INRMP will be updated to incorporate the southern kidneyshell, Choctaw bean, tapered pigtoe, southern sandshell, and fuzzy pigtoe.
Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the Fort Rucker INRMP and that conservation efforts identified in the INRMP will provide a benefit to the species occurring in habitats within or downstream of the Fort Rucker military reservation. Therefore, lands within this installation are exempt from critical habitat designation under section 4(a)(3)
The U.S. Navy owns lands that include portions of the proposed critical habitat designation in unit AP2. A segment of Hunter Creek is on lands within the boundaries of Naval Air Station (NAS) Whiting Field's Navy Outlying Field (NOLF) Evergreen located in Conecuh County, Alabama. The NAS Whiting Field Complex has completed an INRMP (Department of the Navy 2006) that guides conservation activities on the installation through 2016. The INRMP specifically addresses improving water quality through vegetative buffers, stormwater and pesticide management, erosion control, and land management practices (Department of the Navy 2006, pp. 5.4-5.6, 5.15-5.26). In addition, the INRMP will be updated to incorporate the Alabama pearlshell.
Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the NAS Whiting Field INRMP and that conservation efforts identified in the INRMP will provide a benefit to the Alabama pearlshell occurring in habitats within or adjacent to NOLF Evergreen. Therefore, lands within this installation are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 0.4 km (0.25 mi) of stream habitat in this final critical habitat designation because of this exemption.
Eglin Air Force Base (AFB), located in Niceville, Florida, owns the lands adjacent to the critical habitat designation (specifically unit GCM5, Yellow River Drainage). The lower portions of the Shoal and Yellow rivers form the northwestern boundary of the military reservation. However, no portions of stream or river channels designated as critical habitat occur within the boundary of the military reservation, and therefore Eglin AFB lands are not exempted. These reaches are also currently designated critical habitat for the threatened Gulf sturgeon (
Section 4(b)(2) of the Act states that the Secretary shall 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, is 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 exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.
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 prepared a draft economic analysis (DEA) of the proposed critical habitat designation and related factors (77 FR 18173). The draft analysis, dated March 5, 2012, was made available for public review March 27, 2012, through April 26, 2012 (77 FR 18173). Following the close of the comment period, a final analysis (FEA) (dated May 24, 2012) of the potential economic effects of the designation was developed taking into consideration the public comments and any new information (Industrial Economics 2012).
The intent of the economic analysis is to quantify the economic impacts of all potential conservation efforts for the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe; some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks at baseline impacts incurred from the listing of the species, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat. For a further description of analysis methods, see the “Framework for the Analysis” section of the FEA.
The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA looks at costs that will be incurred once listed, and considers those costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The final economic analysis quantifies economic impacts of conservation efforts for these eight species associated with the following categories of activity: (1)
The FEA states that the present value of total incremental cost of critical habitat designation is estimated to be $1.70 million over the analysis timeframe (2012 to 2031), applying a 7 percent discount rate or $147,000 annually. All of these impacts stem from the administrative cost of addressing adverse modification of critical habitat during section 7 consultations. Because the region is primarily rural, with little planned economic activity, the Service and contacted stakeholders do not anticipate that designation of critical habitat for these mussels will have substantial impact on economic activity. The majority of the incremental impacts (67 percent) are related to road and bridge construction and maintenance projects. Specifically, over the 30-year timeframe of the FEA, the Alabama Department of Transportation (ADOT) and the Florida Department of Transportation (FDOT) expect 208 road and bridge maintenance and resurfacing projects will occur in the region, and ADOT and FDOT will, therefore, conduct section 7 consultations with the Service when roadways cross streams designated as critical habitat. In Alabama, data were not available to determine the number of road crossings in critical habitat, and this likely results in an overestimate of impacts to transportation projects in Alabama.
Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exerting his discretion to exclude any areas from this designation of critical habitat for these eight species based on economic impacts.
A copy of the final economic analysis with supporting documents may be obtained by contacting the Panama City Field Office (see
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 final rule, we have exempted from the designation of critical habitat those Department of Defense lands with completed INRMPs determined to provide a benefit to the Alabama pearlshell, southern kidneyshell, Choctaw bean, tapered pigtoe, southern sandshell, and fuzzy pigtoe. We have also determined that the remaining lands within the designation of critical habitat for the species are not owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not exercising his discretion to exclude any areas from this 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 Habitat Conservation Plans (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.
In preparing this final rule, we have determined that there are currently no HCPs or other management plans for the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, or fuzzy pigtoe, and the final designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this critical habitat designation. Accordingly, the Secretary is not exercising his discretion to exclude any areas from this final designation based on other relevant impacts.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the designation of critical habitat for the eight mussel species will affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (e.g., governments (counties), development, and dredging). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, or fuzzy pigtoe. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see
In our final economic analysis of the critical habitat designation, we evaluated the potential economic effects on small entities resulting from conservation actions related to the listing of the eight mussels and the designation of critical habitat. The analysis is based on the estimated impacts associated with the rulemaking as described in Chapters 2 through 4 and Appendix A of the analysis and evaluates the potential for economic impacts related to: (1) Impoundments, dams, and diversions; (2) dredging, channelization, and in-stream mining; (3) transportation and utilities; (4) residential and commercial development; (5) timber management, agriculture, and grazing; and (6) oil wells/drilling.
According to the final economic analysis, impacts on small entities due to this rule are expected to be modest because the incremental costs of the rule are estimated to be administrative in nature. The final economic analysis evaluated the incremental impacts of designating critical habitat for these eight mussels over the next 20 years (2012-2031), which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. This analysis estimates that 7 small governments, 20 small development-related entitities, and 4 small dredging-related entities are likely to incur administrative costs as third parties associated with section 7 consultation. Applying a 7 percent discount rate, incremental impacts associated with the designation are estimated to represent less than 1 percent of the annual revenues each small entity.
In summary, we considered whether this designation would result in a significant economic effect on a substantial number of small entities. Based on the above reasoning and currently available information, we concluded that this rule will not result in a significant economic impact on a substantial number of small entities. Therefore, we are certifying that the designation of critical habitat for the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
On May 18, 2001, the President issued Executive Order 13211 (E.O. 13211; “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with the 8 mussels conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will 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
(2) We do not believe that this rule will significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. The final economic analysis concludes incremental impacts may occur due to administrative costs of section 7 consultations for activities related to impoundments and dams, development, and dredging projects; however, these are not expected to significantly affect small government entities. Consequently, a Small Government Agency Plan is not required.
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 the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or 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.
The majority of the designation occurs in navigable waterways whose stream bottoms are owned by the States of Alabama and Florida. Impacts of this designation could occur on non-Federal riparian lands adjacent to the designated streams where there is Federal involvement (e.g., Federal funding or permitting) subject to section 7 of the Act, or where a decision on a proposed action on federally owned land could affect economic activity on adjoining non-Federal land. However, in general, we believe that the takings implications associated with this critical habitat designation will be insignificant. The takings implications assessment concludes that this designation of critical habitat for these eight mussels does not pose significant takings implications for lands within or affected by the designation.
In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in Alabama and Florida. We received comments from Florida Fish and Wildlife Conservation Commission and have addressed them in the Summary of Comments and Recommendations section of this rule. The designation of critical habitat in areas currently occupied by the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).
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) will 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), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. This final rule uses standard property descriptions and identifies the elements of physical or biological features essential to the conservation of the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe within the designated areas to assist the public in understanding the habitat needs of these species.
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
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
It is our position that, outside the jurisdiction of the U.S. Court of Appeals
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 determined that there are no Tribal lands occupied at the time of listing (2012) that contain the features essential for the conservation, and no unoccupied Tribal lands that are essential for the conservation, of the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe. Therefore, none of the designated critical habitat for these species is on Tribal lands.
A complete list of references cited is available on the Internet at
The primary authors of this package are the staff members of the Panama City Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
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.
(h) * * *
(f)
Eight mussel species in four northeast Gulf of Mexico drainages: the Choctaw bean (
(1) Critical habitat units are depicted for the following counties:
(i) Alabama. Barbour, Bullock, Butler, Coffee, Conecuh, Covington, Crenshaw, Dale, Escambia, Geneva, Henry, Houston, Monroe, and Pike Counties.
(ii) Florida. Bay, Escambia, Holmes, Jackson, Okaloosa, Santa Rosa, Walton, and Washington Counties.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Alabama pearlshell, round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe consist of five components:
(i) Geomorphically stable stream and river channels and banks (channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation).
(ii) Stable substrates of sand or mixtures of sand with clay or gravel with low to moderate amounts of fine sediment and attached filamentous algae.
(iii) A hydrologic flow regime (magnitude, frequency, duration, and seasonality of discharge over time) necessary to maintain benthic habitats where the species are found, and to maintain connectivity of rivers with the floodplain, allowing the exchange of nutrients and sediment for habitat maintenance, food availability, and spawning habitat for native fishes.
(iv) Water quality, including temperature (not greater than 32 °C), pH (between 6.0 to 8.5), oxygen content (not less than 5.0 milligrams per liter), hardness, turbidity, and other chemical characteristics necessary for normal behavior, growth, and viability of all life stages.
(v) The presence of fish hosts. Diverse assemblages of native fish species will serve as a potential indication of host fish presence until appropriate host fishes can be identified. For the fuzzy pigtoe and tapered pigtoe, the presence of blacktail shiner (
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, dams, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on November 9, 2012, with the exception of the impoundments created by Point A and Gantt Lake dams (impounded water, not the actual dam structures).
(4)
(5) Index maps follow (Map 1 for the Alabama pearlshell, and Map 2 for the round ebonyshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, southern sandshell, and fuzzy pigtoe):
(6) Unit AP1: Big Flat Creek Drainage, Monroe and Wilcox Counties, AL. This unit is critical habitat for the Alabama pearlshell.
(i) The unit includes the mainstem of Big Flat Creek from State Route 41 upstream 56 kilometers (km) (35 miles (mi)), Monroe County, AL; Flat Creek from its confluence with Big Flat Creek upstream 20 km (12 mi), Monroe County, AL; and Dailey Creek from its confluence Flat Creek upstream 17 km (11 mi), Monroe and Wilcox Counties, AL.
(ii) Map of Unit AP1, Big Flat Creek Drainage, and Unit AP2, Burnt Corn Creek, Murder Creek, and Sepulga River drainages, follows:
(7) Unit AP2: Burnt Corn Creek, Murder Creek, and Sepulga River. Drainages, Escambia and Conecuh Counties, AL. This unit is critical habitat for the Alabama pearlshell.
(i) The unit includes the mainstem of Burnt Corn Creek from its confluence with Murder Creek upstream 66 km (41 mi), Conecuh County, AL; the mainstem of Murder Creek from its confluence with Jordan Creek upstream 17 km (11 mi) to the confluence of Otter Creek, Conecuh County, AL; Jordan Creek from its confluence with Murder Creek upstream 12 km (7 mi), Conecuh County, AL; Otter Creek from its confluence with Murder Creek, upstream 9 km (5.5 mi), Conecuh County, AL; Hunter Creek from its confluence with Murder Creek upstream 4.4 km (2.7 mi) to the Navy Outlying Field (NOLF) Evergreen northern boundary, Conecuh County, AL; Hunter Creek from the NOLF Evergreen southern boundary upstream 3.0 km (1.9 mi), Conecuh County, AL; Sandy Creek from County Road 29 upstream 5 km (3.5 mi), Conecuh County, AL; two unnamed tributaries to Sandy Creek—one from its confluence with Sandy Creek upstream 8.5 km (5.0 mi) to just above Hagood Road, and the other from it confluence with the previous unnamed tributary upstream 2.5 km (1.5 mi) to just above Hagood Road; Little Cedar Creek from County Road 6 upstream 8 km (5 mi), Conecuh County, AL; Amos Mill Creek from its confluence with the Sepulga River upstream 12 km (8 mi), Escambia and Conecuh Counties, AL; Polly Creek from its confluence with Amos Mill Creek upstream 3 km (2 mi), Conecuh County, AL; and Bottle Creek from its
(ii) Map of Unit AP1, Big Flat Creek Drainage, and Unit AP2, Burnt Corn Creek, Murder Creek, and Sepulga River Drainages is provided at paragraph (6)(ii) of this entry.
(8) Unit GCM1: Lower Escambia River Drainage in Escambia and Santa Rosa counties, FL, and Escambia, Covington, Conecuh, and Butler Counties, AL. This unit is critical habitat for the round ebonyshell, southern kidneyshell, Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe.
(i) The unit includes the Escambia-Conecuh River mainstem from the confluence of Spanish Mill Creek Escambia and Santa Rosa Counties, FL, upstream 204 km (127 mi) to the Point A Lake dam, Covington County, AL; Murder Creek from its confluence with the Conecuh River, Escambia County, AL, upstream 62 km (38 mi) to the confluence of Cane Creek, Conecuh County, AL; Burnt Corn Creek from its confluence with Murder Creek, Escambia County, AL, upstream 59 km (37 mi) to County Road 20, Conecuh County, AL; Jordan Creek from its confluence with Murder Creek, upstream 5.5 km (3.5 mi) to Interstate 65, Conecuh County, AL; Mill Creek from its confluence with Murder Creek upstream 2.5 km (1.5 mi) to the confluence of Sandy Creek, Conecuh County, AL; Sandy Creek from its confluence with Mill Creek upstream 5.5 km (3.5 mi) to County Road 29, Conecuh County, AL; Sepulga River from its confluence with the Conecuh River upstream 69 km (43 mi) to the confluence of Persimmon Creek, Conecuh County, AL; Bottle Creek from its confluence with the Sepulga River upstream 5.5 km (3.5 mi) to County Road 42, Conecuh County, AL; Persimmon Creek from its confluence with the Sepulga River, Conecuh County, upstream 36 km (22 mi) to the confluence of Mashy Creek, Butler County, AL; Panther Creek from its confluence with Persimmon Creek upstream 11 km (7 mi) to State Route 106, Butler County, AL; Pigeon Creek from its confluence with the Sepulga River, Conecuh and Covington Counties, upstream 89 km (55 mi) to the confluence of Three Run Creek, Butler County, AL; and Three Run Creek from its confluence with Pigeon Creek upstream 9 km (5.5 mi) to the confluence of Spring Creek, Butler County, AL.
(ii) Map of Unit GCM1, Lower Escambia River, follows (to preserve detail, the map is divided into south and north sections):
(9) Unit GCM2: Point A Lake and Gantt Lake Reservoirs in Covington County, AL. This unit is critical habitat for the narrow pigtoe.
(i) The unit extends from Point A Dam, Covington County, upstream 21 km (13 mi) to the Covington-Crenshaw County line, AL.
(ii) Map of Unit GCM2, Point A Lake and Gantt Lake Reservoirs, follows:
(10) Unit GCM3: Patsaliga Creek Drainage in Covington, Crenshaw, and Pike Counties, AL. The Patsaliga Creek drainage is within the Escambia River basin. This unit is critical habitat for the southern kidneyshell, Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe.
(i) The unit includes Patsaliga Creek from its confluence with Point A Lake at County Road 59, Covington County, AL, upstream 108 km (67 mi) to Crenshaw County Road 66-Pike County Road 1, AL; Little Patsaliga Creek from its confluence with Patsaliga Creek upstream 28 km (17 mi) to Mary Daniel Road, Crenshaw County, AL; and Olustee Creek from its confluence with Patsaliga Creek upstream 12 km (8 mi) to County Road 5, Pike County, AL.
(ii) Map of Unit GCM3, Patsaliga Creek Drainage follows:
(11) Unit GCM4: Upper Escambia River Drainage in Covington, Crenshaw, Pike, and Bullock Counties, AL. This unit is critical habitat for the southern kidneyshell, Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe.
(i) The unit includes the Conecuh River from its confluence with Gantt Lake reservoir at the Covington-Crenshaw County line upstream 126 km (78 mi) to County Road 8, Bullock County, AL; Beeman Creek from its confluence with the Conecuh River upstream 6.5 km (4 mi) to the confluence of Mill Creek, Pike County, AL; and Mill Creek from its confluence with Beeman Creek, upstream 4.5 km (3 mi) to County Road 13, Pike County, AL.
(ii) Map of Unit GCM 4, Upper Escambia River Drainage, follows:
(12) Unit GCM5: Yellow River Drainage in Santa Rosa, Okaloosa, and Walton Counties, FL, and Covington County, AL. This unit is critical habitat for the Choctaw bean, narrow pigtoe, southern sandshell, and fuzzy pigtoe.
(i) The unit includes the Yellow River mainstem from the confluence of Weaver River (a distributary located 0.9 km (0.6 mi), downstream of State Route 87), Santa Rosa County, FL, upstream 157 km (97 mi) to County Road 42, Covington County, AL; the Shoal River mainstem from its confluence with the Yellow River upstream 51 km (32 mi) to the confluence of Mossy Head Branch, Walton County, FL; Pond Creek from its confluence with the Shoal River upstream 24 km (15 mi) to the confluence of Fleming Creek, Walton County, FL; and Five Runs Creek from its confluence with the Yellow River upstream 15 km (9.5 mi) to County Road 31, Covington County, AL.
(ii) Map of Unit GCM5, Yellow River Drainage, follows:
(13) Unit GCM6: Choctawhatchee River and Lower Pea River Drainages in Walton, Washington, Bay, Holmes, and Jackson Counties, FL, and Geneva, Coffee, Dale, Houston, Henry, Pike, and Barbour Counties, AL. This unit is critical habitat for the southern kidneyshell, Choctaw bean, tapered pigtoe, southern sandshell, and fuzzy pigtoe.
(i) The unit includes the Choctawhatchee River mainstem from the confluence of Pine Log Creek, Walton County, FL, upstream 200 km (125 mi) to the point the river splits into the West Fork Choctawhatchee and East Fork Choctawhatchee rivers, Barbour County, AL; Pine Log Creek from its confluence with the Choctawhatchee River, Walton County, upstream 19 km (12 mi) to Ditch Branch, Washington and Bay Counties, FL; an unnamed channel forming Cowford Island from its downstream confluence with the Choctawhatchee River upstream 3 km (2 mi) to its upstream confluence with the river, Washington County, FL; Crews Lake from its western terminus 1.5 km (1 mi) to its eastern terminus, Washington County, FL (Crews Lake is a relic channel southwest of Cowford Island, and is disconnected from the Cowford Island channel, except during high flows); Holmes Creek from its
(ii) Map of Unit GCM6, Choctawhatchee River and Lower Pea River Drainages, follows (to preserve detail, the map is divided into south, central, and north sections):
(14) Unit GCM7: Upper Pea River Drainage in Coffee, Dale, Pike, Barbour, and Bullock Counties, AL. The Pea River drainage is within the Choctawhatchee River Basin. This unit is critical habitat for the southern kidneyshell, Choctaw bean, tapered pigtoe, southern sandshell, and fuzzy pigtoe.
(i) The unit includes the Pea River mainstem from the Elba Dam, Coffee County, upstream 123 km (76 mi) to State Route 239, Bullock and Barbour Counties, AL; Whitewater Creek from its confluence with the Pea River, Coffee County, upstream 45 km (28 mi) to the confluence of Walnut Creek, Pike County, AL; Walnut Creek from its confluence with Whitewater Creek upstream 14 km (9 mi) to County Road 26, Pike County, AL; Big Creek (Coffee County) from its confluence with Whitewater Creek, Coffee County, upstream 30 km (18 mi) to the confluence of Smart Branch, Pike County, AL; Big Creek (Barbour County) from its confluence with the Pea River upstream 10 km (6 mi) to the confluence of Sand Creek, Barbour County, AL; Pea Creek from its confluence with the Pea River upstream 6 km (4 mi) to the confluence of Hurricane Creek, Barbour County, AL; and Big Sandy Creek from its confluence with the Pea River upstream 6.5 km (4 mi) to County Road 14, Bullock County, AL.
(ii) Map of Unit GCM7, Upper Pea River Drainage, follows: