Agricultural Marketing Service
Animal and Plant Health Inspection Service
Food Safety and Inspection Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
National Foundation on the Arts and the Humanities
Economic Analysis Bureau
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Food and Drug Administration
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
Minerals Management Service
Employment and Training Administration
Federal Contract Compliance Programs Office
Federal Aviation Administration
Surface Transportation Board
Thrift Supervision Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Office of Personnel Management.
Final rule.
The Office of Personnel Management (OPM) is issuing final regulations governing Presidential Rank Awards to implement the Treasury and General Government Appropriations Act of 2002, which extends eligibility for Presidential Rank Awards to certain senior career employees. The amendments will also enhance the clarity of the regulations and improve readability.
September 7, 2007.
Karen English at (202) 606-2747 or by e-mail at
On August 13, 2002, OPM issued an interim rule at 67 FR 52595-52597 amending part 451 and requesting comments on or before October 15, 2002.
OPM received comments from four Federal agencies and two professional organizations. Those comments are addressed below.
Two agencies favored the interim rule and had no further comments.
One agency recommended that OPM include a statement encouraging agency heads to consider diversity when submitting award nominations and to collect and publish the number of Hispanics receiving the award. OPM did not adopt this suggestion because the award is conferred upon an executive who has demonstrated extraordinary and sustained career accomplishments regardless of race, gender, age, etc.
One professional organization asked if section 451.303, paragraphs (a) and (b), were intended to use Roman numerals (i) and (ii) rather than Arabic numerals (1) and (2). OPM agrees and has changed paragraphs (a) and (b) to include Arabic numerals (1) and (2) for format consistency throughout the regulation.
Two agencies recommended the official term “senior career employee” vs. “career senior employee” be used consistently throughout the chapter. OPM agrees and has made the change.
In section 451.303(b) we are removing the italics from “Senior career employees” for format consistency throughout the regulation.
Decorations, medals, awards, Government employees.
5 U.S.C. 4302, 4501-4509, E.O. 11438, 12828.
Agricultural Marketing Service, USDA.
Final rule.
This rule decreases the assessment rate established for the Washington Cherry Marketing Committee (Committee) for the 2007-2008 and subsequent fiscal periods from $0.50 to $0.40 per ton for Washington sweet cherries. The Committee is responsible for local administration of the marketing order regulating the handling of sweet cherries grown in designated counties in Washington. Assessments upon handlers of sweet cherries are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period for the marketing order begins April 1 and ends March 31. The assessment rate remains in effect indefinitely unless modified, suspended or terminated.
August 9, 2007.
Robert J. Curry or Gary D. Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, Portland, OR 97204; Telephone: (503) 326-2724; Fax: (503) 326-7440; or E-mail:
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence SW.,
This rule is issued under Marketing Order No. 923 (7 CFR part 923), as amended, regulating the handling of sweet cherries grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, cherry handlers in designated counties in Washington are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable Washington sweet cherries beginning April 1, 2007, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule decreases the assessment rate established for the Committee for the 2007-2008 and subsequent fiscal periods from $0.50 to $0.40 per ton for Washington sweet cherries handled under the order.
The order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of sweet cherries in designated counties in Washington. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed at a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2006-2007 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $0.50 per ton of sweet cherries handled. This rate would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on May 2, 2007, and unanimously recommended 2007-2008 expenditures of $71,600. In comparison, last year's budgeted expenditures were $49,800. The Committee also recommended that the $0.50 per ton assessment rate be decreased by $0.10 to $0.40 per ton of sweet cherries handled. The Committee recommended the lower assessment rate for the purpose of decreasing the monetary reserve, which is approximately $83,792. Funds in the reserve must be kept within the maximum permitted by the order of approximately one fiscal period's operational expenses (7 CFR 923.42).
The major expenditures recommended by the Committee for the 2007-2008 fiscal period include $22,500 for administration and data management fees, $36,500 for Committee expenses such as travel, accounting and compliance, and $7,600 for office expenses—including bonds, insurance, telephone, office equipment and supplies. Budgeted expenses for these items in 2006-2007 were $25,000, $16,200, and $7,100, respectively. Higher expenses are anticipated this season due to a producer survey and other regulatory research expenses requested by the Committee, as well as the associated increase in staff costs.
The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Washington sweet cherries. Applying the $0.40 per ton rate of assessment to the Committee's 120,000 ton crop estimate should provide $48,000 in assessment income. Income derived from handler assessments, along with interest income and approximately $23,600 from the Committee's reserve, should be adequate to cover budgeted expenses. While the monetary reserve held about $83,792 at the close of the 2006-2007 fiscal period, the Committee estimates that it will close on March 31, 2008, with approximately $60,267, given the recommended budget of expenses and the income expected from the $0.40 assessment rate.
The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate will be effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of the Committee's meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate the Committee's recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2007-2008 budget has been reviewed and approved by USDA as will those for subsequent fiscal periods.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 1,500 cherry producers within the regulated production area and approximately 53 regulated handlers. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small
The Washington Agricultural Statistics Service prepared a preliminary report for the 2006 shipping season showing that the sweet cherry fresh market utilization of 136,000 tons sold for an average of $2,000 per ton. Based on the number of producers in the production area (1,500), the average producer revenue from the sale of sweet cherries in 2006 can therefore be estimated at approximately $181,333 per year. In addition, the Committee reports that most of the industry's 53 handlers would have each averaged gross receipts of less than $6,500,000 from the sale of fresh sweet cherries last season. Thus, the majority of producers and handlers of Washington sweet cherries may be classified as small entities.
This rule decreases the assessment rate established for the Committee and collected from handlers for the 2007-2008 and subsequent fiscal periods from $0.50 to $0.40 per ton for sweet cherries. The Committee also unanimously recommended 2007-2008 expenditures of $71,600. With the 2007-2008 Washington sweet cherry crop estimate of 120,000 tons, the Committee anticipates assessment income of $48,000. The Committee recommended the assessment rate decrease for the purpose of decreasing the monetary reserve, which is approximately $83,792. With this assessment rate and budget, the Committee may need to draw up to $23,600 from its monetary reserve, thus helping to decrease the reserve to a level that is less than approximately one fiscal period's operating expenses, the maximum permitted by the order.
The major expenditures recommended by the Committee for the 2007-2008 fiscal period include $22,500 for administration and data management fees, $36,500 for Committee expenses, and $7,600 for office expenses. Budgeted expenses for these items in 2006-2007 were $25,000, $16,200, and $7,100, respectively.
The Committee discussed alternatives to this rule. Leaving the assessment rate at the current $0.50 per ton was initially considered, but not recommended because of the Committee's desire to decrease the level of the monetary reserve so that it is not more than approximately one fiscal period's operational expenses.
A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2007-2008 season could average about $2,000 per ton for fresh Washington sweet cherries. Therefore, the estimated assessment revenue for the 2007-2008 fiscal period as a percentage of total producer revenue is 0.02 percent for Washington sweet cherries.
This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the Washington sweet cherry industry and all interested persons were invited to attend and participate in Committee deliberations on all issues. Like all Committee meetings, the May 2, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on the issues.
This rule imposes no additional reporting or recordkeeping requirements on either small or large Washington sweet cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Furthermore, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
A proposed rule regarding this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and order may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Cherries, Marketing agreements, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
On and after April 1, 2007, an assessment rate of $0.40 per ton is established for the Washington Cherry Marketing Committee.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for TCM IO-550-N, TSIO-520-BE, TSIO-550-A, TSIO-550-B, TSIO-550-C, TSIO-550-E, and TSIO-550-G reciprocating engines. This AD requires removing before further flight, certain Kelly Aerospace Power Systems turbochargers, part number (P/N) 466304-0003, listed by serial number in this AD. This AD results from four incidents of the turbine rotor separating from the shaft of the turbocharger. We are issuing this AD to prevent the turbine rotor from separating from the shaft of the turbocharger due to a machining defect in the turbocharger compressor. This condition could result in full engine power loss, loss of engine lubricant, or smoke in the airplane cabin.
This AD becomes effective August 23, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of August 23, 2007.
We must receive any comments on this AD by October 9, 2007.
Use one of the following addresses to comment on this AD:
•
•
•
•
•
Contact Kelly Aerospace Power Systems, 2900 Selma Highway, Montgomery, AL 36108; telephone (334) 386-5400; fax (334) 386-5450;
Kevin Brane, Aerospace Engineer, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, GA 30349; e-mail:
On July 16, 2007, Kelly Aerospace Power Systems informed us that there were potential nonconforming turbochargers, P/N 466304-0003 that might have a machining defect in the compressors of the turbochargers. A machining defect in the turbocharger compressor leads to a condition where the center bore of the compressor is not perpendicular to the backface of the compressor. The machining defect leads to abnormal turbocharger rotor vibration which results in abnormal wear characteristics. The wear could result in the turbocharger rotor separating from the shaft. This condition, if not corrected, could result in full engine power loss, loss of engine lubricant, or smoke in the airplane cabin.
We have reviewed and approved the technical contents of Kelly Aerospace Power Systems Service Bulletins (SBs) No. 026, Revision B, dated July 27, 2007, and No. 027, dated July 25, 2007. Those SBs list affected turbochargers by SN, and describe procedures for visually inspecting the turbocharger.
The unsafe condition described previously is likely to exist or develop on other engines of the same type design. For that reason, we are issuing this AD to prevent the turbine rotor from separating from the shaft of the turbocharger due to a machining defect in the turbocharger compressor. This condition could result in full engine power loss, loss of engine lubricant, or smoke in the airplane cabin. This AD requires replacing certain turbochargers before further flight. You must use the service information described previously to perform the actions required by this AD.
Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
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
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
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); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective August 23, 2007.
(b) None.
(c) This AD applies to:
(1) Teledyne Continental Motors (TCM) models TSIO-520-BE, TSIO-550-A, TSIO-550-B, TSIO-550-C, TSIO-550-E, and TSIO-550-G reciprocating engines with a Kelly Aerospace Power Systems turbocharger, TCM part number (P/N) 646677, with certain serial numbers (SNs), installed on or after March 20, 2007. These engines are installed on, but not limited to, Adam Aircraft A500, Columbia Aircraft Manufacturing LC41-550FG, Mooney Airplane Company M20TN (Acclaim), and Piper Aircraft Incorporated PA-46-310P (Malibu) airplanes.
(2) TCM IO-550-N reciprocating engines modified to Engine Technologies Incorporated supplemental type certificate (STC) SE10589SC to install turbocharger, P/N 466304-0003, with certain SNs, installed on or after March 20, 2007. These engines are installed on, but not limited to, Cirrus Design Corporation Aircraft Model SR22 modified to Engine Technologies Incorporated STC SA10588SC.
(d) This AD results from four incidents of the turbine rotor separating from the shaft of the turbocharger. We are issuing this AD to prevent the turbine rotor from separating from the shaft of the turbocharger due to a machining defect in the turbocharger compressor. This condition could result in full engine power loss, loss of engine lubricant, or smoke in the airplane cabin.
(e) You are responsible for having the actions required by this AD performed before further flight unless the actions have already been done.
(f) If your engine has a turbocharger that was installed before March 20, 2007, no further action is required.
(g) Before further flight, for engines modified to Engine Technologies Incorporated STC SE10589SC on or after March 20, 2007, with a turbocharger that has a SN listed in Kelly Aerospace Service Bulletin (SB) No. 026, Revision B, dated July 27, 2007, replace the turbocharger.
(h) Before further flight, for engines with a Kelly Aerospace Power Systems turbocharger, TCM P/N 646677 installed on or after March 20, 2007, with a turbocharger SN listed in Kelly Aerospace SB No. 027, dated July 25, 2007, replace the turbocharger.
(i) The Manager, Atlanta Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(j) We are limiting the special flight permits for this AD by allowing a special flight permit only after visually inspecting the turbocharger using the procedures specified in the Visual Inspection sections of Kelly Aerospace Power Systems SB No. 026, Revision B, dated July 27, 2007, and SB No. 027, dated July 25, 2007.
(k) Teledyne Continental Aircraft Engine Mandatory Service Bulletin (MSB) MSB07-4, dated July 30, 2007, contains additional information on replacing turbochargers on TCM engines and Cirrus Service Advisory SA 07-14 R1, dated July 24, 2007, contains additional information on replacing turbochargers on Cirrus Design Corporation Aircraft Model SR22 modified to Engine Technologies Incorporated STC SA10588SC.
(l) Contact Kevin Brane, Aerospace Engineer, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, GA 30349; e-mail:
(m) You must use Kelly Aerospace Power Systems Service Bulletins No. 026, Revision B, dated July 27, 2007, and No. 027, dated July 25, 2007, to determine if you have an affected turbocharger installed. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Kelly Aerospace Power Systems, 2900 Selma Highway, Montgomery, AL 36108; telephone (334) 386-5400; fax (334) 386-5450;
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies the Phoenix, AZ, Class B airspace area. Specifically, this action lowers the ceiling to 9,000 feet mean sea level (MSL) and expands the arrival extension boundaries to 30 nautical miles (NM). This will ensure the containment of the Standard Terminal Arrival Routes (STAR) at the Phoenix Sky Harbor International Airport (PHX), and correct the inefficiencies of several existing areas identified during public meetings, and reviews of the airspace by the Phoenix Airspace Users Work Group (PAUWG) and Phoenix Terminal Radar Approach Control (TRACON). The FAA is taking this action to improve the flow of air traffic, enhance safety, and reduce the potential for midair collision in the PHX Class B airspace area, while accommodating the concerns of airspace users. Further, this effort supports the FAA's national airspace redesign goal of optimizing terminal and en route airspace areas to reduce aircraft delays and improve system capacity.
Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On February 12, 2007, the FAA published in the
Five commenters (U.S. Air Force Commander, 56th Flight Wing, US Airways, a commercial pilot, and two local pilots) wrote in support of the proposed action. The remaining commenters objected to various aspects of the proposal, with the most opposition directed at the proposal's complex design and lowered airspace floors.
The APA recognized the FAA's goal of creating Class B airspace to enable development of simultaneous Instrument Landing System (ILS) approach procedures at PHX. The APA stated that these approaches are used to their maximum capacity less than 20 days a year when actual Instrument Meteorological Conditions (IMC) exist. During these days, the general aviation (GA) Visual Flight Rules (VFR) pilot would be grounded.
The FAA does not agree. Simultaneous ILS approaches are not dependent only on actual IMC at the airport. In addition to IMC weather, reductions in visibility due to low level convective clouds for several days after rain storms, dust storms, haze, pollution, sunrise, and sunset are also reasons that this procedure would be used. Anytime there is a ceiling less than 3,000 feet above ground level (AGL), the arrival capacity at PHX is severely limited due to the pilot's inability to see the airport and other landing traffic in time for an optimum visual approach operation as exists in clear weather. During these conditions, GA VFR aircraft would not be grounded by weather.
The APA believes the overall increased complexity of the redesigned airspace is not warranted and represents an increased risk of inadvertent controlled airspace intrusion, noting that most GA aircraft do not have moving map displays and the areas are not readily identifiable using pilotage for navigation.
The FAA does not agree. Moving map displays are a recent technological addition to the cockpit. The uses of Distance Measuring Equipment (DME) arcs have long been the standard to define Class B airspace nationally. In the proposed areas that do not use DME arcs, ground-based references are used to define the airspace in areas not critical for reference to pilots of large turbine-powered aircraft on final approach to PHX. The current Class B airspace area uses DME arcs to define multiple areas that pilots are required to navigate around.
The APA and Aircraft Owners & Pilots Association (AOPA) both expressed opposition to the lowering of the airspace between 20 and 25 NM east of PHX from 8,000 to 5,000 feet. They stated this action would result in aircraft being forced to operate at low altitudes over mountainous terrain and violate recommended altitudes over designated wilderness areas.
The FAA does not agree. The lowering of the airspace floor in this area to 5,000 feet is critical for the development of the simultaneous ILS approach procedures at PHX, and for periods of compacted arrival demand when the PHX final is constrained due to the current higher Class B airspace limitation. Non-participating aircraft have the option of adjusting their flight to avoid precipitous terrain or contacting the TRACON for Class B services. Advisory Circular (AC) 91-36D recommends flights remain above 2,000 feet MSL, but the AC provisions do not apply when they conflict with regulations, ATC instructions, or when a pilot believes operating below 2,000 feet is necessary for the safety of the flight. Raising the floor from 5,000 to 7,000 feet MSL as suggested by AOPA and APA in this area will not contain simultaneous ILS approach procedures in Class B airspace. Aircraft on a downwind leg need to be level at 5,000 feet prior to turning base leg to join the runway 26 and 25 ILS final approach course no sooner than the ABOSE and BUDME intersections (PXR 16.6 DME). The base leg required to achieve this will be between the 17 and 25 NM DME from PXR.
The APA states that the overall lowering of Class B floors would ultimately increase the noise footprints over residential neighborhoods.
The FAA does not agree. The airspace 20 to 25 NM east of PHX in Area I is largely over thinly populated areas, mountainous terrain, and undeveloped areas. Area C is lowered to de-conflict non-participating aircraft from an area of intense large turbine-powered aircraft activity on final to PHX. Aircraft flying visually are being encouraged to fly further to the east at a higher altitude in the new flyway that will be over Falcon Field (FFZ) at 3,500 feet MSL, below the
The floors of the Class B airspace areas will be raised significantly over many densely populated areas. Area E raises the floor from 3,000 to 5,000 feet MSL over the communities of Tempe, Chandler, Guadalupe, and the developing areas of Phoenix west of South Mountain. It also raises the floor 1,000 feet over the communities south of South Mountain. Area D raises the floor 1,000 feet over much of central PHX and Scottsdale. Area G raises the floor 1,000 feet over the Salt River Indian Reservation, Gilbert, and eastern Chandler. Area N raises the floor 1,000 feet over the growing areas of northern Phoenix and Scottsdale. The northern boundary of area K has been moved north of Riggs Road by 3 miles and raises the floor 2,000 feet. West of PHX, the airspace is raised 1,000 feet in the area north of the Estrella Mountains, allowing aircraft to transit at a higher altitude relative to terrain.
It is the stated opinion of the APA that concerns associated with lowering the airspace floors on both the east and west sides of the valley are easily addressed by increasing the ILS glide slopes from the present 3° to 3.5°.
The FAA does not agree. Glide slope angles above 3.1 degrees would result in the loss of approach minimums for category D & E aircraft. A 3° glide slope angle is the standard for safety, and increasing the angle of the glide slope is outside the scope of this rule.
The APA proposes incorporating Area U into Area G and using Gilbert Road as the boundary between Area C and Area G. A less desirable proposal is to combine Area U with Area C, creating an overlap with the Class B and FFZ Class D airspace. This alternative allows the use of the PXR 10 DME arc, and GA aircraft under Area C would be constrained by the Gilbert Road boundary of the FFZ Class D airspace. Both alternative proposals assume a 3,000 foot MSL floor in Area C. Additionally, AOPA stated the proposed Area U creates a potential “trap” for unsuspecting pilots. They commented that the NPRM indicates Area U would allow a north-south road reference for locally based pilots to avoid the Class B and FFZ Class D. They believe it would become a potential trap for pilots who inadvertently stray more than a half mile off course and would be a loss of lateral airspace to transition on the existing VFR flyway. AOPA recommends Area C be modified to make the eastern boundary align with Gilbert Road.
The FAA does not agree. The 3,000-foot MSL floor of the current Class B airspace in this area has been a constant source of Traffic Collision Avoidance System (TCAS) Resolution Advisory(s) (RA) to large turbine-powered aircraft operating at the 3,000-foot MSL floor of the current area. The conflicting VFR traffic frequently is not operating on the published flyway or at the recommended altitude of 2,500 feet MSL. Traffic routinely transits this area at altitudes within 100 feet of the 3,000-foot MSL floor. Area C is an area of intense large turbine-powered air carrier traffic descending to 3,000-foot MSL while on final approach to PHX. The RAs command the pilot to climb to avoid unknown traffic at a time when the aircraft is at a reduced power setting and preparing to land. The recovery from the response to these RAs often places the aircraft into a position where it cannot make a stabilized approach to the airport, causing the aircraft to go around. Additionally, responding to an RA can distract the pilot from maintaining separation from known preceding or adjacent traffic to other runways. The FAA has thoroughly researched its options in this matter and the solution remains to lower the floor of Area C to 2,700 feet MSL and to move the published VFR Flyway further east beyond the PXR 10 DME arc.
Incorporating Area U into Area G and retaining Gilbert Road as the western boundary would not achieve the goal of defining the airspace using NAVAIDs where available. Pilots unfamiliar with the local area, that are required to operate at or above the floor of the Class B airspace, would not be able to determine Gilbert Road. Additionally, this would be impractical during periods of reduced visibility or when obscured by clouds.
Combining Area U with Area C would create an overlap with the FFZ Class D airspace along the PXR 10 DME arc. When overlapping airspace designations apply to the same airspace, the operating rules associated with the more restrictive airspace designation apply. Since Class B airspace overlies the Class D airspace, this depiction on the Terminal Area Chart could cause confusion to operators of high performance aircraft operating in the pattern at FFZ at the traffic pattern altitude of 2,700 feet MSL. Clearance is required to operate within Class B airspace and specific separation standards apply to aircraft operating within Class B airspace. Therefore, it has been determined that in lieu of this suggestion, the area above the FFZ Class D airspace within the PXR 10 DME arc be defined as a subsection of the Class D airspace. This, in addition to using Gilbert Road/FFZ Class D airspace as a western boundary in conjunction with the PXR 10 DME arc, allows the use of the PXR 10 DME arc, and GA aircraft under Area C would be constrained by the Gilbert Road boundary of the FFZ Class D airspace, as suggested.
The Airline Pilots Association, International endorsed the proposal stating “The Air Traffic staff in Phoenix has done a commendable job in developing the proposed realignment of the Phoenix Class B airspace.” They were concerned with lowering the ceiling from 10,000 feet MSL to 9,000 feet MSL and allowing glider operations southwest of the airport above the Class B airspace by letter of agreement (LOA) between the FAA and glider operators. AOPA and APA expressed concern on the impact of the 9,000-foot vs. 10,000-foot MSL ceiling on the local soaring community within 30 NM of PHX. They both support the lowering of the ceiling provided the FAA enters into an LOA with the local soaring community permitting soaring operations between 9,000 feet MSL and 10,000 feet MSL within the mode-C veil.
The FAA has agreed to enter into an LOA with local glider operators to allow gliders to operate between 9,000-10,000 feet MSL without an operating transponder in accordance with FAR 91-125. This LOA will not allow these operations above the Class B airspace until leaving 10,000 feet MSL.
AOPA stated the proposal was too complex and does not meet the needs of PHX airspace users. They also stated that the local user groups were not adequately consulted on moving the VFR flyway.
The FAA does not agree. The VFR flyway was moved in response to comments received at public meetings. The PHX TRACON contacted user groups and offered public briefings concerning moving the VFR flyway east of the PXR 10 DME.
AOPA stated the PHX Class B would be the most complex and segmented Class B airspace in the United States. Also, that the needs of the surrounding GA and user community must be taken into consideration in the design process.
The FAA does not agree. A review of other Class B airspace nationally reveals that if strict adherence to the general guidance provided in FAA Order 7400.2E was applied to the PHX Class B airspace area design, the airspace
AOPA presented an alternate proposal for the west side divided into three progressively lower floors. Their alternative was offered as a simpler, less complex configuration that would more than make up for the small amount of airspace pilots may have gained in the FAA's proposed design. AOPA states the same is true with the airspace shelves immediately north and south of PHX and the floor north of Scottsdale (SDL). AOPA's proposal retains the road definitions of 51st and 99th Avenues, which is contrary to the FAA's goal of defining the airspace using NAVAIDs where available.
The FAA does not agree. Pilots unfamiliar with the local area, operating at or above the floor of the Class B airspace, or those trying to avoid it, would not be able to determine 51st or 99th Avenue. Additionally, this would be impractical during periods of reduced visibility or when obscured by clouds. A 4,000-foot rectangular area, as proposed by AOPA, would represent a barrier to non-participating aircraft attempting to navigate north of the Estrella Mountains. The Minimum Vectoring Altitude (MVA) in this area is 5,000-5,500 feet MSL. The TRACON requires aircraft on a base leg to join the ILS at CAGOR intersection (PXR 16 DME) at 5,000 feet MSL. The TRACON cannot vector aircraft in this area below the MVA. The AOPA proposal would make the floor of this area 4,000-feet MSL. Though a rectangular area with a floor of 4,000 feet MSL, as suggested, may aid in simplification, it is overly restrictive to pilots who are able to navigate around or below it. In the FAA's proposal, pilots, navigating via the currently published Gila Route without Class B clearance, will be able to avoid the airspace below 5,000 feet MSL. Terrain penetrates the AOPA proposal with a precipitous 4,512-foot peak. This area is more restrictive than the current airspace, thus forcing non-participating aircraft closer to the ground. The AOPA proposal is contrary to its concerns with forcing non-participating pilots to fly at lower altitudes elsewhere.
The area over Goodyear and Luke AFB retains Litchfield Road as an eastern boundary and raises the floor to 6,000 feet MSL in the AOPA proposal, while retaining a PXR 25 DME arc on the western boundary.
The FAA does not agree. The airspace is expanded to contain PHX arrival traffic during periods of sustained arrival demand, and for the development of simultaneous ILS approach procedures during east traffic operations. The ability to develop these procedures is critical in enabling the TRACON to efficiently and safely manage the arrival rate during reduced visibility conditions and compacted arrival demand. Keeping the floor at 6,000 feet MSL in this area would not contain simultaneous ILS approach procedures. Aircraft on a north downwind will need to be level at 4,000 feet MSL prior to turning base leg to join the runway 8 ILS final approach course no sooner than ILIKE intersection (PXR 16 DME). The base leg required to achieve this will be near Luke AFB. A 6,000-foot MSL shelf in this area will not contain these aircraft.
Additionally, the AOPA proposal has an extension of the 6,000 foot MSL shelf approximately 3 NM north of the Peoria Road, at 33°35′00″ N. latitude, that exceeds the FAA proposal's lateral limit and offers no operational advantage. The shelves north and south of PHX in Area D and E offer significant benefit to the north and south of PHX by decompressing the vertical space available to non-participating aircraft by raising the floor of the Class B from the surface to 5,000 feet MSL. Aircraft departing the East/West transitions will be able to contact Scottsdale, Deer Valley, and Chandler towers sooner, prior to entering their Class D airspaces. The floors of PHX Class B in areas east and west of South Mountain will be raised 2,000 feet. This will facilitate navigation around the Class B airspace at higher altitudes.
The Williams Gateway Airport Authority (WGAA) expressed concern on the affect the proposed Class B airspace would have on commercial traffic growth at Williams Gateway Airport (IWA). WGAA urges the FAA to modify Area I to only the area truly needed as an arrival corridor for dual ILS systems into PHX. They also state that ILS approaches are being phased out in favor of GPS and RNAV approaches and that this should be a consideration.
The FAA acknowledges the growth in commercial traffic at IWA. The primary concern in this action is providing the highest degree of safety while preserving the most efficient use of available terminal airspace to all users. The airspace needed to contain aircraft during simultaneous ILS approach procedures at PHX requires aircraft on a south downwind over IWA to be level at 5,000 feet MSL prior to turning base leg to join the runway 26 and 25 ILS final approach courses no sooner than ABOSE and BUDME intersections (PXR 16.6 DME). The base leg required to achieve this will be between the PXR 17—25 DME arc. A 7,000-foot MSL shelf in this area will not contain these aircraft. Although GPS and RNAV technology is replacing ILS approaches at other airports, the ILS system at PHX will be in place for the foreseeable future.
The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 to modify the PHX Class B airspace area. Specifically, this action depicted in the attached chart, expands the eastern boundary to ensure the containment of the PHX STARs within Class B airspace and reconfigures several existing areas, correcting inefficiencies identified during public meetings hosted by Phoenix TRACON. These modifications reduce the overall size of the PHX Class B airspace area, improve the containment of turbo-jet aircraft within the airspace, and improve the alignment of lateral boundaries with VOR radials and visual landmarks for improved VFR navigation.
The following are the revisions for the PHX Class B airspace: The floor of the airspace east and west of PHX is lowered to contain PHX arrival traffic during periods of sustained arrival demand. Additionally, these changes facilitate the planned development of simultaneous ILS approach procedures by creating necessary Class B airspace to contain the new procedures. The ability to develop these procedures is critical in enabling PHX to sustain an arrival rate equivalent to demand during reduced visibility conditions. During these periods, the airport arrival rate (AAR) is reduced by over 30%, from 72 aircraft an hour to 48 aircraft an hour. This creates a nationwide impact to the NAS that in the past has taken the user days to recover. The floor of the airspace north and south of PHX is raised to create greater access for VFR aircraft in areas that do not require Class B airspace.
The results of the PHX Class B changes are the proper containment of large turbine-powered aircraft within Class B airspace, more efficient traffic management during periods of reduced visibility, increased arrival rate demand, de-confliction of non-participating
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.
In conducting these analyses, the FAA has determined that this rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) would not have a significant economic impact on a substantial number of small entities; (5) would not create unnecessary obstacles to the foreign commerce of the United States; and (6) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
This final rule will modify the PHX, AZ, Class B airspace area by lowering the altitude ceiling of the airspace and expanding the arrival extension boundaries.
The final rule will enhance operational efficiency, simplified navigation in the Phoenix terminal area and reduce circumnavigation costs. Since Class B airspace is already in place at Phoenix, and since the modifications in this rule are a contraction of the Class B airspace, minimal costs will result. Thus, the FAA has determined this final rule will be cost-beneficial.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This final rule will not impose any circumnavigation costs on individuals operating in the Phoenix area and the final rule will not impose any costs on small business entities. Operators of GA aircraft are considered individuals, not small business entities, and are not included when performing a regulatory flexibility analysis. Flight schools are considered small business entities. However, the FAA assumes that they provide instruction in aircraft equipped to navigate in Class B airspace if they currently provide instruction in the Phoenix terminal area. Therefore, as the FAA Administrator, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and has determined that it would have only a domestic impact and therefore no affect on international trade.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million. This final rule does not contain such a mandate.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Area A. That airspace extending upward from the surface to and including 9,000 feet MSL defined by an east/west line along the northern boundary defined by Camelback Road and the PXR 10 DME, thence east to the intersection of Camelback Road and I-17; thence a line direct to the I-10/Squaw Peak Stack following the Loop 202 Freeway from the I-10/Squaw Peak Stack to the Red Mountain Hohokam Stack; thence northeast to the intersection of Camelback Road and Hayden Wash (Lat. 33° 30′ 07″ N., long. 111° 54′ 32″ W.); thence east along Camelback Road to the PXR 6 DME arc (Lat. 33°30′07″ N., long. 111°53′00″ W.); thence south to the Power Line/Canal (Lat. 33° 21′ 25″ N., long. 111° 53′ 33″ W.); thence west to a point at Lat. 33° 21′ 25″N., long.111° 54′55″ W., thence northwest to the intersection of I-10 and SR-143 (lat. 33° 24′ 37″ N., long.111° 58′ 38″ W.); thence west to SR-51/I-10 extension to lat. 33° 24′ 34″ N., long.112° 02′ 13″ W., thence southwest to a point at lat. 33° 21′ 45″ N., long. 112° 06′ 20″ W.; thence west along the lat. 33° 21′ 45″ N.; thence north along the PXR 10 DME arc until intersecting Camelback Road.
Area B. That airspace extending upward from 3,000 feet MSL to and including 9,000 feet MSL defined by an east/west line along the northern boundary defined by the intersection of Camelback Road and the PXR 15 DME arc; thence east along Camelback Road to the intersection of Camelback Road and the PXR 10 DME arc; thence south along the PXR 10 DME arc until the intersection with lat. 33°21′45″ N.; thence east along lat. 33°21′45″ N. to lat. 33°21′ 45″ N., long. 112°06′20″ W.; thence southwest direct to the intersection of the Gila River and the Chandler Blvd extension (lat. 33°18′18″ N, long. 112°12′03″ W.); thence northwest along the Gila River to the intersection of the river and the PXR 15 DME arc; thence northwest along the PXR 15 DME arc to the intersection of Camelback Road.
Area C. That airspace extending upward from 2,700 feet MSL to and including 9,000 feet MSL defined by an east/west line along the northern boundary defined by the intersection of Camelback Road and PXR 6 DME arc (lat. 33°30′07″ N., long. 111°53′00″ W.); thence east to the intersection of Gilbert Road and PXR 10 DME arc; thence south along Gilbert Road to the to the intersection of Gilbert Road and Falcon Field (FFZ) Class D airspace (lat. 33°24′35″ N., long. 111°47′18″ W.); thence southeast along the FFZ Class D airspace boundary to the intersection with the PXR 10 DME arc; thence southwest along the PXR 10 DME arc to the intersection with lat. 33°21′25″ N.; thence west along lat. 33°21′25″ N. to the intersection of the PXR 6 DME arc; thence north along the PXR 6 DME arc to the intersection of Camelback Road with (lat.33°30′07″ N., long. 111°53′00 W.).
Area D. That airspace extending upward from 5,000 feet MSL to and including 9,000 feet MSL defined by an east/west line along the northern boundary using the Peoria Avenue/Shea Boulevard alignment from the intersection of I-17 (lat. 33°35′00″ N., long. 112°07′00″ W.); thence east along lat. 33°35′00″ N. to the intersection with Pima Road (lat. 33°35′00″., long. 111°53′28 W.); thence south along Pima Road to the intersection of Camelback Road; thence west along Camelback Road to Hayden Wash (lat. 33°30′07″ N., long. 111°54′32″ W.); thence southwest on a line direct to the Red Mountain Hohokam Stack; thence west along the Loop 202 Freeway to the I-10/Squaw Peak Stack; thence northwest to the intersection of Camelback Road and I-17; thence north along I-17 to the intersection of I-17 and Peoria Avenue/Shea Boulevard.
Area E. That airspace extending upward from 5,000 feet MSL to and including 9,000 feet MSL defined by an eastern boundary starting at the intersection of I-10/SR-143 (lat. 33°24′37″ N., long.111°58′38″ W.); thence southeast to lat. 33°21′25″ N., long. 111°54′55″ W.; thence southeast to the Chandler Airport (lat. 33°16′00″ N., long. 111°48′40″ W.); thence west along lat. 33°16′00″ N. to the intersection of the Gila River; thence north along the river to the intersection of the Chandler Boulevard extension (lat. 33°18′18″ N., long. 112°12′03.″ W.); thence northeast direct to lat. 33°21′45″ N., long. 112°06′20″ W.; thence northeast direct to lat. 33°24′34″ N., long. 112°02′13″ W.; thence east to the intersection of I-10/SR-143.
Area F. That airspace extending upward from 4,000 feet MSL to and including 9,000 feet MSL defined by an east/west line along the northern boundary at the intersection of Peoria Avenue/Shea Boulevard and the PXR 25 DME arc (lat. 33°35′00″ N., long. 112°26′7″ W.); thence east along lat. 33°35′00″ N. to the intersection of I-17 (lat. 33°35′00″ N., long. 112°07′00″ W.); thence south along I-17 to the intersection of Camelback Road; thence west along Camelback Road to the intersection of the PXR 15 DME arc; thence south along the PXR 15 DME arc to lat. 33°24′00″ N., long. 112°15′59″ W.; thence west along lat. 33°24′00″ N. to the intersection of the PXR 25 DME arc; thence north along the PXR 25 DME arc north to the intersection of Peoria Avenue/Shea Boulevard (lat. 33°35′00″ N., long. 112°26′07″ W.).
Area G. That airspace extending upward from 4,000 feet MSL to and including 9,000 feet MSL defined by an east/west line along the northern boundary defined by Peoria Avenue/Shea Boulevard and the intersection of Pima Road (lat. 33°35′00″ N., long. 111°53′28″ W.); thence east along lat. 33°35′00″ N. to the PXR 15 DME arc; thence south along the PXR 15 DME arc to lat. 33°16′00″ N.; thence west along lat. 33°16′00″ N. to Chandler Airport (lat. 33°16′00″ N., long. 111°48′40″ W.); thence direct northwest to lat. 33°21′25″ N., long. 111°54′55″ W.; thence east along the Power Line/Canal (lat. 33°21′25″ N.) to the PXR 10 DME arc; thence north along the PXR 10 DME arc to the intersection of Camelback Road; thence west along Camelback Road to the intersection of Pima Road; thence north along Pima Road to the intersection of Peoria Avenue/Shea Boulevard (lat. 33°35′00″ N., long. 111°53′28″ W.).
Area H. That airspace extending upward from 5,000 feet MSL to and including 9,000 feet MSL defined by an east/west line from the intersection of Litchfield Road and Southern Avenue (lat. 33°24′″ N., long. 112°21′30″ W.); thence east along lat. 33°24′00″ N. to the intersection of the PXR 15 DME arc; thence southeast along the PXR 15 DME arc to lat. 33°20′00″ N.; thence west along lat. 33°20′00″ N. to intersect the extension of Litchfield Rd (lat. 33°20′00″ N., long. 112°21′30″ W.); thence north along Litchfield Road to lat. 33°24′00″ N., long. 112°21′30″ W.
Area I. That airspace extending upward from 5,000 feet MSL to and including 9,000 feet MSL defined by an east/west line along lat. 33°35′00″ N. from the intersection of Peoria Avenue/Shea Boulevard and the PXR 15 DME arc east to the PXR 25 DME arc (lat. 33°35′00″ N., long. 111°30′18″ W.); thence south along the PXR 25 DME arc to lat. 33°16′00″ N.; thence west along lat. 33°16′00″ N. to the PXR 15 DME arc; thence north along the PXR 15 DME arc to the intersection of Peoria Avenue/Shea Boulevard (lat. 33°35′00″ N.).
Area J. That airspace extending upward from 6,000 feet MSL to and including 9,000 feet MSL defined by lat. 33°35′00″ N., long. 112°15′40″ W. on the Loop 101 Freeway; thence north along the freeway to a point at lat. 33°40′00″ N., long. 112°13′45″ W.; thence north to lat. 33°41′41″ N., long. 112°13′05″ W. on the PXR 20 DME arc; thence east along the PXR 20 DME arc to the PXR 354° radial; thence south along the PXR 354° radial to the intersection of the Loop 101 Freeway; thence east along the freeway to a point on Loop 101 Freeway at the approach end of Scottsdale Airport Runway 21 (lat. 33°38′39″ N., long. 111°53′31″ W.); thence northeast to lat. 33°43′38″ N., long. 111°46′54″ W. on the PXR 20 DME arc; thence southeast along the PXR 20 DME arc to intersect lat. 33°35′00″ N.; thence west along lat. 33°35′00″ N. to lat. 33°35′00″ N. long. 112°15′40″ W.
Area K. That airspace extending upward from 6,000 feet MSL to and including 9,000 feet MSL defined by the intersection of the PXR 17 DME arc and lat. 33°16′00″ N.; thence east along lat. 33°16′00″ N. to the PXR 20 DME arc; thence southwest along the PXR 20 DME arc to I-10 (lat. 33°07′02″ N., long. 111°50′26″ W.); thence northwest along I-10 to lat. 33°09′39″ N., long. 111°52′28″ W. on the PXR 17 DME arc; thence clockwise along the PXR 17 DME arc to intersect with lat. 33°16′00″ N.
Area L. That airspace extending upward from 6,000 feet MSL to and including 9,000 feet MSL defined by the intersection of the PXR 25 DME arc and lat. 33°24′00″ N.; thence east along lat. 33°24′00″ N. to Litchfield Road; thence south along Litchfield Road to lat. 33°20′00″ N., long. 112°21′30″ W.; thence
Area M. That airspace extending upward from 7,000 feet MSL to and including 9,000 feet MSL defined by lat. 33°48′02″ N., long. 112°12′24″ W.; thence east along the PXR 25 DME arc to the PXR 354° radial; thence south along the PXR 354° radial to the PXR 20 DME arc; thence west along the PXR 20 DME arc to lat. 33°41′41″ N, long. 112°13′05″ W.; thence north to lat. 33°48′02″ N., long. 112°12′24″ W.
Area N. That airspace extending upward from 7,000 feet MSL to and including 9,000 feet MSL defined from the PXR 354° radial and the PXR 20 DME arc; thence east along the PXR 20 DME arc to lat. 33°43′38″ N., long. 111°46′54″ W.; thence southwest to the approach end of Scottsdale Airport Runway 21 (lat. 33°38′39″ N., long. 111°53′31″ W.); thence northwest along the Loop 101 Freeway to the intersection of the PXR 354° radial; thence north along the PXR 354° radial to the PXR 20 DME arc.
Area O. That airspace extending upward from 7,000 feet MSL to and including 9,000 feet MSL defined from lat. 33°47′11″ N., long. 111°42′16″ W.; thence southeast along the PXR 25 DME arc to intersect the Peoria Avenue/Shea Boulevard extension (lat. 33°35′00″ N., long. 111°30′18″ W.); thence west along lat. 33°35′00″ N. to the PXR 20 DME arc; thence northwest along the PXR 20 DME arc to lat. 33°43′38″ N., long. 111°46′54″ W., thence northeast to lat. 33°47′11″ N., long. 111°42′16″ W.
Area P. That airspace extending upward from 7,000 feet MSL to and including 9,000 feet MSL defined by the intersection of the PXR 20 DME arc and lat. 33°16′00″ N., long. 111°37′31″ W.; thence east along lat. 33°16′00″ N. to intersect with the PXR 25 DME arc; thence southwest along the PXR 25 DME arc to intersect with I-10; thence northwest along I-10 to intersect with the PXR 20 DME arc; thence northeast along the PXR 20 DME arc to the intersection of lat. 33°16′00″ N.
Area Q. That airspace extending upward from 8,000 feet MSL to and including 9,000 feet MSL defined by lat. 33°53′48″ N., long. 112°11′50″ W.; thence east along the PXR 30 DME arc to the PXR 354° radial; thence south along the PXR 354° radial to the PXR 25 DME arc; thence west along the PXR 25 DME arc to lat. 33°48′02″ N., long. 112°12′24″ W.; thence north to lat. 33°53′48″ N., long. 112°11′50″ W.
Area R. That airspace extending upward from 8,000 feet MSL to and including 9,000 feet MSL defined by lat. 33°50′38″ N., long. 111°37′39″ W. on the PXR 30 DME arc; thence southeast along the PXR 30 DME arc to lat. 33°43′44″ N., long. 111°29′14″ W.; thence south to lat. 33°40′46″ N., long. 111°34′03″ W. on the PXR 25 DME arc; thence northwest along the PXR 25 DME arc to lat. 33°47′11″ N., long. 111°42′16″ W.; thence northeast direct to lat. 33°50′38″ N., long. 111°37′39″ W.
Area S. That airspace extending upward from 8,000 feet MSL to and including 9,000 feet MSL defined by the intersection of the PXR 25 DME arc and PXR 127° radial; thence southeast along the PXR 127° radial to the PXR 30 DME arc; thence southwest along the PXR 30 DME arc to intersect with I-10; thence northwest along I-10 to the PXR 25 DME arc; thence northeast along the PXR 25 DME arc to intersect with the PXR 127° radial.
Area T. That airspace extending upward from 7,000 feet MSL to and including 9,000 feet MSL defined by lat. 33°30′34″ N., long. 112°27′36″ W.; thence west along lat. 33°30′34″ N. to the PXR 30 DME arc; thence south along the PXR 30 DME arc to lat. 33°16′00″ N.; thence east along lat. 33°16′00″ N. to the PXR 25 DME arc; thence north along the PXR 25 DME arc to lat. 33°30′34″ N., long. 112°27′36″ W.
Area U. That airspace extending upward from 3,400 feet MSL to and including 9,000 feet MSL defined from the intersection of the PXR 10 DME arc and Camelback Road (lat. 33°30′08″ N., long. 111°47′20″ W.); thence south along the PXR 10 DME arc to intersect with the southwest boundary of FFZ Class D airspace (lat. 33°24′02″ N., long. 111°46′30″ W.); thence northwest along FFZ Class D line to Gilbert Road (lat. 33°24′35″ N., long. 111°47′18″ W.); thence north along Gilbert Road to the intersection of Camelback Road and the PXR 10 DME arc (lat. 33°30′ 08″ N., long. 111°47′ 20″ W.).
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and/or Weather Takeoff Minimums for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective August 8, 2007. The compliance date for each SIAP and/or Weather Takeoff Minimums is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 8, 2007.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK. 73125) telephone: (405) 954-4164.
This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided.
Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
The FAA published several Amendments in Docket No. 30558, Amdt No. 3225 to Part 97 Of the Federal Aviation Regulations (Vol. 72, FR No. 135, Page 38755; dated Monday, July 16, 2007) under section 97.33, effective 30 August 2007, which is hereby RESCINDED as follows:
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is classifying an in vitro human immunodeficiency virus (HIV) drug resistance genotype assay into class II (special controls). The special control that will apply to this device is the guidance document entitled “Class II Special Controls Guidance Document: In Vitro HIV Drug Resistance Genotype Assay.” FDA is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of this device. Elsewhere in this issue of the
This rule becomes effective September 7, 2007. The classification of this device into class II became effective on September 26, 2001.
Nathaniel L. Geary, Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852, 301-827-6210.
In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976, the date of enactment of the Medical Device Amendments of 1976, generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the act, to a predicate device that does not require premarket approval. FDA determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of FDA's regulations.
Section 513(f)(2) of the act provides that any person who submits a premarket notification under section 510(k) of the act for a device that has not previously been classified may, within 30 days after receiving an order classifying the device in class III under section 513(f)(1) of the act, request FDA to classify the device under the criteria set forth in section 513(a)(1) of the act. FDA shall, within 60 days of receiving such a request, classify the device by written order. This classification shall be the initial classification of the device.
In accordance with section 513(f)(1) of the act, FDA issued an order on June 27, 2001, classifying into class III the
In accordance with section 513(f)(2) of the act, FDA reviewed the petition in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the act. Devices are to be classified into class II if general controls, by themselves, are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the petition, FDA determined that the Visible Genetics, Inc., TRUEGENE HIV Genotyping Kit and OpenGene DNA Sequencing System can be classified in class II with the establishment of special controls. FDA believes that special controls, in addition to general controls, are adequate to provide reasonable assurance of the safety and effectiveness of this device and that there is sufficient information to establish special controls to provide such assurance.
This device is assigned the generic name, “In vitro HIV drug resistance genotype assay.” It is identified as an in vitro diagnostic device to be used to detect HIV genomic mutations that confer resistance to specific types of antiretroviral drugs, as an aid in monitoring and treating HIV infection.
FDA has identified the risks to health associated with the use of the in vitro HIV drug resistance genotype assay. These risks include inaccurate detection of resistance mutations present in a patient's viral swarm that can result in continuance of therapies that are no longer appropriate, or changes to new, inadequate therapies. In both cases, the patient's viral load may increase, worsening the clinical prognosis and accelerating the development of drug resistant viruses. Patients may be needlessly subjected to serious, deleterious side effects of inappropriate antiviral drugs. Furthermore, failure of the assay to give any results at all (sequence failure) can deny or delay beneficial, appropriate therapies, which may also result in high viral loads and their attendant morbidity.
FDA believes that the class II special controls guidance document will aid in mitigating the potential risks to health by providing recommendations on performance characteristics; other considerations such as design controls, statistical methods, and instruments and software; product modification; and labeling. The guidance document also provides recommendations for fulfilling the premarket (510(k)) submission requirements for this device. FDA believes that the class II special controls guidance document, in addition to general controls, addresses the risks to health identified in the previous paragraph and provides reasonable assurance of the safety and effectiveness of the in vitro HIV drug resistance assay. Therefore, on September 26, 2001, FDA issued an order to the petitioner classifying the device into class II. FDA is codifying this device classification at 21 CFR 866.3950.
Following the effective date of this final classification rule, manufacturers submitting a 510(k) premarket notification for an in vitro HIV drug resistance genotype assay will need to address the issues covered in the special controls guidance. However, the manufacturer need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurance of safety and effectiveness.
Section 510(m) of the act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of this type of device and, therefore, this type of device is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, before marketing the device, which contains information about the in vitro HIV drug resistance genotype assay they intend to market.
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because classification of this device into class II will relieve manufacturers of the device of the cost of complying with the premarket approval requirements of section 515 of the act (21 U.S.C. 360e), and may permit small potential competitors to enter the marketplace by lowering their costs, the agency certifies that the final rule will not have a significant impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current (2005) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount
The agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have
This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) of 1995 is not required. Elsewhere in this issue of the
The following reference has been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.
1. Petition from Visible Genetics, Inc., dated July 11, 2001.
Biologics, Laboratories, Medical devices.
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
Department of Justice.
Final Rule.
On May 8, 2007, at 72 FR 26037, the Department of Justice issued a proposed rule to amend Title 28 of the Code of Federal Regulations, Part 16, to exempt the following new system of records from certain provisions of the Privacy Act: The National Security Division (NSD), “Foreign Intelligence and Counterintelligence Records System (JUSTICE/NSD-001),” which incorporated three previous systems of records of the Office of Intelligence Policy and Review (OIPR). This records system must be exempted from sections of the Privacy Act since, in most cases, disclosure of the existence of records pertaining to an individual would hinder authorized United States intelligence activities by informing that individual of the existence, nature, or scope of information that is properly classified pursuant to Executive Order 12958, as amended, and thereby cause damage to the national security. Further it is necessary to exempt this system to ensure unhampered and effective collection and analysis of foreign intelligence and counterintelligence information and to protect the identities of confidential sources.
This final rule is effective August 8, 2007.
GayLa Sessoms, (202) 616-5460 or Mary Cahill (202) 307-1823.
The notice of the proposed rule with invitation to comment was published in the
This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, this order will not have a significant impact on a substantial number of small business entities.
Administrative Practices and Procedures, Courts, Freedom of Information, and Privacy.
5 U.S.C. 301, 551, 552a, 552b(g), and 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, and 9701.
(a) The following system of records is exempted from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G),(H) and (I), (5) and (8); (f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (2) and (5): Foreign Intelligence and Counterintelligence Records System (JUSTICE/NSD-001). These exemptions apply only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (2), and (5).
(b) Exemptions from the particular subsections are justified for the following reasons:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
Environmental Protection Agency (EPA).
Final rule; correcting amendment.
This document corrects errors in the final rule redesignating LaPorte County, Indiana (LaPorte CO., IN) to attainment for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). In the final approval for the redesignation of this area, EPA inadvertently titled the designation codification table as “OHIO OZONE” instead of “Indiana-Ozone”, and inadvertently specified the effective date of this action in the designation table as August 20, 2007, even though the effective date of the final rule was July 19, 2007, as specified in the
Edward Doty, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6057,
EPA published a notice of final rulemaking to redesignate LaPorte County, Indiana (LaPorte CO., IN) to attainment of the 8-hour ozone standard on July 19, 2007 (72 FR 39574). In the designation codification table used to revise the 8-hour ozone designation of this area, EPA incorrectly titled the table as “OHIO OZONE.” This should have read as “Indiana-Ozone.” In the same designation codification table, EPA incorrectly specified the effective date of the redesignation as August 20, 2007. This differed from the actual effective date of the final rule, July 19, 2007, as specified in the
For LaPorte County in the final rule published in the
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting errors in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the
This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act (5 U.S.C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of August 8, 2007. 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
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of dimethenamid in or on grasses grown for seed. Interregional Research Project No. 4 (IR-4) requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 8, 2007. Objections and requests for hearings must be received on or before October 9, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2006-0165. To access the electronic docket, go to
Jim Tompkins, Registration Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5639; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.
• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.
• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.
• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to accessing an electronic copy of this
Under section 408(g) of the FFDCA, 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-2006-0165 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before October 9, 2007.
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 that does not contain any CBI for inclusion in the public docket that is described in
•
•
•
In the
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish 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 the 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 the 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....” These provisions were added to the FFDCA by the Food Quality Protection Act (FQPA) of 1996.
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), 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 the petitioned-for tolerance for residues of dimethenamid in or on grass, forage at 0.15 parts per million (ppm); grass, hay at 2.5 ppm; grass, straw at 0.01 ppm; and grass, seed screenings at 0.01
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by dimethenamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in the document “Dimethenamid-P Human Health Risk Assessment for Proposed Use on Grasses Grown for Seed, PC Codes: 120051 and 129051, Petition No: 0F6138, DP Num: 337887”. The document is available at
For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern (LOC) is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors (UF) are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded.
For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for dimethenamid used for human risk assessment can be found at
1.
i.
ii.
iii.
2.
Based on the EPA's Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of dimethenamid for acute exposures are estimated to be 9.0 parts per billion (ppb) for surface water and 0.34 ppb for ground water. The EDWCs for chronic exposures are estimated to be 3.8 ppb for surface water and 0.34 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. The EDWCs for use sites (other than grasses grown for seed) with the highest values were used. For acute dietary risk assessment, the water concentration value of 66.7 ppb was used to access the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 20.2 ppb was used to access the contribution to drinking water.
3.
Dimethenamid is not registered for use on any sites that would result in residential exposure.
4.
Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to dimethenamid and any other substances and dimethenamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that dimethenamid has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
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2.
3.
i. The toxicity database for dimethenamid is complete.
ii. The toxicity data showed no increase in qualitative and/or quantitative susceptibility in fetuses and pups with
iii. There is no evidence that dimethenamid is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity.
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessment utilizes proposed tolerance level residues and 100% crop treated information for all commodities, which results in very high-end estimates of dietary exposure. The dietary drinking water assessment utilizes values generated by model and associated modeling parameters which are designed to provide health protective, high-end estimates of water concentrations.
Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable uncertainty/safety factors is not exceeded.
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Adequate enforcement methodology (gas chromatography with a nitrogen phosphorus detector (GC/NPD) method (AM-0884-0193-1) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address:
An International Residue Limit (IRL) Status Sheet is appended to the Dimethenamid-P Human Health Risk Assessment located in the docket for this notice. Codex has established maximum residue limits (MRLs), expressed in terms of dimethenamid-P and its enantiomer, for various crop commodities but not for grass commodities. Canada and Mexico have also established MRLs for dimethenamid-P and its enantiomer in/on various crop commodities but not for grass, hay; grass, forage; grass, straw; or grass, seed screenings.
Therefore, the tolerance is established for residues of dimethenamid, in or on grass, forage at 0.15 ppm; grass, hay at 2.5 ppm; grass, straw at 0.01 ppm; and grass, seed screenings at 0.01 ppm.
This final rule establishes a tolerance under section 408(d) of the FFDCA 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
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 section 408(n)(4) of FFDCA. 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
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), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes import tolerances for residues of fenazaquin, 4-tert-butylphenethyl quinazolin-4-yl ether, in or on apple at 0.2 parts per million (ppm); in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. Gowan Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 8, 2007. Objections and requests for hearings must be received on or before October 9, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2006-0075. To access the electronic docket, go to
Dan Peacock, Registration Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5407; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.
• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.
• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.
• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to accessing an electronic copy of this
Under section 408(g) of the FFDCA, 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-2006-0075 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before October 9, 2007.
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 that does not contain any CBI for inclusion in the public docket that is described in
•
•
•
In the
Based upon review of the data supporting the petition, EPA has modified Gowan Company's request for tolerances as follows. This regulation establishes import tolerances for residues of fenazaquin in or on apple at 0.2 ppm; in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. The reason for the addition of a tolerance for citrus oil at 10 ppm is explained in Unit V. (Conclusions).
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish 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 the 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 the 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. . . .” These provisions were added to the FFDCA by the Food Quality Protection Act (FQPA) of 1996.
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), 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 the petitioned-for import tolerances for residues of Fenazaquin in or on apple at 0.2 ppm; in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by Fenazaquin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern (LOC) is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors (UF) are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (MOE) called for by the product of all applicable uncertainty/safety factors is not exceeded.
For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for Fenazaquin used for human risk assessment is shown in Table 1 below of this unit and in docket ID number EPA-HQ-OPP-2007-0075-0004 in an alternate format.
1.
i.
ii.
iii.
iv.
2.
3.
Fenazaquin is not registered for use on any sites that would result in residential exposure.
4.
Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fenazaquin and any other substances and fenazaquin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fenazaquin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
1.
2.
3.
i. The toxicity database for fenazaquin is complete.
ii. There is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity.
iii. There is no evidence that fenazaquin results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues.
v. There is no potential for dietary drinking water exposure and there are no residential uses.
By using these screening-level assessments, acute and chronic exposures/risks will not be underestimated.
Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (MOE) called for by the product of all applicable uncertainty/safety factors is not exceeded.
1.
2.
3.
Fenazaquin is not registered for use on any sites that would result in residential exposure. Also, because the tolerances being established in this Final Rule are for uses outside of the United States, there is no acute dietary exposure from water. Therefore, the aggregate risk is the sum of the risk from food, which does not exceed the Agency's level of concern.
4.
Fenazaquin is not registered for use on any sites that would result in residential exposure. Also, because the tolerances being established in this final rule are for uses outside of the United States, there is no chronic dietary exposure from water. Therefore, the aggregate risk is the sum of the risk from food, which does not exceed the Agency's level of concern.
5.
6.
Adequate enforcement methodology (gas chromatography) is available to enforce the tolerance expression, using the existing Food and Drug Administration (FDA) Multiresidue Methods in the Pesticide Analytical Manual (PAM), Vol I, available from
There are no established or proposed Canadian, Mexican or Codex MRLs for residues of fenazaquin in plant commodities.
The Agency did not receive any comments to this request for import tolerances for fenazaquin.
Therefore, the Agency is establishing import tolerances for residues of Fenazaquin in or on apple at 0.2 parts per million (ppm); in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. The original petition did not request the establishment of a tolerance in or on citrus oil at 10 ppm. However, the Agency added this tolerance for the following reason. Separate tolerances are not required for apple and orange juice as residues do not concentrate in these commodities. However, the citrus processing studies indicate that fenazaquin residues concentrate on average by 25x in citrus oil and thus residues in citrus oil could exceed the tolerance for citrus fruits. Based on the 25x processing factor and residue data on fenazaquin levels in or on oranges, a tolerance of 10 ppm would be appropriate for citrus oil.
This final rule establishes a tolerance under section 408(d) of FFDCA 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
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, 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 section 408(n)(4) of FFDCA. 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
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), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
(a)
(b)
(c)
(d)
Office of Federal Contract Compliance Programs, Labor.
Final rule.
The Office of Federal Contract Compliance Programs (OFCCP) is publishing a new set of regulations to implement the amendments to the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (“VEVRAA”) that were made by the Jobs for Veterans Act (“JVA”) enacted in 2002. The JVA amendments raised the threshold dollar amount of the Government contracts that are subject to the affirmative action provisions of VEVRAA, changed the categories of veterans protected by the law, and changed the manner in which the mandatory job listing requirement is to be implemented. The final regulations published today apply only to covered Government contracts entered into or modified on or after December 1, 2003. The existing VEVRAA implementing regulations found in 41 CFR part 60-250 will continue to apply to Government contracts entered into before December 1, 2003.
Lynn A. Clements, Acting Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue, NW., Room N3422, Washington, DC. 20210. Telephone: (202) 693-0102 (voice) or (202) 693-1337 (TTY).
The Jobs for Veterans Act (“JVA”), (Pub. L. 107-288, 116 Stat. 2033), was signed by the President on November 2, 2002. Section 2(b)(1) of the JVA amended the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, (“VEVRAA”). Section 2(b)(3) of the JVA made the amendments applicable to Government contracts entered into on or after December 1, 2003.
Prior to amendment by the JVA, the affirmative action provisions of VEVRAA required parties holding Government contracts or subcontracts of $25,000 or more to “take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and any other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.” OFCCP has adopted the term “other protected veteran” to refer to “veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.”
In addition, prior to amendment, VEVRAA required that the Secretary promulgate regulations requiring contractors “to list immediately with the appropriate local employment service office all of its employment openings, except that the contractor may exclude openings for executive and top management positions, positions which are to be filled from within the contractor's organization, and positions lasting three days or less.”
The JVA amendments made three significant changes to the affirmative action provisions of VEVRAA. First, section 2(b)(1) of the JVA increased the coverage threshold from a contract of $25,000 or more to a contract of $100,000 or more.
Second, the JVA amendments changed the categories of covered veterans under VEVRAA. The JVA eliminated the category of Vietnam era veterans from coverage under VEVRAA. However, many Vietnam era veterans may remain covered in other categories. The JVA added as a new category of covered veterans—those “veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.” The JVA expanded the coverage of veterans with disabilities. Prior to amendment by the JVA, VEVRAA
Third, the JVA modified the mandatory job listing requirement for covered contractors. Currently, the regulation at 41 CFR 60-250.5 allows contractors to satisfy their job listing obligations by listing employment openings either with the appropriate local employment service office or with America's Job Bank (AJB). Section 2(b)(1) of the JVA requires the Secretary to promulgate regulations that obligate each covered contractor to list all of its employment openings with “the appropriate employment service delivery system (as defined in section 4101(7) of this title).” Section 5(c)(1) of the JVA defines the term “employment service delivery system” as “a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.”
On January 20, 2006, OFCCP published for a 60-day comment period a Notice of Proposed Rulemaking (NPRM), 71 FR 3352, to implement the JVA amendments to VEVRAA. OFCCP published a notice on March 21, 2006, 71 FR 14135, which corrected the e-mail address for submitting comments on the January 20 NPRM, and extended the comment period for seven days, or until March 28, 2006. OFCCP received five comments: two from State workforce development agencies, and three from employer associations whose members include Federal contractors. OFCCP reviewed and carefully considered the comments in the development of this final rule.
The final rule adopts regulations implementing the JVA amendments to VEVRAA that will be codified in a new 41 CFR part 60-300. OFCCP explained in the preamble of the NPRM that most provisions in part 60-300 are identical to the parallel provisions in the existing VEVRAA implementing regulations in 41 CFR part 60-250, except where differences are required to implement the JVA amendments. Consequently, the same section numbers are used in both parts 60-250 and 60-300. Generally, the differences between the two sets of regulations are found in the provisions that reference the contract coverage threshold and the categories of covered veterans. In the Section-by-Section Analysis of the NPRM, OFCCP highlighted only the provisions in the proposed rule that differ from provisions in the part 60-250 regulations. Likewise, the provisions in the part 60-250 regulations that have been incorporated in today's final rule without substantive change are omitted from the discussion in the Section-by-Section Analysis of Comments and Revisions below.
This final rule, for the most part, adopts the provisions that were proposed in the January 20 NPRM. However, a few of the proposed provisions have been modified in response to the public comments. The discussion which follows identifies the significant issues raised in comments received in response to the NPRM, provides OFCCP's responses to those comments, and explains any resulting changes to the proposed rule.
This section discusses the purpose, applicability, and construction of the part 60-300 regulations. Paragraphs (a) and (c)(2) refer to the four categories of veterans covered under the JVA: (1) Disabled veterans, (2) recently separated veterans, (3) other protected veterans, and (4) Armed Forces service medal veterans.
Paragraph (b) states that this part applies to any Government contract or subcontract of $100,000 or more entered into on or after December 1, 2003. The singular form of the term “contract” is used in paragraph (b) in order to make clear that a single contract in the amount of $100,000 or more is required to establish coverage under VEVRAA; contracts are not aggregated to reach the coverage threshold. Additionally, paragraph (b) states that a contractor whose only covered Government contract was entered into before December 1, 2003, must comply with the requirements in the existing VEVRAA implementing regulations in part 60-250, and a contractor that has covered contracts entered into both before and on or after December 1, 2003, must comply with the regulations in part 60-300 and existing part 60-250.
Two commenters asked whether contractors subject to the existing VEVRAA regulations in part 60-250 and the regulations in part 60-300 implementing the JVA amendments must develop two separate VEVRAA affirmative action programs (AAPs). OFCCP wishes to clarify that a contractor that must comply with both sets of VEVRAA regulations need not develop two AAPs. The JVA amendments increased the dollar amount of the contract that triggers the written AAP requirement, but the JVA amendments did not affect the required contents of the written AAP under VEVRAA. OFCCP explained in the NPRM that, with the exception of the changes necessitated by the JVA amendments, § 60-300.44, which addresses the requirements of AAPs under VEVRAA, is identical to § 60-250.44. Since the contents of the written AAP required under § 60-300.44 and § 60-250.44 are the same, contractors may develop a single AAP that satisfies the requirements of both regulations.
One commenter, an employer association, asserted that it would be unduly burdensome and confusing for contractors to have to comply with two sets of VEVRAA regulations, as they would be required to track different categories of protected veterans. The commenter stated that OFCCP has some flexibility, and, as a matter of enforcement policy, the agency could adopt a final rule that requires contractors to comply with only one set of VEVRAA regulations. The commenter argued that OFCCP could state in the final rule that contractors need only comply with the new JVA regulations, even if they also have contracts that are covered under the existing regulations in part 60-250. Further, the commenter stated that the final rule could provide that contractors entering into contracts that are covered under the regulations in new part 60-300 after the start of the AAP year have the option of continuing to comply only with the recordkeeping and reporting requirements under the part 60-250 rules until the end of the AAP year.
OFCCP disagrees with the commenter's claim that compliance with the requirements of two sets of VEVRAA regulations would be unduly burdensome. First, complying with the requirements of part 60-300 will not increase the paperwork burden of contractors already covered under the VEVRAA regulations. The regulations in part 60-300 implementing the JVA amendments, like the existing VEVRAA implementing regulations in part 60-250, require that contractors extend to all applicants an invitation to self-identify as a veteran who may be covered under the Act and wishes to benefit under the affirmative action program. The only difference between the invitations to self-identify required under part 60-300 and part 60-250 is the categories of veterans that are invited to self-identify. Because OFCCP has included a sample invitation to self-identify in Appendix B of the part 60-300 regulations, compliance with the part 60-300 requirement to invite applicants to self-identify as covered veterans will not add to the burden hours associated with the information collection requirements of the affirmative action provisions of VEVRAA. If a contractor is covered by part 60-250 and part 60-300, the contractor may continue using the part 60-250 sample invitation to self-identify form and add the part 60-300 sample invitation to self-identify form once the final rule becomes effective. Contractors also may choose to combine the two sample invitation to self-identify forms provided in part 60-250 and part 60-300 such that the contractor extends to applicants one invitation to self-identify which lists all of the categories of veterans protected under parts 60-250 and 60-300.
Further, the JVA did not alter the written AAP requirement under VEVRAA. Contractors that also are subject to the regulations in part 60-300 may continue to implement the AAPs developed under the part 60-250 regulations, but their affirmative action efforts must include the three additional categories of covered veterans. These contractors may develop one AAP, rather than two, as long as the components of that AAP, including the outreach and positive recruitment activities, include all categories of veterans protected under parts 60-250 and 60-300.
Moreover, OFCCP believes that only a small percentage of contractors will be required to comply with both sets of VEVRAA regulations. The term “Government contract” is defined in existing § 60-250.2(i) and § 60-300.2(i) of the final rule as “any agreement or modification thereof between any contracting agency and any person for the purchase, sale, or use of personal property or nonpersonal services (including construction).” Existing § 60-250.2(i)(1) and 60-300.2(i)(1) of the final rule provide that a “modification” is “any alteration in the terms and conditions of a contract, including supplemental agreements, amendments and extensions.” The JVA applies to Government contracts entered on or after December 1, 2003. Because a contract modification is a “Government contract”, the JVA applies to modifications of otherwise covered contracts made on or after December 1, 2003. Consequently, modification of a contract that would otherwise be covered by part 60-300 on or after December 1, 2003, but for the date the contract was entered into, would have the effect of modifying the VEVRAA equal opportunity clause; the new requirements of part 60-300 would be applicable to the modified contract, rather than the old requirements of part 60-250.
To clarify the effect of modifying a contract on the VEVRAA requirements applicable after modification, language has been added to § 60-300.1(b) addressing the issue. In the final rule, § 60-300.1(b) has been revised to state “[t]his part applies to any Government contract or subcontract of $100,000 or more, entered into or modified on or after December 1, 2003 * * *. In addition, § 60-300.1(b) of the final rule states “[a]ny contractor or subcontractor whose only contract * * * was entered into before December 1, 2003 (and not modified as described above) must follow part 60-250.”
The regulations published today and the existing VEVRAA implementing regulations in part 60-250 do not require contractors to count the number of veterans in their employ. The Veterans' Employment and Training Service (VETS), rather than OFCCP, administers and enforces the requirement that contractors track and report on the number of employees in their workforces who are covered veterans, and has established a form for reporting the required information.
Finally, OFCCP also disagrees with the assertion that the final rule could provide that contractors need comply with only one set of VEVRAA regulations. Many of the veterans currently protected under the regulations in part 60-250 remain covered in the categories of veterans protected under the JVA. However, because the JVA eliminated the Vietnam era veterans from coverage under VEVRAA, some Vietnam era veterans might lose the VEVRAA protections prematurely if OFCCP were to adopt a rule requiring contractors with contracts entered both before and on and after December 1, 2003, to comply only with the regulations implementing the JVA amendments. Conversely, some veterans covered under the JVA were not covered previously. OFCCP does not have the authority to permit contractors subject to both pre- and post-JVA requirements to comply only with post-JVA requirements because OFCCP rulemaking authority can only be exercised in a manner that carries out the provisions of the statute. Here, Congress expressly made the JVA amendments applicable to contracts entered into on or after December 1, 2003, and thereby provided that veterans covered under contracts entered into prior to the effective date of the JVA amendments remain covered under VEVRAA.
In the NPRM, OFCCP proposed to incorporate in this section many of the definitions contained in existing § 60-250.2 without any substantive changes. The proposal called for some definitions in existing § 60-250.2 to be incorporated in § 60-300.2 with modifications necessitated by the JVA amendments. Further, OFCCP proposed to adopt a few definitions that have no parallel definitions in the existing § 60-250.2. Likewise, some definitions in § 60-250.2 were not included in the proposed rule because of the changes the JVA made to VEVRAA.
OFCCP received several comments on the proposed definitions, and all were from one commenter. The commenter, an employer association, requested that the final rule clearly indicate that only veterans of the United States armed forces, as opposed to veterans of the armed forces of other nations, are covered under the affirmative action provisions of VEVRAA. The commenter stated that one option for clarifying coverage under VEVRAA would be to add a separate definition for the term “veteran.” Alternatively, the commenter recommended that OFCCP add clarifying language to the definitions for the terms “disabled veteran” and “recently separated veteran.” The commenter noted that the definitions for the terms “other protected veteran” and “Armed Forces service medal veteran” already indicate that the regulations apply to veterans of the United States armed forces.
In response to this comment, the definitions for the terms “disabled veteran” and “recently separated
The commenter also expressed the view that veterans who are discharged from service for certain serious offenses should not be entitled to the protections of the affirmative action provisions of VEVRAA. Accordingly, the commenter suggested that OFCCP adopt in the final rule coverage standards similar to those established under the regulations implementing the Uniformed Services Employment and Reemployment Rights Act (USERRA). The regulation at 20 CFR 1002.135 excludes from the protections of USERRA employees whose military service falls within one of four categories, including separation from service with a dishonorable or bad conduct discharge.
For purposes of the laws relating to veterans' benefits, which include the affirmative action provisions of VEVRAA, the definition of veteran means “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” See 38 U.S.C. 101(2). Thus, dishonorably discharged veterans are excluded from the protections of VEVRAA by statute. Since persons who are separated from service with dishonorable discharges do not meet the statutory definition of “veteran,” these persons are not entitled to the protections of the affirmative action provisions of VEVRAA. For clarity, the final rule defines veteran in paragraph (z) as “a person who served in the active military, naval, or air service of the United States, and who was discharged or released therefrom under conditions other than dishonorable.”
One comment addressed the definition for the term “other protected veteran.” The commenter stated that employers need guidance on the wars, campaigns, and expeditions for which a campaign badge has been authorized. The commenter asserted that the information available on the Office of Personnel Management's Web site is out-of-date and only somewhat relevant to private employers. The commenter suggested that OFCCP develop an up-to-date list of the covered conflicts for which a campaign badge has been authorized, or work with other affected agencies to develop and maintain a link to a Web site that contains a current list of the wars, campaigns, and expeditions that would qualify a veteran as an “other protected veteran.”
OFCCP agrees that contractors should have access to information about the veterans included in the category “other protected veterans.” Therefore, OFCCP will provide a link on its Web site to a list compiled by the Department of Defense, as well as a link to the information maintained by the Office of Personnel Management. These links will allow contractors to find lists of wars, campaigns, and expeditions for which a campaign badge has been authorized. OFCCP is providing these links as a courtesy to the contractor community. Contractors remain responsible for complying with their nondiscrimination and affirmative obligations regarding all protected veterans. Paragraph (p) is adopted in the final rule as stated earlier in this section.
The employer association providing comments on the definitions also stated that guidance was needed on the operations that would qualify a veteran as an “Armed Forces service medal veteran,” which is defined in paragraph (r). As was explained in the NPRM, Armed Forces service medals are awarded to military personnel who participate in a United States military operation deemed to be significant activity, and who encounter no foreign armed opposition or imminent hostile action. The commenter requested that OFCCP provide contractors access to an up-to-date list of the operations for which Armed Forces service medals have been awarded. OFCCP does not believe that providing such a list is necessary because the form used to document a veteran's separation from active duty military service, called the DD Form 214, Certificate of Release or Discharge from Active Duty, indicates whether a veteran is a recipient of the Armed Forces service medal. Veterans who self-identify as an “Armed Forces service medal veteran” may be asked to provide a copy of this form. Paragraph (r) is adopted in the final rule as stated earlier in this section.
OFCCP proposed in the NPRM to incorporate in paragraph (y) the definition of the “employment service delivery system” that was added to the definitional section of VEVRAA, 38 U.S.C. 4101(7), by Section 5(c)(1) of the JVA. Under the JVA, “employment service delivery system” means a “service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.” (The Wagner-Peyser Act established the Employment Service, which is a nationwide system of public employment offices.) The commenter recommended that OFCCP revise the definition of “employment service delivery system” in the final rule to state in plain language the name or type of agency with which the employer is to list its job openings.
OFCCP agrees that contractors should have clear guidance regarding the types of agencies with which the employer is to list job openings. However, OFCCP also recognizes contractors may wish to satisfy the mandatory job listing requirement in a variety of ways, depending on the number, timing, and location of the positions to be filled. For this reason, OFCCP believes that further defining the appropriate “employment delivery system” would unnecessarily constrain contractors’ flexibility to list with an appropriate delivery system. Instead, in § 60-300.5 of the final rule, OFCCP has added language providing contractors with examples of the types of delivery systems with which contractors may list job openings. The revised language specifically provides that listing employment openings with the state workforce agency job bank or the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment delivery system. In light of these changes to § 60-300.5, paragraph (y) of the final rule will remain as written in the NPRM.
This section is identical to § 60-250.4 in the existing VEVRAA regulations, except that proposed paragraphs (a)(1) and (a)(2) implement the JVA amendments and state that contracts of $100,000 or more are covered under VEVRAA. We received no comments for this section. Accordingly, § 60-300.4 is adopted in the final rule as proposed.
Paragraph (a) of the final rule contains the equal opportunity (EO) clause that must be included in all covered Government contracts and subcontracts. The language in paragraph (a)(1) of the EO clause is identical to the language in the parallel provision in existing § 60-250.5, except that paragraph (a)(1) refers to the categories of veterans protected under the JVA. Thus, “disabled veterans” and “Armed Forces service medal veterans” are mentioned in
Paragraphs (a)(2) and (a)(3) set out the contractor's obligation to list employment openings with the appropriate employment service delivery system. The JVA amendments eliminated listing employment openings solely with America's Job Bank as an option for complying with the mandatory job listing requirement. The JVA requires that contractors and subcontractors list their employment openings with the appropriate “employment service delivery system.”
The three employer associations all expressed concern about the elimination of AJB as a means for contractors to fulfill the mandatory job listing requirements. One employer association asserted that contractors that regularly advertise multiple job openings in locations throughout the country will face huge administrative burdens if they are required to list each job opening with individual employment service offices. The employer association stated that listing with the AJB allowed contractors to publicize job opportunities on a nationwide basis through a single Web site on the Internet, rather than listing them with each local employment service office of each location where an open position is being filled. The association claimed that a small army of dedicated staff would be required to comply with the requirement to list each job with individual employment service offices.
Similarly, another employer association claimed that the money, time, and resources required to comply with the requirement to separately list job openings with each individual local employment services agency would be substantial. The commenter maintained that compliance with the separate listing requirement is made more challenging by the different protocols for listing jobs that exist in the various local employment services offices. According to the commenter, some employment service offices require contractors to post openings only by regular mail, some accept listings via fax, and some accept postings only by email.
One commenter urged OFCCP to consider alternatives to the proposed job listing provision that would reduce the burden on contractors. Two commenters raised questions about the status of a Department-sponsored solution that would allow contractors to meet both the current and the revised mandatory job listing requirement. One commenter recommended that the Department continue the effort to develop a Department-sponsored solution, and that OFCCP delay publishing the final rule until after a solution has been implemented.
Delaying publication of the final rule until development of a Department-sponsored solution has been completed is not a feasible option. In December 2005, the Government Accountability Office (GAO) issued a report entitled “Veterans’ Employment and Training Service Labor Actions Needed to Improve Accountability and Help States Implement Reforms to Veterans' Employment Services” (GAO-06-176). The GAO Report sets forth results of a review of progress made in implementing the reforms to employment and training services for veterans required by the JVA. GAO noted that the Department has not yet issued regulations to implement the JVA amendments to the affirmative action provisions of VEVRAA and recommended that the Department issue such regulations as soon as possible. In response to the GAO Report, OFCCP agreed to expedite issuing the federal contractor regulations.
However, OFCCP appreciates the difficulties contractors may face if they must list job openings with multiple employment service delivery systems, particularly if those systems maintain different methods for posting job openings or if the contractor must act to fulfill multiple job openings in different geographical locations in a short period of time. Therefore, OFCCP has added language to this section providing that contractors may fulfill their job posting requirement by listing job openings with the appropriate state workforce agency job bank. The appropriate state workforce agency job bank shall be the job bank in which the job opening occurs. Contractors also may satisfy the posting requirement by listing job openings with the local employment service delivery system where the opening occurs.
A contractor may satisfy the mandatory job listing requirement by submitting job listings to the appropriate employment delivery system in a variety of ways, including via mail, facsimile (FAX), electronic mail, or other electronic postings. The vast majority of the state workforce agency job banks accept job postings via the Internet. Contractors may use third parties, such as private or non-profit sector job banks, Internet gateway and portal sites, and recruiting services and directories, to assist them with the transmission of job postings to the appropriate employment delivery system.
OFCCP believes that this approach allows contractors the necessary flexibility to determine the most effective way to comply with the mandatory job listing requirement, depending on the number, timing, and location of the positions to be filled. OFCCP will provide a link on its Web site to all state workforce agency job banks. This link will allow contractors to identify those state workforce agency job banks that accept electronically-transmitted job postings. OFCCP is providing this link as a courtesy to the contractor community. Contractors remain responsible for complying with the requirement to list with the appropriate employment delivery system.
In order to make clear that contractors may satisfy the mandatory job listing requirement in a variety of ways, paragraph (a)(2) of the final rule reads as follows: “The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing employment openings with the state workforce agency job bank or the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service delivery system. In paragraph (a)(4), OFCCP is changing the phrase “state employment security agency” to “state workforce agency” so that paragraph (a)(4) is consistent with paragraph (a)(2) of this section.
OFCCP also received two comments on the definition of “executive and senior management” in proposed paragraph (a)6.ii. In order to conform to a technical amendment made by the JVA, OFCCP proposed to use the term “senior management” in proposed paragraph (a)6.ii., instead of “top management,” which is the term used in existing § 250.5(a)6.ii. However, in all other respects, the proposed definition for the term “executive and senior management” is identical to the definition of “executive and top management” found in the existing § 250.5(a)6.ii.
One commenter observed that, in defining the term “executive and senior management” in proposed § 60-300.5(a)6.ii. and current § 250.5(a)6.ii., OFCCP followed the regulations implementing the exemption for executives from the minimum wage and overtime pay requirements of the Fair Labor Standards Act (FLSA), published at 29 CFR part 541 (“part 541 regulations”). The commenter also noted that the Department of Labor revised the part 541 regulations, effective August 23, 2004, and that the revisions include streamlined tests for determining whether a person qualifies as an “executive” exempt from the overtime provisions. See 69 FR 22122. For the sake of consistency and in order to avoid confusion, the commenter maintained that the definition of “executive and senior management” in paragraph (a)6.ii. should conform to the updated tests for determining who qualifies as an “executive employee” set forth in the part 541 regulations.
In response to the comment, OFCCP has revised the definition of “executive and senior management” to reflect the standards for determining when a person qualifies as an “executive employee” found in 29 CFR 541.100 and 541.101. Thus, paragraph (a)6.ii. in the final rule defines the term “executive and senior management” as: (1) any employee “(a) Compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities; (b) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (c) Who customarily and regularly directs the work of two or more other employees; and (d) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight;” or (2) any employee “who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management.”
Another commenter expressed the view that the proposed definition of “executive and senior management” could be interpreted to exclude from the mandatory job listing requirement “most low level managers and supervisors.” The commenter argued that “executive and senior management” should be defined as “positions which direct company policy and direction and not be hinged to supervision of employees.” OFCCP believes that its revised definition adequately addresses this commenter's concerns, as supervisory responsibility is not the sole determinant of whether a job is considered “executive and senior management.” In order to be considered an “executive and top management” position exempt from the mandatory job listing requirement, a job must satisfy all of the factors listed in paragraph (a)6.ii.
The final rule adopts § 60-300.21 as proposed. This section is identical to existing § 60-250.21, except that the categories of veterans covered under the JVA are referenced in the final rule.
Paragraph (c) provides that it is unlawful for contractors to participate in contractual arrangements that have the effect of subjecting the applicants and employees who are covered veterans to discrimination. A comment from a workforce development agency expressed concerns about the contractual arrangements federal contractors have with temporary employment agencies. The commenter asserted that many federal contractors use temporary employment agencies to recruit candidates for job vacancies and that when the temporary agencies receive job orders from a client they tend to refer candidates they have “on-file.” According to the commenter, temporary agencies are not obligated to comply with the mandatory job listing requirements because they “are not by definition subcontractors to the federal contractor.” The commenter argued that, to better serve veterans, either temporary agencies should be considered as subcontractors, or contractors listing job orders with temporary agencies also should be required to list their job orders with the employment service.
A contractor's use of an employment agency does not relieve the contractor of its obligation to comply with the mandatory job listing requirement. Section 60-250.5(a) expressly provides that “listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made
In addition, paragraph (c) of this section forbids contractors from using an employment agency that discriminates against covered veterans. Accordingly, a contractor would violate VEVRAA if it uses an employment agency that discriminates against veterans to recruit for vacancies.
Further, OFCCP disagrees with the commenter's assertion that all temporary employment agencies are excluded from coverage under VEVRAA. Section 60-300.2(l), as does the parallel provision in the part 60-250 regulations, defines the term “subcontract” as “any agreement or arrangement between a contractor and any person * * * which, in whole or in part, is necessary to the performance of any one or more contracts; or * * * under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed.” Whether a particular subcontract is covered under the VEVRAA regulations depends on a variety of factors such as the requirements of the Government contract in issue and the role of the subcontractor in fulfilling the obligations of the Government contract. Thus, some, but certainly not all, temporary employment agencies may have agreements with Government contractors that would render them a covered subcontractor under VEVRAA.
This section is identical to existing § 60-250.22, except that the cross-reference is to § 60-300.2(w) of this final rule. OFCCP received no comments on this section. It is adopted in the final rule as proposed.
This section is identical to existing § 60-250.23, except that the proposal references the category of “disabled veteran(s)” rather than “special disabled veterans.” No comments were submitted on this section. The final rule adopts § 60-300.23 as proposed.
This section is identical to existing § 60-250.24, except that this section includes a citation to § 60-300.23(d). OFCCP received no comments on this section. Accordingly, the final rule adopts this section as proposed.
This section is identical to § 60-250.25 in the current VEVRAA implementing regulations, except that “disabled veteran” rather than “special disabled veteran” is referenced in paragraph (d). We received no comments on this section. The final rule adopts § 60-300.25 as proposed.
OFCCP proposed paragraph (a) raised the coverage threshold to a contract of $100,000 or more. As discussed in the preamble discussion of the § 60-300.1, some comments expressed concern about the increased burden that would result if contractors are required to develop and maintain two AAPs—one under the part 60-250 and a second AAP under part 60-300. OFCCP explained that contractors subject to the final rule and the regulations in part 60-250 may develop a single AAP that addresses the requirements under parts 60-250 and 60-300.
One commenter asked about the deadline for developing the AAP required under 60-300.40. Paragraph (b) provides that a contractor must develop an AAP within 120 days of the commencement of a contract. Under the existing VEVRAA regulations, a contractor with a contract of $50,000 or more must develop a written AAP. Any contractor with a contract of $100,000 or more that was entered into on or after December 1, 2003, should already have an AAP in place that would meet the requirements of this section. The final rule adopts § 60-300.40 without change.
This section is identical to § 60-250.42, except that the categories of veterans protected under the JVA are referenced in this section. In addition, the regulatory citations in this section are to provisions in the final rule. We received one comment to this section asking for clarification on the self-identification process. The process is explained in this section. Section 60-300.42 is adopted in the final rule as proposed.
This section is identical to § 60-250.43, except that this section specifies the categories of veterans covered under the JVA, and contains citations to provisions in the proposed rule. No comments were received on this section. Accordingly, § 60-300.43 is adopted in the final rule as proposed.
With the exception of changes necessitated by the JVA amendments, this section is identical to § 60-250.44 in the existing VEVRAA implementing regulations. The categories of veterans protected under the JVA are referenced throughout this section. In addition, consistent with the technical amendments to VEVRAA, the term “senior management” is used in paragraph (h)(2)(i), which sets out the requirement that the contractor assign responsibility for implementation of the AAP. Further, this section contains citations to provisions in the final rule. We received no comments on § 60-300.44 and it is adopted in the final rule without change.
This section is identical to § 60-250.60, except for the differences necessitated by the JVA. One difference is that the categories of veterans protected under the JVA are referenced in this section. The other difference is found in paragraph (c), which addresses OFCCP verification of contractor compliance with reporting requirements. Paragraph (c) of existing § 60-250.60 provides that OFCCP may verify whether a contractor is complying with its obligation to file its Annual VETS-100 Report pursuant to the regulations in 41 CFR part 61-250. The regulations in part 61-250, which were issued by VETS, apply only to contracts entered into before December 1, 2003.
Paragraph (c) of this section provides that OFCCP may verify whether a contractor has complied with applicable reporting requirements required under regulations promulgated by VETS. OFCCP changed “any reporting requirement” from the NPRM to “applicable reporting requirements” in the final rule for clarity. This change gives OFCCP authority to investigate compliance with all applicable reporting requirements required under regulations promulgated by VETS, including any new reporting requirements that VETS may implement as a result of the JVA.
We received two comments concerning the reporting requirements under VEVRAA that are administered by VETS. One commenter stated that contractor burden will increase because of the requirements to submit the VETS-100 under both parts 60-250 and 60-300. This same commenter suggested that OFCCP coordinate its final rule to any changes to the VETS-100 Report under VETS. As explained in the discussion of § 60-300.1, the VEVRAA implementing regulations administered by OFCCP contain no reporting requirements. Accordingly, contractors subject to the existing regulations in part 60-250 and the regulations in part 60-300 will not face an increase in their reporting burden under OFCCP's rule.
We also received one comment concerning the relationship between OFCCP and VETS compliance evaluations. Under the current regulations in part 60-250.5, during the onsite portion of a compliance evaluation, a compliance officer confirms with the contractor that it has listed its employment openings with the local employment service office and may contact the local employment service office directly to verify that the contractor has complied with the mandatory job listing requirements. Under this final rule, OFCCP will confirm that contractors holding Government contracts subject to the JVA have listed employment openings with the appropriate employment delivery system and may contact the employment delivery system directly to verify this information.
Under the current regulations in part 60-250.5, OFCCP also confirms with the contractor that it has completed a VETS-100 report during the onsite portion of a compliance evaluation. If
This section is identical to § 60-250.61, except for the changes necessary to conform to the amendments made by the JVA. Further, the regulatory citations in this section are to sections in the final rule. In paragraph (a) of the final rule, OFCCP is changing “state employment security agency” to “state workforce agency” to be consistent with § 300.5.
Except for the citations to provisions in the final rule, this section is identical to § 60-250.64. Section 60-300.64 is adopted in the final rule as proposed.
Except for the citations to provisions in the final rule, this section is identical to § 60-250.65. We received no comments to this section; it is adopted in the final rule without change.
Except for the citations to provisions in the final rule, this section is identical to § 60-250.66. The final rule adopts § 60-300.66 as proposed.
This section is identical to § 60-250.69, except that this section refers to the categories of veterans protected under the JVA. Section 60-300.69 is adopted in the final rule without change.
According to VEVRAA, 38 U.S.C. Section 4212 (a)(2)(B), appropriate employment service delivery systems are required to give priority in referral to disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans to employment openings listed by contractors with such appropriate employment delivery systems pursuant to the mandatory job listing requirements of the equal opportunity clause. According to Section 4212(a)(2)(c), the appropriate employment service delivery system also shall provide a list of such employment openings to States, political subdivisions of States, or any private entities or organizations under contract to carry out employment, training, and placement services under chapter 41 of title 38.
OFCCP proposed § 60-300.84 was identical to current § 60-250.84. In the final rule, OFCCP has revised this section to clarify the scope of its authority over, and its interactions with, these employment delivery systems. OFCCP may contact the employment delivery systems to request information pertinent to whether the contractor is in compliance with the mandatory job listing requirements. OFCCP does not, however, have responsibility for ensuring that the appropriate employment delivery systems provide priority referral to covered veterans. Accordingly, OFCCP added the words “By statute” to the first sentence of this section to clarify that the obligation of employment delivery systems to provide veterans with priority of service arises by statute, and not because of a requirement imposed by OFCCP.
Except for the references to the categories of veterans covered under the JVA and citations to provisions in the final rule, Appendix A to part 60-300 is substantially similar to Appendix A to part 60-250 in the existing VEVRAA regulations. We received no comments on Appendix A. Accordingly, Appendix A is adopted in the final rule without change.
Except for the references to the categories of veterans covered under the JVA and citations to provisions in the final rule, Appendix B to part 60-300 is substantially similar to Appendix B to part 60-250 in the existing VEVRAA regulations. We received no comments on this aspect of the proposal. The final rule adopts Appendix B as proposed in the NPRM.
Proposed Appendix C to part 60-300 is substantially similar to Appendix C to part 60-250 in the existing VEVRAA regulations, except for the references to the categories of veterans covered under the JVA and citations to provisions in the proposed rule. We received no comments on Appendix C. The final rule adopts Appendix C without change.
The Department is issuing this final rule in conformance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, but is not economically significant as defined in section 3(f)(1). Therefore, the information enumerated in section 6(a)(3)(C) of the order is not required. Pursuant to Executive Order 12866, this rule has been reviewed by the Office of Management and Budget (OMB).
OFCCP has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This rule clarifies existing requirements for Federal contractors. In view of this fact and because the rule does not substantively change existing obligations for Federal contractors, the Department concludes that this rule will not have a significant economic impact on a substantial number of small entities. The Secretary has certified to the Chief Counsel for Advocacy of the Small Business Administration to this effect. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required.
Executive Order 12875—This rule does not create an unfunded Federal mandate upon any State, local, or tribal government.
Unfunded Mandates Reform Act of 1995—This rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, in the aggregate, of $100 million or more, or increased expenditures by the private sector of $100 million or more.
The information collection requirements contained in the existing VEVRAA regulations, with the exception of those related to complaint procedures, are currently approved under OMB Control No. 1215-0072 (Recordkeeping and Reporting Requirements-Supply and Service) and OMB Control No. 1215-0163 (Construction Recordkeeping and Reporting). The information collection requirements contained in the existing complaint procedures regulation are currently approved under OMB Control No. 1215-0131. This rule adopts a new set of VEVRAA implementing regulations that incorporate the changes made by the JVA amendments, and apply to Government contracts entered on or after December 1, 2003. The JVA amended VEVRAA by increasing the contract coverage threshold, changing the categories of veterans protected under the law, and changing the manner in which the mandatory job listing requirement is to be implemented. The increase in the contract coverage threshold from $25,000 to $100,000 may result in a decrease in the number of respondents and burden hours. However, this rule does not make any changes to the currently approved information collections. Consequently, this rule need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Administrative practice and procedure, Civil rights, Employment, Equal employment opportunity, Government contracts, Government procurement, Individuals with disabilities, Investigations, Reporting and recordkeeping requirements, and Veterans.
29 U.S.C. 793; 38 U.S.C. 4211 and 4212; E.O. 11758 (3 CFR, 1971-1975 Comp., p. 841).
(a)
(b)
(c)
(2)
For the purpose of this part:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1)
(2)
(3)
(4)
(5)
(6)
(j)
(k)
(l)
(1) For the purchase, sale or use of personal property or nonpersonal services (including construction) which, in whole or in part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed.
(m)
(n)
(1) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or
(2) A person who was discharged or released from active duty because of a service-connected disability.
(o)
(p)
(q)
(r)
(s)
(2) A job function may be considered essential for any of several reasons, including, but not limited to, the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(t)
(i) Modifications or adjustments to a job application process that enable a qualified applicant who is a disabled veteran to be considered for the position such applicant desires;
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified disabled veteran to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor's employee who is a disabled veteran to enjoy equal benefits and privileges of employment as are enjoyed by the contractor's other similarly situated employees who are not disabled veterans.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and usable by disabled veterans; and
(ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for disabled veterans.
(3) To determine the appropriate reasonable accommodation it may be necessary for the contractor to initiate an informal, interactive process with the qualified disabled veteran in need of the accommodation.
(u)
(2)
(i) The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
(iii) The overall financial resources of the contractor, the overall size of the business of the contractor with respect to the number of its employees, and the number, type and location of its facilities;
(iv) The type of operation or operations of the contractor, including the composition, structure and functions of the work force of such contractor, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the contractor; and
(v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.
(v)
(w)
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
(x)
(y)
(z)
(a)
(2)
(3)
(4)
(b)
(2)
(3)
(a)
1. The contractor will not discriminate against any employee or applicant for employment because he or she is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran in regard to any position for which the employee or applicant for employment is qualified. The contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran in all employment practices, including the following:
i. Recruitment, advertising, and job application procedures;
ii. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring;
iii. Rates of pay or any other form of compensation and changes in compensation;
iv. Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
v. Leaves of absence, sick leave, or any other leave;
vi. Fringe benefits available by virtue of employment, whether or not administered by the contractor;
vii. Selection and financial support for training, including apprenticeship, and on-the-job training under 38 U.S.C. 3687, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;
viii. Activities sponsored by the contractor including social or recreational programs; and
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service delivery system.
3. Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a
4. Whenever a contractor, other than a state or local governmental contractor, becomes contractually bound to the listing provisions in paragraphs 2 and 3 of this clause, it shall advise the state workforce agency in each state where it has establishments of the name and location of each hiring location in the state. As long as the contractor is contractually bound to these provisions and has so advised the state agency, there is no need to advise the state agency of subsequent contracts. The contractor may advise the state agency when it is no longer bound by this contract clause.
5. The provisions of paragraphs 2 and 3 of this clause do not apply to the listing of employment openings which occur and are filled outside of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, Wake Island, and the Trust Territories of the Pacific Islands.
6. As used in this clause: i.
ii.
iii.
7. The contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act.
8. In the event of the contractor's noncompliance with the requirements of this clause, actions for noncompliance may be taken in accordance with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act.
9. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the Deputy Assistant Secretary for Federal Contract Compliance, provided by or through the contracting officer. Such notices shall state the rights of applicants and employees as well as the contractor's obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants who are disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans. The contractor must ensure that applicants or employees who are disabled veterans are informed of the contents of the notice (
10. The contractor will notify each labor organization or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the contractor is bound by the terms of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, and is committed to take affirmative action to employ and advance in employment qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans.
11. The contractor will include the provisions of this clause in every subcontract or purchase order of $100,000 or more, unless exempted by the rules, regulations, or orders of the Secretary issued pursuant to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the Deputy Assistant Secretary for Federal Contract Compliance may direct to enforce such provisions, including action for noncompliance.
(b)
(c)
(d)
(e)
(f)
The prohibition against discrimination in this part applies to the following employment activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
(c) Rates of pay or any other form of compensation and changes in compensation;
(d) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or not administered by the contractor;
(g) Selection and financial support for training, including, apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by the contractor including social and recreational programs; and
(i) Any other term, condition, or privilege of employment.
The term
(a)
(b)
(c)
(2)
(3)
(d)
(1) Have the effect of discriminating on the basis of status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran; or
(2) Perpetuate the discrimination of others who are subject to common administrative control.
(e)
(f)
(2) It is unlawful for the contractor to deny employment opportunities to an otherwise qualified job applicant or employee who is a disabled veteran based on the need of such contractor to make reasonable accommodation to such an individual's physical or mental impairments.
(3) A qualified disabled veteran is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a qualified disabled veteran.
(g)
(2) The Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3, do not apply to 38 U.S.C. 4212 and are similarly inapplicable to this part.
(h)
(i)
The contractor may use as a qualification standard the requirement that an individual be able to perform the essential functions of the position held or desired without posing a direct threat to the health or safety of the individual or others in the workplace. (See § 60-300.2(w) defining
(a)
(b)
(2)
(3)
(4)
(5) Medical examinations conducted in accordance with paragraphs (b)(2) and (b)(4) of this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an applicant or applicants or an employee or employees who are disabled veterans as a result of such examinations or inquiries, the contractor must demonstrate that the exclusionary criteria are job-related and consistent with business necessity, and that performance of the essential job functions cannot be accomplished with reasonable accommodations as required in this part.
(c)
(d)
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws administered by OFCCP, including this part, or enforcing the Americans with Disabilities Act, shall be provided relevant information on request.
(2) Information obtained under this section regarding the medical condition or history of any applicant or employee shall not be used for any purpose inconsistent with this part.
(a)
(1) May prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
(2) May require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701
(4) May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the contractor holds its other employees, even if any unsatisfactory performance or behavior is related to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject to such regulations comply with the standards established in the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies regarding alcohol and the illegal use of drugs; and
(6) May require that employees employed in sensitive positions comply with the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies that apply to employment in sensitive positions subject to such regulations.
(b)
(2)
(3) Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs, is subject to the requirements of §§ 60-300.23(b)(5) and 60-300.23(d)(2).
(a) An insurer, hospital, or medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or similar organizations may underwrite risks, classify risks, or administer such risks that are based on or not inconsistent with state law.
(b) The contractor may establish, sponsor, observe or administer the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law.
(c) The contractor may establish, sponsor, observe, or administer the terms of a bona fide benefit plan that is not subject to state laws that regulate insurance.
(d) The contractor may not deny a qualified disabled veteran equal access to insurance or subject a qualified disabled veteran to different terms or conditions of insurance based on disability alone, if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b) and (c) of this section are permitted unless these activities are used as a subterfuge to evade the purposes of this part.
(a) The requirements of this subpart apply to every Government contractor that has 50 or more employees and a contract of $100,000 or more.
(b) Contractors described in paragraph (a) of this section shall, within 120 days of the commencement of a contract, prepare and maintain an affirmative action program at each establishment. The affirmative action program shall set forth the contractor's policies and procedures in accordance with this part. This program may be integrated into or kept separate from other affirmative action programs.
(c) The affirmative action program shall be reviewed and updated annually.
(d) The contractor shall submit the affirmative action program within 30 days of a request from OFCCP, unless the request provides for a different time. The contractor also shall make the affirmative action program promptly available on-site upon OFCCP's request.
The full affirmative action program shall be available to any employee or applicant for employment for inspection upon request. The location and hours during which the program may be obtained shall be posted at each establishment.
(a)
(1) The invitation is made when the contractor actually is undertaking affirmative action for disabled veterans at the pre-offer stage; or
(2) The invitation is made pursuant to a Federal, state or local law requiring affirmative action for disabled veterans.
(b)
(c) The invitations referenced in paragraphs (a) and (b) of this section shall state that a request to benefit under the affirmative action program may be made immediately and/or at any time in the future. The invitations also shall summarize the relevant portions of the Act and the contractor's affirmative action program. Furthermore, the invitations shall state that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will not be used in a manner inconsistent with the Act. (An acceptable form for such an invitation is set forth in Appendix B of this part. Because a contractor usually may not seek advice from a disabled veteran regarding placement and accommodation until after a job offer has been extended, the invitation set forth in Appendix B of this part contains instructions regarding modifications to be made if it is used at the pre-offer stage.)
(d) If an applicant so identifies himself or herself as a disabled veteran, the contractor should also seek the advice of the applicant regarding proper placement and appropriate accommodation, after a job offer has been extended. The contractor also may make such inquiries to the extent they are consistent with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101, (
(e) The contractor shall keep all information on self identification confidential. The contractor shall provide the information to OFCCP upon request. This information may be used only in accordance with this part.
(f) Nothing in this section shall relieve the contractor of its obligation to take affirmative action with respect to those applicants or employees who are known to the contractor to be disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans.
(g) Nothing in this section shall relieve the contractor from liability for discrimination under the Act.
Under the affirmative action obligations imposed by the Act contractors shall not discriminate because of status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran and shall take affirmative action to employ and advance in employment qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans at all levels of employment, including the executive level. Such action shall apply to all employment activities set forth in § 60-300.20.
Acceptable affirmative action programs shall contain, but not necessarily be limited to, the following ingredients:
(a)
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA) or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans;
(3) Opposing any act or practice made unlawful by VEVRAA or its implementing regulations in this part or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans; or
(4) Exercising any other right protected by VEVRAA or its implementing regulations in this part.
(b)
(c)
(2) Whenever the contractor applies physical or mental qualification standards in the selection of applicants or employees for employment or other change in employment status such as promotion, demotion or training, to the extent that qualification standards tend to screen out qualified disabled veterans, the standards shall be related to the specific job or jobs for which the individual is being considered and consistent with business necessity. The contractor shall have the burden to demonstrate that it has complied with the requirements of this paragraph (c)(2).
(3) The contractor may use as a defense to an allegation of a violation of paragraph (c)(2) of this section that an individual poses a direct threat to the health or safety of the individual or others in the workplace. (See § 60-300.2(w) defining direct threat.)
(d)
(e)
(f)
(1) The contractor should enlist the assistance and support of the following persons and organizations in recruiting, and developing on-the-job training opportunities for, qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans, to fulfill its commitment to provide meaningful employment opportunities to such veterans:
(i) The Local Veterans' Employment Representative in the local employment service office nearest the contractor's establishment;
(ii) The Department of Veterans Affairs Regional Office nearest the contractor's establishment;
(iii) The veterans' counselors and coordinators (“Vet-Reps”) on college campuses;
(iv) The service officers of the national veterans' groups active in the area of the contractor's establishment; and
(v) Local veterans' groups and veterans' service centers near the contractor's establishment.
(2) Formal briefing sessions should be held, preferably on company premises, with representatives from recruiting sources. Plant tours, clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company's selection process, and recruiting literature should be an integral part of the briefing. Formal arrangements should be made for referral of applicants, follow up with sources, and feedback on disposition of applicants.
(3) The contractor's recruitment efforts at all educational institutions should incorporate special efforts to reach students who are disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans. An effort should be made to participate in work-study programs with Department of Veterans Affairs rehabilitation facilities which specialize in training or educating disabled veterans.
(4) The contractor should establish meaningful contacts with appropriate veterans' service organizations which serve disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans for such purposes as advice, technical assistance, and referral of potential employees. Technical assistance from the resources described in this paragraph may consist of advice on proper placement, recruitment, training and accommodations contractors may undertake, but no such resource providing technical assistance
(5) Disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans should be made available for participation in career days, youth motivation programs, and related activities in their communities.
(6) The contractor should send written notification of company policy to all subcontractors, vendors and suppliers, requesting appropriate action on their part.
(7) The contractor should take positive steps to attract qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans not currently in the work force who have requisite skills and can be recruited through affirmative action measures. These persons may be located through the local chapters of organizations of and for disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans.
(8) The contractor, in making hiring decisions, should consider applicants who are known disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable.
(g)
(2) The contractor should implement and disseminate this policy internally as follows:
(i) Include it in the contractor's policy manual;
(ii) Inform all employees and prospective employees of its commitment to engage in affirmative action to increase employment opportunities for qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans. The contractor should periodically schedule special meetings with all employees to discuss policy and explain individual employee responsibilities;
(iii) Publicize it in the company newspaper, magazine, annual report and other media;
(iv) Conduct special meetings with executive, management, and supervisory personnel to explain the intent of the policy and individual responsibility for effective implementation, making clear the chief executive officer's attitude;
(v) Discuss the policy thoroughly in both employee orientation and management training programs;
(vi) Meet with union officials and/or employee representatives to inform them of the contractor's policy, and request their cooperation;
(vii) Include articles on accomplishments of disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans in company publications; and
(viii) When employees are featured in employee handbooks or similar publications for employees, include disabled veterans.
(h)
(i) Measure the effectiveness of the contractor's affirmative action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor's objectives have been attained;
(iv) Determine whether known disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans have had the opportunity to participate in all company sponsored educational, training, recreational and social activities; and
(v) Measure the contractor's compliance with the affirmative action program's specific obligations.
(2) Where the affirmative action program is found to be deficient, the contractor shall undertake necessary action to bring the program into compliance.
(i)
(j)
(a) OFCCP may conduct compliance evaluations to determine if the contractor is taking affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran in all employment practices. A compliance evaluation may consist of any one or any combination of the following investigative procedures:
(1)
(i) A desk audit of the written affirmative action program and supporting documentation to determine whether all elements required by the regulations in this part are included, whether the affirmative action program meets agency standards of reasonableness, and whether the affirmative action program and supporting documentation satisfy agency standards of acceptability. The desk audit is conducted at OFCCP offices;
(ii) An on-site review, conducted at the contractor's establishment to investigate unresolved problem areas identified in the affirmative action program and supporting documentation
(iii) Where necessary, an off-site analysis of information supplied by the contractor or otherwise gathered during or pursuant to the on-site review;
(2)
(3)
(4)
(b) Where deficiencies are found to exist, reasonable efforts shall be made to secure compliance through conciliation and persuasion pursuant to § 60-300.62.
(c)
(a)
(b)
(i) Name and address (including telephone number) of the complainant;
(ii) Name and address of the contractor who committed the alleged violation;
(iii) Documentation showing that the individual is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran. Such documentation must include a copy of the veteran's form DD-214, and, where applicable, a copy of the veteran's Benefits Award Letter, or similar Department of Veterans Affairs certification, updated within one year prior to the date the complaint is filed;
(iv) A description of the act or acts considered to be a violation, including the pertinent dates (in the case of an alleged continuing violation, the earliest and most recent date that the alleged violation occurred should be stated); and
(v) Other pertinent information available which will assist in the investigation and resolution of the complaint, including the name of any known Federal agency with which the employer has contracted.
(2)
(c)
(d)
(e)
(2) The Deputy Assistant Secretary will review all determinations of no violation that involve complaints that are not also cognizable under Title I of the Americans with Disabilities Act.
(3) In cases where the Deputy Assistant Secretary decides to reconsider the determination of a Notification of Results of Investigation, the Deputy Assistant Secretary shall provide prompt notification of his or her intent to reconsider, which is effective upon issuance, and his or her final determination after reconsideration, to the person claiming to be aggrieved, the person making the complaint on behalf of such person, if any, and the contractor.
(4) If the investigation finds a violation of the Act or this part, OFCCP shall invite the contractor to participate in conciliation discussions pursuant to § 60-300.62.
If a compliance evaluation, complaint investigation or other review by OFCCP finds a material violation of the Act or this part, and if the contractor is willing to correct the violations and/or deficiencies, and if OFCCP determines that settlement on that basis (rather than referral for consideration of formal enforcement) is appropriate, a written conciliation agreement shall be
(a) When OFCCP believes that a conciliation agreement has been violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth the violation alleged and summarizing the supporting evidence. The contractor shall have 15 days from receipt of the notice to respond, except in those cases in which OFCCP asserts that such a delay would result in irreparable injury to the employment rights of affected employees or applicants.
(2) During the 15-day period the contractor may demonstrate in writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result in irreparable injury to the employment rights of affected employees or applicants, enforcement proceedings may be initiated immediately without proceeding through any other requirement contained in this chapter.
(c) In any proceedings involving an alleged violation of a conciliation agreement OFCCP may seek enforcement of the agreement itself and shall not be required to present proof of the underlying violations resolved by the agreement.
When the Deputy Assistant Secretary has reasonable cause to believe that the contractor has violated the Act or this part, he or she may issue a notice requiring the contractor to show cause, within 30 days, why monitoring, enforcement proceedings or other appropriate action to ensure compliance should not be instituted. The issuance of such a notice is not a prerequisite to instituting enforcement proceedings (see § 60-300.65).
(a)
(2) In addition to the administrative proceedings set forth in this section, the Deputy Assistant Secretary may, within the limitations of applicable law, seek appropriate judicial action to enforce the contractual provisions set forth in § 60-300.5, including appropriate injunctive relief.
(b)
(2) Complaints may be filed by the Solicitor, the Associate Solicitor for Civil Rights and Labor-Management, Regional Solicitors, and Associate Regional Solicitors.
(3) For the purposes of hearings pursuant to this part, references in 41 CFR part 60-30 to “Executive Order 11246” shall mean the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; to “equal opportunity clause” shall mean the equal opportunity clause published at § 60-300.5; and to “regulations” shall mean the regulations contained in this part.
(a)
(b)
(c)
(d)
The Deputy Assistant Secretary shall ensure that the heads of all agencies are notified of any debarments taken against any contractor.
(a)
(b)
(a) The contractor shall not harass, intimidate, threaten, coerce, or discriminate against any individual because the individual has engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the Act or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans;
(3) Opposing any act or practice made unlawful by the Act or this part or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans, or
(4) Exercising any other right protected by the Act or this part.
(b) The contractor shall ensure that all persons under its control do not engage in such harassment, intimidation, threats, coercion or discrimination. The sanctions and penalties contained in this part may be exercised by the Deputy Assistant Secretary against any contractor who violates this obligation.
The procedures set forth in the regulations in this part govern all disputes relative to the contractor's compliance with the Act and this part. Any disputes relating to issues other than compliance, including contract costs arising out of the contractor's efforts to comply, shall be determined by the disputes clause of the contract.
(a)
(b)
(c) The requirements of this section shall apply only to records made or kept on or after the date that the Office of Management and Budget has cleared the requirements.
Each contractor shall permit access during normal business hours to its places of business for the purpose of conducting on-site compliance evaluations and complaint investigations and inspecting and copying such books and accounts and records, including computerized records, and other material as may be relevant to the matter under investigation and pertinent to compliance with the Act or this part. Information obtained in this manner shall be used only in connection with the administration of the Act and in furtherance of the purposes of the Act.
(a) Whenever performance in accordance with the equal opportunity clause or any matter contained in the regulations in this part may necessitate a revision of a collective bargaining agreement, the labor organizations which are parties to such agreement shall be given an adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through contractors, subcontractors, local officials, the Department of Veterans Affairs, vocational rehabilitation facilities, and all other available instrumentalities, to cause any labor organization, recruiting and training agency or other representative of workers who are employed by a contractor to cooperate
Rulings under or interpretations of the Act and this part shall be made by the Deputy Assistant Secretary.
By statute, appropriate employment service delivery systems are required to refer qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans to fill employment openings listed by contractors with such appropriate employment delivery systems pursuant to the mandatory job listing requirements of the equal opportunity clause and are required to give priority to disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans in making such referrals. The employment service delivery systems shall provide OFCCP, upon request, information pertinent to whether the contractor is in compliance with the mandatory job listing requirements of the equal opportunity clause.
The guidelines in this appendix are in large part derived from, and are consistent with, the discussion regarding the duty to provide reasonable accommodation contained in the Interpretive Guidance on Title I of the Americans with Disabilities Act (ADA) set out as an appendix to the regulations issued by the Equal Employment Opportunity Commission (EEOC) implementing the ADA (29 CFR part 1630). Although the following discussion is intended to provide an independent “free-standing” source of guidance with respect to the duty to provide reasonable accommodation under this part, to the extent that the EEOC appendix provides additional guidance which is consistent with the following discussion, it may be relied upon for purposes of this part as well.
1. A contractor is required to make reasonable accommodations to the known physical or mental limitations of an “otherwise qualified” disabled veteran, unless the contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As stated in § 60-300.2(o), a disabled veteran is qualified if he or she has the ability to perform the essential functions of the position with or without reasonable accommodation. A contractor is required to make a reasonable accommodation with respect to its application process if the disabled veteran is qualified with respect to that process. One is “otherwise qualified” if he or she is qualified for a job, except that, because of a disability, he or she needs a reasonable accommodation to be able to perform the job's essential functions.
2. Although the contractor would not be expected to accommodate disabilities of which it is unaware, the contractor has an affirmative obligation to provide a reasonable accommodation for applicants and employees who are known to be disabled veterans. As stated in § 60-300.42(a) (see also Appendix B of this part), the contractor is required to invite applicants who have been provided an offer of employment, before they are placed on the contractor's payroll, to indicate whether they are a disabled veteran who may be covered by the Act and wish to benefit under the contractor's affirmative action program. Section 60-300.42(d) further provides that the contractor should seek the advice of disabled veterans who “self-identify” in this way as to proper placement and appropriate accommodation. Moreover, § 60-300.44(d) provides that if an employee who is a known disabled veteran is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the disability, the contractor is required to confidentially inquire whether the problem is disability related and if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in the way things are customarily done that enables a disabled veteran to enjoy equal employment opportunities. Equal employment opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability. Thus, for example, an accommodation made to assist an employee who is a disabled veteran in the performance of his or her job must be adequate to enable the individual to perform the essential functions of the position. The accommodation, however, does not have to be the “best” accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated. There are three areas in which reasonable accommodations may be necessary: (1) Accommodations in the application process; (2) accommodations that enable employees who are disabled veterans to perform the essential functions of the position held or desired; and (3) accommodations that enable employees who are disabled veterans to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.
4. The term “undue hardship” refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the contractor's business. The contractor's claim that the cost of a particular accommodation will impose an undue hardship requires a determination of which financial resources should be considered—those of the contractor in its entirety or only those of the facility that will be required to provide the accommodation. This inquiry requires an analysis of the financial relationship between the contractor and the facility in order to determine what resources will be available to the facility in providing the accommodation. If the contractor can show that the cost of the accommodation would impose an undue hardship, it would still be required to provide the accommodation if the funding is available from another source,
5. Section 60-300.2(t) lists a number of examples of the most common types of accommodations that the contractor may be required to provide. There are any number of specific accommodations that may be appropriate for particular situations. The discussion in this appendix is not intended to provide an exhaustive list of required accommodations (as no such list would be feasible); rather, it is intended to provide general guidance regarding the nature of the obligation. The decision as to whether a reasonable accommodation is appropriate must be made on a case-by-case basis. The contractor generally should consult with the disabled veteran in deciding on the appropriate accommodation; frequently, the individual will know exactly what accommodation he or she will need to perform successfully in a particular job, and may suggest an accommodation which is simpler and less expensive than the accommodation the contractor might have devised. Other resources to consult include the appropriate state vocational rehabilitation services agency, the Equal Employment Opportunity Commission (1-800-669-4000 (voice), 1-800-669-6820 (TTY)), the Job Accommodation Network (JAN) operated by the Office of Disability Employment Policy in the U.S. Department of Labor (1-800-526-7234 or 1-800-232-9675), private disability organizations (including those that serve veterans), and other employers.
6. With respect to accommodations that can permit an employee who is a disabled veteran to perform essential functions successfully, a reasonable accommodation may require the contractor to, for instance,
7. Other reasonable accommodations of this type may include providing personal assistants such as a reader, interpreter or travel attendant, permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. The contractor may also be required to make existing facilities readily accessible to and usable by disabled veterans—including areas used by employees for purposes other than the performance of essential job functions such as restrooms, break rooms, cafeterias, lounges, auditoriums, libraries, parking lots and credit unions. This type of accommodation will enable employees to enjoy equal benefits and privileges of employment as are enjoyed by employees who do not have disabilities.
8. Another of the potential accommodations listed in § 60-300.2(t) is job restructuring. This may involve reallocating or redistributing those nonessential, marginal job functions which a qualified disabled veteran cannot perform to another position. Accordingly, if a clerical employee who is a disabled veteran is occasionally required to lift heavy boxes containing files, but cannot do so because of a disability, this task may be reassigned to another employee. The contractor, however, is not required to reallocate essential functions, i.e., those functions that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For instance, the contractor which has a security guard position which requires the incumbent to inspect identity cards would not have to provide a blind disabled veteran with an assistant to perform that duty; in such a case, the assistant would be performing an essential function of the job for the disabled veteran. Job restructuring may also involve allowing part-time or modified work schedules. For instance, flexible or adjusted work schedules could benefit disabled veterans who cannot work a standard schedule because of the need to obtain medical treatment, or disabled veterans with mobility impairments who depend on a public transportation system that is not accessible during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a vacant position. In general, reassignment should be considered only when accommodation within the disabled veteran's current position would pose an undue hardship. Reassignment is not required for applicants. However, in making hiring decisions, contractors are encouraged to consider applicants who are known disabled veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable. Reassignment may not be used to limit, segregate, or otherwise discriminate against employees who are disabled veterans by forcing reassignments to undesirable positions or to designated offices or facilities. Employers should reassign the individual to an equivalent position in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time. A “reasonable amount of time” should be determined in light of the totality of the circumstances.
10. The contractor may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation. The contractor may maintain the reassigned disabled veteran at the salary of the higher graded position, and must do so if it maintains the salary of reassigned employees who are not disabled veterans. It should also be noted that the contractor is not required to promote a disabled veteran as an accommodation.
11. With respect to the application process, appropriate accommodations may include the following: (1) Providing information regarding job vacancies in a form accessible to disabled veterans who are vision or hearing impaired, e.g., by making an announcement available in braille, in large print, or on audio tape, or by responding to job inquiries via TDDs; (2) providing readers, interpreters and other similar assistance during the application, testing and interview process; (3) appropriately adjusting or modifying employment-related examinations, e.g., extending regular time deadlines, allowing a disabled veteran who is blind or has a learning disorder such as dyslexia to provide oral answers for a written test, and permitting an applicant, regardless of the nature of his or her ability, to demonstrate skills through alternative techniques and utilization of adapted tools, aids and devices; and (4) ensuring a disabled veteran with a mobility impairment full access to testing locations such that the applicant's test scores accurately reflect the applicant's skills or aptitude rather than the applicant's mobility impairment.
When the invitation to self-identify is being extended to disabled veterans prior to an offer of employment, as is permitted in limited circumstances under §§ 60-300.42(a)(1) and (2), paragraph 7(ii) of this appendix, relating to identification of reasonable accommodations, should be omitted. This will avoid a conflict with the EEOC's ADA Guidance, which in most cases precludes asking a job applicant (prior to a job offer being made) about potential reasonable accommodations.
1. This employer is a Government contractor subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, which requires Government contractors to take affirmative action to employ and advance in employment qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans.
2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION TO RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS ONLY.] If you are a recently separated veteran, other protected veteran, or Armed Forces service medal veteran, we would like to include you under our affirmative action program. If you would like to be included under the affirmative action program, please tell us. The term “recently separated veteran” refers to any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty. The term “other protected veteran” refers to a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense. The term “Armed Forces service medal veteran” refers to a person who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (62 FR 1209).
[THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION TO DISABLED VETERANS ONLY.] If you are a disabled veteran, we would like to include you in our affirmative action program. If you would like to be included under the affirmative action program, please tell us. This information will assist us in placing you in an appropriate position and in making accommodations for your disability. The term “disabled veteran” refers to a veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary, or was discharged or released from active duty because of a service-connected disability.
[THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION TO DISABLED VETERANS AS WELL AS RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS.] If you are a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran, we would like to include you under our affirmative action program. If you would like to be included under the affirmative action program, please tell us. [The contractor should include here the definitions of “disabled veteran,” “recently separated veteran,” “other protected veteran,” and “Armed Forces service medal veteran” found in the two preceding paragraphs.]
3. You may inform us of your desire to benefit under the program at this time and/or at any time in the future.
4. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information provided will be used only in ways that are not inconsistent with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended.
5. The information you submit will be kept confidential, except that (i) supervisors and managers may be informed regarding restrictions on the work or duties of disabled veterans, and regarding necessary accommodations; (ii) first aid and safety personnel may be informed, when and to the extent appropriate, if you have a condition that might require emergency treatment; and (iii) Government officials engaged in enforcing laws administered by OFCCP, or enforcing the Americans with Disabilities Act, may be informed.
6. [The contractor should here insert a brief provision summarizing the relevant portion of its affirmative action program.]
7. [THE FOLLOWING TEXT SHOULD BE USED ONLY WHEN EXTENDING AN INVITATION TO DISABLED VETERANS, EITHER BY THEMSELVES OR IN COMBINATION WITH RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS. PARAGRAPH 7(II) SHOULD BE OMITTED WHEN THE INVITATION TO SELF-IDENTIFY IS BEING EXTENDED PRIOR TO AN OFFER OF EMPLOYMENT.] If you are a disabled veteran it would assist us if you tell us about (i) any special methods, skills, and procedures which qualify you for positions that you might not otherwise be able to do because of your disability so that you will be considered for any positions of that kind, and (ii) the accommodations which we could make which would enable you to perform the job properly and safely, including special equipment, changes in the physical layout of the job, elimination of certain duties relating to the job, provision of personal assistance services or other accommodations. This information will assist us in placing you in an appropriate position and in making accommodations for your disability.
The following is a set of procedures which contractors may use to meet the requirements of § 60-300.44(b):
1. The application or personnel form of each known applicant who is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran should be annotated to identify each vacancy for which the applicant was considered, and the form should be quickly retrievable for review by the Department of Labor and the contractor's personnel officials for use in investigations and internal compliance activities.
2. The personnel or application records of each known disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran should include (i) the identification of each promotion for which the covered veteran was considered, and (ii) the identification of each training program for which the covered veteran was considered.
3. In each case where an employee or applicant who is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran is rejected for employment, promotion, or training, the contractor should prepare a statement of the reason as well as a description of the accommodations considered (for a rejected disabled veteran). The statement of the reason for rejection (if the reason is medically related), and the description of the accommodations considered, should be treated as confidential medical records in accordance with § 60-300.23(d). These materials should be available to the applicant or employee concerned upon request.
4. Where applicants or employees are selected for hire, promotion, or training and the contractor undertakes any accommodation which makes it possible for him or her to place a disabled veteran on the job, the contractor should make a record containing a description of the accommodation. The record should be treated as a confidential medical record in accordance with § 60-300.23(d).
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office.
David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2953.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001
In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
The Commission issued this document in order to resolve a conflict between the requirements of the rules regarding what corrective actions an AM broadcast station licensee must take when experiencing difficulties in the operation of a station's AM directional antenna.
Effective September 7, 2007.
Karen Kosar,
This is a summary of the Commission's
This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burdens for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
1. This
2. Each of the rules at issue is invoked when an AM broadcast station's directional antenna operating parameters and/or monitoring point field strengths exceed operating tolerances. The operating parameters of an AM directional antenna are the relative amplitudes and phases of the currents in the individual towers of the array. Stations that use directional antennas are required to have an FCC authorized antenna monitor to measure the operating parameters. Each AM station using a directional antenna must take field strength measurements at the monitoring point locations specified in the instrument of authorization, as often as necessary to ensure that fields at those points do not exceed the values specified in the station authorization. According to the Commission's current version of the rules, §§ 73.62 and 73.1350(d)(2) require different courses of action when an AM station's directional monitoring parameters exceed the required operating tolerances. Section 73.62 of the rules, specifically addressing directional antenna system tolerances, requires that whenever the operating parameters of a directional antenna cannot be maintained within the tolerances specified in the rule, an AM licensee has 24 hours within which to identify any excessive monitoring point field strengths followed by three additional hours to take corrective action.
In contrast, § 73.1350(d)(2) of the rules, which addresses transmission system operation, requires that, in the event of any condition of antenna parameters or monitoring points out of tolerance, station operation be terminated within three minutes unless power is reduced sufficiently to eliminate any excess radiation. The
3. The
4. The commenters participating in this proceeding generally support the substantive amendments proposed by the Commission in the
5. While Mullaney Engineering, Inc. (“MEI”) states that it fully supports the amendments proposed in the
6. MEI suggests that a possible solution might be to set a multiple of the tolerances (offering three to five times as an example), which if exceeded, would trigger the three minute time frame for responding to out-of-tolerance conditions. MEI also proposes that rather than requiring a complete termination of operation in response to a substantial variation in tolerances, an alternative response might be to require reduction of power to 25 percent of the authorized value, pending a check of the monitor point field strengths within a 24-hour period. MEI notes that this course of action would only be appropriate if there were no complaints of interference. MEI asserts that the Commission routinely grants short-term operation under Special Temporary Authority (“STA”) at 25 percent of authorized power, absent interference complaints, without regard to whether or not this maintains the radiated field strength within authorized limits in any given azimuth. According to MEI, especially if large excursions from authorized parameters are the result of extremes in environmental conditions, the public interest is better served by maintaining some level of on-air capability rather than requiring the affected station to completely shut down.
7. MEI further asserts that a second area in which ambiguity exists is when the out-of-tolerance condition of directional antenna operation parameters is relatively short lived, i.e., only a few hours or less. MEI argues that it is possible in such a case that the antenna operating parameters may return to within tolerance before the monitoring point field strengths can be checked. MEI requests further guidance in this area because checking monitoring point readings under such conditions may be a waste of time because engineers would be checking those readings for antenna parameters that are within required limits and would not be checking the original out-of-tolerance state.
8. The purpose of §§ 73.62 and 73.1350 of the Commission's rules is to instruct AM broadcast licensees employing directional antennas as to what corrective action to take when monitoring parameters exceed required operating tolerances and in what amount of time that action must be taken. Section 73.62 of the rules is narrowly aimed at directional system tolerances and requires that action must be taken when directional operating parameters exceed the +/−5 percent current and +/−3 degree phase tolerances required by the rules, or when any monitoring point field strength exceeds the value specified on the station license. Section 73.1350 of the rules regarding transmission system operation is more general in its coverage and can affect FM and TV licensees, as well as AM licensees. Section 73.62 provides a more liberal amount of time to determine and address issues specific to AM directional antennas (27 hours), as compared to § 73.1350 (three minutes).
9. We believe that the adoption of the proposed substantive amendments to §§ 73.62 and 73.1350 of the Commission's rules has been supported by the record in this proceeding. We agree with MEI that it is necessary to delineate the difference between minor variations of operating parameters and operation substantially at variance from the license. We believe that the proposal offered by MEI on this issue has merit and we adopt the following definition to be added to § 73.62 of the rules: Any variation of operating parameters by more than +/−15 percent sample current ratio or +/−10 degrees in phase, any monitor point that exceeds 125 percent of the licensed limit, or any operation at variance from the license that results in complaints of interference shall be considered operation substantially at variance from the license and will require immediate corrective action, i.e., action within the three minute time frame for responding to substantially variant out-of-tolerance conditions, or within three minutes of a bona fide complaint if the variation does not exceed the foregoing limits. In the absence of interference complaints, lesser variances shall be considered minor variations in operating parameters subject to the corrective actions called for in § 73.62 of the Commission's rules.
10. The Commission's rules already provide for reduction of operating power to eliminate excessive radiation. In addition, § 73.1680 provides that if AM directional antenna systems become damaged and can no longer operate properly, prior Commission approval is not required for licensees to commence operation with an emergency nondirectional antenna and power reduced to 25 percent or less of the nominal licensed power, or a higher power, not exceeding licensed power, while ensuring that the radiated field strength does not exceed that authorized in any given azimuth. Licensees, however, must file a request for special temporary authority within 24 hours following commencement of emergency antenna operation. Because the current rules adequately provide for reduced power and emergency antenna operation, we find no need for any rule changes in this regard. With regard to MEI's concern about “short-lived” variances, it is impossible to predict in advance that a given out-of-tolerance condition will restore itself without the need for corrective action. Therefore, we are not persuaded that checking
11. We believe that our actions in this proceeding will result in clearer and more easily understandable rules that will assist AM broadcast licensees employing directional antennas to implement corrective action in the appropriate time frame when monitoring parameters exceed required operating tolerances during the operation of their stations. The clarification of these ambiguities will assist broadcast licenses in avoiding unnecessary termination of operation of their stations and provide the necessary guidance to maintain compliance with our rules.
12.
13.
14.
15. As required by the Regulatory Flexibility Act of 1980, as amended, (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the
16. The Report and Order was issued to resolve a conflict between §§ 73.62 and 73.1350(d)(2) of the Commission's rules. Both rules are invoked when an AM broadcast station's directional operating parameters and/or monitoring point field strengths exceed the required operating tolerances. It was considered important to resolve the conflict in our rules because these rules affect termination of broadcast operations, which may deprive listeners of necessary information regarding hazardous or other emergency conditions. Moreover, if broadcasters are found not to be in compliance with these rules, they may face fines or have forfeiture action instituted against them.
17. The
18. There were no comments filed on the IRFA.
19. 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 rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
20. The amendments to §§ 73.1350 and 73.62 will primarily apply to certain AM directional radio broadcasting licensees and potential licensees. The amendments to § 73.1350 would also affect FM broadcast stations in the event that any FM broadcast station operates in a manner that poses a threat to life or property or in a manner that is likely to cause significant disruption to the operation of other stations. The SBA defines a radio broadcast entity that has $6.5 million or less in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to Commission staff review of the BIA Publications, Inc., Master Access Radio Analyzer Database, as of May 16, 2003, about 10,427 of the 10,945 commercial radio stations in the United States have revenues of $6 million or less. We note, however, that many radio stations are affiliated with much larger corporations with much higher revenue, and that in assessing whether a business concern qualifies as small under the above definition, such business (control) affiliations (“Concerns are affiliates of each other when one concern controls or has the power to control the other, or a third party or parties controls or has the power to control both.” 13 CFR 121.103(a)(1)) are included. “SBA counts the receipts or employees of the concern whose size is at issue and those of all its domestic and foreign affiliates, regardless of whether the affiliates are
21. The amendments to § 73.1350 would also affect television stations in the event that any television station operates in a manner that poses a threat to life or property or is likely to significantly disrupt the operation of other stations. The SBA defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” This category description continues, “These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studios, from an affiliated network, or from external sources.” Separate census categories pertain to businesses primarily engaged in producing programming. See id. at 502-05, NAICS code 51210. Motion Picture and Video Production: code 512120, Motion Picture and Video Distribution, code 512191, Teleproduction and Other Post-Production Services, and code 512199, Other Motion Picture and Video Industries. According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States have revenues of $12 million or less. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimates, therefore, likely overstate the number of small entities that might be affected by the rules because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.
22. The rule changes will not impose any additional reporting or recordkeeping requirements.
23. 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.
24. The Report and Order has been issued to remedy a conflict in the Commission's rules that affect AM broadcast stations that employ directional antennas. Amendment of the rules also affects FM and television broadcast services. As we stated in the Notice of Proposed Rulemaking, no alternatives to our proposal were mentioned because we did not anticipate a differential impact on smaller entities. While we welcomed comment on modifications of our proposals if based on evidence of potential differential impact, we received no comments on the IRFA.
25. Report to Congress. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the
26. Accordingly,
27.
28.
Radio.
47 U.S.C. 154, 303, 334, and 336.
(a) Each AM station operating a directional antenna must maintain the relative amplitudes of the antenna currents, as indicated by the antenna monitor, within 5% of the values specified on the instrument of authorization. Directional antenna relative phases must be maintained within 3 degrees of the values specified on the instrument of authorization.
(b) In the event of a failure of system components, improper pattern switching or any other event that results in operation substantially at variance from the radiation pattern specified in the instrument of authorization for the pertinent time of day, operation must be terminated within three minutes unless power can be reduced sufficiently to eliminate any excessive radiation.
(1) Any variation of operating parameters by more than ±15 percent sample current ratio or ±10 degrees in phase, any monitor point that exceeds 125 percent of the licensed limit, or any operation at variance that results in complaints of interference shall be considered operation substantially at variance from the license and will require immediate corrective action.
(c) In the event of minor variations of directional antenna operating parameters from the tolerances specified in paragraph (a) of this section, the following procedures will apply:
(1) The licensee shall measure and log every monitoring point at least once for each mode of directional operation. Subsequent variations in operating
(2) Provided each monitoring point is within its specified limit, operation may continue for a period up to 30 days before a request for Special Temporary Authority (STA) must be filed, pursuant to paragraph (c)(4) of this section, to operate with parameters at variance from the provisions of paragraph (a) of this section.
(3) If any monitoring point exceeds its specified limit, the licensee must either terminate operation within three hours or reduce power in accordance with the applicable provisions of § 73.1350(d), in order to eliminate any possibility of interference or excessive radiation in any direction.
(4) If operation pursuant to paragraph (c)(3) of this section is necessary, or before the 30-day period specified in paragraph (c)(2) of this § expires, the licensee must request a Special Temporary Authority (STA) in accordance with section 73.1635 to continue operation with parameters at variance and/or with reduced power along with a statement certifying that all monitoring points will be continuously maintained within their specified limits.
(d) In any other situation in which it might reasonably be anticipated that the operating parameters might vary out of tolerance (such as planned array repairs or adjustment and proofing procedures), the licensee shall, before such activity is undertaken, obtain a Special Temporary Authority (STA) in accordance with § 73.1635 in order to operate with parameters at variance and/or with reduced power as required to maintain all monitoring points within their specified limits.
(b) * * *
(2) The transmitter control personnel must have the capability to turn the transmitter off at all times. If the personnel are at a remote location, the control system must provide this capability continuously or must include an alternate method of acquiring control that can satisfy the requirement of paragraph (e) of this section that operation be terminated within three minutes.
(d) In the event that a broadcast station is operating in a manner that is not in compliance with the applicable technical rules set forth elsewhere in this part or the terms of the station authorization, and the condition is not listed in paragraph (e) or (f) of this section, broadcast operation must be terminated within three hours unless antenna input power is reduced sufficiently to eliminate any excess radiation. Examples of conditions that require termination of operation within three hours include excessive power, excessive modulation or the emission of spurious signals that do not result in harmful interference.
(e) If a broadcast station is operating in a manner that poses a threat to life or property or that is likely to significantly disrupt the operation of other stations, immediate corrective action is required. In such cases, operation must be terminated within three minutes unless antenna input power is reduced sufficiently to eliminate any excess radiation. Examples of conditions that require immediate corrective action include the emission of spurious signals that cause harmful interference, any mode of operation not specified by the station license for the pertinent time of day, or operation substantially at variance from the authorized radiation pattern.
Federal Communications Commission.
Correcting amendments.
In this document, the Federal Communications Commission (“Commission”) published in the
Effective on July 27, 2007.
Rodney P. Conway, at
The final regulations that are subject to these corrections supersedes §§ 90.20, 90.157, 90.203 and 90.235.
As published, the final regulations contain errors which may prove to be misleading and need to be clarified.
Administrative practice and procedure, Common carriers, Communications equipment, Radio.
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), and 332(c)(7).
(d) * * *
(42) This frequency may not be assigned within 161 km (100 miles) of New Orleans, La. (coordinates 29°56′53″ N and 90°04′10″ W).
(a) An authorization shall cancel automatically upon permanent discontinuance of operations. Unless stated otherwise in this part or in a station authorization, for the purposes of this section, any station which has not operated for one year or more is considered to have been permanently discontinued.
(b) For DSRCS Roadside Units (RSUs) in the 5850-5925 MHz band, it is the DSRCS licensee's responsibility to delete from the registration database any RSUs that have been discontinued.
(n) Transmitters designed to operate in the voice mode on channels
(e) Until December 31, 1999, for systems in the Public Safety Pool authorized prior to June 20, 1975, and Power and Petroleum licensees as defined in § 90.7 authorized prior to June 1, 1976, the maximum duration of any signaling transmission shall not exceed 6 seconds and shall not be repeated more than 5 times. For Power licensees authorized between June 1, 1976, and August 14, 1989, signaling duration shall not exceed 2 seconds and shall not be repeated more than 5 times. Such systems include existing facilities and additional facilities which may be authorized as a clear and direct expansion of existing facilities. After December 31, 1999, all signaling systems shall be required to comply with the 2 second message duration and 3 message repetition requirements.
Animal and Plant Health Inspection Service, USDA.
Proposed rule; withdrawal and reproposal.
We are proposing to amend the regulations on importing nursery stock by providing an option in which the postentry quarantine growing period for articles of
We will consider all comments that we receive on or before October 9, 2007.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 03-002-4, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 03-002-4.
Dr. Arnold T. Tschanz, Senior Import Specialist, Plants for Planting Import and Analysis, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-5306.
The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of plant pests. The regulations contained in “Subpart—Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the regulations), restrict, among other things, the importation of living plants, plant parts, and seeds for propagation.
The regulations in § 319.37-7(a) designate as restricted articles any articles of
The pest of concern with regard to imported articles of
On December 15, 2005, we published in the
Among the changes discussed in the December 2005 proposal was providing an option in which the postentry quarantine growing period for articles of
We received 25 comments on the proposed rule, from 23 commenters, including private citizens, State and local governments, industry organizations, individual industry companies, and foreign national plant protection organizations. Sixteen of these commenters addressed the proposed change to the postentry quarantine requirements for articles of
To address these comments, we are withdrawing that portion of the December 2005 proposal that dealt with postentry quarantine for imported articles of
We discuss the postentry quarantine period and the requirements of the systems approach in detail directly below.
In the December 2005 proposed rule, we stated the following: “PPQ's Center for Plant Health Science and Technology has reviewed the available evidence regarding the time within which CWR will express symptoms. Although substantial evidence indicates that articles affected with CWR will express symptoms within 2 months, meaning that 2 months would be an adequate postentry quarantine period for these articles, not all the available evidence confirms that.”
We received several comments on our statement that 2 months would be an adequate postentry quarantine period for these articles. The issues raised by these commenters are described below.
Four commenters strongly supported all aspects of the proposal, including our determination that a 2-month postentry quarantine period was sufficient to allow expression of CWR in articles of
This commenter also noted that, in the June 2002 version of the APHIS document “Chrysanthemum White Rust: A National Management Plan for Exclusion and Eradication,” we stated that in the event that a nursery is found to be infected with CWR, no plant should leave the nursery for 8 weeks or until the nursery has been inspected and certified as being free of CWR. The current version of this document provides for an 8-week host-free period at any nursery at which plants are found to be infected with CWR. The commenter indicated that this document supports the statement that the 2-month postentry quarantine is adequate for expression of CWR symptoms.
Two more commenters supported the proposed reduction in the postentry quarantine period on the condition that the reduction was based on science.
Three commenters were concerned about our statement that not all the available evidence confirms that CWR is expressed in postentry quarantine within 2 months, asking us to discuss any evidence that might show that a longer postentry quarantine period is necessary for the expression of CWR.
Seven commenters took issue with the proposed reduction in the postentry quarantine period for articles of
Based on these comments, we again reviewed the available evidence regarding the expression of CWR. Our statement in the December 2005 proposal that “not all the available evidence confirms” that 2 months is an adequate postentry quarantine period for CWR hosts was incorrect. The longest time between infection and symptom development that has been reported is 8 weeks. This was reported to have been achieved when infected cuttings were experimentally exposed to 86 °F (30 °C) temperatures for several hours, in an effort to simulate hot climatic conditions. However, efforts to reproduce this effect experimentally have been unsuccessful, and it has not been reported in the field.
Most references on CWR concur that the disease usually expresses itself in between 5 to 14 days, depending on the prevailing climatic conditions. Warm temperatures increase the latency period, but in most cases not beyond 14 days, and we are not aware of any reports describing increases in the latency period beyond 2 months. The commenter who stated that CWR requires cool temperatures for expression, and thus that warm temperatures will delay expression of the disease indefinitely, did not provide a reference to support that statement, and we have been unable to locate any references confirming it. We invite commenters to submit any additional information that may be pertinent to this subject.
We would also like to clarify the difference between the purpose of the 8-week host-free period in our CWR management plan and the time necessary for expression of symptoms of CWR in postentry quarantine. Teliospores of
While 2 months appears to be an adequate postentry quarantine growing period for CWR hosts, we would require that CWR hosts grown in postentry quarantine for 2 months also be produced under a systems approach. We would include this additional safeguard because of the danger CWR presents to the domestic floral industry. Efforts to eradicate CWR outbreaks in the United States have been costly for growers, who typically must destroy all plants within a 1-meter radius of any infected plant, treat the entire production site to neutralize any remaining CWR spores, and implement a host-free period to prevent reintroduction of the rust. In a 2006 outbreak of CWR in California, the estimated cost per acre of implementing the host-free period alone was $54,594. Given that the entire production site must implement the host-free period in order to eradicate CWR, the eradication costs to producers can be considerable. The requirements of the systems approach would provide additional assurance that CWR-infected plants would not be introduced into the United States under the 2-month postentry quarantine period.
One commenter additionally objected to the proposed 2-month postentry quarantine period as too short to allow for the necessary inspection of the plants being grown in postentry quarantine. This commenter stated that postentry quarantine inspections are usually conducted in spring and fall to increase the chances of finding a quarantine pest. Under the December 2005 proposal, the commenter stated, an importer could conceivably time the importation of cuttings to essentially avoid inspection. In this commenter's experience, when plants are imported for postentry quarantine, 2 or more months may pass before authorities at the local level receive notification from APHIS that the plants have arrived in the area. With a 2-month postentry quarantine period, the commenter stated, the material may have been shipped throughout the United States before local authorities have been notified that it was imported and before they have had a chance to conduct an inspection.
The regulations in § 319.37-7(c) set out requirements for the postentry quarantine agreements that APHIS concludes with States. Under paragraph (c)(3)(iii), the Administrator is required to notify State officials, in writing and within 10 days of the arrival, when plant material destined for postentry quarantine in their State arrives in the United States. Under paragraph (c)(2)(iii), States are required to provide the services of State inspectors to inspect plants for evidence of exotic pests at least once for plants required to be grown in quarantine for less than 2 years. After this, again under paragraph (c)(3)(iii), the Administrator shall notify State officials in writing when materials in postentry quarantine may be released from quarantine in their State. We do not notify State officials that materials in postentry quarantine may be released from quarantine until we have received the results of the State inspection of the materials. If an importer removes plant material in postentry quarantine from the approved site before the Administrator notifies State officials that it may be released, then that importer is in violation of the regulations.
Two other commenters objected generally to what they perceived as the loosening of restrictions on the importation of articles of
As discussed earlier, our decision to reduce the postentry quarantine period for imported articles of
It is important to note that the postentry quarantine restrictions placed on CWR hosts in the regulations apply to the importation of CWR hosts from countries where CWR is not known to occur. We prohibit the importation of CWR hosts from countries where CWR is known to occur in § 319.37-2(a). CWR has not been detected in any host plants
Because the option we are proposing would reduce the postentry quarantine period to the time actually required for expression of symptoms while imposing additional phytosanitary safeguards on the production of CWR host materials, we believe the program we are proposing here would be as effective as our current program.
Two commenters suggested that APHIS issue a departmental permit to allow a reduction in the postentry quarantine period.
Departmental permits are issued under § 319.37-2(c) and provide for the importation of articles that are listed as prohibited under paragraphs (a) and (b) of § 319.37-2 for experimental or scientific purposes; APHIS may specify conditions for such importation that are adequate to prevent the introduction into the United States of plant pests. However, articles of
As many commenters noted, our explanation of the best management practices program cited in the December 2005 proposed rule did not make clear whether the program would be applied to imported articles of
We agree with these comments. We had intended for the best management practices program described in the December 2005 proposal to apply to the growth of these plants in the country of origin, and the systems approach we are proposing to require as a condition of reducing the postentry quarantine period from 6 to 2 months would also apply to the growth of articles of
In order to be eligible for participation in this program, the articles of
• Production sites would have to generate plants for planting from propagative material that is free of CWR.
• Production sites would have to write and implement standard operating procedures that include provisions for adequate pest control, isolation of the production site from host material not intended for export to the United States, regular inspection and testing, and training of production site employees.
• Production sites would have to keep detailed records of all aspects of plant production, including the origin of articles of
• The national plant protection organization (NPPO) of the country in which the production site is located would have to oversee the production site and perform regular audits to ensure that all elements of the production system are in compliance with the requirements of the systems approach and the workplan.
• APHIS would have to be allowed to perform on-site audits of the production site as well. APHIS would also perform audits at the port of entry into which the plants are imported to ensure that these articles of
• The NPPO of the country in which the production site is located and APHIS would impose penalties and remedial actions in the case of noncompliance. The NPPO would not issue phytosanitary certificates for shipments of articles of
• The government of the country in which the articles are produced or its designated representative would have to enter into a trust fund agreement with APHIS before each growing season. The government of the country in which the articles are produced or its designated representative would have to pay in advance all estimated costs that APHIS expects to incur through its involvement in overseeing the execution of the systems approach. (The specific level of APHIS involvement will vary with the terms of the workplan; APHIS involvement may range from regular inspections of production sites to occasional on-site audits.) Details on this requirement can be found in the proposed regulatory text at the end of this document.
Two commenters on the December 2005 proposal asked to review the program we described in that rule. We are not proposing to add specific phytosanitary requirements to the regulations. Instead, we are proposing to set out the performance standards in the regulations. If this rule is finalized, the NPPO of a country that wishes to export articles of
The changes discussed in this proposal would reduce the cost of postentry quarantine for importers of articles of
In § 319.37-7, paragraph (d)(7)(ii) lists articles of
In this document, we are proposing to amend the regulations in § 319.37-5(c). This paragraph presently requires that any restricted article (except seeds) of
In § 319.37-7(d)(7)(ii), we would break up the list of articles eligible for postentry quarantine of less than 2 years into subparagraphs for ease of reading.
Under this proposal, paragraph (d)(7)(ii)(A) of § 319.37-7 would indicate that an article of
Paragraph (d)(7)(ii)(B) would state that an article of
Paragraphs (d)(7)(ii)(C) and (d)(7)(ii)(D) would contain the current language regarding articles of
Two commenters on the December 2005 proposal suggested that APHIS include provisions for a trust fund. The commenters suggested that the fund could be used to properly administer the current CWR regulations and monitor for the disease, and to help defray the cost of eradication when outbreaks occur.
We provide for trust funds in the regulations when the regulations require that APHIS provide services to foreign growers, such as monitoring or certification. The trust fund that would be required for the implementation of the systems approach for CWR in this proposal is one example. We do not use trust funds as a means of providing insurance against the introduction of a disease. APHIS will continue to enforce the regulations governing the importation of all articles of
One commenter, the Netherlands Ministry of Agriculture, Nature, and Food Quality (the Netherlands NPPO), noted that importation of articles of
The commenter further noted that one grower in its country has a program in place that appears to satisfy the requirements of the best management practices program as we described it in the December 2005 proposed rule.
As the commenter noted, importation of articles of
The Netherlands has submitted a formal request for APHIS to evaluate the conditions provided under the EU directive and the conditions of these programs in place at the grower cited in the comment. APHIS will evaluate the request to determine whether articles of
The definition of
In the December 2005 proposed rule, we proposed to replace this definition with a new definition of
We received several comments on our proposed definition. Many of these commenters were concerned that the proposed definition might weaken our protections against the importation of potentially risky nursery stock. Three commenters asked us to clarify whether articles whose importation is prohibited from one country would continue to be prohibited even after importation to a second country, regardless of the time that the articles remained in the second country.
Some commenters expressed concern that the proposed definition would be difficult to enforce, since the NPPOs of exporting countries would have to keep track of any plant material that entered their country and that might be reexported at some point in the future, as well as any propagations of that plant material. Other commenters expressed general concern about whether the restrictions on the importation of nursery stock in general are adequate to prevent the introduction of plant pests, when it can be difficult to determine what pests a plant has been exposed to.
Based on these comments, we have rethought our proposed definition of
The International Plant Protection Convention's (IPPC) 2002 Glossary of Phytosanitary Terms (International Standards for Phytosanitary Measures [ISPM] publication number 5)
We are proposing a compromise. We would define the term
We chose 9 months because it is a common length for a growing season for nursery stock; if a plant has been growing in a country for a full growing season, it is reasonable to assume that it poses the same potential pest risk as other plants of the same genus grown in that country. This definition would provide an enforceable standard.
We do not mean to minimize the problem of plants that originate in countries where the pest risk is high and are then re-exported to the United States through countries where the pest risk is lower. However, to refer again to the example discussed earlier, if Country A does not have restrictions on the importation of
This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. Section 603 of the Act requires an agency to prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the expected impact of a proposed rule on small entities, unless the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. APHIS has prepared this IRFA in order that the public may have the opportunity to offer comments on expected small-entity effects of this proposed rule. We address here items as required by section 603(b) of the Act.
APHIS is proposing to amend the regulations on importing nursery stock by providing an option in which the postentry quarantine growing period for articles
PPQ has determined that imported chrysanthemums that might be affected with CWR are likely to express symptoms of this disease if it is present within a 2-month postentry quarantine period; the fact that the chrysanthemums would originate in countries not considered to be affected with CWR and would be grown in accordance with an APHIS-approved workplan that meets the requirements of the systems approach would reduce the likelihood that they would be infected with CWR. Articles identified in postentry quarantine as being infected with CWR are then prevented from entering U.S. commerce.
Under the Plant Protection Act (7 U.S.C. 8301
This proposed rule may affect the volume of chrysanthemums imported into the United States because some importers may find that the reduction of costs due to the shortened postentry quarantine period will be greater than the additional cost for chrysanthemums produced under the systems approach. These reduced costs would then encourage a greater volume of importation. We expect that this will occur.
The economic effects of the proposed change are expected to be positive, if small, for U.S. importers of chrysanthemums into the United States. In 2005, the value of imported chrysanthemums was around $80.2 million, or 8 percent of the value of all imported flowers (i.e., fresh cut flowers and florist plants).
The shorter postentry quarantine period for imported chrysanthemums may benefit U.S. importers/wholesalers and florist retailers. The proposed change would reduce the cost to chrysanthemum importers (categorized within North American Industry Classification System [NAICS] code 424930), and those savings may be at least partially passed along to retailers of these plants (NAICS code 453110). The Small Business Administration (SBA) has established size standards for determining which economic entities meet the definition of a small firm. The small-entity size standard for importers/wholesalers of flowers, nursery stock, and florists' supplies is 100 or fewer employees. For retail florists, the small-entity size standard is $6.5 million or less in annual sale receipts.
According to the 2002 Economic Census, there were approximately 4,854 wholesale establishments importing flowers, nursery stock, and florists' supplies, and they employed 59,954 people. All but four of these establishments were likely small entities.
APHIS welcomes information that the public may provide concerning the expected magnitude of the benefit of the proposed rule and the number of small entities that may be affected.
The proposed change to amend the definition of from is administrative in nature. We do not expect that it would have any impact on any U.S. entities, whether small or large.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are proposing to provide an option in which the postentry quarantine growing period for articles
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency s functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).
Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, we are proposing to amend 7 CFR part 319 as follows:
1. The authority citation for part 319 continues to read as follows:
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
2. Section 319.37-1 is amended by revising the definition of
3. In § 319.37-5, paragraph (c) is revised to read as follows:
(c) Any restricted article (except seeds) of
(1) A declaration that such article was grown in a greenhouse nursery and found by the plant protection service of the country in which it was grown to be free from white rust of chrysanthemum (caused by the rust fungus
(2) A declaration that such article was grown in a production site that is a greenhouse or other enclosed building and in accordance with an APHIS-approved operational workplan that contains provisions for fulfilling the systems approach requirements listed below. The systems approach requirements are:
(i) Production sites must generate plants for planting from propagative material that is free of chrysanthemum white rust (
(ii) Production sites must write and implement standard operating procedures that include provisions for adequate pest control, isolation of the production site from host material not intended for export to the United States, regular inspection and testing, and training of production site employees.
(iii) Production sites must keep detailed records of all aspects of plant production, including the origin of articles of
(iv) The national plant protection organization of the country in which the production site is located must oversee the production site and perform regular audits to ensure that all elements of the production system are in compliance with the requirements set out in this paragraph (c)(2) and in the workplan.
(v) APHIS must be allowed to perform on-site audits of the production site as well. APHIS will perform audits at the port of entry into which the plants are imported to ensure that these articles of
(vi) The national plant protection organization of the country in which the production site is located and APHIS will impose penalties and remedial action in the case of noncompliance. The national plant protection organization may not issue phytosanitary certificates for shipments of articles of
(vii) The government of the country in which the articles of
4. Section 319.37-7 is amended by revising paragraph (d)(7)(ii) to read as follows:
(d) * * *
(7) * * *
(ii) If an article of a genus or species listed in this paragraph, to grow the article or increase therefrom only in a greenhouse or other enclosed building for the period listed below:
(A) If an article of
(B) If an article of
(C) If an article of
(D) If an article of
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Boeing Model 727 airplanes. This proposed AD would require repetitive external high frequency eddy current (HFEC) inspections of the crown skin for cracks at certain stringer attachment holes, and repair if necessary. This proposed AD results from a report of cracks at multiple locations on certain areas of the crown skin. We are proposing this AD to detect and correct fatigue cracks of the crown skin, which could result in rapid decompression of the airplane.
We must receive comments on this proposed AD by September 24, 2007.
Use one of the following addresses to submit comments on this proposed AD.
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•
•
•
•
Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD.
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6577; fax (425) 917-6590.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
We have received a report indicating that fatigue tests resulted in cracks at multiple locations on the 727 body section 43 and 46 crown skin between stringers 11L and 11R. The first fatigue test cracks were found at approximately 66,000 simulated flight cycles. Subsequent inspection by Boeing on in-service airplanes also revealed similar crown skin cracks. In-service cracks were found on airplanes with between 71,236 and 81,234 total flight cycles. Fatigue cracks of the crown skin, if not detected and corrected, could result in rapid decompression of the airplane.
We have reviewed Boeing Alert Service Bulletin 727-53A0224, dated April 10, 2003. The service information describes procedures for repetitive external high frequency eddy current (HFEC) inspections of the crown skin for cracks at stringer attachment holes between stringer 11L and stringer 11R and from body station (BS) 259.5 to BS 1183, and repair of any crack. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Referenced Service Information.”
Operators should note that, although the Accomplishment Instructions of the referenced service information describe procedures for reporting all cracks to Boeing, this proposed AD would not require that action.
There are about 842 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 459 airplanes of U.S. registry. The proposed inspection would take about 110 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $4,039,200, or $8,800 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 have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, 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 Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by September 24, 2007.
(b) None.
(c) This AD applies to all Boeing Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, certificated in any category.
(d) This AD results from a report of cracks at multiple locations on certain areas of the crown skin. We are issuing this AD to detect and correct fatigue cracks of the crown skin, which could result in rapid decompression of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Before the accumulation of 66,000 total flight cycles, or within 3,500 flight cycles after the effective date of this AD, whichever occurs later, do an external high frequency eddy current inspection of the crown skin for cracks at stringer attachment holes between stringer 11L and stringer 11R and from body station (BS) 259.5 to BS 1183. Repair any crack found before further flight. Do the actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 727-53A0224, dated April 10, 2003, except as provided by paragraph (g) of this AD. Repeat the inspection at intervals not to exceed 3,500 flight cycles.
(g) Although the service bulletin referred to in this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
It has been found cases in which some wiring harnesses were not protected in accordance with SFAR-88 (Special Federal Aviation Regulation No. 88) requirements.
We must receive comments on this proposed AD by September 7, 2007.
You may send comments by any of the following methods:
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•
•
•
•
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2006-07-02, effective August 21, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
It has been found cases in which some wiring harnesses were not protected in accordance with SFAR-88 (Special Federal Aviation Regulation No. 88) requirements.
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s),
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
EMBRAER has issued Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 8 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $32 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $4,096, or $512 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by September 7, 2007.
(b) None.
(c) This AD applies to EMBRAER Model EMB-135BJ airplanes, certificated in any category; as identified in EMBRAER Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005.
(d) Air Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
It has been found cases in which some wiring harnesses were not protected in accordance with SFAR-88 (Special Federal Aviation Regulation No. 88) requirements.
The potential of ignition sources, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The corrective action includes installing heat shrinkable sleeves on the inspection and refueling panel illumination lights wiring, and installing nipples on the terminal lugs to protect the wire terminals.
(f) Unless already done, do the following actions.
(1) Within 5,000 flight hours after the effective date of this AD, install heat shrinkable sleeves on the inspection and refueling panel illumination lights wiring, and install nipples on the terminal lugs to protect the wire terminals, in accordance with the detailed instructions and procedures in EMBRAER Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005.
(2) Actions done before the effective date of this AD in accordance with EMBRAER Service Bulletin 145LEG-28-0016, dated March 8, 2004, are acceptable for compliance with the corresponding actions of this AD.
This AD differs from the MCAI and/ or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(h) Refer to MCAI Brazilian Airworthiness Directive 2006-07-02, effective August 21, 2006, and EMBRAER Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005, for related information.
Federal Energy Regulatory Commission, DOE.
Advance notice of proposed rulemaking: Extension of comment date.
On June 22, 2007, The Federal Energy Regulatory Commission (Commission) is issuing an Advance Notice of Proposed Rulemaking (ANOPR) with regard to potential reforms to improve the operation of organized wholesale electric markets. 72 FR 36,275 (July 2, 2007). The Commission is extending the date for filing comments on the ANOPR at the request of interested parties.
Comments on this ANOPR are now due on September 14, 2007.
You may submit comments identified by Docket Nos. RM07-19-000 and AD07-7-000 by one of the following methods:
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David Kathan (Technical Information), Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 200426,
On July 23, 2007, the American Public Power Association, the Edison Electric Institute, the Electric Power Supply Association, the ISO/RTO Council, the Large Public Power Council, the National Association of Regulatory Utility Commissioners, the National Rural Electric Cooperative Association, the Organization of MISO States, and the Transmission Access Policy Study Group (collectively, “the Joint Movants”) filed a motion requesting an extension of time until September 14, 2007 to file comments in response to the Advance Notice of Proposed Rulemaking issued June 22, 2007, in the above-referenced proceeding.
On July 25, 2007, Central Hudson Gas & Electric Company, Consolidated Edison Company of New York, Inc., LIPA, New York Power Authority, New York State Electric & Gas Corporation, Orange and Rockland Utilities, Inc. and Rochester Gas and Electric Company (collectively, the “New York Transmission Owners”) filed a similar motion, which also requests an extension of the comment date until September 14, 2007. The New York Transmission Owners state that additional time will allow them to provide the Commission with more meaningful and substantive comments than would be possible under the current time constraints.
Upon consideration, notice is hereby given that an extension of time for filing comments on the June 22 ANOPR is granted, to and including September 14, 2007.
Federal Energy Regulatory Commission, DOE.
Notice allowing Post-Technical Conference comments.
On July 30, 2007, the Federal Energy Regulatory Commission convened a technical conference addressing issues related to lead-time for undesignated network resources in order to make firm third-party sales and the eligibility of on-system seller's choice and system sales to be designated as network resources. This notice provides an opportunity for interested parties to file written comments in relation to the issues that were the subject of the technical conference.
Thomas E. Dautel, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-6196.
Pursuant to the Commission's June 26, 2007 Order in this proceeding, 119 FERC ¶ 61,322 (2007), a staff technical conference was convened on Monday, July 30, 2007, from 9 a.m. to 3 p.m. at the offices of the Federal Energy Regulatory Commission. The technical conference addressed issues related to the minimum lead-time for undesignating network resources in order to make firm third-party sales and the eligibility of on-system seller's choice and system sales to be designated as network resources, as clarified in Order No. 890.
All interested persons are invited to file written comments no later than August 13, 2007 in relation to the issues that were the subject of the technical conference. Those filing comments are specifically encouraged to identify alternative ways to address the minimum lead-time for undesignating network resources in order to make firm third-party sales and the eligibility of on-system seller's choice and system sales to be designated as a network resource without impairing the ability of transmission providers to calculate available transfer capability (ATC) or unduly discriminating among classes of transmission customers. Comments may either be filed on paper or electronically via the eFiling link on the Commission's Web site at
For further information, please contact Tom Dautel at (202) 502-6196 or e-mail at
Federal Energy Regulatory Commission, DOE.
Notice of Proposed Rulemaking: Extension of reply comment period.
On April 19, 2007, the Federal Energy Regulatory Commission issued a Notice of Proposed Rulemaking (NOPR) concerning new rules to facilitate price transparency in markets for the sale and transportation of physical natural gas in interstate commerce. 72 FR 20791 (April 27, 2007). The Commission is extending the date for filing reply comments on the NOPR at the request of Enbridge Energy Company, Inc.
Reply comments are now due August 23, 2007.
You may submit comments identified by Docket No. RM07-10-000, by one of the following methods:
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•
Stephen J. Harvey (Technical), 888 First Street NE., Washington, DC 20426, (202) 502-6372,
On July 11, 2007, Enbridge Energy Company, Inc. filed a motion for an extension of time to file reply comments to the Notice of Proposed Rulemaking (NOPR) issued April 19, 2007, in the above-referenced proceeding, 72 FR 20791 (Apr. 26, 2007), FERC. Stats. and Regs. ¶ 32,614 (2007). The motion states that additional time is needed in order to fully consider the discussions that took place at the Transparency workshop on July 24, 2007, so as to prepare more meaningful reply comments and to provide time to respond to the issues raised during the Workshop discussions and in various initial comments filed by the parties.
Upon consideration, notice is hereby given that an extension of time for filing reply comments on the NOPR is granted to and including August 23, 2007, thirty days after the Workshop.
Federal Energy Regulatory Commission.
Notice of Technical Conference.
The Federal Energy Regulatory Commission is hosting a technical conference to discuss the proposed changes to electronic filing and electronic file and document format instructions that are associated with the
Conference will be held on August 22, 2007.
Wilbur Miller, 888 First Street, NE., Washington, DC 20426, Telephone: (202) 502-8953, E-mail:
Take notice that on August 22, 2007, Federal Energy Regulatory Commission (Commission) staff will host a technical conference to discuss the proposed changes to electronic filing and electronic file and document format instructions that are associated with the Notice of Proposed Rulemaking (NOPR) on expanding electronic filing, RM07-16-000, that FERC issued on July 27, 2007.
The conference will be conducted in two sessions. Session 1 will present an overview of the electronic filing submission instructions that will apply universally. Session 2 will be divided into sections that will discuss information that is specific to each industry. The draft electronic filings and electronic file and document format instructions are available through the calendar of events for this technical conference on
The conference is open to the public and does not require pre-registration. FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
Arrangements will be made for participation in the technical conference via telephone. For more information about this conference and to make telephone conference call arrangements, please contact Wilbur Miller, Office of General Counsel at (202) 502-8953 or
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to revoke certain tolerances for the herbicide metolachlor, and the insecticides acephate, chlorpyrifos, and pyrethrins. Also, EPA is proposing to modify certain tolerances for the herbicide metolachlor, and the insecticides acephate, chlorpyrifos, and pyrethrins. In addition, EPA is proposing to establish new tolerances for the herbicides metolachlor, MCPA, and triallate, and the insecticides chlorpyrifos, fenbutatin-oxide (hexakis), and pyrethrins. The regulatory actions proposed in this document are in follow-up to the Agency's reregistration program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and tolerance reassessment program under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(q).
Comments must be received on or before October 9, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0445, by one of the following methods:
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Jane Smith, Special Review and
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II.A. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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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.
This proposed rule provides a comment period of 60 days for any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives a comment within the 60-day period to that effect, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the
EPA issues a final rule after considering comments that are submitted in response to this proposed rule. In addition to submitting comments in response to this proposal, you may also submit an objection at the time of the final rule. If you fail to file an objection to the final rule within the time period specified, you will have waived the right to raise any issues resolved in the final rule. After the specified time, issues resolved in the final rule cannot be raised again in any subsequent proceedings.
EPA is proposing to revoke, remove, modify, and establish specific tolerances for residues of the acephate, chlorpyrifos, fenbutatin-oxide, metolachlor, MCPA, pyrethrins, and triallate in or on commodities listed in the regulatory text.
EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of FFDCA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision (RED) and Report of the Food Quality Protection Act (FQPA) Tolerance Reassessment Progress and Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419, telephone 1-00-490-9198; fax 1-513-489-8695; internet at
The selection of an individual tolerance level is based on crop field residue studies designed to produce the maximum residues under the existing or proposed product label. Generally, the level selected for a tolerance is a value slightly above the maximum residue found in such studies, provided that the tolerance is safe. The evaluation of
1. Lawful use (sometimes through a label change) may result in a higher residue level on the commodity; and
2. The tolerance remains safe, notwithstanding increased residue level allowed under the tolerance.
Explanations for proposed modifications in tolerances can be found in the RED and TRED document and in more detail in the Residue Chemistry Chapter document which supports the RED and TRED. Copies of the Residue Chemistry Chapter documents are found in the Administrative Record and EPA's electronic copies are available through EPA's electronic public docket and comment system, regulations.gov at
EPA has determined that the aggregate exposures and risks are not of concern for the above mentioned pesticide active ingredients based upon the data identified in the RED or TRED which lists the submitted studies that the Agency found acceptable.
EPA has found that the tolerances that are proposed in this document to be modified, are safe; i.e., that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with FFDCA section 408(b)(2)(C). (Note that changes to tolerance nomenclature do not constitute modifications of tolerances). These findings are discussed in detail in each RED or TRED. The references are available for inspection as described in this document under
In addition, EPA is proposing to revoke certain specific tolerances because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA. Those instances where registrations were canceled were because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide. It is EPA's general practice to propose revocation of those tolerances for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated.
1.
Based on the available field trial data that indicate residues of acephate average 0.16 ppm in or on cottonseed and 0.32 ppm in/on cottonseed meal (concentration factor 2x) and hulls (4x), the Agency determined that the tolerances should be decreased to 0.5 ppm in/on cottonseed and 1.0 ppm in/on cottonseed hulls and cottonseed meal. Based on the available field trial data that indicate residues of acephate average 9.5 ppm in/on mint, the Agency determined that the tolerance should be increased to 27 ppm in/on mint hay. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes decreasing tolerances in 40 CFR 180.108(a)(1) for residues of acephate per se in/on cotton, undelinted seed from 2 to 0.5 ppm; cotton, hulls from 4 to 1.0 ppm; cotton, meal from 8 to 1.0 ppm; increasing the tolerance in/on mint, hay from 15.0 to 27 ppm; and revising mint, hay to peppermint, tops and spearmint, tops. The Agency determined that the increased tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.
Based on the reevaluation of the soybean processing data that indicate residues of acephate do not concentrate and will not exceed the tolerance on soybeans, the Agency has determined that a separate tolerance is not needed on soybean meal. Therefore, EPA proposes revoking the tolerance in 40 CFR 180.108(a)(1) for the residues of acephate
EPA is revising commodity terminology to conform to current Agency practice and removing the term “additive” because pesticides are no longer defined as food additives in FFDCA. Therefore, the Agency proposes revising tolerances in 40 CFR 180.108(a)(1) from bean (succulent and dry form) to bean, dry, seed and bean, succulent; and soybean to soybean, seed; in 40 CFR 180.108(a)(2) delete the
The proposed tolerance actions herein for acephate, to implement the recommendations of the acephate TRED will result in harmonized residues for regulation between the U. S. and Codex.
2.
Because there are currently no active registrations for uses of chlorpyrifos in/on blueberries and tomatoes, the Agency determined that the tolerances in/on blueberry and tomato are no longer needed. The Agency is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revoking the tolerances in 40 CFR 180.342(a)(1) for the combined chlorpyrifos residues of concern in/on blueberry at 2 ppm (of which no more than 1 ppm is chlorpyrifos) and tomato at 0.5 ppm; and revising fruit, citrus to fruit, citrus, group 10; and onion, dry bulb to onion, bulb.
Based on available field trial data that indicate average residues of chlorpyrifos at 0.11 ppm and a concentration factor of 1.7x in/on peanut oil, the Agency determined that the tolerance in/on peanut oil should be decreased to 0.2 ppm and revise the tolerance to conform to current Agency commodity terminology. Therefore, EPA proposes decreasing and revising the tolerance in 40 CFR 180.342(a)(2) for chlorpyrifos
Based on revisions for calculating processed food tolerances, the Agency has determined the tolerance in/on wheat milling fractions will be covered by the current wheat, grain tolerance of 0.5 ppm; therefore, the tolerance in/on “milling fractions (except flour) of wheat” are no longer needed. Because the grazing of livestock and feeding of soybean forage and hay to livestock is prohibited for foliar type applications to soybeans, the Agency determined that the tolerance for soybean forage is no longer needed. Banana pulp is no longer regulated as a commodity in accordance with Table 1. Raw Agricultural and Processed Commodities and Feedstuffs Derived from Crops which is found in Residue Chemistry Test Guidelines OPPTS 860.1000 dated August 1996, available at
The Agency is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revising the tolerances in 40 CFR 180.342(a)(2) for chlorpyrifos
Currently 40 CFR 180.342(a)(1) regulates the combined residues of chlorpyrifos and its metabolite 3,5,6-trichloro-2-pyridinol (TCP). The Agency has concluded that the 3,5,6-trichloro-2-pyridinol (TCP) metabolite is not of toxicological concern and in accordance with FFDCA §408(a)(3) no longer needs to be regulated. The residue for regulation is chlorpyrifos per se which is the regulated residue in 40 CFR 180.342(a)(2). Therefore, EPA proposes transferring the tolerances in 40 CFR 180.342(a)(1) to (a)(2) and changing the designations of 40 CFR 180.342 (a)(2), (a)(3), and (a)(4) to 40 CFR 180.342(a)(1), (a)(2), and (a)(3).
The established crop group tolerance for tree nut group 14 should be revoked because the use rates are not identical, i.e. the rate on pecans differs. In lieu of the tree nut crop group, the Agency has determined that individual tolerances should be established for hazelnut (the preferred commodity term), and pecan each at 0.2 ppm and there are currently tolerances in place for almonds and walnuts. Therefore, EPA proposes revoking the tolerance in newly proposed 40 CFR 180.342(a)(1) for residues of chlorpyrifos per se in/on nut, tree, group 14 and establishing the tolerances for hazelnut at 0.2 ppm; and pecan at 0.2 ppm.
There is currently a tolerance for “vegetable, brassica, leafy, group 5 at 2.0 ppm which covers broccoli; Bussels sprouts; cabbage; cabbage Chinese; and cauliflower each at 1 ppm; therefore, the Agency has determined that the individual tolerances on these commodities are no longer needed and vegetable, brassica, leafy, group 5 at 2.0 ppm should be decreased to 1 ppm consistent with the individual tolerance levels. Further, the footnote (of which no more than 1.0 ppm is chlorpyrifos) associated with the vegetable, brassica, leafy, group 5 at 12.0 ppm is no longer needed since the residues of concern are chlorpyrifos
Based on the available apple processing data that indicate chlorpyrifos concentrates at 2.1x in wet apple pomace, the Agency has determined that a tolerance should be established in/on apple, wet pomace at 0.02 ppm. Based on available field trial studies that indicate residues of chlorpyrifos are less than 1 ppm in/on lettuce, the Agency determined a tolerance should be established in/on lettuce at 1 ppm. Therefore, EPA proposes establishing a tolerance in newly proposed 40 CFR 180.342(a)(1) for residues of chlorpyrifos
Based on current U.S. use patterns of chlorpyrifos on grapes the residues are expected to be less than the level of quantitation (
Currently 40 CFR 180.342(c)(1) regulates the combined residues of chlorpyrifos and its metabolite 3,5,6-trichloro-2-pyridinol (TCP). The Agency has concluded that the 3,5,6-trichloro-2-pyridinol (TCP) metabolite is not of toxicological concern and no longer needs to be regulated. The residue for regulation is chlorpyrifos per se which is the regulated residue in 40 CFR 180.342(c)(2). Additionally, because there are currently no active registrations having uses on leeks, cherimoya, feijoa, and sapote, the Agency has determined the tolerances on leek, cherimoya, feijoa and sapote should be revoked. Therefore, EPA proposes transferring the tolerances in 40 CFR 180.342(c)(1) in/on asparagus, grape and leek (of which no more than 0.2 ppm is chlorpyrifos) to (c)(2) for residues of chlorpyrifos
The proposed tolerance actions herein for chlorpyrifos, to implement the recommendations of the chlorpyrifos TRED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on broccoli (vegetable, brassica, leafy, group 5) and grape, because of differences in good agricultural practices. However, compatibility exists for eggs, field corn (maize) and will exist between the proposed reassessed U.S. tolerances and Codex MRLs for chlorpyrifos residues in or on Chinese cabbage, citrus fruits, sorghum, and cabbage head.
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Currently, there are no Codex MRLs in place for fenbutatin-oxide on pistachio.
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5.
Extrapolating the residue data from the ruminant feeding study to a 1x feeding level for cattle, goats, horses, and sheep the maximum combined residues of concern for metolachlor would be 0.011 ppm in fat, 0.057 ppm in liver, 0.016 ppm in meat and
There are no longer any active registrations with uses of metolachlor on cabbage, celery, stone fruits, and bell peppers; therefore, the Agency determined the tolerances for these commodities are no longer needed. The tolerances for sorghum cover the tolerances for milo; therefore, the tolerances for milo are not needed. Rice forage and peanut forage are no longer regulated commodities in accordance with Table 1.—Raw Agricultural and Processed Commodities and Feedstuffs Derived from Crops which is found in Residue Chemistry Test Guidelines OPPTS 860.1000 dated August 1996, available at
Based on the available field trial data that indicate the combined residues of metolachlor were as high as 2.28 ppm on field corn stover, 5.54 ppm in/on sweet corn stover, 3.02 ppm on field corn forage, and 5.75 ppm in/on sweet corn forage, the Agency determined the tolerances for corn, fodder and corn, forage should be decreased to 6.0 ppm. Based on the available field trial data that indicate the combined residues of metolachlor were as high as 0.19 ppm in/on peanut, 16.5 ppm in/on peanut hay, 0.45 ppm in/on sorghum forage, 3.19 ppm in/on sorghum fodder, and 4.37 ppm in/on soybean forage; the Agency determined the tolerances should be decreased to 0.20 ppm in/on peanut, 20.0 ppm in/on peanut hay; 5.0 ppm in /on soybean, forage, and 1.0 ppm in/on sorghum, forage and increased to 4.0 ppm in/on sorghum fodder. The EPA is also revising commodity terminology. Therefore, EPA proposes decreasing the tolerances in 40 CFR 180.368 (a)(1) for the combined residues of metolachlor in/on corn, fodder from 8.0 to 6.0 ppm; corn, forage from 8.0 to 6.0 ppm; peanut from 0.5 to 0.20 ppm; and peanut, hay from 30 to 20.0 ppm; and sorghum, forage from 2.0 to 1.0 ppm; soybean, forage from 8.0 to 5.0 ppm; increasing sorghum, fodder from 2.0 to 4.0 ppm; and revising corn, fodder to corn, field, stover and corn, sweet, stover; corn, forage to corn, field, forage and corn, sweet, forage; corn, grain to corn, field, grain; sorghum, forage to sorghum, grain, forage; sorghum, fodder to sorghum, grain, stover; sorghum, grain to sorghum, grain, grain and soybean to soybean, seed.
Based on the available field trial data that indicate the metolachlor residues of concern were as high as 4.37 ppm in/on soybean forage and 6.9 ppm in/on soybean hay, the Agency determined tolerances should be separated and decreased to 5.0 ppm on soybean, forage and maintained at 8.0 ppm in/on soybean hay. Therefore, EPA proposes decreasing and separating the tolerances in 40 CFR 180.368(a)(1) for the combined metolachlor residues of concern from soybean, forage and hay at 8.0 ppm to soybean, forage at 5.0 ppm and soybean, hay at 8.0 ppm.
EPA is revising commodity terminology to current Agency practice. The current terminology for seed and pod vegetables (except soybean) crop group is vegetable, legume, edible podded, subgroup 6A; pea and bean, succulent shelled, subgroup 6B; and pea and bean, dried shelled, except soybean, subgroup 6C. Based on the available field trial data that indicate the combined residues of metolachlor were as high as 0.11 ppm in/on dried shelled peas and beans and 0.44 ppm in/on edible-podded legumes, the Agency determined the tolerances should be increased on edible-podded legumes from 0.3 to 0.5 ppm and decreased in/on dried shelled peas and beans from 0.3 to 0.10 ppm. Therefore, EPA proposes revising the tolerances in 40 CFR 180.368(a)(1) for the combined metolachlor residues of concern in/on seed and pod vegetables (except soybean) at 0.3 ppm to vegetable, legume, edible podded, subgroup 6A at 0.5 ppm; pea and bean, succulent shelled, subgroup 6B at 0.3 ppm; and pea and bean, dried shelled, subgroup 6C, except soybean at 0.10 ppm. The Agency determined that the increased tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.
Based on the available field trial and processing data that indicate the metolachlor residues of concern were as high as 3.2 ppm in/on cotton gin byproducts and
There are no longer any active registered uses of metolachlor in/on dry bulb onions, chili peppers and cubanelle peppers; therefore, the tolerances are no longer needed. EPA is also revising commodity terminology. Finally, the regional registrations are defined in 40 CFR 180.1(m) rather than 180.1(n) as currently appears in the 40 CFR 180.368(c). Therefore, EPA proposes revoking the tolerances in 40 CFR 180.368 (c)(1) for the combined metolachlor residues of concern in/on onion, dry bulb; pepper, chili; and pepper, cubanelle; and revising in 40 CFR 180.368(c)(1) and (2) the terms pepper, tabasco to pepper, nonbell and 180.1(n) to 180.1(m).
Subsequent to the revised TRED, the tolerance expression for S-metolachlor was modified to include the R-enantiomer; therefore, the Agency has determined the tolerances in 40 CFR 180.368(a)(2) and 40 CFR 180.368(a)(3) should be combined and regulated in accordance with the tolerance
EPA is revising commodity terminology to current Agency practice. Therefore, EPA proposes revising the tolerance in the proposed recodified 40 CFR 180.368(d)(2) from nongrass, animal feed (forage, fodder, straw, hay) group 18 to animal feed, nongrass, group 18 and revising the tolerance in proposed recodified 40 CFR 180.368 (a)(2) from vegetable, fruiting group 8, (except tabasco pepper) to vegetable, fruiting, group 8, except nonbell pepper and onion, dry bulb to onion, bulb.
Currently, there are no Codex MRLs in place for metolachlor.
6.
The last active product involving uses of pyrethrins on food stored in multi-walled paper or cloth bags was cancelled October 15, 1989. Therefore, the Agency has determined that the stored food tolerances in 40 CFR 180.128(a)(2)(iii)(B), 180.128(a)(2)(iii)(D) and 180.128(a)(3) (all subsections) should be removed. Also, the language in 40 CFR 180.128(a)(2)(iv) is outdated and no longer used in the CFR, therefore, the Agency has determined it should be removed. Therefore, EPA is proposing to remove 40 CFR 180.128(a)(2)(iii)(B), 180.128(a)(2)(iii)(D), 180.128(a)(3)(i)(A, B), (ii), (iii), (iv), (v), and 180.128(a)(2)(iv).
Currently, 40 CFR 180.128(a)(2)(iii)(C) refers to “foods treated in accordance with 180.367(a)(2)”. To provide clarity, the citation 40 CFR 180.367(a)(2) is being replaced with the statement to which the citation refers as follows:
• “A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use” and recodify 40 CFR 180.128(a)(2)(iii)(C) as 40 CFR 180.128 (a)(3) in accordance will all the subsection changes. Therefore, EPA proposes revising 40 CFR 180.128(a)(2)(iii)(C) to read as follows:
• “A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use” and change the designation of 40 CFR 180.128 (a)(2)(iii)(C) to 180.128(a)(3).
Currently, 40 CFR 180.128(a)(2)(i)(A)-(E) and (ii) indicate use in combination with other active ingredients (piperonyl butoxide and MGK-264). The Agency has determined that all references to the use of multiple chemicals should be removed from the CFR because 40 CFR 180.128 is solely for the regulation of pyrethrins. Therefore, EPA proposes removing the 40 CFR 180.128 (a)(2)(i)(A-E) and (ii) and recodify 40 CFR 180.128(a)(2)(iii)(A) to newly revised 40 CFR 180.128(a)(2) to read as follows:
“A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on milled fractions derived from grain, cereal when present as a result of its use in cereal grain mills and in storage areas for milled cereal grain products.” As a result of all the changes in 40 CFR 180.128(a), EPA is also proposing to change the designation of 40 CFR 180.128(a)(2)(v) to 180.128(a)(4).
Because 40 CFR 180.128 (a)(2)(i)(D) and (E) have been removed, 40 CFR 180.128(a)(2)(iii)(E) which refer to these sections is no longer relevant and also should be removed. Therefore, EPA is proposing to remove 40 CFR 180.128(a)(2)(iii)(E).
The Agency is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revising commodity terminology for tolerances in 40 CFR 180.128(a)(1) as follows: Barley, postharvest to barley, grain, postharvest; bean, postharvest to bean, succulent, postharvest; pea, postharvest to pea, dry, seed, postharvest; rye, postharvest to rye, grain, postharvest; and wheat, postharvest to wheat, grain, postharvest.
Based on the maximum dietary burden and assuming a linear relationship between feeding levels and tissue concentrations, estimated residues are calculated to be as high as
Based on exaggerated feed and premise treatment studies, there are no reasonable expectations of finite residues in poultry, meat, meat byproducts, fat and eggs (Category 3 of 40 CFR 180.6(a)(3)). Therefore, the Agency has determined that the tolerances for pyrethrins residues of concern in poultry commodities are not needed and should be revoked. Therefore, the Agency proposes revoking the tolerances in 40 CFR
The proposed tolerance actions herein for pyrethrins, to implement the recommendations of the pyrethrins RED, reflect use patterns in the United States which support a different tolerance than the Codex level because of differences in good agricultural practices and the specified postharvest application timing.
7.
“A tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996, Public Law 104-170, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore, “adulterated” under section 402(a) of FFDCA, 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce (21 U.S.C. 331(a)). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA, but also must be registered under FIFRA (7 U.S.C. 136
EPA is proposing these tolerance actions in follow-up to the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). The safety finding determination under section 408 of FFDCA standard is discussed in detail in each Post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A.
EPA has issued a Post-FQPA RED for pyrethrins , MCPA, triallate, and TREDs for acephate, chlorpyrifos, fenbutatin-oxide and metolachlor, whose REDs were both completed prior to FQPA. REDs and TREDs contain the Agency's evaluation of the data base for these pesticides, including requirements for additional data on the active ingredients to confirm the potential human health and environmental risk assessments associated with current product uses, and in REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FFDCA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are proposed in this document do not need such assessment when the tolerances are no longer necessary.
EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.
Furthermore, as a general matter, the Agency believes that retention of import tolerances not needed to cover any imported food may result in unnecessary restriction on trade of pesticides and foods. Under section 408 of FFDCA, a tolerance may only be established or maintained if EPA determines that the tolerance is safe based on a number of factors, including an assessment of the aggregate exposure to the pesticide and an assessment of the cumulative effects of such pesticide and other substances that have a common mechanism of toxicity. In doing so, EPA must consider potential contributions to such exposure from all tolerances. If the cumulative risk is such that the tolerances in aggregate are not safe, then every one of these tolerances is potentially vulnerable to revocation. Furthermore, if unneeded tolerances are included in the aggregate and cumulative risk assessments, the estimated exposure to the pesticide would be inflated. Consequently, it may be more difficult for others to obtain needed tolerances or to register needed new uses. To avoid potential trade restrictions, the Agency is proposing to revoke tolerances for residues on crops uses for which FIFRA registrations no longer exist, unless someone expresses a need for such tolerances. Through this proposed rule, the Agency is inviting individuals who need these import tolerances to identify themselves and the tolerances that are needed to cover imported commodities.
Parties interested in retention of the tolerances should be aware that additional data may be needed to support retention. These parties should be aware that, under FFDCA section 408(f), if the Agency determines that additional information is reasonably required to support the continuation of a tolerance, EPA may require that parties interested in maintaining the tolerances provide the necessary information. If the requisite information is not submitted, EPA may issue an order revoking the tolerance at issue.
When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those chemicals in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). When considering this possibility, EPA can conclude that:
1. Finite residues will exist in meat, milk, poultry, and/or eggs.
2. There is a reasonable expectation that finite residues will exist.
3. There is a reasonable expectation that finite residues will not exist. If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, tolerances do not need to be established for these commodities (40 CFR 180.6(b) and (c)).
EPA has evaluated certain specific meat, milk, poultry, and egg tolerances proposed for revocation in this rule and has concluded that there is no reasonable expectation of finite pesticide residues of concern in or on those commodities.
1. EPA is proposing that modifications, establishment, commodity terminology revisions, and revocation of these tolerances become effective on the date of publication of the final rule in the
i. With respect to the revocations, their associated uses have been canceled for several years.
ii. None of the other tolerance actions proposed here are expected to result in adulterated commodities.
2. Any commodities listed in this proposal treated with the pesticides subject to this proposal, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of FDA that:
i. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA.
ii. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food.
The tolerance actions in this proposal are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standards established by FFDCA. The same food safety standards apply to domestically produced and imported foods.
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, as required by section 408(b)(4) of FFDCA. The Codex Alimentarius is a joint U.N. 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 in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A.
In this proposed rule, EPA is proposing to establish tolerances under FFDCA section 408(e), and also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(2) A food tolerance of 0.02 ppm is established for residues of acephate
(c)
(a)
(2) A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on milled fractions derived from grain, cereal when present as a result of its use in cereal grain mills and in storage areas for milled cereal grain products.
(3) A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use.
(4) Where tolerances are established on both the raw agricultural commodities and processed foods made there-from, the total residues of pyrethrins in or on the processed food shall not be greater than that permitted by the larger of the two tolerances.
(c)
(a)(1)
(a)
(c)
(a) * * *
(a)
(2) Tolerances are established for the combined residues (free and bound) of the herbicide S-metolachlor, S-2-chloro-
(b)
(c)
(2) Tolerances with regional registration as defined in 180.1(m) are established for the combined residues (free and bound) of the herbicide S-metolachlor, S-2-chloro-
(d)
(2) Tolerances are established for the indirect or inadvertent combined residues (free and bound) of the herbicide S-metolachlor, S-2-chloro-N-(2-ethyl-6-methylphenyl)-
Federal Emergency Management Agency, DHS.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations (BFEs) and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3151.
The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Federal Communications Commission.
Notice of proposed rulemaking.
This document seeks comment on various proposals to promote minority and female ownership in the media industry. It also addresses a motion to withdraw, revise, and republish the Commission's Further Notice of Proposed Rulemaking in its media ownership review.
The agency must receive comments on or before October 1, 2007 and reply comments on or before October 16, 2007.
Comments may be filed electronically using the Internet by accessing the Electronic Comment Filing System,
The Media Bureau contacts for this proceeding are Mania Baghdadi and Jamila Bess Johnson, both at (202) 418-7200. Press inquiries should be directed to Mary Diamond at (202) 418-2388.
1. The Commission has before it the “Motion for Withdrawal of the Further Notice of Proposed Rulemaking and for the Issuance of a Revised Further Notice” filed on August 23, 2006 (the “Motion for Withdrawal”) by the Diversity and Competition Supporters (collectively, “MMTC”). MMTC states that the Commission's Further Notice of Proposed Rule Making (FNPRM) in the media ownership proceeding, 71 FR 45511, August 9, 2006, is flawed and should be withdrawn, revised, and republished. The FNPRM invited comment on the several media ownership rules adopted by the Commission in its
2. The FNPRM sought comment on MMTC's various proposals, as well as on the general issue of fostering minority and female ownership. We urged commenters to explain the effects, if any, that their rule proposals would have on ownership of broadcast outlets by minorities, women and small businesses. Given the impact of these issues on our comprehensive ownership review, we believe it would be beneficial to issue this Second FNPRM to set forth in greater detail the proposals MMTC identified in its Motion for Withdrawal and to clarify the record as requested by MMTC. Thus, in this Second FNPRM, we seek comment on the proposals MMTC submitted in the 2002 biennial review proceeding, as they are described in Appendix A, as well as on the proposals submitted to the Commission by the Advisory Committee on Diversity for Communications in the Digital Age (“Diversity Committee”), which are also described in Appendix A and are set forth more fully in the Committee's recommendations to the Commission. See
3. We find it unnecessary to adopt the specific approach suggested by MMTC that we rescind and reissue the FNPRM in its entirety. The approach we take, in conjunction with the initial FNPRM, provides ample notice to the commenting public on the specific issues germane to our media ownership review, including those raised by MMTC relating to ownership diversity.
4. In comments filed in the Commission's 2002 biennial review proceeding, MMTC proposed numerous measures to promote minority broadcast ownership. In the subsequent
5. In the
6. On review, the U.S. Court of Appeals for the Third Circuit remanded the Commission's decision to address MMTC's 13 proposals in a separate rulemaking and ordered the Commission to address those proposals at the same time that it addresses the other remanded issues. The court also remanded the Commission's decision to repeal the FSSR because the Commission did not address the potential impact of the repeal on minority television station ownership.
7. MMTC argues that the Commission erred in the FNPRM by failing to seek specific comment on how to define SDBs, adding that the concept of SDBs is central to most of the minority ownership initiatives proposed in the 2002 biennial review proceeding. MMTC states that the Prometheus opinion recognizes the importance of establishing a definition for SDBs because, in approving the small business cluster transfer policy, the court indicated that, by the next quadrennial review, the Commission would have the benefit of a stable definition of SDBs as well as implementation experience in order to reevaluate whether an SDB-based waiver policy would better promote the Commission's diversity objectives. MMTC maintains that, without a definition for SDBs, the Commission cannot effectively evaluate the existing small business cluster transfer policy or its other proposals, as remanded by the Prometheus court.
8. MMTC states that the issue of the SDB definition has already been fully briefed in the Commission's proceeding examining market entry barriers. In that proceeding, initiated in 2004, the public was invited to comment on constitutionally permissible ways to further the mandate of section 257 of the Telecommunications Act of 1996, which directs the Commission to identify and eliminate market entry barriers for small telecommunications businesses, and section 309(j) of the Communications Act of 1934, as amended (“the Act”), which requires the Commission to further opportunities in the allocation of spectrum-based services for small and rural businesses and businesses owned by women and minorities. See 69 FR 34672, June 22, 2004. The Media Bureau also asked commenters to provide specific recommendations for building on the series of market entry barrier studies that the Commission released in December 2000. The studies are available on the Commission's Web site at
9. We invite comment on MMTC's proposal that the Commission define SDBs for purposes of analyzing policy initiatives in support of media ownership diversity. We ask that commenters address whether use of a proposed definition raises any constitutional concerns, practical concerns, or other considerations unique to the Commission's policy objectives, and we invite comment on its impact on small entities. To ensure full consideration of this issue, we will consolidate the MB Docket No. 04-228 proceeding commenced in 2004 with our review of the media ownership rules.
10. We seek comment on the various proposals for increasing minority and female broadcast ownership identified by MMTC. As MMTC suggests, we have attached its description of these proposals as Appendix A.
11. In addition, as MMTC requests, we also seek comment on the efficacy of the FSSR in promoting minority and female broadcast ownership. When out-of-market purchasers for a station are unavailable, the Commission permits ownership rule waivers for failed, failing and unbuilt stations because the in-market purchase of such stations is preferable to having frequencies go unused, even where the combination would violate the local television ownership rule. In the
12. We invite comment on the extent to which the FSSR or another construction of the rule could promote minority and female ownership. We ask commenters to provide concrete evidence rather than generalized assertions.
13. Any measures to facilitate minority and female broadcast entry that are based on racial or gender classifications must satisfy the heightened constitutional standards that apply to governmental preferences for minorities and women under the Equal Protection Clause. The Supreme Court's ruling in
14. We also seek further comment on the Commission's statutory authority to address issues of minority and female ownership. Section 257 of the Act requires the Commission to identify and eliminate “market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications services and information services.” Despite the apparent limitation of 47 U.S.C. 257(a) to telecommunications and information services, the congressional directive to promote “the policies and purposes of this Act favoring diversity of media voices” in implementing section 257(a) arguably brings broadcasting within the scope of section 257. We invite comment on this interpretation of the statute. The statutory provision also specifically directs the Commission to “promote the policies and purposes of this Act favoring diversity of media voices” in carrying out its section 257 responsibilities. In addition, in 1996, Congress amended section 1 of the Act to make it clear that the Commission's mandate is to regulate interstate and foreign communications services so that they are “available, so far as possible, to all people of the United States, without discrimination on the basis of race, color, religion, national origin or sex * * *” We ask commenters to address whether and how these statutory provisions support the Commission's efforts to promote media ownership diversity.
15. Further, section 309(j) of the Act requires the Commission to promote the dissemination of licenses to a wide variety of applicants, including members of minority groups and women. Section 309(j) directs the Commission to “ensure that * * * businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum-based services.” In addition, section 309(j)(3)(B) requires the Commission, in establishing eligibility criteria and bidding methodologies, to promote “economic opportunity and competition * * * by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.”
16. We invite comment on the Commission's statutory authority to facilitate the licensing of spectrum-based services to a diversity of entities, including businesses owned by minority groups and women. Commenters should also address the limitations of these statutory provisions in light of recent court decisions regarding equal protection. We also solicit comment on any further statutory provisions that would enable the Commission to address ownership diversity, particularly in terms of fostering diversity of ownership among minorities and women.
17. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated above. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS); (2) the Federal Government's eRulemaking Portal; or (3) by filing paper copies.
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service First-Class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format) send an e-mail to
18. As required by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission prepared an Initial Regulatory Flexibility Analysis (“IRFA”) in the initial Notice of Proposed Rulemaking in the media ownership proceeding and a Supplemental Initial Regulatory Flexibility Analysis Act (“Supplemental IRFA”) in the initial Further Notice of Proposed Rulemaking in the media ownership proceeding. We have now prepared a Second Supplemental IRFA, which is set forth in Appendix B. Written public comments are requested on the Second Supplemental IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the Second FNPRM, and should have a separate and distinct heading designating them as responses to the Second Supplemental IRFA.
19. This document does not contain proposed information collections subject to the Paperwork Reduction Act of 1995 (“PRA”), Pub. L. No. 104-13, 109 Stat. 163 (1995). Therefore, it does not contain any proposed new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Pub. L. No. 107-198, 116 Stat. 729 (2002). However, depending on the rules adopted as a result of this Second FNPRM, the report and order ultimately adopted in this proceeding may contain information collections. The Commission will provide a period for public comment on any PRA burdens contained in the report and order and will submit such burdens to the Office of Management and Budget for approval when the report and order is adopted and released.
20. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission's rules.
21.
22. Accordingly,
23.
24.
25.
26.
27.
28.
Section I (items 1-14) contains the 14 proposals of the Diversity and Competition Supporters (“MMTC”) in MM Docket No. 02-277. The FCC's Advisory Committee on Diversity for Communications in the Digital Age (“Diversity Committee”) also proposed eight of these items, as noted therein.
Section II (items 15-26) contains 12 informal suggestions made by the Minority Media and Telecommunications Council at a November 6, 2002 meeting of stakeholders at the Commerce Department.
Section III (items 27-34) contains recommendations issued by the Diversity Committee that do not track the proposals or suggestions in items 1-26. Among these, items 27-30 are nonregulatory recommendations, and items 31-34 are regulatory recommendations. The Diversity Committee has propounded 17 recommendations germane to media ownership: Eight tracking items in Section I, one tracking an item in Section II, and the eight items in Section III.
1. Equal transactional opportunity policy—barring discrimination on the basis of race or gender in broadcast transactions.
2. Transfer Restriction of Grandfathered Clusters to SDBs.
3. Structural rule waiver for selling a station to an SDB, where the sale to the SDB is ancillary to a transaction that otherwise would be barred by an ownership rule.
4. Tolling buildout deadlines for selling expiring construction permits to SDBs.
5. Structural rule waivers for creating incubator programs.
6. Bifurcation of channels for share-times with SDBs.
7. Structural rule waivers for financing construction of an SDB's unbuilt station.
8. Grandfathering of nonattribution of EDP (equity debt-plus) interests in SDBs.
9. Mathematical touchstones: Tipping points for the nonviability of independently owned radio stations in a consolidating market, and quantifying source diversity.
10. Zero tolerance for ownership rule abuse.
11. Use of Joint Operating Agreements (JOAs) as an alternative to Local Marketing Agreements (LMAs) and Joint Sales Agreements (JSAs).
12. Opening FM spectrum for new entrants.
13. Staged implementation of deregulation, coupled with a negotiated rulemaking.
14. Market-based, tradable diversity credits as an alternative to voice tests.
15. Equity for specific and contemplated future acquisitions.
16. Debt on favorable terms—enhanced outreach and access to debt financing by major financial institutions.
17. Investments in institutions specializing in minority and small business financing.
18. Assistance—cash and in-kind—to institutions that train future minority media owners.
19. Creation of business planning centers.
20. Executive loans, and engineers on loan to minority owned companies and applicants.
21. Enhanced access to broadcast transactions.
22. Nondiscrimination provisions in advertising sales contracts, designed to expressly avoid such practices as “no urban/no Spanish” dictates.
23. In-house incubation and mentoring programs for future minority owners.
24. Enactment of tax deferral legislation designed, to the extent possible, to foster minority ownership.
25. Examination of how to promote minority ownership as an integral part of all FCC general media rulemaking proceedings.
26. Ongoing longitudinal research on minority and female ownership trends.
27. Clearinghouse through which licensees could announce availability of stations for sale.
28. Extension of the Community Reinvestment Act (CRA) to encourage financial institutions to provide debt financing to broadcasters.
29. Encourage more local and regional banks to participate in SBA guaranteed loan programs for broadcast and telecom ventures.
30. Establishment of a fund of funds.
31. Revision of the Distress Sale Policy to institute case-by-case review of purchasers' qualifications.
32. Reservation, for a company that finances or incubates an SDB, of first place in the queue to form a duopoly in a market for which only a limited number of duopolies are permissible.
33. Relaxation of foreign ownership restrictions (
34. Extension of divestiture deadlines in mergers where applicants have actively solicited bids for spin-off properties from SDBs.
1. As required by the Regulatory Flexibility Act, as amended (“RFA”)
2. The Further Notice of Proposed Rule Making in MB Docket Nos. 06-121,
3. The Second FNPRM is adopted pursuant to sections 1, 2(a), 4(i), 257, 303, 307, 309, 310 and 613 of the Act, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303, 307, 309, 310, and 533, and Section 202(h) of the Telecommunications Act of 1996.
4. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.
5. Television Broadcasting. In this context, the application of the statutory definition to television stations is of concern. The Small Business Administration defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.”
6. An element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time and in this context to define or quantify the criteria that would establish whether a specific television station is dominant in its market of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any television stations from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. It is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent.
7. Radio Broadcasting. The Small Business Administration defines a radio broadcasting entity that has $6.5 million or less in annual receipts as a small business.
8. In this context, the application of the statutory definition to radio stations is of concern. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time and in this context to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any radio station from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent.
9. Daily Newspapers. The SBA has developed a small business size standard for the census category of Newspaper Publishers; that size standard is 500 or fewer employees.
10. Depending on the rules adopted as a result of this Second FNPRM, the Report and Order (R&O) ultimately adopted in this proceeding may contain new or modified information collections. We anticipate that none of the changes would result in an increase to the reporting and recordkeeping requirements of broadcast stations,
11. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
12. We are directed under law to describe any alternatives we consider, including alternatives not explicitly listed above.
None.
Department of Transportation (DOT), Office of the Secretary (OST).
Supplemental notice of proposed rulemaking.
DOT is providing notice of a petition from the Board of Commissioners in Perry County, IN, to change the time zone boundary for the County from the Central Time Zone to the Eastern Time Zone, and DOT's request for additional information from Perry County to aid in its determination of whether this change would serve the convenience of commerce, the statutory standard for a time zone change. Other persons supporting or opposing the change to Perry County's time zone boundary are also requested to provide comment. The final rule will be based on all of the information received during the entire rulemaking proceeding and whether the statutory standard has been met.
Comments should be received by August 31, 2007, to be assured of consideration. Comments received after that date will be considered to the extent practicable. If the time zone boundary is changed as a result of this rulemaking, the effective date would be November 4, 2007.
You may submit comments by any of the following methods:
•
•
•
•
•
Judith S. Kaleta, Office of the General Counsel, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590,
Knox, Daviess, Martin, Pike, and Dubois Counties (the Petitioning Counties) and Perry County were six of eight counties that moved from the Eastern Time Zone to the Central Time Zone under DOT's January 2006 final rule to establish a standard time zone boundary in Indiana (71 FR 3228). On July 19, 2007, DOT published a notice of proposed rulemaking in the
Under our normal procedures, we do not take action unless a county makes a clear showing that the proposed change of time zone would meet the statutory standard. However, as we noted in our previous rulemaking on time zone boundary changes in Indiana, this has been an unusual case because of the number of counties involved, their relationship to each other and to other neighboring counties, and the circumstances leading up to the petitions. Perry County is located in southwest Indiana, is contiguous to the Petitioning Counties, and had its time zone changed at the same time as the Petitioning Counties. Therefore, DOT asked for comments with regard to Perry County in the Notice of Proposed Rulemaking concerning standard time zone boundary in Southwest Indiana published in the
At the time of the NPRM, DOT was unaware that, on June 1, 2007, Perry County submitted a Petition (2007 Perry County Petition) (OST 2007-28746-654) for a time zone boundary change back to the Eastern Time Zone. DOT has now reviewed the 2007 Perry County Petition and the exhibits attached to it. As set forth below, the 2007 Perry County Petition addresses all of the factors that we consider in these proceedings. However, on July 31, 2007, DOT wrote to Perry County requesting additional information to justify that changing back Perry County to the Eastern Time Zone would serve the convenience of commerce. DOT has summarized below the petition Perry County filed in support of its request to change to the Central Time Zone (the 2005 Perry County Petition), the 2007 Perry County Petition, and DOT's questions on the information submitted by Perry County. DOT seeks comments on the justification provided by Perry County and responsive information to its questions.
The 2005 Perry County Petition to move from the Eastern Time Zone to the Central Time Zone stated that the primary employers in the county supply products to customers located throughout North America although most of the customer base is located in the Midwest or the South. In addition, it noted that Perry County's newer employers are considered “just-in-time” suppliers to the automotive industry which require a location less than a day's distance from their respective customers.
In lieu of answering the question on community imports and exports with an overview or analysis of the matter, the 2007 Perry County Petition summarizes and attaches 16 letters from businesses, schools, a hospital, and individuals. According to the 2007 Perry County Petition, the letters express “a desire to change to the Eastern Time Zone” because business conducted on Eastern time and difference in time zones “causes operating challenges on a daily basis.” The 2007 Perry County Petition notes that “businesses in Perry County have in effect lost four hours of each day that they can deal with customers and suppliers from the Eastern Time Zone: One hour in the morning, two hours at lunch, and one hour at the end of the day.” In further support of the Eastern Time Zone request, the 2007 Perry County Petition specifically references three diverse businesses: The Southern Indiana Rural Electric Cooperatives, which would be the only Hoosier Energy Power Network out of 17 that would be in the Central Time Zone and claims metering and billing problems; Kleeman Masonary, Inc, which usually travels east in its construction business; and Perry County Memorial Hospital, which has difficulties dealing with insurance companies in the Eastern Time Zone.
While the 2007 Perry County Petition claims the 16 letters attached to it are from businesses and schools, DOT notes that two of the letters were written on business letterhead but merely provide a preference for a time zone without any justification. Another letter states that it is “more cumbersome” to be on a different time zone, but provides no explanation. Similarly, the 2007 Perry County Petition states that the Perry County Chamber of Commerce has informed the Perry County Commissioners that “there are 386 total employers located in Perry County” and that 41% of businesses have expressed a preference for the Central Time Zone. The 2007 Perry County Petition does not provide the reasons for the “preference.”
In order to assess the impact of a time zone change on businesses, DOT requests comments on the time zone impact on businesses in the County and the reasons for the time zone preferences expressed by Perry County businesses.
With regard to television broadcasts, the 2005 Perry County Petition stated that the County was “located within the Area of Dominant Influence for the Evansville, Indiana television market.” The 2005 Perry County Petition also stated that Perry County “receives cable and over-the-air broadcasts from the Louisville, Kentucky market as well.” The 2007 Perry County Petition makes the same statements concerning television broadcasts.
With regard to radio broadcasts, the 2005 Perry County Petition stated that the “majority of the stations serving Perry County are located either in the Central Daylight Saving or Eastern Standard time zones.” The 2007 Perry County Petition elaborates on its earlier submission by providing a list of AM and FM radio signals for five cities within the County based on information from radio-locator.com. As the 2007 Perry County Petition notes, residents in the northern part of the County receive radio signals from the Eastern Time Zone while residents in the southern part of the County receive radio signals from the Central Time Zone. While the Perry County Petition provides radio signal information for five cities, it does not provide any information about the population of those cities.
In order to assess the impact of a time zone change on television and radio broadcasts, DOT seeks comments on this issue generally and particularly requests population data for Bristow, Cannelton, Leopold, St. Croix, and Tell City, in Perry County.
The 2005 Perry County Petition stated, “The primary daily newspaper that serves Perry County is the
The 2007 Perry County Petition provides more detailed information on newspaper use within the County. First, the 2007 Perry County Petition now asserts that Perry County residents “primarily” receive their news from the local newspaper, The
With regard to newspaper publishing, DOT seeks comment on this issue generally and is also interested in the number of subscriptions of
The 2005 Perry County Petition states that there are no bus or passenger rail services in the community. The 2007 Perry County Petition explains bus service in more detail, contrasting bus service provided in Evansville and Louisville, and freight rail services. The 2007 Perry County Petition notes that Evansville is approximately 50 miles away and offers services to western and southern routes. In contrast, Louisville is approximately 75 miles away and offers service to the north, northeast, and south. As for rail service, although DOT requested information on passenger rail service, the 2007 Perry County Petition refers only to freight rail service that carries goods through several southern Indiana counties.
DOT seeks comment on the bus information submitted by Perry County, but has no specific request for additional data on this issue.
The 2005 Perry County Petition states that the nearest airport is in Evansville, located in the Central Time Zone, approximately 55 miles from Perry County. The 2005 Perry County Petition also notes that that there is an airport in Louisville, in the Eastern Time Zone, 75 miles from Perry County. The 2007 Perry County Petition reiterates the same information with regard to airport location and supplements it by referring to the number of departures and destinations and the impact of early morning flights on travelers. According to the 2007 Perry County Petition, Evansville Regional Airport has approximately only 35 daily departures in contrast to Louisville International Airport which offers daily departures to “around 140 domestic destinations plus 53 international destinations.” The 2007 Perry County Petition also notes that because Louisville International Airport is in the Eastern Time Zone, it is “extremely difficult” to take early morning flights unless travelers spend the night at or near the airport.
DOT seeks comment on the airport/airline services information submitted by Perry County, but has no specific request for additional data on this issue.
The 2005 Perry County Petition states that 3,267 persons, or 26% of its total workforce, reside in Perry County but work outside of the County. Of the top five areas to which Perry County residents commute for work, four were in the Central Time Zone and, the fifth, Dubois County, was at that time requesting to be located in the Central Time Zone. (Dubois County is now requesting to be moved back to the Eastern Time Zone.) A STATS Indiana Annual Commuting Trends Profile based on Indiana IT-40 Returns for Tax Year 2003 was attached to the Petition.
The 2007 Perry County Petition also refers to the Perry County workforce. The actual numbers provided differ from the earlier submission and are now based on STATS Indiana Annual Commuting Trends Profile based on Indiana IT-40 Returns for Tax Year 2005. Nevertheless, the percentage of the workforce that leaves the County did not change; it remains 26%.
DOT seeks comment on the worker commuting patterns information submitted by Perry County, but has no specific request for additional data on this issue.
The 2005 Perry County Petition discussed the major elements of the community's economy, the improvement in the County's economy, and efforts to ensure that the local economy continues to improve. The Perry County Petition noted “a dramatic shift from traditional woodworking industries to a significant transportation cluster.” It stated that the “primary employers manufacture products for the automotive, heavy truck, and aerospace industries.” The 2005 Perry County Petition also noted the planning and infrastructure the County has put in place to support future economic growth and its partnerships to enhance growth.
The 2007 Perry County Petition answer to the question on the community's economy is nearly the same as the 2005 Perry County Petition. There is only one change. The 2007 Perry County Petition eliminates, in this response, reference to “a regional rural hospital which serves counties in Southern Indiana and Western Kentucky, located in the Central time zone.” However, it includes that reference to the hospital in response to the question concerning health care.
In order to assess the impact of a time zone change on the community's economy, DOT requests comment on the community's economy and information on whether Perry County has entered into economic partnerships with Daviess, Dubois, Knox, Martin, or Pike Counties or other Counties in southern Indiana and, if yes, the nature of these partnerships and how a time zone change would affect these partnerships.
With regard to schools, the 2005 Perry County Petition emphasized post-secondary education. While the 2005 Perry County Petition recognized that Perry County residents attend post-secondary schools in the Eastern and Central Time Zones, it noted that more Perry County residents go to the University of Southern Indiana in the Central Time Zone than any other school.
The 2007 Perry County Petition shifts the focus from post-secondary education to the high school level. It notes that there are no school districts in Perry County that are in more than one time zone, but indicates that the schools cross time zones to participate in sporting events. Exhibits 10 through 14 to the 2007 Perry County Petition provide information on the athletic conferences in southern Indiana, and the schedules for basketball, volleyball, football, cross country, baseball, and softball. The 2007 Perry County Petition asserts that playing games in different time zones “causes extreme complications with scheduling and arrival and departure times for the schools.”
DOT seeks comment on the information submitted by Perry County with regard to schooling, but has no specific request for additional data.
The 2005 Perry County Petition did not address recreation or whether County residents left the County to pursue recreational interests. The 2007 Perry County Petition, however, states “Perry County prides itself on its outdoor recreational activities including the vast amounts of Hoosier National Forest and ready access to the Ohio River for recreation such as boating, fishing and hunting.” The 2007 Perry County Petition also refers to recreational softball, baseball, and soccer leagues that could play later into the evening if the County were located in the Eastern Time Zone.
In order to assess the impact of a time zone change on recreation, DOT requests information on whether residents leave Perry County for recreation and the standard of time observed in the places where they go for this purpose.
With regard to health care, the 2005 Perry County Petition noted that Perry County is “home to a regional rural hospital.” It also noted that residents also “primarily travel to Evansville and Jasper, Indiana” to purchase health services. The 2007 Perry County Petition also notes the regional hospital and refers to a letter from Perry County Memorial Hospital that is “in favor of the Eastern Time Zone for the reasons set forth in the letter.” The letter states that the hospital conducts “a lot of business with our State Capitol in Indianapolis” and that “the large insurance companies” that it does business with are also located there. While the letter provides business reasons for an Eastern Time Zone preference, it does not address the impact of the current time zone on Perry County residents and whether they are referred to health care providers in other time zones.
In order to assess the impact of a time zone change on health care, DOT requests comments on this issue and information on the number of patients referred from Perry County to health care providers in Evansville, Jasper, Indianapolis, and Louisville.
Neither the 2005 Perry County Petition nor the 2007 Perry County Petition addressed religious worship and DOT has no additional questions concerning this issue.
In the original rulemaking proceeding to change time zone boundaries from the Eastern Time Zone to the Central Time Zone, petitioning counties and commenters advocated for a move by referring to their ties to other Indiana counties currently in the Central Time Zone. DOT carefully reviewed this data and utilized it in reaching its decision. DOT recognizes the importance of regional connections and the benefits of similar time zones and regional ties among counties. As described in DOT's January 2006 Final Rule's summary of the hearings and comments to the docket, the Southwestern Counties have strong regional ties to each other and Central Time Zone Counties. DOT stated, “While Daviess, Dubois, Knox, Martin, and Perry border other Indiana counties in the Eastern Time Zone, their ties to those counties are not as strong as they are to each other and to other counties to their south, which are currently in the Central Time Zone. Along with Pike, these counties are located in the same workforce, commerce, transportation, and education regions designated by Indiana. Remaining in the same time zone and maintaining their regional ties better position counties to realize advantages in economic, cultural, social, and civic activities, thereby serving the convenience of commerce.”
The 2007 Perry County Petition addresses regional connections by noting that at DOT's hearing on time zones in November 2005, “Perry County representatives stated that one of the reasons for the requested change was the fact that Dubois County was also petitioning to be placed in the Central Time Zone.” It also notes that five other counties in the area petitioned for a time zone change.
DOT seeks comment on the regional connectivity of Perry County with other counties in southern Indiana, including those that have and have not petitioned for a time zone change and how a time zone change would affect regional connections.
To aid us in our consideration of whether a time zone change would be for the convenience of commerce, we ask for comments on the impact on commerce of a change in the time zone and whether a new time zone would improve the convenience of commerce. The comments should address the impact on such things as economic, cultural, social, and civic activities and how time zone changes affect businesses, communication, transportation, and education. The comments should be as detailed as possible, providing the basis of the information including factual data or surveys.
It is important to resolve this rulemaking expeditiously so that we can provide ample notice if a change to the Petitioning Counties' and Perry County's time zone boundaries is adopted. Nevertheless, we are extending the time for public comments to August 31, 2007. We expect that the comment period is adequate time to submit the necessary data, which is based on currently available information.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues this proposed rule to require all vessels fishing pursuant to the harvest guidelines, quotas, and other management measures governing the open access groundfish fishery, and all trawl vessels to provide declaration reports and to activate and use a vessel monitoring system (VMS) transceiver while fishing off the coasts of Washington, Oregon and California. NMFS has implemented a series of large-scale geographically-defined closed areas intended to: Minimize the bycatch of overfished groundfish species, minimize the bycatch of protected salmon species, and protect Essential Fish Habitat (EFH) from harm through contact with fishing gear. This action is intended to improve the monitoring of compliance with those closed areas through regular VMS transmissions of vessel locations for those vessel subject to groundfish closed area restrictions.
Comments must be received by September 7, 2007.
You may submit comments, identified by RIN 0648-AU08 by any of the following methods:
Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from the Pacific
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS Northest Region and by e-mail to
Becky Renko, phone: 206-526-6110; fax: 206-526-6736; or e-mail:
This proposed rule is accessible via the Internet at the Office of the Federal Register's Web site at
The Federal groundfish fishery off the Washington, Oregon, and California coasts is managed pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Pacific Coast Groundfish FMP. The FMP was developed by the Council. Regulations implementing the FMP appear at 50 CFR part 660 subpart G.
A VMS transceiver is an electronic device that is installed on a vessel to monitor the vessel's position in relation to geographically defined areas. VMS transceivers use Global Positioning System (GPS) satellites to determine the vessel's position and then transmit that position to a communications satellite. From the communications satellite, the vessel's position is transmitted to a land-earth station operated by a communications service company. From the land-earth station, the position is transmitted to the NMFS Office for Law Enforcement (OLE) processing center where the information is validated and analyzed before being disseminated for surveillance, enforcement, and fisheries management purposes.
The VMS transceiver documents a vessel's position at a specific point in time. The frequency with which position reports are transmitted depends on the defined need of the monitoring program. Position transmissions can be made on a predetermined schedule, such as hourly, or upon request from the OLE processing center. Position reports on at least an hourly basis are currently required in the Pacific Coast groundfish fishery. A vessel operator is unable to alter the VMS transmission signal or the time of transmission. In most cases, the vessel operator is unaware of exactly when the VMS unit is transmitting. VMS transceivers are designed to be tamper resistant.
To assure compatibility with the OLE national monitoring center, NMFS requires that VMS systems meet defined standards (58 FR 49285, September 23, 1993; 59 FR 151180, March 31, 1994; 70 FR 61941, October 27, 2005) while recognizing the need to promulgate regulations and approve systems on a fishery-by-fishery basis. VMS transceiver units approved by NMFS are referred to as type-approved models. All type-approved models must have basic features identified and endorsed by NMFS; however, additional features may be added to better meet the needs of a particular fishery or a particular vessel owner. On November 17, 2003 (68 FR 64860), NMFS published a notice identifying VMS transceiver units and communication service providers that are type-approved for the Pacific Coast groundfish fishery. In the future, new transceiver units and communication service providers may be added to the type-approved list. Similarly, outdated units may be removed. Any such changes to the list of type-approved transceiver units and communication service providers will be announced in the
Information collected under a VMS program is subject to the confidentiality provisions of Section 402 of the Magnuson-Stevens Act, 16 U.S.C. 1881a(b), and implementing regulations at 50 CFR part 600, subpart E. These authorities specify who may access and use the information and for what purposes.
Large-scale depth-based management areas, referred to as groundfish conservation areas (GCAs), are used to prohibit or restrict commercial and recreational groundfish fishing. The Rockfish Conservation Areas (RCAs) are a sub-group of the GCAs that were specifically designed to reduce the catch of overfished rockfish species at times and depths where they are most abundant. The boundaries used to define the RCAs are complex. The boundaries of RCAs are straight lines connecting hundreds of points of latitude and longitude that approximate fathom curves for depth ranges relating to where overfished rockfish species are commonly found. Each RCA is gear specific, so that groundfish fishing (either directed or incidental) with gears that tend to catch particular species is restricted or prohibited in areas where the overfished species are most vulnerable. The RCAs are vast, cover much of the continental shelf, and extend along the entire West Coast from Canada to Mexico.
Deep-water fisheries on the continental slope and nearshore fisheries have been permitted in areas seaward or shoreward of the RCAs. Vessels intending to fish in the deep-water slope fisheries seaward of the westernmost boundary of an RCA are allowed to transit through the RCAs. Target fisheries with measurably low catch rates of overfished species, such as midwater trawling for pelagic species, and shrimp trawling with finfish excluders, have been allowed to occur within the RCAs. Various state-managed fisheries where groundfish are incidentally taken also occur in the RCAs.
Traditional enforcement methods (aerial surveillance, boarding at sea via patrol boats, landing inspections and documentary investigation) are not as effective as VMS when the closed areas are large-scale and the lines defining the areas are irregular. Furthermore, when management measures allow some gear types and target fishing in all or a portion of the conservation area, while other fishing activities are prohibited, it is difficult and costly to effectively enforce closures using traditional methods alone. Scarce state and Federal resources also limit the use of traditional enforcement methods.
At its November 2002 meeting, the Council recommended that NMFS implement a VMS pilot program for monitoring compliance with GCA and RCA restrictions and to ensure the integrity of the depth-based management measures. NMFS prepared proposed and final rules that required all vessels registered to Pacific Coast groundfish fishery limited entry permits to carry and use a basic VMS transceiver unit (capable of one-way communications) while fishing off the coasts of Washington, Oregon and California (68 FR 27972, May 22,2003; 68 FR 62374, November 4, 2003). The VMS rule also required all limited entry vessels and any other commercial or tribal vessel using trawl gear, (including exempted gear used to take pink shrimp,
The Council's Ad Hoc VMS Committee, which is comprised of state, Federal and industry representatives, held a public meeting in October 2003 to consider expansion of the VMS program beyond the limited entry fisheries. The committee determined that commercial vessels that fish in the EEZ and that land groundfish should be considered for the next phase of the VMS program. The committee identified criteria for prioritizing expansion of the VMS program. Although the charter and private sectors of the recreational fishery were considered, the committee determined that an area-by-area evaluation of the groundfish impacts by the recreational participants was necessary before a final committee recommendation could be made. The Council considered the Ad Hoc VMS Committee's recommendations for expanding the VMS program at its November 2003 meeting, but determined that further information on the progress of the VMS pilot program was first needed. Reports on the VMS pilot program were provided by OLE at subsequent Council meetings.
At the Council's September 2004 meeting, NMFS presented a draft EA that analyzed five VMS coverage alternatives for the open access fishery. These alternatives were based on the Ad Hoc VMS Committee's October 2003 recommendations to the Council. The Council reviewed the alternatives, considered input from its advisory bodies, and listened to public testimony, before recommending a revised range of eight alternatives for further analysis. The Council also recommended an October 1, 2005 implementation date for the expanded VMS program. To allow time for the affected public to review the alternatives, the Council chose to delay its decision on expanding the VMS program until its April 2005 Council meeting.
In October 2004, the Ad Hoc VMS Committee held a public meeting to review the EA and the eight alternatives recommended for analysis by the Council. At the request of the Ad Hoc VMS Committee, an additional alternative was added to the analysis.
Between January 10, 2005, and March 5, 2005, NMFS held public meetings in eight fishing communities where open access groundfish landings have been relatively high from year to year. The purpose of the public meetings was to provide the interested public with information on the type-approved VMS systems and the alternatives that were being considered for expansion of the VMS program into the open access groundfish fisheries.
At the Council's April 2005 meeting, NMFS presented a revised draft EA that analyzed nine VMS coverage alternatives for the open access fishery. The Council reviewed the alternatives, considered input from its advisory bodies, and listened to public testimony, before recommending that further analysis be conducted. The Council specifically asked that NMFS examine thresholds for identifying vessels that land insignificant amounts of groundfish and low impact fisheries that could be considered as exceptions to the VMS requirement.
At the Council's June 2005 meeting, a preferred alternative for the “Essential Fish Habitat Designation and Minimization of Adverse Impacts Draft Environmental Impact Statement (EIS)” was recommended by the Council. The Council's preferred alternative for the EFH action included a recommendation that the VMS analysis be expanded to include an alternative that would require the use of VMS on all bottom trawl vessels.
In September 2005, the Ad Hoc VMS Committee held a public meeting where the proposed alternatives for expanding VMS coverage were reviewed. At the Council's November 2005 meeting, NMFS presented a revised draft EA that analyzed all thirteen VMS coverage alternatives. The Council reviewed the alternatives, considered input from its advisory bodies, and listened to public testimony, before recommending that VMS transceiver units and declaration reports be required for all open access vessels: that are used to take and retain groundfish in the EEZ, that possess groundfish while operating in the EEZ (including transiting) or that land groundfish taken in the EEZ. To help enforce the proposed EFH protection measures, the Council also recommended that VMS transceiver units be required on all vessels using trawl gear in the EEZ including non-groundfish trawl gear, whether or not groundfish is retained. The Council recommended a January 1, 2007 effective date for the expanded VMS program.
The Magnuson-Stevens Act mandates that the FMP contain measures to minimize, to the extent practicable, adverse effects from fishing on EFH. The EFH guidelines establish that Councils must act to minimize adverse effects to the extent practicable from fishing when such effects are more than minimal and not temporary in nature (50 CFR 600.815). Adverse effect means any impact that reduces the quality and/or quantity of EFH; and may include direct or indirect physical, chemical, or biological alterations of the waters or substrate and loss of, or injury to, benthic organisms, prey species and their habitat, and other ecosystem components.
NMFS prepared an EIS for Amendment 19 to the FMP that examined if and where adverse effects to EFH have occurred or are occurring. NMFS use of precautionary action as the basis for the management measures has a solid basis in the best available information. It is based on the concept of acting to conserve the resource in the face of a lack of specific information. NMFS has information showing adverse impacts from fishing on habitat, but does not have information to allow specific determinations regarding the effect on groundfish EFH. The available information does give NMFS reason to conclude that there may be adverse impacts on EFH, and the management measures are necessary and appropriate to minimize these potential adverse impacts. The measures are practicable because they do not cause a significant burden on the fishing industry since they close areas not currently fished and other measures would limit gear usage in certain areas, displacing less then 10% of the fleet. On May 11, 2006, NMFS issued management measures, including EFH conservation areas where specific fishing activity is prohibited or restricted, to protect EFH from potential adverse effects of fishing (71 FR 27408).
In the EFH EIS, NMFS and the Council considered fishing gear restrictions and area closures as the primary tools for minimizing adverse effects to EFH. These measures directly control where impacts may occur and the type of impact, based on gear type, that would be allowed. Gear types were ranked for their potential to have adverse effects in the following order: (1) Bottom-tending mobile gear types (e.g. trawl and dredge gear); and (2) other gears that contact the bottom.
The Council has identified discrete areas that are closed to fishing with specified gear types. These ecologically
This proposed rule would implement revisions to fishery-specific regulations at § 660.381 (limited entry trawl fishery), § 660.382 (limited entry fixed gear fishery), and § 660.383 (open access fishery) that list the EFH closed areas that apply to participants in each fishery. Listing EFH closed areas in these sections does not alter the EFH closed area regulations or application to these fisheries. Rather, it ensures that each of these sections of the regulations contain all of the closed area management measures for the fishery specified. EFH closed areas are currently listed only in the prohibitions section at § 660.306. These changes are primarily intended to make the Federal groundfish regulations more clear for the fishing public.
VMS is used to determine a vessel's position, while declaration reports are used to identify the fisher's intent to use the vessel to participate in a particular fishery with a specific gear. Because GCA and EFH area restrictions are specific to the gear type and target fisheries, declaration reports are needed to adequately assess the vessel's activity in relation to the area restrictions.
Declaration reports are submitted to NMFS OLE by telephone and are valid until revised by the vessel operator. Vessel operators making declaration reports receive a confirmation number that verifies that NMFS received the report. After a vessel has made a declaration report to NMFS and has been confirmed for a specific gear category, it cannot fish with any gear other than a gear type that has been declared for the vessel. If a vessel operator intends to use the vessel to fish in a different fishing category, a new declaration report must be submitted to revise the old declaration before the vessel leaves port.
Target fisheries with low catch rates of overfished species, such as midwater trawling for whiting and shrimp trawling with finfish excluders, have been allowed to occur in the RCAs, as have various state-managed fisheries where groundfish are taken incidentally and landed in the open access fishery. Current declaration reporting requirements require a report to be sent prior to a trip in which a vessel is used to legally fish in an RCA or Cowcod Conservation Area (CCA) and include provisions to cancel a declaration report when the vessel discontinues fishing within the RCA. The existing declaration requirements for limited entry (trawl and fixed gear), tribal, and open access trawl vessels are being revised and expanded by this action.
The proposed action would require all vessels with VMS to have a valid declaration report on file with NMFS at all times regardless of where the vessel is fishing. Declaration reports must be sent to NMFS prior to leaving port on the first trip of the fishing year and the declaration must be revised before each subsequent trip in which a different gear type is used. Vessels using non-trawl gear may declare more than one gear category. However, a non-trawl vessel may not fish within a groundfish conservation area if the use of any of the declared gears is prohibited or restricted within that conservation area. For example: a vessel that declares open access Dungeness crab trap or pot gear and fishes in the non-trawl RCA may not also declare open access longline gear for groundfish for the same trip. Vessels using groundfish trawl (the three trawl declaration categories are limited entry bottom trawl, not including demersal trawl, limited entry midwater trawl, and demersal trawl) or non-groundfish trawl gear may only declare one gear category and may not declare trawl and non-trawl gears for the same trip. The declaration reporting requirements for tribal vessels are unchanged.
The change to declaration reporting requirements is needed to provide adequate monitoring of fishing activity in relation to newly defined EFH areas. This change is expected to standardize and simplify the reporting requirements for all sectors.
The proposed action is to require all open access vessels to have a type-approved VMS transceiver unit that is properly activated and used from the time a vessel leaves port on a trip in which: groundfish is taken and retained in the EEZ; groundfish is possessed while operating in the EEZ (including transiting); or groundfish taken in the EEZ is landed. In addition, the proposed action requires any vessel fishing in the EEZ with non-groundfish trawl gear to have a type-approved VMS transceiver unit properly installed and activated prior to leaving port. Once the VMS unit is activated, it must remain on throughout the remainder of the fishing year, unless such vessel is granted an exemption to the requirements for continuous operation.
Under the proposed action, more than 1,600 vessels could be required to operate a type-approved VMS transceiver unit while fishing off the states of Washington, Oregon and California. The estimated per vessel annual costs of VMS ranges from $1,315-$3,433 ($4,733 if a personal computer is purchased to support expanded functions) in year one, and $502-$1,515 in subsequent years. These values include costs associated with the purchase of a transceiver unit, installation, transmission fees, declaration reports, and future replacement of the unit (the cost of the unit divided by the expected service life).
The purchase and installation of the VMS transceiver unit will be the responsibility of the vessel owners. The unit cost, physical size, available features, transmission fees, and service packages vary between the different type-approved VMS transceiver units. Vessel owners may choose the type-approved unit that best fits their needs. Self installations are expected to take less than 4 hours. However, some vessel owners may choose professional installations, which cost approximately $200 or may be included in the unit cost. Prior to fishing, the vessel owner will be required to fax an activation report to NMFS OLE to verify that the unit was installed correctly and has been activated.
The VMS unit is required to be operating continuously until the end of the fishing year, regardless of the fishery or fisheries in which the vessel participates. Exemption reports are available to allow flexibility to the industry participants while providing NMFS OLE with the information needed to determine why a position report is not being received from the vessel. During the development of the expanded VMS program additional exemptions were considered for: vessels that transfer the limited entry permit from the vessel and do not engage in any fishing off the West Coast for the remainder of the year, vessels that depart the open access fishery for an extended period after the end of the fishing year, and for vessels that have had an emergency situation that resulted in vessel damage such as fire, flooding or other extensive physical damage that would require the VMS or power source to be disconnected.
To effectively merge the new open access VMS program with the existing limited entry VMS program, NMFS
The Council recommended that NMFS fully fund the VMS monitoring program. However, the availability of Federal funding for purchasing, installing, or maintaining VMS transceiver units, or for funding data transmission is not known at this time. Due to the critical need to monitor the integrity of EFH conservation areas, and RCAs and CCAs that reduce the catch of overfished stocks, NMFS believes it is necessary to proceed with this proposed rulemaking. It is necessary, therefore to require fishery participants to bear the cost of purchasing, installing, and maintaining VMS transceiver units, hourly VMS data transmissions, and reporting costs associated with installation and declaration requirements. Federal funds have been identified for VMS reimbursements in 2007. The availability of these funds for reimbursement for the cost of purchasing a VMS unit for open access vessels is not guaranteed, but are anticipated to be available on a first-come first-served basis.
RCAs, CCAs and EFH conservation areas are specific to the type of fishing gear used on the vessel. Groundfish fishing (either directed or incidental) with trawl gear is restricted or prohibited within the trawl RCA boundaries, while groundfish fishing with non-trawl gear is restricted or prohibited within the non-trawl RCA boundaries. There are two types of EFH conservation areas: areas where bottom trawling is prohibited, and areas where bottom-contacting gears are prohibited.
Vessels that are required to have VMS will continue to be allowed to transit through the RCAs, CCAs and EFH conservation areas; however, fishing gear must be stowed during transit unless otherwise specified. With the exception of vessels using trawl gear to fish for pink shrimp, limited entry trawl and non-groundfish trawl vessels are currently required to have their gear properly stowed while transiting RCAs. Transiting corridors with gear stowage requirements are currently defined for the CCAs. This action proposes gear stowage requirements for non-trawl vessels transiting RCAs, CCAs, and EFH conservation areas.
Under existing regulations, limited entry trawl and non-trawl vessels with VMS requirements are prohibited from any activity other than continuous transit within the RCAs or CCAs for their gear. The only allowance for these vessels to operate within the RCAs or CCAs is when they have declared a gear type that is permitted to be used within the RCAs or CCAs and all fishing on that trip is consistent with the RCA or CCA requirements. With the expansion of VMS, open access vessels that are required to have VMS will also be prohibited from any activity other than continuous transit within the RCAs for their declared gear. However, if a vessel has a valid declaration for a gear that is allowed to be used in a fishery within the RCA and all fishing on the trip is consistent with the RCA or CCA restrictions, the vessels may legally operate within the RCAs or CCAs. For example, if a vessel declared and used open access line gear for groundfish at the beginning of the year then revised the declaration to open access salmon troll gear, it could operate within the RCAs as a salmon troll vessel providing all activities on that trip were consistent with the RCA restrictions.
This proposed rule would make the following modifications to Federal regulations: § 660.306(i) would be revised to correct current references in paragraphs (7) and (8) so that observer program regulations are correctly referenced as being in § 660.314, not § 660.612; the definition of the term “Closure” would be revised to also include the word “Closed;” a new definition for the term “Conservation area” would be added and would be defined as including both GCAs and EFH closed areas, without changing the definitions for those areas; and the definition for “Trawl gear” would be revised so that it includes the definition language from § 600.10, plus makes a distinction between groundfish trawl gear and non-groundfish trawl gear. These proposed changes are non-substantive re-arrangements of currently effective regulatory text. EFH closed areas are currently listed only in the prohibitions section at § 660.306. The addition of EFH language to sections § 660.381-383 does not change the effects of EFH closed area regulations and make no substantive changes to the regulations at 50 CFR 660; however, adding this language to the lists of closed areas that apply to each gear type in § 660.381-383 does make the Federal groundfish regulations more clear for the fishing public. These changes are primarily intended to make the Federal groundfish regulations more clear for the fishing public.
NMFS has determined that this proposed rule is consistent with the FMP and has preliminarily determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An 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
The proposed rule would require all commercial fishing vessels not registered to a limited entry groundfish permit that take and retain or possess groundfish in the EEZ (including transiting), or that land groundfish taken in the EEZ and all vessels using non-groundfish trawl gear to fish in the EEZ to have and use VMS. The proposed action is projected to affect approximately 1,610 vessels, including: 322 vessels using longline gear (282 directed groundfish, 38 Pacific halibut, and 2 CA halibut); 193 vessels using pot gear (145 directed groundfish, 6 prawn, 21 Dungeness crab and 21 CA sheephead); 131 vessels using non-groundfish trawl gear (23 ridgeback prawn, 14 sea cucumber, and 40 CA halibut, and 54 pink shrimp vessels); 892 vessels using line gear (590
The VMS units that have been type-approved for this fishery range in cost and service features. This range allows the vessel owner flexibility in choosing the model that best fits the needs of their vessel. Vessels that have already purchased VMS transceiver units for other fisheries or for personal purposes have been given consideration. Vessels will be allowed to retain existing VMS transceivers provided they are on the list of type-approved models and have been upgraded to the level required for the fishery. Per vessel costs for a transceiver unit with installation are $1,200-$2,700 ($3,800 with a computer that meets the minimum specifications) in Year 1, and $250-$625 in subsequent years. Annual operating cost to harvesters include: maintenance $60-$160, and transmission fees $192-$730. Estimated purchase cost of VMS services to the fishing industry if all vessels remain in the fishery is $2,241,120-$7,293,300 in year 1, and $309,120-$1,175,300 in subsequent years. The added cost of VMS may result in vessels, likely those vessels with the lowest ex-vessel revenue from groundfish, choosing to not retain groundfish to avoid VMS requirements. The analysis assumes that vessels will pay for VMS. However, Federal funds have been identified for VMS reimbursements in 2007. The availability of these funds for reimbursement for the cost of purchasing a VMS unit for open access vessels is not guaranteed, but are anticipated to be available on a first-come first-served basis.
The benefits of VMS to the fishery participants include the potential for future increases in groundfish catch because the likelihood of RCA integrity being maintained is increased. This would result in greater stability in the fishery and be of greatest benefit to fishers with a high degree of dependency on groundfish. VMS would allow for greater flexibility in the use of management rules, because accurate pot, longline, non-groundfish trawl, line and net gear fishing location data will be readily available for modeling total catch and making groundfish management decisions. VMS data could be used along with declaration reports, observer data, survey information, and fish ticket data to better refine estimates of total fishing mortality and reduce the uncertainty in managing the fishery inseason to stay within the harvest guidelines and OYs. For vessels that participate in the incidental open access fisheries, accurate VMS fishing location data may be beneficial to the non-groundfish target fisheries management. Because pink shrimp vessels are currently permitted to fish in the RCAs, there is no increased benefit to the pink shrimp fishery over status quo, but there is benefit to the groundfish fishers from the increased protection that this provision will provide to groundfish EFH.
Vessels required to carry VMS transceiver units will provide installation/activation reports, hourly position reports, exemption reports, and declaration reports. The installation and activation reports include contact information from open access vessels because there are no Federal permit requirements for open access fishery participants. Having contact information is necessary in the event that there are transmission problems, where NMFS will need to have ready access to contact information and installation information. The submission of declaration reports was initially proposed as per trip reports. Following consultation with fishery participants, it was determined that the needs of NMFS OLE and the United States Coast Guard (USCG) could be met with less frequently made declaration reports. Therefore, it was determined that a declaration report identifying the type of gear being used by a vessel would remain valid until revised by the vessel operator or an exemption report was sent. This results in a significant reduction in the number of reports.
Following consultation with fishery participants prior to implementation of the pilot VMS program in the limited entry fisheries, it was determined that some vessels may prefer to reduce the costs of reporting when leaving the EEZ off the coasts of Washington, Oregon, and California. Because a substantial number of permitted vessels also fish in waters off Alaska and in areas outside the EEZ, and because vessels are commonly pulled out of the water for extended periods, a VMS hourly report exemption option was added, which included an exemption report.
During the development of the expanded VMS program additional exemptions were considered and proposed for: vessels that transfer the limited entry permit from the vessel and do not engage in any fishing off the West Coast for the remainder of the year, vessels that depart the open access fishery for an extended period after the end of the fishing year, and for vessels that have had an emergency situation that resulted in vessel damage such as fire, flooding or other extensive physical damage that would require the VMS or power source to be disconnected. The exemption reports allow flexibility to the industry participants while providing NMFS OLE with the information needed to determine why a position report is not being received from the vessel.
Declaration reports have been required since January 1, 2004, for non-groundfish trawl vessels that are used to fish in any trawl RCA or the CCA. Requiring declaration reports for all fishing, not just fishing in any trawl RCA or the CCA, will be an additional burden for these vessels. Non-groundfish trawl gear includes vessels fishing for pink shrimp, spot and ridgeback prawns, California halibut and sea cucumber.
At the Council's June 2005 meeting, measures to protect groundfish EFH were considered, as mandated by the Magnuson-Stevens Act. Though the habitat protection measures have been developed as a separate action from the VMS program, monitoring measures such as VMS were considered as a tool for monitoring incursions into the many new habitat protection areas. As part of the habitat protection measures, the Council requested that VMS requirements for pink shrimp trawlers operating in the open access sector (those pink shrimp trawl vessels that are registered to limited entry permits are already required to have VMS) be included in the open access VMS analysis. Therefore, 4B was added, with the difference being the inclusion of all pink shrimp trawl vessels.
A range of 13 alternatives, discussed in sections 2.0 and 4.0 of the EA for this action, was considered. The alternatives ranged from Alternative 1, status quo which required declaration reports from open access non-groundfish trawl vessels that fish within a trawl RCA to Alternative 11, the preferred alternative which is described in this proposed rule. The coverage levels identified as Alternatives 2-4A and 5A were based on different combinations of the open access gear groups. In order of coverage priority, the open access sectors initially identified as needing VMS coverage were: longline, groundfish pot, trawl (excluding shrimp), and line (excluding salmon). Alternative 2 requires all vessels using longline gear to have and use a VMS transceiver. Each of the Alternatives 3, 4 and 5A built on the previous alternative by adding the next open access gear group in order of priority.
At its September 2004 meeting, the Council recommended that NMFS expand the range to eight alternatives
At the Council's April 2005 meeting, the Council specifically asked that NMFS examine new alternatives with thresholds for identifying vessels that land insignificant amounts of groundfish and low impact fisheries that could be considered as exceptions to the VMS requirement. In addition, concerns were expressed by the Council about of the cost of a VMS system to maintain the integrity of the RCA management regime for the open access fisheries being borne by industry. As a result of Council discussion, NMFS developed three new alternatives, identified as Alternatives 8-10.
Alternative 8 was intended to exclude low impact OA fisheries from the VMS requirements. These low impact target fisheries and gear included: Dungeness crab pot, spot prawn pot, sea cucumber trawl, ridgeback prawn trawl, HMS line, and California sheephead pot. Alternative 9 was intended to identify vessels that directly targeted open access species. Vessels that land more than 500 lb of groundfish in a fishing year would have been included in the VMS and declaration requirements. Under Alternative 10 RCA management areas defined at 660.383(c) would be discontinued and trip limits and seasons adjusted accordingly. No Federal rules have been identified that duplicate, overlap, or conflict with this action.
This proposed rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0478. Public reporting burden for this collection of information is estimated to average as follows: 4 minutes per response for each declaration report at an estimated time burden on the public of 2,848 hours annually for all 2,034 respondents; At 4 hours per response for installation (installation occurs one time every four year because VMS units have a 4 year service life) of the VMS transceiver unit and 5 minutes per response to send the installation/activation report with an estimated time burden to the public from all 2,034 respondents of 2,034 hours for installation of the VMS transceiver units and 41 hours annually for sending the installation/activation report; At 5 seconds per response for each hourly position report that is sent automatically by the VMS transceiver unit, the expected time burden on the public from all 2,034 respondents would be 24,747 hours annually; and at 4 minutes per response for each exemption report the expected time burden on the public from 500 respondents would be 64 hours annually. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Send comments on these or any other aspects of the collection of information to NMFS at the
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.
NMFS reinitiated a formal ESA section 7 consultation in 2005 for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999, Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000 fish Chinook incidental take threshold was exceeded, triggering reinitiation. Also in 2005, new West Coast Groundfish Observer Program data became available, allowing NMFS to complete an analysis of salmon take in the bottom trawl fishery.
NMFS prepared a Supplemental Biological Opinion dated March 11, 2006, which addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 over the last 15 years and has only occasionally exceeded the reinitiation trigger of 11,000. Since 1999, annual Chinook bycatch has averaged about 8,450. The Chinook Evolutionarily Significant Units (ESUs) most likely affected by the whiting fishery have generally improved in status since the 1999 ESA section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery. For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take
Lower Columbia River coho (70 FR 37160, June 28, 2005) and the Southern Distinct Population Segment of green sturgeon (71 FR 17757, April 7, 2006) were recently listed as threatened under the ESA. As a consequence, NMFS has reinitiated its Section 7 consultation on the Council's Groundfish FMP. After reviewing the available information, NMFS concluded that, in keeping with section 7(a)(2) of the ESA, allowing the fishery to continue under this action would not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.
Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. Pursuant to Executive Order 13175, this action was developed through the Council process with meaningful collaboration with tribal officials from the area covered by the FMP. The tribal representative on the Council did not make a motion on this action for tribal fisheries because this action does not apply to tribal fishers.
Fisheries, Fishing, Indian fisheries.
For the reasons set out in the preamble, 50 CFR Part 660 is proposed to be amended as follows:
1. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
2. In § 660.302, the definitions for “Closure”, “Exempted gear” and “Groundfish Conservation Area or GCA” are removed, the definitions for “Fishing gear” paragraph (11) introductory text, “Open access fishery” and “Open access gear” are revised, and the definitions for “Closure or closed”, “Conservation area(s)” and “Continuous transiting or transit through” are added to read as follows:
(1)
(2)
(11)
(1) Longline or trap (or pot) gear fished by a vessel that has a limited entry permit affixed with a gear endorsement for that gear.
(2) Groundfish trawl.
3. In § 660.303, paragraph (d) is revised to read as follows:
(d)
(2)
(3)
(4)
(5) D
(ii) The vessel operator must send a new declaration report before leaving port on a trip in which a gear type that is different from the gear type most recently declared for the vessel will be used. A declaration report will be valid until another declaration report revising the existing gear declaration is received by NMFS OLE.
(iii) During the period of time that a vessel has a valid declaration report on file with NMFS OLE, it cannot fish with a gear other than a gear type declared by the vessel.
(iv) Declaration reports will include: the vessel name and/or identification number, and gear type (as defined in paragraph(d)(5)(iv)(A) of this section). Upon receipt of a declaration report, NMFS will provide a confirmation code or receipt to confirm that a valid declaration report was received for the vessel. Retention of the confirmation code or receipt to verify that a valid declaration report was filed and the declaration requirement was met is the responsibility of the vessel owner or operator. Vessels using non-trawl gear may declare more than one gear type, however, vessels using trawl gear may only declare one of the trawl gear types listed in paragraph (d)(5)(iv)(A) of this section on any trip and may not declare non-trawl gear on the same trip in which trawl gear is declared.
(A) One of the following gear types must be declared:
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B) [Reserved]
4. In § 660.306, paragraphs (h)(4) through (h)(10) are redesignated as (h)(5) through (h)(11), paragraphs (h)(1) through (h)(3) are revised, and a new paragraph (h)(4) is added, paragraphs (i)(7), (i)(8), (j)(1), and (j)(6) are revised, and (j)(7) and (j)(8) are added to read as follows:
(h) * * *
(1) Operate any vessel registered to a limited entry permit with a trawl endorsement and trawl gear on board in an applicable GCA (as defined at § 660.381(d)), except for purposes of continuous transiting, with all groundfish trawl gear stowed in accordance with § 660.381(d), or except as authorized in the groundfish management measures published at § 660.381.
(2) Operate any vessel registered to a limited entry permit with a longline or trap (pot) endorsement and longline and/or trap gear onboard in an applicable GCA (as defined at § 660.382(c)), except for purposes of continuous transiting, with all groundfish longline and/or trap gear stowed in accordance with § 660.382(c) or except as authorized in the groundfish management measures at § 660.382.
(3) Operate any vessel with non-groundfish trawl gear onboard in any applicable GCA (as defined at § 660.383(c)) except for purposes of continuous transiting, with all trawl gear stowed in accordance with § 660.383(c), or except as authorized in the groundfish management measures published at § 660.383.
(4) Operate any vessel in an applicable GCA (as defined at § 660.383(c)) that has non-trawl gear onboard and is not registered to a limited entry permit on a trip in which the vessel is used to take and retain or possess groundfish in the EEZ, possess or land groundfish taken in the EEZ, except for purposes of continuous transiting, with all groundfish non-trawl gear stowed in accordance with § 660.383(c), or except as authorized in the groundfish management measures published at § 660.383.
(i) * * *
(7) Fail to provide departure or cease fishing reports specified at § 660.314(c)(2).
(8) Fail to meet the vessel responsibilities specified at § 660.314(d).
(j) * * *
(1) Use any vessel required to operate a VMS unit under § 660.312(b) unless that vessel carries a NMFS OLE type-approved mobile transceiver unit and complies with all the requirements described at § 660.312.
(6) Register the same VMS transceiver unit to more than one vessel at the same time.
(7) Falsify any VMS activation report or VMS exemption report that is authorized or required, as specified at § 660.312.
(8) Falsify any declaration report that is required, as specified at § 660.303.
5. In § 660.312, paragraphs (b), (d)(1), (d)(2) introductory text, (d)(2)(ii), (d)(3), (d)(4) introductory text, and (d)(4)(iii) and (iv) are revised, and paragraphs (d)(4)(v) through (vii) are added to read as follows:
(b)
(1) Any vessel registered for use with a limited entry permit that fishes in state or Federal waters seaward of the baseline from which the territorial sea is measured off the States of Washington, Oregon or California (0-200 nm offshore).
(2) Any vessel that uses non-groundfish trawl gear to fish in the EEZ.
(3) Any vessel that uses open access gear to take and retain, or possess groundfish in the EEZ or land groundfish taken in the EEZ.
(d) * * *
(1) Obtain a NMFS OLE type-approved mobile transceiver unit and have it installed on board your vessel in accordance with the instructions provided by NMFS OLE. You may obtain a copy of the VMS installation and operation instructions from the NMFS OLE Northwest, VMS Program Manager upon request at 7600 Sand Point Way, NE., Seattle, WA 98115-6349, phone: (206) 526-6133.
(2) Activate the mobile transceiver unit, submit an activation report at least 72 hours prior to leaving port on a trip in which VMS is required, and receive confirmation from NMFS OLE that the VMS transmissions are being received before participating in a fishery requiring the VMS. Instructions for submitting an activation report may be obtained from the NMFS, Northwest OLE VMS Program Manager upon request at 7600 Sand Point Way, NE., Seattle, WA 98115-6349, phone: (206) 526-6133. An activation report must again be submitted to NMFS OLE following reinstallation of a mobile transceiver unit or change in service provider before the vessel may participate in a fishery requiring the VMS.
(ii)
(3)
(4)
(iii)
(iv)
(v)
(vi)
(vii)
6. In § 660.335, paragraph (f)(1) is revised to read as follows:
(f) * * *
(1) A permit owner may designate the vessel registration for a permit as “unidentified,” meaning that no vessel has been identified as registered for use with that permit. No vessel is authorized to use a permit with the vessel registration designated as “unidentified.” A vessel owner who removes a permit from his vessel and registers that permit as “unidentified” is not exempt from VMS requirements at § 660.312 unless specifically authorized by that section.
7. In § 660.381, paragraph (b)(4), (c)(4), (d) introductory text, (d)(4) and (d)(5) are revised to read as follows:
(b) * * *
(4)
(c) * * *
(4)
(i) The following restrictions apply to vessels operating north of 40°10′ N. lat.:
(A) A vessel may not have both groundfish trawl gear and non-groundfish trawl gear onboard simultaneously. A vessel may not have both bottom trawl gear and midwater trawl gear onboard simultaneously. A vessel may have more than one type of limited entry bottom trawl gear on board, either simultaneously or successively, during a cumulative limit period.
(B) If a vessel fishes exclusively with large or small footrope trawl gear during an entire cumulative limit period, the vessel is subject to the small or large footrope trawl gear cumulative limits and that vessel must fish seaward of the RCA during that limit period.
(C) If a vessel fishes exclusively with selective flatfish trawl gear during an entire cumulative limit period, then the vessel is subject to the selective flatfish trawl gear cumulative limits during that limit period, regardless of whether the vessel is fishing shoreward or seaward of the RCA.
(D) If more than one type of bottom trawl gear (selective flatfish, large footrope, or small footrope) is on board, either simultaneously or successively, at any time during a cumulative limit period, then the most restrictive cumulative limit associated with the bottom trawl gear on board during that cumulative limit period applies for the entire cumulative limit period, regardless of whether the vessel is fishing shoreward or seaward of the RCA.
(E) If a vessel fishes both north and south of 40°10′ N. lat. with any type of small footrope gear onboard the vessel at any time during the cumulative limit period, the most restrictive trip limit associated with the gear on board applies for that trip and will count toward the cumulative trip limit for that gear (See crossover provisions at § 660.370(h)(8).)
(F) Midwater trawl gear is allowed only for vessels participating in the primary whiting season.
(ii) The following restrictions apply to vessels operating south of 40°10′ N. lat.:
(A) A vessel may not have both groundfish trawl gear and non-groundfish trawl gear onboard simultaneously. A vessel may not have both bottom trawl gear and midwater trawl gear onboard simultaneously. A vessel may not have small footrope trawl gear and any other type of bottom trawl gear onboard simultaneously.
(B) For vessels using more than one type of trawl gear during a cumulative limit period, limits are additive up to the largest limit for the type of gear used during that period. (Example: If a vessel harvests 300 lb (136 kg) of chilipepper rockfish with small footrope gear, it may harvest up to 11,700 lb (5,209 kg) of chilipepper rockfish with large footrope gear during July and August 2007, because the largest cumulative limit for chilipepper rockfish during that period is 12,000 lb (5,443 kg) for large footrope gear.)
(C) If a vessel fishes both north and south of 40°10′ N. lat. with any type of small footrope gear onboard the vessel at any time during the cumulative limit period, the most restrictive trip limit associated with the gear on board applies for that trip and will count toward the cumulative trip limit for that gear (See crossover provisions at § 660.370(h)(8).)
(d)
(4)
(i) It is unlawful to operate a vessel with trawl gear onboard within the trawl RCA, except for the purpose of continuous transiting, or when the use of trawl gear is authorized in this section. It is lawful to fish with groundfish trawl gear within the trawl RCA only under the following conditions: vessels fishing with mid-water trawl gear on Pacific whiting trips during the primary whiting season, provided a valid declaration report has been filed with NMFS OLE, as required at § 660.303(d); and vessels fishing with demersal seine gear between 38° N. lat. and 36° N. lat. shoreward of a boundary line approximating the 100 fm (183 m) depth contour as defined at § 660.393, provided a valid declaration report has been filed.
(ii) Trawl vessels may transit through an applicable GCA, with or without groundfish on board, provided all groundfish trawl gear is stowed either: below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all towing lines, so that it is rendered unusable for fishing; or remaining on deck uncovered if the trawl doors are hung from their stanchions and the net is disconnected from the doors. These restrictions do not apply to vessels fishing with midwater trawl gear for whiting during a primary season.
(iii) It is unlawful to take and retain, possess, or land groundfish taken with limited entry trawl gear within the trawl RCA, unless otherwise authorized in this section.
(iv) If a vessel fishes in the trawl RCA, it may not participate in any fishing on that trip that is prohibited within the trawl RCA. [For example, if a vessel participates in the pink shrimp fishery within the RCA, the vessel cannot on the same trip participate in the DTS fishery seaward of the RCA.] Nothing in these Federal regulations supercedes any state regulations that may prohibit trawling shoreward of the fishery management area (3-200 nm).
(5)
(i) The following EFHCAs apply to vessels operating within the West Coast EEZ with bottom trawl gear:
(A)
(B)
(C)
(D)
(ii)
8. In § 660.382, paragraph (c) introductory text, and paragraphs (c)(4)(i), (c)(4)(ii), (c)(5), and (c)(8) are revised to read as follows:
(c)
(4) * * *
(i) Fishing for “other flatfish” is permitted within the CCAs under the following conditions: when using no more than 12 hooks, “Number 2” or smaller, which measure no more than 11 mm (0.44 inches) point to shank, and up to two 1-lb (0.45-kg) weights per line; and provided a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE.
(ii) Fishing for rockfish and lingcod is permitted shoreward of the 20 fm (37 m) depth contour within the CCAs when trip limits authorize such fishing, and provided a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE.
(5)
(i) It is unlawful to operate a vessel with limited entry non-trawl gear in the non-trawl RCA, except for the purpose of continuous transit, or when the use of limited entry non-trawl gear is authorized in Part 660. It is unlawful to take and retain, possess, or land groundfish taken with limited entry non-trawl gear within the non-trawl RCA, unless otherwise authorized in Part 660.
(ii) Limited entry non-trawl vessels may transit through the non-trawl RCA, with or without groundfish on board, provided all groundfish non-trawl gear is stowed either: below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all lines, so that it is rendered unusable for fishing.
(iii) The non-trawl RCA restrictions in this section apply to vessels registered to fixed gear limited entry permits fishing for species other than groundfish with non-trawl gear on trips where groundfish species are retained. Unless otherwise authorized by Part 660, a vessel may not retain any groundfish taken on a fishing trip for species other than groundfish that occurs within the non-trawl RCA. If a vessel fishes in a non-groundfish fishery in the non-trawl RCA, it may not participate in any fishing for groundfish on that trip that is prohibited within the non-trawl RCA. [For example, if a vessel participates in the salmon troll fishery within the RCA, the vessel cannot on the same trip participate in the sablefish fishery outside of the RCA.]
(iv) It is lawful to fish within the non-trawl RCA with limited entry fixed gear only under the following conditions: when fishing for “other flatfish” off California (between 42° N. lat. south to the U.S./Mexico border) using no more than 12 hooks, “Number 2” or smaller, which measure no more than 11 mm (0.44 inches) point to shank, and up to two 1-lb (0.91 kg) weights per line when trip limits authorize such fishing, provided a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE.
(8)
9. In § 660.383, paragraphs (b)(1), (c) introductory text, (c)(5)(i), (c)(5)(ii), (c)(6), (c)(7), and (c)(10) are revised to read as follows:
(b) * * *
(1)
(c)
(5) * * *
(i) Fishing for “other flatfish” is permitted within the CCAs under the following conditions: when using no more than 12 hooks, “Number 2” or smaller, which measure no more than 11 mm (0.44 inches) point to shank, and up to two 1-lb (0.45-kg) weights per line; and provided a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE.
(ii) Fishing for rockfish and lingcod is permitted shoreward of the 20 fm (37 m) depth contour within the CCAs when trip limits authorize such fishing, and provided a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE.
(6)
(i) It is unlawful to operate a vessel in the non-trawl RCA that has non-trawl gear onboard and is not registered to a limited entry permit on a trip in which the vessel is used to take and retain or possess groundfish in the EEZ, or land groundfish taken in the EEZ, except for the purpose of continuous transiting, or when the use of non-trawl gear is authorized in part 660.
(ii) On any trip on which a groundfish species is taken with non-trawl open access gear and retained, the open access non-trawl vessel may transit through the non-trawl RCA only if all groundfish non-trawl gear is stowed either: below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all lines, so that it is rendered unusable for fishing.
(iii) The non-trawl RCA restrictions in this section apply to vessels taking and retaining or possessing groundfish in the EEZ, or landing groundfish taken in the EEZ. Unless otherwise authorized by Part 660, a vessel may not retain any groundfish taken on a fishing trip for species other than groundfish that occurs within the non-trawl RCA. If a vessel fishes in a non-groundfish fishery in the non-trawl RCA, it may not participate in any fishing for groundfish on that trip that is prohibited within the non-trawl RCA. [For example, if a vessel participates in the salmon troll fishery within the RCA, the vessel cannot on
(iv) Fishing for “other flatfish” off California (between 42° N. lat. south to the U.S./Mexico border) is permitted within the non-trawl RCA with fixed gear only under the following conditions: when using no more than 12 hooks, “Number 2” or smaller, which measure no more than 11 mm (0.44 inches) point to shank, and up to two 1-lb (0.91 kg) weights per line when trip limits authorize such fishing; and provided a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE.
(7)
(i) It is unlawful to operate in the non-groundfish trawl RCA with non-groundfish trawl gear onboard, except for the purpose of continuous transiting, or when the use of trawl gear is authorized in part 660. It is unlawful to take and retain, possess, or land groundfish taken with non-groundfish trawl gear within the non-trawl RCA, unless otherwise authorized in part 660.
(ii) Non-groundfish trawl vessels may transit through the non-groundfish trawl RCA, with or without groundfish on board, provided all non-groundfish trawl gear is stowed either: below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all towing lines, so that it is rendered unusable for fishing; or remaining on deck uncovered if the trawl doors are hung from their stanchions and the net is disconnected from the doors.
(iii) The non-groundfish trawl RCA restrictions in this section apply to vessels taking and retaining or possessing groundfish in the EEZ, or landing groundfish taken in the EEZ. Unless otherwise authorized by Part 660, it is unlawful for a vessel to retain any groundfish taken on a fishing trip for species other than groundfish that occurs within the non-groundfish trawl RCA. If a vessel fishes in a non-groundfish fishery in the non-groundfish trawl RCA, it may not participate in any fishing on that trip that is prohibited within the non-groundfish trawl RCA. [For example, if a vessel participates in the pink shrimp fishery within the RCA, the vessel cannot on the same trip participate in the DTS fishery seaward of the RCA.] Nothing in these Federal regulations supercedes any state regulations that may prohibit trawling shoreward of the fishery management area (3-200 nm).
(iv) It is lawful to fish with non-groundfish trawl gear within the non-groundfish trawl RCA only under the following conditions:
(A) Pink shrimp trawling is permitted in the non-groundfish trawl RCA when a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE. Groundfish caught with pink shrimp trawl gear may be retained anywhere in the EEZ and are subject to the limits in Table 5 (North) and Table 5 (South) of this subpart.
(B) When the shoreward line of the trawl RCA is shallower than 100 fm (183 m), vessels using ridgeback prawn trawl gear south of 34°27.00′ N. lat. may operate out to the 100 fm (183 m) boundary line specified at § 660.393 when a valid declaration report as required at § 660.303(d) has been filed with NMFS OLE. Groundfish caught with ridgeback prawn trawl gear are subject to the limits in Table 5 (North) and Table 5 (South) of this subpart.
(10)
(i) The following EFHCAs apply to vessels operating within the West Coast EEZ with bottom trawl gear:
(A)
(B)
(C)
(iv)
(v)
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for payment of indemnity for sheep, goats, and horses destroyed because of brucellosis.
We will consider all comments that we receive on or before October 9, 2007.
You may submit comments by either of the following methods:
•
•
For information on an information collection associated with regulations for the payment of indemnity for sheep, goats, and horses destroyed because of brucellosis, contact Dr. Debra Donch, Brucellosis Program Manager, Ruminant Health Programs, NCAHP, VS, APHIS, 4700 River Road, Unit 43, Riverdale, MD 20737; (301) 734-5952. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Brucellosis is a contagious disease caused by bacteria of the genus
The regulations in 9 CFR part 51 include an indemnity program for sheep, goats, and horses that must be destroyed because of brucellosis. This indemnity program, which is similar to our indemnity program for cattle and bison, is voluntary and was designed to give producers an incentive to cooperate and assist our ongoing program to eradicate brucellosis in the United States.
The indemnity program for the voluntary depopulation of herds of goats, flocks of sheep, and mixed herds of goats and sheep affected with brucellosis, and individual horses infected with brucellosis requires the use of a number of information collection activities, including the completion of indemnity claims, test records, and permits; the use of official seals and animal identification; and the submission of proof of destruction and requests for the extension of certain program-related deadlines.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, e.g., permitting electronic submission of responses.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with our regulations that govern the importation of nursery stock (plants and plant parts and products for propagation) into the United States.
We will consider all comments that we receive on or before October 9, 2007.
You may submit comments by either of the following methods:
•
•
For information regarding the nursery stock regulations, contact Ms. Vanessa P. Schreier, Assistant Director of Preclearance Programs, Quarantine Policy, Analysis and Support, PPQ, APHIS, 4700 River Road, Unit 60, Riverdale, MD 20737; (301) 734-8259. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS* Information Collection Coordinator, at (301) 734-7477.
Under the regulations, individuals who are involved in growing, exporting, and importing nursery stock must provide information to the Animal and Plant Health Inspection Service about the commodities they wish to bring into the United States. This information serves as the supporting documentation needed to issue required forms and documents, and is vital to help ensure that plant pests are not introduced into the United States.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection.
(1) Evaluate 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;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Office of the Under Secretary for Food Safety, Food Safety and Inspection Service, Department of Agriculture.
Notice of public meeting.
The Office of the Under Secretary for Food Safety, United States Department of Agriculture (USDA), and the Food and Drug Administration (FDA) are sponsoring a public meeting on September 6, 2007, to discuss the agenda items coming before the Seventh Session of the Codex
The public meeting is scheduled for Thursday, September 6, 2007, from 2 p.m. to 4 p.m.
The public meeting will be held in Room 0161 South Agriculture Building (Basement), 1400 Independence Avenue, SW., Washington, DC (please enter at Wing One). Documents related to the Seventh Session of the FBT will be accessible via the World Wide Web at the following address:
The Codex Alimentarius (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade.
The Codex
The following items on the agenda for the Seventh Session of the FBT will be discussed during the public meeting:
• Matters Referred to the Committee from Other Codex Bodies.
• Review of the Work by International Intergovernmental Organizations Related to Foods Derived from Biotechnology.
• Summary of the Report of the FAO/WHO Expert. Consultation on the Safety Assessment of Foods Derived from Recombinant-DNA Animals.
• Proposed Draft Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Animals.
• Proposed Draft Annex to the Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants: Food Safety Assessment of Foods Derived from Recombinant-DNA plants Modified for Nutritional or Health Benefits.
• Proposed Draft Annex to the Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants with Low-level Presence of Recombinant-DNA Plant Material.
Each issue listed will be fully described in documents distributed, or to be distributed, by the Japanese Secretariat to the Meeting. Members of the public may access copies of these documents at
At the September 6, 2007, public meeting, draft U.S. positions on these agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the U.S. Delegate of the FBT, Dr. Eric Flamm, at
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at
Forest Service, USDA.
Revised Notice of Intent to Prepare an Environmental Impact Statement.
On May 3, 2007, the USDA Forest Service, Wallowa-Whitman National Forest, published a Notice of Intent in
Written comments concerning the proposed action should be received by November 16, 2007.
Cindy Whitlock, Interdisciplinary Team Leader, Wallowa-Whitman National Forest, La Grande Ranger District, 3502 Highway 30, LaGrande, OR, 97850, Phone: (541) 962-8501.
Forest Service, USDA.
Notice of meeting.
The Deschutes and Ochoco National Forests Resource Advisory Committee will meet in Redmond, Oregon. The purpose of the meeting is to review proposed projects and make recommendations under Title II of the Secure Rural Schools and Community Self-Determination Act of 2000.
The meeting will be held August 28, 2007 from 9 a.m. to 5 p.m. If the project selection process is not complete on August 28, the Committee will meet again on August 29, 2007, from 9 a.m. to 12 p.m.
The meeting will be held at the office of the Central Oregon Intergovernmental Council, 2363 SW. Glacier Place, Redmond, Oregon 97756. Send written comments to Jeff Walter, Designated Federal Official, for the Deschutes and Ochoco Resource Advisory Committee, c/o Forest Service, USDA, Ochoco National Forest, 3160 NE 3rd St., Prineville, OR 97754 or electronically to
Jeff Walter, Designated Federal Official, Ochoco National Forest, 541-416-6625.
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring Title II matters to the attention of the Committee may file written statements with the Committee staff before the meeting. A public input session will be provided and individuals who made written requests by June 29 will have the opportunity to address the committee at the session.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
In response to a request from Colorado's Secretary of State we are approving amendments to the debtor identification and signature requirements of the certified central filing system for Colorado to permit the conversion of all debtor social security and taxpayer identification numbers into approved unique identifiers; and the filing of effective financing statements and amendments that are authorized or authenticated without signatures. The proposed specific procedure whereby Colorado will automatically convert social security numbers and taxpayer identification numbers into ten number unique identifiers has been reviewed and determined to permit the numerical searching of master lists while providing protection against identity theft.
The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers the Clear Title program for the Secretary of Agriculture. The Clear Title program is authorized by Section 1324 of the Food Security Act of 1985, which requires that States implementing central filing system for notification of liens on farm products must have such systems certified by the Secretary of Agriculture.
A listing of the states with certified central filing systems is available through the Internet on the GIPSA Web site (
We originally certified the central filing system for Colorado on September 28, 1992. On March 30, 2007, Keith Whitelaw, Director, Business Division, Colorado Secretary of State's Office, requested the certification be amended to incorporate the use of an approved unique identifier other than a Social Security Number, in accordance with 2004 amendments to Section 1324 of the Food Security Act. On June 12, 2007, Mr. Whitelaw confirmed that Colorado's clear title forms, instructions and regulations had also been modified to indicate that signatures were optional when the filing of effective financing statements, and amendments thereto, is authorized or otherwise authenticated, in accordance with the 2002 amendments to Section 1324 of the Food Security Act.
This notice announces our approval of the amended certification for Colorado's central filing system. Details of the specific procedure by which Colorado will create approved unique identifiers are being provided by GIPSA to the Secretaries of State of other states with certified central filing systems. The statewide central filing system of Colorado is certified for all farm products produced in that state. Examples of farm products and possible entries for lien identification include: All field crops, all fruits, all livestock,
Barley, beefalo, broccoli, buffalo, cabbage, cantaloupe, carrots, cattle and calves, cauliflower, celery, cherries, chickens, corn, cotton (field or row crop), cucumbers;
Dry beans, ducks, eggplant, eggs, elk, emu, fish (specify), flax seed, fur-bearing animals (specify), geese, grapes, green beans, green peas;
Hay, hogs, honey, honeydew melon, horses, legumes, lettuce, llamas, milk, millet, mules, muskmelon;
Nectarines, oats, okra, onions, ostrich, other field crops (specify), other fruits (specify), other livestock (specify), other vegetables (specify);
Peaches, pears, pecans, peppers, pheasant, plums, popcorn, potatoes, pumpkins, quail, radishes, raspberries, rye;
Safflower, seed crops (specify), semen, sheep and lamb, silage, snap beans, sorghum grain, soybeans, squash, strawberries, sugar beets, sunflower seeds, sweet corn;
Tomatoes, trees (specify), triticale, turkeys, turnips, vetch, walnuts, watermelon, wheat, and wool.
7 U.S.C. 1631, 7 CFR 2.22(a)(3)(v) and 2.81(a)(5), and 9 CFR 205.101(e).
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights and the regulations of the Federal Advisory Committee Act (FACA), that a meeting of the Hawaii Advisory Committee will convene at 1 p.m. and adjourn at 5 p.m. on Monday, August 20, 2007 in the auditorium of the Hawaii state capitol located at 415 S. Beretania St. in Honolulu, Hawaii. The purpose of the briefing is to hear from experts about the proposed Native Hawaiian Government Reorganization Act of 2007, Akaka bill, which seeks to establish a process for Native Hawaiians to gain federal recognition. There will be an open session for members of the public to make short statements to the Committee.
Members of the public are entitled to submit written comments; the comments must be received in the Western Regional Office by September 1, 2007. The address is 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. Persons wishing to e-mail their comments, or to present their comments verbally at the meeting, or who desire additional information should contact Barbara de La Viez, Civil Rights Analyst, Eastern Regional Office, U.S. Commission on Civil Rights at (202) 376-7533 [TDY] 202-376-8116], or by e-mail at
Hearing impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Eastern Regional Office at least ten (10) working days before the scheduled date of the planning meeting.
Records generated from this meeting may be inspected and reproduced at the Western Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site,
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission and FACA.
United States Commission on Civil Rights.
Notice of meeting.
Thursday, August 16, 2007; 5 p.m.
Via Teleconference; Public Call In Number: 1-800-597-7623.
Manuel Alba, Press and Communications (202) 376-8582.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395-7285, or
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
This information collection is part of the 2007 Economic Census, which is required by law under Title 13, United States Code (U.S.C.). Section 131 of this statute directs the taking of a census of businesses, including the distributive trades, service establishments, and transportation, at 5-year intervals. Section 224 makes reporting mandatory. Section 193 authorizes surveys that collect supplementary statistics related to the main topic of the censuses. Finally, Section 195 permits the use of statistical sampling methods.
Information on business operating expenses was compiled in the 2002 Business Expenses Survey covering wholesale distributors, retail trade, accommodation and food services, and selected service industries. Data on operating expenses for selected service industries are currently compiled by the Census Bureau's Service Annual Survey.
The economic census is a primary source of facts about the structure and functioning of the Nation's economy. It provides essential information for government, industry, business, and the general public. For the 2007 Business Expenses Supplement, the Federal government is the primary user of the resulting data. In particular, the Bureau of Economic Analysis (BEA), the Federal agency that produces gross domestic product (GDP) estimates and maintains the national economic accounts. The benchmark input-output (I-O) accounts at BEA use the BES data to produce national estimates of value added, gross output, and intermediate inputs. These national estimates serve as a benchmark for the annual industry accounts, which provide the control totals for the GDP-by-state accounts. Additionally, data from the benchmark I-O and annual I-O accounts are used by the GDP-by-state accounts to remove purchased services from Census Bureau source data on manufacturing, mining, and construction because BEA's concept of value added excludes such services. Previously, BEA's GDP-by-state accounts used only the national benchmark I-O table as a source for the purchased services. BEA recently made advances in its annual I-O accounts program, enhancing the reliability of those statistics. Thus, the GDP-by-state estimates now incorporate the purchased services as measured by both the annual and benchmark I-O accounts.
The U.S. Federal Reserve Board, in turn, uses the BEA's national accounts for analyzing productivity trends and industry-level price changes. The Bureau of Labor Statistics uses the data for measurement of industry productivity. The Economic Research Service of the U.S. Department of Agriculture uses the data for analysis of national food marketing systems. Industry, business, and academia use the data for evaluating value added and profit margins occurring within the business sector.
A specific objective of this supplement is to continue implementation of recommendations made in the Gross National Product Data Improvement Project (Creamer) Report (the Advisory Committee on Gross National Product Data Improvement, 1977), prepared under the auspices of the Office of Management and Budget; recommendations made in the Boskin Report on the Quality of Economic Statistics (President's Council of Economic Advisers, 1983); the (“Mid-Decade Strategic Review of BEA's Economic Accounts” (Survey of Current Business, February 1995); and recommendations of BEA's advisory council.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer, either by fax (202-395-7245) or e-mail (
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to 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 must be submitted on or before 5 p.m. October 9, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230, or via e-mail at
Michael Mann, Chief, Current Account Services Branch, Balance of Payments Division (BE-58), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; phone: (202) 606-9573; fax: (202) 606-5314; or via e-mail at
The Bureau of Economic Analysis (BEA) is responsible for the compilation of the U.S. international transactions accounts (ITA's), which it publishes quarterly in news releases, on its Web site, and in its monthly journal, the Survey of Current Business. These accounts provide a statistical summary of all U.S. international transactions and, as such, are one of the major statistical products of BEA. They are used extensively by both government and private organizations for national and international economic policy formulation and for analytical purposes. The information collected in this survey is used to develop the “private remittances” portion of the ITA's. Without this information, an integral component of the ITA's would be omitted. No other Government agency collects comprehensive data on private institutional remittances of funds to foreign countries.
The survey requests information from U.S. religious, charitable, educational, scientific, and similar organizations on transfers to foreign residents and organizations and their expenditures in foreign countries. The information is collected on a quarterly basis from organizations remitting $1 million or more each year and annually for organizations remitting at least $100,000 but less than $1 million each year. Organizations with remittances of less than $100,000 in the year covered by the report are exempt from reporting. The survey is voluntary.
BEA proposes the following changes to the form and instructions: (1) Increase the reporting threshold from $25,000 to $100,000; (2) request that organizations only report by country if amounts remitted to a particular country exceed $10,000; and
(3) update the list of pre-printed countries on the form and add space for respondents to enter information on remittances to countries that do not appear on the pre-printed list. The overall respondent burden will not change.
Survey forms are mailed to potential respondents in January of each year; respondents expected to file on a quarterly basis are sent multiple copies. Quarterly reports are due 30 days after the close of each calendar or fiscal quarter and annual reports are due 90 days after the close of the calendar or fiscal year. Potential respondents are U.S. religious, charitable, educational, scientific, and similar organizations that voluntarily agree to provide data regarding transfers to foreign residents and organizations and their expenditures in foreign countries.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before October 9, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230, (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Larry Hall, BIS ICB Liaison, Department of Commerce, Room 6622, 14th & Constitution Avenue, NW., Washington, DC 20230.
The technical data letters of explanation will assure BIS that U.S.-origin technical data will be exported only for authorized end-uses, users and destinations. The letters also places the foreign consignee on notice that the technical data is subject to U.S. export controls and may only be reexported in accordance with U.S. law.
Submitted on paper or electronically.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. In addition, the public is encouraged to provide suggestions on how to reduce and/or consolidate the current frequency of reporting.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
In response to timely requests, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on canned pineapple fruit (CPF) from Thailand for the period of review (POR) July 1, 2005 through June 30, 2006. The review covers two respondents, Vita Food Factory (1989) Ltd. (Vita) and Tropical Food Industries Co. Ltd. (Trofco). The domestic interested party for this proceeding is Maui Pineapple Company Ltd. (petitioner).
The Department preliminarily determines that Vita and Trofco made sales to the United States at less than normal value (NV). If these preliminary results are adopted in the final results of this administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on entries of Vita's and Trofco's merchandise during the POR. The preliminary results are listed below in the section titled “Preliminary Results of Review.”
August 8, 2007.
Myrna Lobo or Douglas Kirby, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-2371 or (202) 482-3782, respectively.
The Department published the antidumping duty order on CPF from Thailand on July 18, 1995.
The Department received a request for review from Vita, by the July 31, 2006 deadline and therefore, on August 30, 2006, the Department published in the
Trofco also submitted a request for review, but Trofco's review request was not received by the Department until after the deadline for requesting an administrative review. However, the record of this proceeding shows that if not for an error by the express delivery service, Trofco's review request would have been received by the Department on or before the July 31, 2006 deadline. Therefore, on October 10, 2006 the Department initiated a review for Trofco. For further discussion on this issue,
On August 14, 2006, the Department issued sections A through E of the questionnaire to Vita.
On October 12, 2006, the Department issued sections A through E of the questionnaire to Trofco. Trofco submitted its section A questionnaire response on October 17, 2006, and submitted its responses to sections B and C on November 15, 2006. The Department issued a sections A through C supplemental questionnaire on
On November 27, 2006 the petitioner filed an allegation of sales below the cost of production for Trofco. On December 14, 2006 the Department initiated a cost investigation. Trofco submitted its section D response on December 28, 2006.
On November 15, 2006, the petitioner submitted deficiency comments on sections A through D of Vita's questionnaire responses. On November 21, 2006, the petitioner submitted deficiency comments on Trofco's section A questionnaire response. On January 18, 2007, and April 12, 2007, respectively, the petitioner submitted deficiency comments and a rebuttal to Trofco's section D questionnaire responses.
On March 30, 2007, the Department, in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(h)(2), extended the deadline for the preliminary results of this antidumping duty administrative review by 120 days from April 2, 2007 until no later than July 31, 2007.
On March 27, 2007, the petitioner submitted a timely letter requesting that the Department conduct verification of Vita's and Trofco's questionnaire responses pursuant to section 782(i)(3)(A) of the Act. The Department intends to conduct a sales and cost verification of Vita and a sales verification of Trofco following the preliminary results of this review. From June 20 through June 26, 2007, the Department conducted a cost verification of Trofco. For the results and analysis of Trofco's cost verification,
This review covers the period July 1, 2005 through June 30, 2006.
The product covered by this order is CPF, defined as pineapple processed and/or prepared into various product forms, including rings, pieces, chunks, tidbits, and crushed pineapple, that is packed and cooked in metal cans with either pineapple juice or sugar syrup added. CPF is currently classifiable under subheadings 2008.20.0010 and 2008.20.0090 of the Harmonized Tariff Schedule of the United States (“HTSUS”). HTSUS 2008.20.0010 covers CPF packed in a sugar-based syrup; HTSUS 2008.20.0090 covers CPF packed without added sugar (i.e., juice-packed). Although these HTSUS subheadings are provided for convenience and for customs purposes, the written description of the scope is dispositive. There have been no scope rulings for the subject order.
To determine whether sales of subject merchandise to the United States were made at less than NV, we compared the export price (EP) to NV, as described in the “U.S. Price” and “Normal Value” sections of this notice in accordance with section 777A(d)(2) of the Act.
In accordance with section 771(16)(A) of the Act, we considered all products produced by respondents that are covered by the description in the “Scope of the Order” section, above, and that were sold in the comparison market during the POR, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. In accordance with sections 771(16)(B) and (C) of the Act, where there were no sales of identical merchandise in the comparison market to compare to U.S. sales, we compared U.S. sales to the most similar foreign like product on the basis of the characteristics listed in Appendix V of the Department's antidumping questionnaires.
It is the Department's practice to use invoice date as the date of sale. However, 19 CFR 351.401(i) states that the Secretary may use a date other than the invoice date if the Secretary is satisfied that the material terms of the sale were established on some other date.
In accordance with section 772(a) of the Act, we use EP when the subject merchandise was first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, and constructed export price (CEP) was not otherwise warranted by the facts on the record. As discussed below, we conclude that all of Vita's and Trofco's U.S. sales are EP sales.
In accordance with section 773(a)(1)(B)(i) of the Act, we have based NV on the price at which the foreign like product was first sold for consumption in the comparison market, in the usual commercial quantities, in the ordinary course of trade, and, to the extent practicable, at the same level of trade (LOT) as the EP sale. See “Level of Trade” section below. After testing comparison market viability and whether comparison market sales were at below-cost prices, we calculated NV for Vita and Trofco as discussed in the following sections.
In accordance with section 773(a)(1)(C) of the Act, in order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (i.e., the aggregate volume of home market sales of the foreign like product normally should be greater than or equal to five percent of the aggregate volume of U.S. sales), we compared the aggregate volume of home market sales of the foreign like product to the aggregate volume of its U.S. sales of subject merchandise.
We compared sales of the foreign like product in the home market with model-specific COP figures in the POR. In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the costs of materials and fabrication employed in producing the foreign like product, plus selling, general and administrative (SG&A) expenses, and financial expenses and packing. In our sales-below-cost analysis, we used comparison market sales and COP information provided by Vita and Trofco in their questionnaire responses.
We compared the weighted-average COPs to comparison market sales of the foreign-like product, consistent with section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given model were at prices less than the COP, we did not disregard any below-cost sales of that model because the below-cost sales were not made in substantial quantities within an extended period of time. Where 20 percent or more of a respondent's sales of a given model were at prices less than the COP, we disregarded the below-cost sales when: (1) They were made in substantial quantities within an extended period of time, in accordance with sections 773(b)(2)(B) and (C) of the Act and; (2) based on our comparison of prices to average COPs in the POR, we determined that the below-cost prices would not permit the recovery of costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
For those product comparisons for which there were comparison market sales of like product in the ordinary course of trade, we based NV on comparison market prices to affiliated (when made at prices determined to be arms-length) or unaffiliated parties, in accordance with section 773(a)(1)(A) and (B) of the Act. We made adjustments for differences in cost attributable to differences in physical characteristics of the merchandise, pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CRF 351.411 as well as for differences in direct selling expenses, in accordance with 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. We relied on our model match criteria in order to match U.S. sales of subject merchandise to comparison sales of the foreign like product based on the reported physical characteristics of the subject merchandise. Where there were no sales of identical merchandise in the comparison market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire.
In accordance with section 773(a)(4) of the Act, we used constructed value (CV) as the basis for NV when we could not determine NV because there were no above-cost contemporaneous sales of identical or similar merchandise in the comparison market. We calculated CV in accordance with section 773(e) of the Act, including the cost of materials and fabrication, SG&A expenses, and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market. Where NV is based on CV, we determine the NV LOT based on the LOT of the sales from which we derive selling expenses, SG&A expenses, and profit for CV, where possible.
Based on the information currently on the record, all of Trofco's sales in Thailand failed the COP test and therefore were outside the ordinary course of trade; hence, we cannot determine selling expenses or profit under section 773(e)(2)(A) of the Act. Section 773(e)(2)(B) of the Act sets forth three alternatives: (i) Selling expense and profit may be calculated based on “actual amounts incurred by the specific exporter or producer of merchandise in the same general category” as subject merchandise; (ii) may be calculated based on “the weighted average of the actual amounts incurred and realized by {other} exporters or producers that are subject to the investigation”; or (iii) “any other reasonable method,” with limits on the “profit cap.”
For this review, the Department is calculating CV profit based on the amounts earned by Trofco on its home market sales of canned fruit other than pineapple (
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same LOT as the EP or CEP sale. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (i.e., NV based on either home market or third-country prices), we consider the starting prices before any adjustments. With respect to CEP sales, the Department removes the selling activities set forth in section 772(d) of the Act from the CEP starting price prior to performing its LOT analysis.
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP or CEP sale, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. However, in this case, the Department preliminarily determines that no level of trade adjustment was necessary for Trofco and Vita, consistent with what the parties reported in their respective questionnaire responses. For further details on the Department's LOT analysis,
In accordance with section 773A of the Act, we made currency conversions
As a result of this review, we preliminarily find that the following weighted-average dumping margins exist:
If these preliminary results are adopted in the final results of review, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided in section 751(a)(1) of the Act: (1) The cash deposit rate for Vita will be that established in the final results of this review; (2) the cash deposit rate for Trofco will be that established in the final results of this review; (3) for previously reviewed or investigated companies not covered in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (4) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value (LTFV) investigation, but the manufacturer is a firm covered in this review, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the subject merchandise; and 5) if neither the exporter nor the manufacturer is a firm covered in this or any previous proceeding conducted by the Department, the cash deposit rate will continue to be the “all others” rate established in the LTFV investigation, which is 24.64 percent.
Upon publication of the final results of this review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), the Department calculates an assessment rate for each importer of the subject merchandise for each respondent. In accordance with 19 CFR 351.212(b)(1), we will calculate importer-specific assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales and the total entered value of the examined sales. These rates will be assessed uniformly on all entries of the respective importers made during the POR if these preliminary results are adopted in the final results of review. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of this review.
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Pursuant to 19 CFR 351.224(b), the Department will disclose to any party to the proceeding the calculations performed in connection with these preliminary results within five days after the date of public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless extended by the Department, case briefs are to be submitted within 30 days after the date of publication of this notice. Rebuttal briefs, limited to arguments raised in case briefs, may be submitted no later than five days after the time limit for filing case briefs. Parties who submit arguments in this proceeding are requested to submit with the argument: (1) A statement of the issues; (2) a brief summary of the argument; and (3) a table of authorities.
Also, pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing or to participate if one is requested must submit a written request to the Assistant Secretary for Import Administration within 30 days of the publication of this notice. Requests should contain (1) the party's name, address and telephone number; (2) the number of participants; and, (3) a list of issues to be raised. Issues raised in the hearing will be limited to those raised in the respective case briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Parties will be notified of the time and location.
The Department will issue the final results of this administrative review within 120 days after the publication of this notice, unless extended.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
The preliminary results of this administrative review and this notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
August 8, 2007.
Mark Flessner or Robert James, AD/CVD Enforcement Office 7, Import
The Department of Commerce (the Department) published the preliminary results and partial rescission of the 2005-2006 antidumping duty administrative review of heavy forged hand tools, finished or unfinished, with or without handles (Hand Tools), from the People's Republic of China (PRC) on March 8, 2007.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Tariff Act), and 19 CFR 351.213(h)(1), the Department shall issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of the date of publication of the order. The Tariff Act further provides that the Department shall issue the final results of review within 120 days after the date on which the notice of the preliminary results was published in the
Due to the addition of important new information to the record, the complexity of the issues involved, and the time required to analyze the numerous submissions and arguments raised in parties' briefs, the Department has determined that it is not practicable to complete these reviews within the period of the partial extension indicated by the
Section 751(a)(3)(A) of the Tariff Act and 19 CFR 351.213(h) allow the Department to extend the deadline for the final results of a review to a maximum of 180 days from the date on which the notice of the preliminary results was published. The current deadline for the final results is August 6, 2007. For the reasons noted above, the Department is fully extending the time limit for the completion of the final results for the 2005-2006 antidumping duty administrative review of Hand Tools from the PRC until no later than September 4, 2007, which is 180 days from the date on which the notice of the preliminary results was published.
This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
August 8, 2007.
Catherine Cartsos or Minoo Hatten, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1757 and (202) 482-1690, respectively.
On March 20, 2007, the Department of Commerce (the Department) published a notice of initiation of a new-shipper review of the antidumping duty order on stainless steel wire rods from India for Sunflag Iron and Steel Co., Ltd. (Sunflag).
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the Act), provides that the Department will issue the preliminary results of a new-shipper review of an antidumping duty order within 180 days after the date on which the review is initiated. The Act provides further that, if the case is extraordinarily complicated, the Department may extend the 180-day period to 300 days.
The Department has determined that this new-shipper review is extraordinarily complicated and it is not possible to complete the preliminary results by the current deadline of September 9, 2007. Specifically, there are a number of complex factual issues pertaining to the sales practices, manufacturing costs, and the determination of potential comparison-market matches which affect the calculation of the antidumping margin in this new-shipper review. We require additional time to analyze the questionnaire responses, issue supplemental questionnaires, and conduct verification. Therefore, in accordance with section 751(a)(2)(B)(iv) of the Act and 19 CFR 351.214(i)(2), the Department is extending the time limit for the preliminary results by 40 days to October 19, 2007. The final results of the new-shipper review continue to be due 90 days after the date of issuance of the preliminary results of new-shipper review.
We are issuing this notice in accordance with sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act.
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before October 9, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Patricia Huff, 301-713-1127 or
The National Oceanic and Atmospheric Administration (NOAA) plans to collect information needed to assess the understanding and awareness of NOAA and its programs among the general public, especially as it relates to the collection and dissemination of scientific, operational, and life-saving data. NOAA's mission includes understanding and predicting changes in the Earth's environment; being an international leader in changing the way integrated environmental observations and information are captured, managed, stored, shared, and used to benefit the world; and protecting life and property. NOAA will consider the findings in tailoring its outreach activities and to provide statistical basis for measuring the utilization of tax-funded data products. Respondents will be a cross-section of the U.S. population.
NOAA will survey respondents electronically via the Internet. Sixteen one-hour focus groups will also be conducted with small groups of respondents in person.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Office of Ocean and Coastal Resource Management, National Ocean Service, Commerce.
Notice of intent to evaluate and notice of availability of final findings.
The NOAA Office of Ocean and Coastal Resource Management (OCRM) announces its intent to evaluate the performance of the Alaska Coastal Management Program.
The Coastal Zone Management Program evaluation will be conducted pursuant to section 312 of the Coastal Zone Management Act of 1972, as amended (CZMA) and regulations at 15 CFR part 923, subpart L. The CZMA requires continuing review of the performance of states with respect to coastal program implementation. Evaluation of a Coastal Management Program requires findings concerning the extent to which a state has met the national objectives, adhered to its Coastal Management Program document approved by the Secretary of Commerce, and adhered to the terms of financial assistance awards funded under the CZMA.
Each evaluation will include a site visit, consideration of public comments, and consultations with interested Federal, state, and local agencies and members of the public. A public meeting will be held as part of the site visit. Notice is hereby given of the dates of the site visit for the listed evaluation, and the date, local time, and location of the public meeting during the site visit.
Copies of a state's most recent performance reports, as well as OCRM's evaluation notification and supplemental information request letters to the state, are available upon request from OCRM. Written comments
Notice is hereby given of the availability of the final evaluation findings for the Massachusetts Coastal Management Program (CMP) and the Chesapeake Bay-Virginia National Estuarine Research Reserve (NERR). Sections 312 and 315 of the Coastal Zone Management Act of 1972 (CZMA), as amended, require a continuing review of the performance of coastal states with respect to approval of CMPs and the operation and management of NERRs.
The Commonwealth of Massachusetts was found to be implementing and enforcing its federally approved coastal management program, addressing the national coastal management objectives identified in CZMA Section 303(2)(A)-(K), and adhering to the programmatic terms of its financial assistance awards. The Chesapeake Bay-Virginia NERR was found to be adhering to programmatic requirements of the NERR System.
Ralph Cantral, Chief, National Policy and Evaluation Division, Office of Ocean and Coastal Resource Management, NOS/NOAA, 1305 East-West Highway, 10th Floor, N/ORM7, Silver Spring, Maryland 20910, (301) 563-7118.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to conduct a natural resource damage assessment at the Diamond Alkali Superfund Site in New Jersey.
The National Oceanic and Atmospheric Administration, acting as the lead administrative trustee on behalf of itself and the U.S. Department of the Interior, collectively acting as Federal natural resource trustees (Federal Trustees), have concluded their preliminary investigation of potential injuries to natural resources under their trusteeship that may have occurred as the result of releases of hazardous substances at or from the Diamond Alkali Superfund Site (ASite@). Pursuant to 43 CFR 11, the Federal Trustees have completed a Preassessment Screen (“PAS”). The Federal Trustees made the determination to perform a natural resource damage assessment for the Site. Notice letters have been issued to potentially responsible parties (PRPs) to participate in the development and performance of this assessment, and in its funding.
PRPs that are being noticed are requested to provide a response within 30 calendar days of receipt of their notice letters, stating whether they wish to participate in this process. PRPs are asked to send responses to: Eli Reinharz, NOAA Assessment and Restoration Division, 1305 East-West Highway, N/ORR3, SSMC#4, Room 10342, Silver Spring, Maryland, 20910-3281.
For further information regarding the notice letters, please feel free to contact Eli Reinharz (NOAA) at (301) 713-4248 ext.193,
Please be advised that the National Oceanic and Atmospheric Administration, acting as the lead administrative trustee on behalf of itself and the U. S. Department of the Interior, collectively acting as Federal natural resource trustees (Federal Trustees), have concluded their preliminary investigation of potential injuries to natural resources under their trusteeship that may have occurred as the result of releases of hazardous substances at or from the Diamond Alkali Superfund Site (ASite@). Pursuant to 43 CFR part 11, the Federal Trustees have completed a Preassessment Screen (“PAS”). The complete PAS may be found at
The two agencies cited serve as Federal Trustees under authority of Subpart G of the National Contingency Plan, 40 CFR 300.600(b)(1-3), and 300.605.
1. A release of a hazardous substance has occurred.
2. Natural resources for which the Federal Trustees may assert trusteeship under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) are or are likely to be adversely affected by the release.
3. The quantity and concentration of the released hazardous substances are sufficient to potentially cause injury to natural resources for which the Trustees may assert trusteeship under CERCLA.
4. Data sufficient to pursue a natural resource damage assessment are available or likely to be obtained at a reasonable cost.
5. Currently implemented and planned response actions will not sufficiently remedy the injury to natural resources without further action.
Based upon the above findings, the Federal Trustees made the determination to perform a natural resource damage assessment for the Site, and have issued letters to those companies identified as PRPs in connection with the release of hazardous substances and the subsequent damages resulting from natural resource injury. The Notice of Intent to Perform an Assessment is provided pursuant to 43 CFR 11.32(a)(2)(iii)(A). Accordingly, PRPs are invited to participate in the development and performance of this assessment, and in its funding. Note that other PRPs are being noticed at this time, and the Federal Trustees may in the future also provide notices to additional PRPs as may be deemed appropriate.
Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce
Notice of Public Comment Period for the Revised Management Plan for the Great Bay (New Hampshire) National Estuarine Research Reserve.
Notice is hereby given that the Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce is announcing a thirty day public comment period on the revised Great Bay National Estuarine Research Reserve Management Plan which will begin on the day this announcement is published. Comments should be sent within the comment period in hard copy or e-mail to Doris Grimm at
The Great Bay National Estuarine Research Reserve was designated in October 1989 pursuant to Section 315 of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1461. Pursuant to 15 CFR 921.33(c), a state must revise its management plan every five years. The reserve has been operating under a management plan approved in 1989. The submission of this plan fulfills this requirement and sets a course for successful implementation of the goals and objectives of the reserve.
Since the last management plan, the Great Bay Reserve has constructed needed facilities, increased its staff, changed its boundary, implemented several system-wide programs, and acquired key parcels of land. The original boundary included 4,471 acres of open water and salt marsh in Great Bay proper and 1,882 acres of upland. The boundary expansion includes 2,830 acres of additional open and salt marsh in Little Bay and several tidal rivers as well as 1,052 acres of upland. This expansion also includes all of the Federal lands under the Great Bay National Wildlife refuge that was established in 1992.
The expanded boundary is a more comprehensive representation of the natural communities within the Southern Gulf of Maine province of the Acadian bio-geographic region of the United States. Great Bay serves as a natural field laboratory for researchers and the boundary expansion will increase and diversify the areas capable of supporting NERRS long-term research and monitoring, including opportunities for extensive upland research. The boundary expansion also increases the Reserve's opportunities for educating the public about the estuarine system.
This new management plan serves as the primary guidance document for the operation of the Great Bay Reserve's core and system-wide programs in research and monitoring, education and coastal training, and resource management and stewardship. The plan provides guidance on the acquisition of land to be added to the Reserve and on the construction and renovation of buildings and exhibits that support NERR programs. It also guides the Reserve in important related programs, such as volunteerism and outreach to communities to encourage stewardship of coastal resources in the Great Bay area.
The Great Bay Reserve is administered through the New Hampshire Fish and Game Department. The Reserve is a part of the Marine Fisheries Division, which is based in Durham, New Hampshire. The Reserve also works closely with the New Hampshire Coastal Program and the New Hampshire Estuaries Project, as well as many other partners, such as the University of New Hampshire and the New Hampshire Department of Environmental Services, to meet its goals and objectives.
Doris Grimm at (301) 563-7107 or Laurie McGilvray at (301) 563-1158 of NOAA's National Ocean Service, Estuarine Reserves Division, 1305 East-West Highway, N/ORM5, 10th Floor, Silver Spring, MD 20910. For copies of the Wells Management Plan revision, visit
Department of Defense.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix as amended), the Sunshine in the Government Act of 1976 ( 5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, and in accordance with section 10(a)(2) of Public Law, the following meeting is announced:
The Board will conduct an administrative session on September 18, 2007, in the same location. The administrative session is closed to the public.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165 and subject to availability of space, the Defense Health Board meeting from 9 a.m. to 4 p.m. on May 3, 2007 is open to the public. Any member of the public wishing to provide input to the Defense Health
Individuals submitting a written statement may submit their statement to the Designated Federal Officer at the address detailed below at any point. However, if the written statement is not received at least 10 calendar days prior to the meeting, which is subject to this notice, then it may not be provided to or considered by the Defense Health Board until the next open meeting.
The Designated Federal Officer will review all timely submissions with the Defense Health Board Chairperson, and ensure they are provided to members of the Defense Health Board before the meeting that is subject to this notice. After reviewing the written comments, the Chairperson and the Designated Federal Officer may choose to invite the submitter of the comments to orally present their issue during an open portion of this meting or at a future meeting.
The Designated Federal Officer, in consultation with the Defense Health Board Chairperson, may, if desired, allot a specific amount of time for members of the public to present their issues for review and discussion by the Defense Health Board.
Colonel Roger L. Gibson, Executive Secretary, Defense Health Board, Five Skyline Place, 5111 Leesburg Pike, Room 810, Falls Church, Virginia 22041-3206, (703) 681-3279, Ext. 123, Fax: (703) 681-3321, (
Department of Education.
The Secretary of Education requests comments on the Student Aid Report (SAR) that the Secretary proposes to use for the 2008-2009 award year. The SAR is used to notify Free Application for Federal Student Aid (FAFSA) applicants of their eligibility to receive federal student aid under the student financial assistance programs authorized under Title IV of the Higher Education Act of 1965, as amended, and to provide an opportunity for applicants to correct or update the information they provided on their FAFSA.
Interested persons are invited to submit comments on or before October 9, 2007.
Comments may be submitted electronically through e-mail to
(1) Go to IFAP at
(2) Scroll to “On-Line References”.
(3) Click on “SAR/ISIR Reference Materials”.
(4) Click on “By 2008-2009 Award Year”.
(5) Click on “Draft 2008-2009 Student Aid Report (SAR) and SAR Acknowledgement Mockups are available for public comment”.
Please note that the free Adobe Acrobat Reader software, version 4.0 or greater, is necessary to view this file. This software can be downloaded for free from Adobe's Web site:
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern time, Monday through Friday.
The Secretary is publishing this request for comment under the Provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
In addition to comments requested above, to accommodate the requirements of the Paperwork Reduction Act, the Secretary is interested in receiving comments with regard to the following matters: (1) Is this collection necessary to the proper functions of the Department, (2) will this information be processed and used in a timely manner, (3) is the estimate of burden accurate, (4) how might the Department enhance the quality, utility, and clarity of the information to be collected, and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
The Department is not bound by any estimates in this notice.
This priority is designed to support the formation of educational consortia of American and Russian institutions to encourage mutual socio-cultural-linguistic cooperation; the coordination of joint development of curricula, educational materials, and other types of educational and methodological activities; and the conduct of related joint educational research.
This invitational priority is issued in cooperation with the Russian Ministry of Education and Science. These awards support only the participation of U.S. institutions, faculty and students in these consortia. Russian institutions eligible to participate in any consortium proposal have been pre-selected by the Russian Federation from the Russian Federation's “Development of Higher Education” competition. The Russian Federation has identified the following Russian institutions as eligible for participation in this competition:
• Plekhanov Russian Academy of Economics.
• Moscow Engineering Physics Institute (State University) (MEPhI).
• Southern Federal University (SFU).
The Department is not bound by any estimates in this notice.
1.
2.
1.
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section.
2.
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman and Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the U.S.-Russian Program: Improving Research and Educational Activities in Higher Education at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted, and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Education Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Sylvia W. Crowder, U.S. Department of Education, 1990 K Street, NW., room 6012, Washington, DC 20006-8544. Fax: (202) 502-7859.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
U.S. Department of Education, Application Control Center,
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
Note for Mail or Hand Delivery of Paper Applications:
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
Sylvia W. Crowder, Office of Postsecondary Education, U.S.-Russia Program: Improving Research and Educational Activities in Higher Education, 1990 K Street, NW., 6th Floor, Washington, DC 20006-8544. Telephone: (202) 502-7514.
If you use a TDD, call the FRS, toll free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Take notice that on July 20, 2007, the North American Electric Reliability Corporation (NERC) submitted a compliance filing to paragraph 468 of Order No. 672 issued February 3, 2006.
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 July 27, 2007, Northern Natural Gas Company (Northern), 1111 South 103rd Street, Omaha, Nebraska 68124, filed in Docket No. CP06-461-001, an application pursuant to section 7 of the Natural Gas Act (NGA) to amend the certificate issued in the above-reference proceeding on July 10, 2007, which authorized an increase in the certificated capacity at the Redfield Storage Field located in Dallas County, Iowa, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may be also viewed on the Web at
In this application, Northern requests an amendment to the certificate to: (1) Increase the maximum reservoir pressures; (2) continue the existing aggregated field capacity limit; (3) allow Northern to inject gas into the Elgin Formation for the limited purpose of operations and maintenance as discussed herein; and (4) modify the requirement to report pressures and reservoir-specific inventories at the aggregate levels to include only the initial year.
Any questions regarding this application may be directed to Michael T. Loeffler, Director of Certificates for Northern, 1111 South 103rd Street, Omaha, Nebraska 68124, (402) 398-7103 or Bret Fritch, Senior Regulatory Analyst, at (402) 398-7140.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, before the comment date of this notice, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Description: PSEG Lawrenceburg Energy Company LLC submits its Notice of Cancellation of market-based rate authority under its FERC Electric Tariff, Original Volume No. 1.
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following public utility holding company filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
The Commission's June 27, 2007 Order in the above-captioned proceeding,
Take notice that a technical conference will be held on Monday, September 10, 2007 at 10 am, in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
All interested parties and staff are permitted to attend. For further information please contact Katie Williams at (202) 502-8246 or e-mail
Federal Energy Regulatory Commission, DOE.
Proposed policy statement; correction.
This document corrects an error in the Proposed Policy Statement that the Federal Energy Regulatory Commission published in the
August 1, 2007.
John M. Robinson (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission at (202) 502-6806.
In FR Document E7-14708, published July 31, 2007 (72 FR 41744) make the following correction to the
On page 41744, column 1, the reply comment date is corrected to read as follows: “Reply comments are due on September 19, 2007.”
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be transferred to Will J. Backe, Rebbeca L. Maciewski, Melissa Dybvig and Megyn K. Mereness in accordance with 40 CFR 2.307(h)(3) and 2.308(i)(2). Will J. Backe, Rebbeca L. Maciewski, Melissa Dybvig and Megyn K. Mereness have been awarded a contract to perform work for OPP, and access to this information will enable Will J. Backe, Rebbeca L. Maciewski, Melissa Dybvig and Megyn K. Mereness to fulfill their obligations of the contract.
Will J. Backe, Rebbeca L. Maciewski, Melissa Dybvig and Megyn K. Mereness will be given access to this information on or before August 13, 2007.
Felicia Croom, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
This action applies to the public in general. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
Under Contract Numbers EP06D000508 Will James Backe, EP06D000478 Rebbeca L. Maciewski, WP07D000479 Melissa Dybvig and EP07D000483 Megyn K. Mereness will perform data entry which will assist in building a database through systematic entry of relevant experimental data and chemical structure information. In addition, the student may be asked to assist in laboratory experiments to measure chemical metabolism in aquatic organism.
In accordance with the requirements of 40 CFR 2.307(h)(2), the contract with Will J. Backe, Rebbeca L. Maciewski, Melissa Dybvig and Megyn K. Mereness, prohibits use of the information for any purpose not specified in the contract; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each official and employee of the contractor sign an agreement to protect the information from unauthorized release and to handle it in accordance with the
Environmental protection, Business and industry, Government contracts, Government property, Security measures.
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be transferred to System Research and Applications Corporation, in accordance with 40 CFR 2.307(h)(3) and 2.308(i)(2). System Research and Applications Corporation, has been awarded a contract to perform work for OPP, and access to this information will enable System Research and Applications Corporation, to fulfill the obligations of the contract.
System Research and Applications Corporation will be given access to this information on or before August 13, 2007.
Felicia Croom, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-0786; e-mail address:
This action applies to the public in general. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
Under Contract No. EP-W-05-024 Task Order #39, System Research and Applications Corporation, will perform configuration management support to the Enterprise Policy and Planning Oversight Staff. System Research and Applications Corporation will designate a configuration management contractor to assist in creating policy, administer and support the database, and assist in facilitating the configuration
The OPP has determined that access by System Research and Applications Corporation, to information on all pesticide chemicals is necessary for the performance of this contract.
Some of this information may be entitled to confidential treatment. The information has been submitted to EPA under sections 3, 4, 6, and 7 of FIFRA and under sections 408 and 409 of FFDCA.
In accordance with the requirements of 40 CFR 2.307(h)(2), the contract with System Research and Applications Corporation, prohibits use of the information for any purpose not specified in the contract; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each official and employee of the contractor sign an agreement to protect the information from unauthorized release and to handle it in accordance with the
Environmental protection, Business and industry, Government contracts, Government property, Security measures.
Environmental Protection Agency.
Notification of public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92-463, the U.S. Environmental Protection Agency (EPA) hereby provides notice that the National Environmental Justice Advisory Council (NEJAC) will convene a meeting on the date and time described below. All meetings are open to the public. Members of the public are encouraged to provide comments relevant to the specific issues being considered by the NEJAC. For additional information about registering for public comment, please see
The NEJAC will convene an open meeting via teleconference call on Thursday, August 23, 2007, from 2 p.m. to 4 p.m. (all times noted are Eastern Time.). Due to limited telephone lines, all members of the public who wish to attend the teleconference meeting or to provide public comment must register in advance, no later than Monday, August 20, 2007.
Because this meeting will be held via teleconference call, there is no physical location where members of the public can listen in. To attend, you must register in advance. See
Pre-registration for all attendees is required. Because this meeting is conducted via teleconference call, online registrations will not be accepted. Rather, requests should be sent to Ms. Julianne Pardi of ICF International at: 9300 Lee Highway, Fairfax, Virginia 22031; Telephone: (703) 934-3873; E-mail:
Correspondence concerning the meeting should be sent to Ms. Victoria Robinson, NEJAC Program Manager, U.S. Environmental Protection Agency, at 1200 Pennsylvania Avenue, NW., (MC2201A), Washington, DC 20460; via e-mail at
The Charter of the NEJAC states that the advisory committee shall provide independent advice to the Administrator on areas that may include, among other things, “advice about EPA's progress, quality and adequacy in planning, developing and implementing environmental justice strategies, projects and programs” relating to environment justice. The purpose of the teleconference meeting is to provide a briefing of the Agenda and major topics to be discussed at the NEJAC public meeting scheduled for September 18-20, 2007. These issues are: (1) Air pollution impacts of goods movement on communities, and (2) key issues related to the interpretation of environmental justice consideration in EPA's programs, policies, and activities.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's Decision Not to Initiate a Special Review for 2,4-D, 2,4-DB and 2,4-DP. Based on extensive scientific review of many epidemiology and animal studies, the Agency finds that the weight of the evidence does not support a conclusion that 2,4-D, 2,4-DB and 2,4-DP are likely human carcinogens. The Agency has determined that the existing data do not support a conclusion that links human cancer to 2,4-D exposure. This conclusion applies to 2,4-DB and 2,4-DP because they were considered for Special Review based solely on their similarity to 2,4-D. In addition, because they are used significantly less than 2,4-D, their contribution to exposure is minimal relative to 2,4-D. Because the Agency has determined that the existing data do not support a conclusion that links human cancer to 2,4-D exposure, the Agency is not initiating a Special Review of 2,4-D, 2,4-DB and 2,4-DP. This decision was first proposed on March 23, 1988 (53 FR 9590).
Richard P. Dumas, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8015; fax number: (703) 308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
On September 22, 1986, the Agency issued a preliminary notification of Special Review of 2,4-D. Because of their similarity to 2,4-D, on December 3, 1986, EPA issued preliminary notifications of Special Review of 2,4-DB and 2,4-DP. These notices were issued because of concerns for epidemiological links of 2,4-D, 2,4-DB and 2,4-DP to non-Hodgkin's lymphoma from both occupational and residential exposure. A proposed decision Not to Initiate Special Review was published on March 23, 1988 ((53 FR 9590; FRL-3353-3)) based on findings that such a link is not supported by the existing data. Two sets of comments were received in response to the proposal, both on behalf of the 2,4-D Task Force. Both sets supported the proposed decision, but questioned the need for a new cancer study. The latter point is moot because the registrant ultimately conducted and submitted an acceptable cancer study. The final decision was deferred until a more comprehensive review of 2,4-D was completed. This review was completed with the signature of the Reregistration Eligibility Decision for 2,4-D in June of 2005.
To address the potential link of non-Hodgkin's lymphoma to 2,4-D exposure, a joint Science Advisory Board/Scientific Advisory Panel Special Joint Committee was convened to review available epidemiological and other data on 2,4-D. In 1992, the Committee concluded that “the data are not sufficient to conclude that there is a cause and effect relationship between exposure to 2,4-D and non-Hodgkin's lymphoma.” 2,4-D was classified as a Group D, “not classifiable as to human carcinogenicity.” To help better inform the Agency, EPA requested further histopathological examinations of mouse and rat tissue from previously conducted studies. These exams were submitted and reviewed, and on March 16, 1999, the Agency notified the 2,4-D Task Force that the EPA would continue to classify 2,4-D as a Group D carcinogen.
The Agency has twice recently reviewed epidemiological studies linking cancer to 2,4-D exposure. In the first review, completed January 14, 2004, EPA concluded there is no additional evidence that would implicate 2,4-D as a cause of cancer (EPA, 2004). The second review of available epidemiological studies occurred in response to comments received during Phase 3 of the Public Participation Process for the 2,4-D RED. EPA's report, dated December 8, 2004, found that none of the more recent epidemiological and animal studies support a conclusion that 2,4-D, 2,4-DB and 2,4-DP are likely human carcinogens. Because the Agency has determined that the existing data do not support a conclusion that links human cancer to 2,4-D exposure, it has decided not to initiate a Special Review of 2,4-D, 2,4-DB and 2,4-DP.
A pesticide product may be sold or distributed in the United States only if it is registered or exempt from registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as amended (7 U.S.C. 136
The Special Review process provides a mechanism to permit public participation in EPA's deliberations prior to issuance of any Notice of Final
Prior to formal initiation of a Special Review, a preliminary notification is sent to registrants and applicants for registration pursuant to 40 CFR 154.21 announcing that the Agency is considering commencing a Special Review. Registrants and applicants for registration are allowed 30 days from receipt of the notification to comment on the Agency's proposal to commence a Special Review.
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will not conduct a Special Review, it is required under 40 CFR 154.23 to issue a proposed decision to be published in the
Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing a notice of receipt of requests by the registrants to amend their registrations to terminate certain uses of products containing the pesticide azinphos-methyl (AZM) and to cancel their registrations by September 30, 2012. The requests would terminate AZM use on Brussels sprouts and nursery stock not sooner than the later of September 30, 2007 or 90 days from the date EPA approves draft labeling submitted by the registrants; terminate AZM use on walnuts, almonds, and pistachios by October 30, 2009; and cancel all AZM products by September 30, 2012. The cancellation requests would serve to terminate the five uses of AZM (apples, pears, cherries, blueberries and parsley) remaining in 2012. The registrants have conditioned these requests on EPA making certain determinations regarding AZM, including a determination, by not later than November 11, 2011, regarding the availability of AZM alternatives. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests. Any sale, distribution, or use of products listed in this notice will be permitted only if such sale, distribution, or use is consistent with the terms as described in the final order acting upon these requests.
Comments must be received on or before September 7, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2005-0061, by one of the following methods:
•
•
•
Katie Hall, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-0166; fax number: (703) 308-8090; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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.
AZM is an organophosphate insecticide that was first registered in the United States in 1959. It is currently used on apples, blueberries, cherries, pears, parsley, Brussels sprouts, nursery stock, almonds, walnuts, and pistachios. On November 16, 2006, EPA issued a determination that the farm worker and ecological risks of AZM require the phaseout of all remaining AZM uses by 2012. In conjunction with that determination, in letters dated November 15, 2006, November 16, 2006, November 17, 2006, and November 24, 2006, Bayer CropScience, Arysta LifeScience, Makhteshim Agan of North America, Inc., and Gowan Company, respectively, requested that EPA terminate certain uses in 2007 and 2009 and cancel all affected product registrations in 2012 (identified in Table 1 of this notice), subject to certain terms and conditions. Specifically they requested the deletion of the Brussels sprouts and nursery stock uses from their registrations not sooner than the later of September 30, 2007 or 90 days from the date EPA approves draft labeling submitted by the registrants; deletion of the walnut, almond, and pistachio uses not sooner than October 30, 2009; and the cancellation of all AZM registrations (thereby ending AZM use on apples, pears, cherries, blueberries, and parsley) not sooner than September 30, 2012.
Other terms and conditions described in the letters include:
1. A condition that the requests for termination of use and voluntary cancellation shall not be made effective until EPA conducts an independent scientific review of a submission from the registrants requesting reconsideration of EPA's decision to maintain an inter-species uncertainty factor in its risk assessment of AZM for agricultural workers; and
2. A condition that the requests for voluntary cancellation of all AZM products shall not become effective unless
i. EPA holds at least one public meeting to obtain views regarding the continued need for access to AZM prior to July 1, 2011; and
ii. EPA makes a determination not later than November 1, 2011 for the remaining uses of AZM whether to conduct a risk-benefit analysis for AZM prior to the cancellation of these uses.
If the actions described above result in the retention of any AZM use beyond the stop-use date (as provided in the existing stocks provisions below and in appendix A of the November 16, 2006 Final Decisions for the Remaining Uses of Azinphos-methyl), the registrants may request that product labeling be amended consistent with the terms of such actions and EPA shall grant any amendment that is consistent with such actions and the provisions of 40 CFR part 156.
This notice announces receipt by EPA of requests from registrants to terminate uses and cancel all AZM product registrations. The affected products and the registrants making the requests are identified in Tables 1 and 2 of this unit. EPA believes this is the complete list of all such products; however, the registrants' requests extend to all AZM products irrespective of whether they are specifically listed in the tables below.
Under section 6(f)(1)(A) of FIFRA, registrants may request, at any time, that their pesticide registrations be canceled or amended to terminate one or more pesticide uses. Section 6(f)(1)(B) of FIFRA requires that before acting on a request for voluntary cancellation, EPA must provide a 30-day public comment period on the request for voluntary cancellation or use termination. In addition, section 6(f)(1)(C) of FIFRA requires that EPA provide a 180-day comment period on a request for voluntary cancellation or termination of
1. The registrants request a waiver of the comment period, or
2. The Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The AZM registrants have requested that EPA waive the 180-day comment period. EPA will provide a 30-day comment period on the proposed requests.
Unless the Agency determines that there are substantive comments that warrant further review of this request, an order will be issued amending and canceling the affected registrations.
Table 2 of this unit includes the names and addresses of record for the registrants of the products listed in Table 1 of this unit.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
For purposes of this notice, EPA considers existing stocks to be those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the cancellation action.
In any order issued in response to these requests for amendments to terminate uses, the Agency proposes to include the following provisions for the treatment of any existing stocks of the products identified or referenced in Table 1. These provisions are consistent with the requests for use deletions and requests for voluntary cancellations outlined in Unit II. of this notice:
1.
ii. For products bearing all other uses, EPA intends to prohibit distribution or sale of such products after September 30, 2012 except that sale or distribution of such products for the purposes of proper disposal, reformulation, relabeling, or export consistent with section 17 of FIFRA may continue until such stocks are depleted.
2.
i. Brussels sprouts and nursery stock after September 30, 2007 or 90 days from the date EPA approves draft labeling submitted by the registrants;
ii. Walnuts, almonds, and pistachios after October 30, 2009; and
iii. All remaining uses (apples, pears, cherries, blueberries and parsley) after September 30, 2012.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's Reregistration Eligibility Decision (RED) for the pesticide case benzoic acid and opens a public comment period on this document. The Agency's risk assessments and other related documents also are available in the benzoic acid Docket. The Benzoic acid case contains four benzyl derivative compounds of which benzyl benzoate has active registrations. Benzyl benzoate is an insecticide/miticide used to control dust mites in carpets, mattresses, upholstery, and on furniture, as well as for control of mites on dogs. EPA has reviewed benzoic acid through the public participation process that the Agency uses to involve the public in developing pesticide reregistration and tolerance reassessment decisions. Through these programs, EPA is ensuring that all pesticides meet current health and safety standards.
Comments must be received on or before October 9, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0470, by one of the following methods:
•
•
•
Laura Parsons, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5776; fax number: (703) 308-7070; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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.
Under section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is reevaluating existing pesticides to ensure that they meet current scientific and regulatory standards. EPA has completed a Reregistration Eligibility Decision (RED) for the pesticide case, benzoic acid under section 4(g)(2)(A) of FIFRA. The benzoic acid case contains four benzyl derivative compounds of which benzyl benzoate has active registrations. Benzyl benzoate is an insecticide/miticide used to control dust mites in carpets, mattresses, upholstery, and on furniture, as well as for control of mites on dogs. EPA has determined that the data base to support reregistration is substantially complete and that products containing benzyl benzoate are eligible for reregistration. Upon submission of any required product specific data under section 4(g)(2)(B) and any necessary changes to the registration and labeling (either to address concerns identified in the RED or as a result of product specific data), EPA will make a final reregistration decision under section 4(g)(2)(C) for products containing benzyl benzoate.
EPA is applying the principles of public participation to all pesticides undergoing reregistration and tolerance reassessment. The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the
The reregistration program is being conducted under Congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. The Agency is issuing the benzoic acid RED for public comment. This comment period is intended to provide an additional opportunity for public input and a mechanism for initiating any necessary amendments to the RED. All comments should be submitted using the methods in
The Agency will carefully consider all comments received by the closing date and will provide a Response to Comments Memorandum in the Docket and regulations.gov. If any comment significantly affects the document, EPA also will publish an amendment to the RED in the
Section 4(g)(2) of FIFRA as amended directs that, after submission of all data concerning a pesticide active ingredient,
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the Agency's intention not to initiate a Special Review of Ethyl Parathion and its proposal to terminate the Special Review of Tributyltin (TBT) used in antifouling paints. The Agency is proposing these actions because all pesticide registrations of ethyl parathion and all TBT antifouling paints are canceled.
Comments must be received on or before September 7, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0435, by one of the following methods:
•
•
•
Richard P. Dumas, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8015; fax number: (703) 308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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
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.
1.
In 2002, all products being manufactured for sale in the U.S. were voluntarily canceled. However, four ethyl parathion product registrations held by Drexel Chemical Company that had not been manufactured for several years were not included in the 2002 cancellation actions. On March 16, 2005, Drexel Chemical Company requested voluntary cancellation for the four registrations. The cancellation of the four remaining ethyl parathion product registrations was effective on December 13, 2006.
Under 40 CFR 154.23, the Administrator must provide his rationale for not initiating a Special Review and provide an opportunity for comment. Because there are no remaining product registrations, and thus the risk concerns have been mitigated, EPA is proposing not to initiate a Special Review for Ethyl Parathion. The public will have until September 7, 2007 to comment on this proposal. Once comments are reviewed, EPA will issue a notice in the
2.
A pesticide product may be sold or distributed in the United States only if it is registered or exempt from registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as amended (7 U.S.C. 136
The Special Review process provides a mechanism to permit public participation in EPA's deliberations prior to issuance of any Notice of Final Determination describing the regulatory action which the Administrator has selected. The Special Review process, which was previously called the Rebuttable Presumption Against Registration (RPAR) process, is described in 40 CFR part 154, published in the
Prior to formal initiation of a Special Review, a preliminary notification is sent to registrants and applicants for registration pursuant to 40 CFR part 154.21 announcing that the Agency is considering commencing a Special Review. Registrants and applicants for registration are allowed 30 days from receipt of the notification to comment on the Agency's proposal to commence a Special Review.
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will not conduct a Special Review, it is required under 40 CFR 154.23(b) to issue a proposed decision to be published in the
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will initiate a Special Review, 40 CFR 154.23(c) requires the Administrator to publish a Notice of Special Review in the
Environmental protection, Pesticides, Pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's proposed determination to terminate the Special Review of oxydemeton-methyl (ODM). On October 5, 1987, in the
Comments must be received on or before September 7, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0436, by one of the following methods:
•
•
•
Richard P. Dumas, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8015; fax number: (703) 308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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.
On October 5, 1987, (52 FR 37248; FRL-3273-1) EPA initiated a Special Review of oxydemeton-methyl (ODM) because of its potential to adversely affect reproduction of workers who mix, load, and apply products containing ODM. The Agency's concerns regarding reproductive effects were based primarily on the results of a two-generation rat reproduction study and interim progress reports from an ongoing male rat reproductive toxicity study. Observed reproductive effects were decreased parental body weight, parental testes weight and fertility index, vacuolation of the corpus epididymus, decreased litter size, decreased pup weight and increased pup mortality.
Since the initiation of the Special Review, additional data and more comprehensive reviews of potential risks associated with ODM exposure have been completed, including those described in the 2002 Interim Reregistration Eligibility Decision (IRED) for ODM. In addition, during the reregistration process EPA conducted an intensive and public review of whether or not ODM registrations, meet the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) standard for registration. In the 2002 IRED and subsequent label amendments, the Agency addressed the occupational risk concerns, including risk associated with potential reproductive effects. There continues to be evidence of reproductive effects; however, there is no evidence that these effects inhibit the ability of organisms to reproduce. Similarly, further data and analysis have addressed the concern for heritable effects. With the label amendments that have been made since the initiation of Special Review, ODM exposure is expected to be below the levels where any reproductive effects occur. Because the risks that were the basis of the Special Review are no longer of concern, the Agency is proposing to terminate the Special Review of ODM.
The final risk management decision regarding the risk to workers exposed to ODM was completed with the 2002 IRED. A detailed description of the rationale and supporting documents can be found in
A pesticide product may be sold or distributed in the United States only if it is registered or exempt from registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as amended (7 U.S.C. 136
The Special Review process provides a mechanism to permit public participation in EPA's deliberations prior to issuance of any Notice of Final Determination describing the regulatory action which the Administrator has selected. The Special Review process, which was previously called the Rebuttable Presumption Against Registration (RPAR), is described in 40 CFR part 154, published in the
Prior to formal initiation of a Special Review, a preliminary notification is sent to registrants and applicants for registration pursuant to 40 CFR 154.21 announcing that the Agency is considering commencing a Special Review. Registrants and applicants for registration are allowed 30 days from receipt of the notification to comment on the Agency's proposal to commence a Special Review.
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will initiate a Special Review, 40 CFR 154.23(c) requires the Administrator to publish a Notice of Special Review in the
That regulation requires the Administrator to respond to all significant comments received on the Notice of Special Review and, among other things, make a preliminary determination of whether any of the applicable risk criteria have been satisfied. Finally, after receipt and evaluation of comments on the Notice of Preliminary Determination, 40 CFR 154.33 requires that the Administrator publish in the
Environmental protection, Pesticides, Pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing to amend an existing tolerance for 1-Methylcyclopropene in outdoor pre-harvest use in or on fruits and vegetables.
Comments must be received on or before September 7, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0433 and the pesticide petition number (PP) 7F7170, by one of the following methods:
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•
•
Driss Benmhend, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-9525; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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 is printing notice of the filing of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that the pesticide petition described in this notice contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. Additional data may be needed before EPA rules on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition included in this notice, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available on-line at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before September 7, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0570 and the pesticide petition number (PP) of interest, by one of the following methods:
•
•
•
The persons listed at the end of the pesticide petition summary of interest.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.
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.
When submitting comments, please use the docket ID number and the pesticide petition number of interest, as shown in the table.
EPA is printing notice of the filing of pesticide petitions received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that the pesticide petitions described in this notice contain data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. Additional data may be needed before EPA rules on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), a summary of each of the petitions included in this notice, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available on-line at
1.
2.
3.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Notice of availability.
By this notice, the Environmental Protection Agency (EPA), Office of Underground Storage Tanks (OUST) is advising the public that EPA is issuing the operator training grant guidelines for states that receive underground storage tank (UST) funds from EPA. In this notice, EPA is publishing the operator training grant guidelines in their entirety. In addition, EPA will subsequently make the guidelines available on EPA's Web site. EPA developed the operator training grant guidelines as required by Section 9010 of Subtitle I of the Solid Waste Disposal Act, as amended by Section 1524 of the Energy Policy Act of 2005.
EPA is notifying the public via this notice that the operator training grant guidelines are available as of August 8, 2007.
In addition to publishing the operator training grant guidelines here, EPA will post the operator training grant guidelines on our Web site at:
Tim R. Smith, EPA's Office of Underground Storage Tanks, at
On August 8, 2005, President Bush signed the Energy Policy Act of 2005. Title XV, Subtitle B of this act, titled the Underground Storage Tank Compliance Act of 2005, contains amendments to Subtitle I of the Solid Waste Disposal Act. This is the first federal legislative change for the underground storage tank (UST) program since its inception over 20 years ago. The UST provisions of the law significantly affect federal and state UST programs, require major changes to the programs, and are aimed at further reducing UST releases to our environment. Among other things, the UST provisions of the Energy Policy Act require that states receiving funding under Subtitle I comply with certain requirements contained in the law. OUST worked, and is continuing to work, with its partners to develop grant guidelines that EPA regional tank programs will incorporate into states' grant agreements. The guidelines will provide states that receive UST funds with specific requirements, based on the UST provisions of the Energy Policy Act, for their state UST programs.
Sections 9010(a) and (b) of Subtitle I of the Solid Waste Disposal Act, as amended by Section 1524 of the Energy Policy Act, require EPA to publish guidelines that establish training requirements for three distinct classes of UST system operators and require states to develop state-specific training requirements consistent with the guidelines. As a result of that requirement, EPA worked with states and other UST stakeholders to develop the operator training grant guidelines. In April 2007, EPA published in the
The U.S. Environmental Protection Agency (EPA), in consultation with states, developed these grant guidelines as required by the operator training provision in Section 9010(a) of the Solid Waste Disposal Act (SWDA), enacted by the Underground Storage Tank Compliance Act, part of the Energy Policy Act of 2005 signed by President Bush on August 8, 2005.
Section 1524 of the Energy Policy Act amends Subtitle I of the Solid Waste Disposal Act by adding Section 9010. Section 9010 requires EPA to publish guidelines that specify training requirements for three classes of operators:
• Persons having primary responsibility for on-site operation and maintenance of underground storage tank systems.
• Persons having daily on-site responsibility for the operation and maintenance of underground storage tank systems.
• Daily, on-site employees having primary responsibility for addressing emergencies presented by a spill or release from an underground storage tank system.
Section 9010(a)(2) requires EPA to consider:
• State training programs in existence when the guidelines are published.
• Training programs that are being used by tank owners and operators as of August 8, 2005.
• The high turnover rate of tank operators and other personnel.
• The frequency of improvement in underground storage tank equipment technology.
• The business in which tank operators are engaged.
• The substantial differences in the scope and length of training needed for the three classes of operators.
• Such other factors as EPA finds necessary to carry out Section 9010.
Section 9010(b)(2) also requires each state receiving Subtitle I funding (hereafter referred to as “state”), to develop state-specific training requirements that:
• Are consistent with EPA's guidelines.
• Are developed in cooperation with tank owners and operators.
• Consider training programs implemented by tank owners and operators.
• Are appropriately communicated to tank owners and operators.
In addition, Section 9010(c) requires that all persons who are subject to the operator training requirements specified in these guidelines must:
• Meet the state-specific training requirements.
• Repeat applicable requirements if the tank for which they have primary daily on-site management responsibilities is determined to be out of compliance with a requirement or standard of 40 CFR part 280 or a requirement or standard of a state program approved under Section 9004.
EPA's Office of Underground Storage Tanks (OUST) is issuing these grant guidelines to establish the minimum requirements a state receiving Subtitle I funding must meet in order to comply with the operator training provisions of the Energy Policy Act.
These guidelines describe the minimum requirements a state's underground storage tank (UST) program must contain in order for a state to comply with the Section 9010 requirements for Subtitle I funding. These guidelines include: a description of the classes of operators; required training for each class of operator; deadlines when operator training is required; and examples of acceptable state approaches to operator training.
These guidelines are effective August 8, 2007.
Underground storage tank operator training means any program that meets the requirements of these guidelines. Such a program is designed to ensure knowledge regarding operating and maintaining underground storage tank systems.
These guidelines apply to underground storage tank systems regulated under Subtitle I, except those excluded by regulation at 40 CFR 280.10(b) and those deferred by regulation at 40 CFR 280.10(c).
A state implements these guidelines by:
• Requiring operator training for all operators in each class.
• Developing state-specific operator training requirements consistent with EPA's guidelines by August 8, 2009. State-specific operator training requirements must:
• Be developed in cooperation with tank owners and operators;
• Take into consideration training programs implemented by tank owners and tank operators; and
• Be appropriately communicated to tank owners and operators.
• Establishing a procedure to identify individuals who are required to be trained under the operator training requirements specified in these guidelines.
• Ensuring all operators are trained in accordance with these guidelines.
States may choose to be more stringent than these minimum requirements.
For purposes of implementing the operator training requirements, these guidelines establish three classes of operators identified as Class A, Class B, and Class C. Each underground storage tank system or group of underground storage tank systems at a facility must have a Class A, Class B, and Class C operator designated. All individuals designated as a Class A, B, or C operator must, at a minimum, be trained according to these guidelines. Separate individuals may be designated for each class of operator described above or an individual may be designated to more than one of the above operator classes. An individual who is designated to more than one operator class must be trained in each operator class for which he or she is designated. Because an individual may be designated for more than one operator class, states may allow a training approach that encompasses training for more than one operator class.
States must establish a procedure to identify individuals who are required to meet the operator training requirements specified in these guidelines. For example, a state may accomplish this by requiring that underground storage tank system owners or operators identify, for each underground storage tank system or group of underground storage tank systems at a facility, at least one name for each class of operator outlined in these guidelines.
These guidelines in no way relieve the owner or operator, as defined in 40 CFR part 280, from any legal responsibility mandated by the Federal underground storage tank regulations or requirements of a state underground storage tank program approved by EPA under SWDA Section 9004.
There may be occasions when a Class A, Class B, or Class C operator will not be present at the facility. For example, operators are frequently not present at unmanned facilities, such as emergency generators at telecommunication towers and card lock/card access facilities. However, these operators are still responsible for operation and maintenance activities or responding to emergencies and must be trained according to these guidelines.
To assist states in identifying responsible individuals to be trained pursuant to these guidelines, the following sections characterize, in general terms, each class of operator. These sections also identify general training requirements pertaining to operating and maintaining underground storage tank systems. See Appendix (The Three Operator Classes At A Glance) which describes the operator classes and the objectives of training requirements. States must further specify training for each individual class of operator by developing state-specific training requirements.
A Class A operator has primary responsibility to operate and maintain the underground storage tank system. The Class A operator's responsibilities include managing resources and personnel, such as establishing work assignments, to achieve and maintain compliance with regulatory requirements.
In general, this individual focuses on the broader aspects of the statutory and regulatory requirements and standards necessary to operate and maintain the underground storage tank system (i.e., 40 CFR part 280 or requirements of a state underground storage tank program approved by EPA under SWDA Section 9004). For example, this individual typically ensures that appropriate individual(s):
• Properly operate and maintain the underground storage tank system.
• Maintain appropriate records.
• Are trained to operate and maintain the underground storage tank system and keep records.
• Properly respond to emergencies caused by releases or spills from underground storage tank systems at the facility.
• Make financial responsibility documents available to the underground storage tank implementing agency as required.
At a minimum, the Class A operator must be trained in the following:
• A general knowledge of underground storage tank system requirements so he or she can make informed decisions regarding compliance and ensure appropriate individuals are fulfilling operation, maintenance, and recordkeeping requirements and standards of 40 CFR part 280 or requirements and standards of a state underground storage tank program approved by EPA under SWDA Section 9004 regarding:
• Spill prevention.
• Overfill prevention.
• Release detection.
• Corrosion protection.
• Emergency response.
• Product compatibility.
• Financial responsibility documentation requirements.
• Notification requirements.
• Release and suspected release reporting.
• Temporary and permanent closure requirements.
• Operator training requirements.
A Class B operator implements applicable underground storage tank regulatory requirements and standards (i.e., 40 CFR part 280 or requirements of a state underground storage tank program approved by EPA under SWDA Section 9004) in the field. This individual implements day-to-day aspects of operating, maintaining, and recordkeeping for underground storage tanks at one or more facilities. For example, this individual typically monitors, maintains, and ensures:
• Release detection method, recordkeeping, and reporting requirements are met.
• Release prevention equipment, recordkeeping, and reporting requirements are met.
• All relevant equipment complies with performance standards.
• Appropriate individuals are trained to properly respond to emergencies caused by releases or spills from underground storage tank systems at the facility.
Compared with training for the Class A operator, training for the Class B operator will provide a more in-depth understanding of operation and maintenance aspects, but may cover a more narrow breadth of applicable regulatory requirements.
States may require either site-specific operator training, which is focused only
• Components of underground storage tank systems.
• Materials of underground storage tank system components.
• Methods of release detection and release prevention applied to underground storage tank components.
• Operation and maintenance requirements of 40 CFR part 280 or requirements of a state underground storage tank program approved by EPA under SWDA Section 9004 that apply to underground storage tank systems and include:
• Spill prevention.
• Overfill prevention.
• Release detection.
• Corrosion protection.
• Emergency response.
• Product compatibility.
• Reporting and recordkeeping requirements.
• Class C operator training requirements.
A Class C operator is an employee and is, generally, the first line of response to events indicating emergency conditions. This individual is responsible for responding to alarms or other indications of emergencies caused by spills or releases from underground storage tank systems. This individual notifies the Class B or Class A operator and appropriate emergency responders when necessary. Not all employees of the facility are necessarily Class C operators. This individual typically:
• Controls or monitors the dispensing or sale of regulated substances, or
• Is responsible for initial response to alarms or releases.
At a minimum, the Class C operator must be trained to:
• Take action in response to emergencies (such as, situations posing an immediate danger or threat to the public or to the environment and that require immediate action) or alarms caused by spills or releases from an underground storage tank system.
States must ensure that Class A, Class B, and Class C operators are trained according to state-specific training requirements by August 8, 2012, which is three years after the date states are required to develop state-specific training requirements. A state may want to establish a schedule for phasing in the training over this time.
After August 8, 2012, states must require operators be trained as follows:
• Class A and Class B operators must be trained within 30 days or another reasonable period specified by the state, after assuming operation and maintenance responsibilities at the underground storage tank system.
• Class C operators must be trained before assuming responsibility for responding to emergencies.
If a state determines an underground storage tank system is out of compliance, appropriate operator(s) must be retrained. States may determine whether both Class A and Class B operators are retrained, or if only one class of operator (either Class A or Class B) is retrained. At a minimum, an underground storage tank system is out of compliance if the system:
• Does not meet EPA's Significant Operational Compliance requirements for release prevention and release detection measures identified at:
• Is not in significant compliance with other requirements, such as financial responsibility, as determined by the state.
Operators must be retrained within a reasonable time frame established by the state. At a minimum, retraining must include training of the areas determined not in significant compliance. States requiring at least annual operator training that covers all operator class requirements would meet retraining requirements.
Operator training must evaluate operator knowledge of the minimum training requirements described for each class of operator in these guidelines.
The following is a list of acceptable approaches to meet training requirements stated in these guidelines:
• An operator training program conducted or developed by the state or by a third party that has received prior state
• An appropriately administered and evaluated verification of operator knowledge (i.e., examination). This determination must be accomplished through an operator examination designed to measure operator knowledge as required in these guidelines. The state or a third party acceptable to the state may administer this examination. The examination process must be acceptable to the state and reasonably determine the person tested has the necessary knowledge and skills to be considered competent to operate underground storage tanks.
• For Class C operator training, the state may accept training conducted by a trained Class A or Class B operator.
• To address operators responsible for underground storage tank systems in multiple states, states may develop a program that accepts operator training verification from other states.
• Any combination of the above listed operator training approaches or comparable training approaches recognized by the state.
States must have a system in place for ensuring all operators are trained in accordance with these guidelines. The following are some examples for meeting this requirement.
• Require owners or operators maintain records documenting the training received for all Class A, Class B, and Class C operators either: At the underground storage tank site and immediately available for inspection by the implementing agency; or at a readily available alternative site and be provided for inspection to the implementing agency upon request.
• Require owners or operators report Class A, Class B, and Class C operator compliance to the implementing agency.
At a minimum, states must have comparable enforcement authorities for their operator training requirements as they have for current underground storage tank requirements.
After August 8, 2009, and before receiving future grant funding, states must provide one of the following to EPA:
• For a state that has met the requirements for operator training, the state must submit a certification indicating that the state meets the requirements in the guidelines.
• For a state that has not yet met the requirements for operator training, the state must provide a document that describes the state's efforts to meet the requirements. This document must include:
• A description of the state's activities to date to meet the requirements in the guidelines;
• A description of the state's planned activities to meet the requirements; and
• The date by which the state expects to meet the requirements.
EPA may verify state certifications of compliance through site visits, record reviews, or audits as authorized by 40 CFR part 31.
As a matter of law, each state that receives funding under Subtitle I, which would include a Leaking Underground Storage Tank (LUST) Cooperative Agreement, must comply with certain underground storage tank requirements of Subtitle I. The Agency will establish terms and conditions on grants and cooperative agreements for underground storage tank activities to require compliance with applicable requirements as a condition of funding. EPA will address noncompliance with these terms and conditions by utilizing EPA's grant enforcement authorities under 40 CFR 31.43, as necessary and appropriate.
Visit the EPA Office of Underground Storage Tanks Web site at
On August 8, 2005, President Bush signed the Energy Policy Act of 2005. Title XV, Subtitle B of this act (titled the Underground Storage Tank Compliance Act) contains amendments to Subtitle I of the Solid Waste Disposal Act—the original legislation that created the underground storage tank (UST) program. These amendments significantly affect federal and state underground storage tank programs, will require major changes to the programs, and are aimed at reducing underground storage tank releases to our environment.
The amendments focus on preventing releases. Among other things, they expand eligible uses of the Leaking Underground Storage Tank (LUST) Trust Fund and include provisions regarding inspections, operator training, delivery prohibition, secondary containment and financial responsibility, and cleanup of releases that contain oxygenated fuel additives.
Some of these provisions require implementation by August 2006; others will require implementation in subsequent years. To implement the new law, EPA and states will work closely with tribes, other federal agencies, tank owners and operators, and other stakeholders to bring about the mandated changes affecting underground storage tank facilities.
To see the full text of this new legislation and for more information about EPA's work to implement the underground storage tank provisions of the law, see:
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before October 9, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact below as soon as possible.
You may submit all Paperwork Reduction Act (PRA) comments by e-mail or U.S. post mail. To submit you comments by e-mail, send them to
For additional information about the information collection(s), send an e-mail to
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before October 9, 2007. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
The recordkeeping requirements contained in section 80.409 is necessary to document the operation and public correspondence service of public coast radiotelegraph, public coast radiotelephone stations and Alaska-public fixed stations, ship radiotelegraph, ship radiotelephone and applicable radiotelephone including the logging of distress and safety calls where applicable.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before October 9, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit all Paperwork Reduction Act (PRA) comments by email or U.S. post mail. To submit your comments by e-mail, send them to
For additional information about the information collection(s), send an e-mail
OMB Control Number: 3060-0519.
If the information collection was not conducted, the Commission would be unable to track and enforce violations of the Do-Not-Call Act. The Do-Not-Call rules provide consumers with several options for avoiding most unwanted telephone solicitations.
This national do-not-call registry supplements the current company-specific do-not-call rules for those consumers who wish to continue requesting that particular companies not call them. Any company, which is asked by a consumer, including an existing customer, not to call again must honor that request for five (5) years. The Commission retains the current calling time restrictions of 8 a.m. until 9 p.m.
However, a provision of the Commission's rules allows consumers to give specific companies permission to call them through an express written agreement. Nonprofit organizations, companies with whom consumers have an established business relationship, and calls to persons with whom the telemarketer has a personal relationship are exempt from the “do-not-call” requirements.
On September 21, 2004, the Commission released the
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before October 9, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact below as soon as possible.
You may submit all Paperwork Reduction Act (PRA) comments by e-mail or U.S. post mail. To submit you comments by e-mail,
For additional information about the information collection(s), send an e-mail to
On July 16, 2004, the Commission released a
The modification in the rule did not impose any new or modified information collection requirements nor did it affect the existing annual hourly and cost changes.
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 7, 2007. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Jasmeet K. Seehra, Office of Management and Budget, Room 10236 NEOB, Washington, DC 20503, (202) 395-3123, or via fax at 202-395-5167 or via Internet at
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
The Commission anticipates there may be ongoing modifications to the technical standard. We expect that a subset of approximately 50 of the 965 entities will meet and make modifications to the technical standard for the remaining years. The total estimated annual burden hours for these entities are 4,200 hours. Additionally, we anticipate that 12 principal representatives will account for 1,920 hours (12 entities × 160 per entity = 1,920 hours) and 38 representatives will account for 2,280 hours (38 entities × 60 hours per entity = 2,280). 1,920 + 2,280 hours = 6,050 total annual burden hours is being reported to OMB.
On June 2000, the Commission adopted rules and policies to encourage the deployment of wireless services to tribal lands. Pursuant to the objectives and requirements of section 309(j)(3) and (4) of the Communications Act of 1934, as amended and in conjunction with the 1990 Census which indicates that communities on tribal lands have historically had less access to telecommunications services than any other segment of the population. The Commission adopted rules and policies to encourage deployment of wireless services to tribal communities.
On March 2003, the Commission adopted rules which extended the time period during which winning bidders can negotiate with relevant tribes to obtain the certification needed to obtain the bidding credit in a particular market from 90 days to 180 days.
On August 2004, the Commission adopted a third final rule which raised the wireline telephone penetration rate at which tribal lands are eligible for a bidding credit from 70 percent or less to 85 percent or less, and increased the amount of the bidding credit available to carriers that pledge to deploy on and serve qualifying tribal lands. A winning bidder seeking a bidding credit to serve a qualifying tribal land within a particular market must meet specific requirements (filing FCC Form 601) and various certifications from tribal government stating specific requirements are met.
The Commission believes that the lack of basic telecommunications services puts affected tribal communities at a social and economic disadvantage. This information collection will be used to ensure that tribal communities within federally-recognized tribal areas have access to wireless telecommunications services equivalent to that of the nation as a whole.
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to (PRA) of 1995 (PRA), Public Law No. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Subject to the PRA, no person shall be subject to any penalty for failing to comply with a collection of information that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written PRA comments should be submitted on or before October 9, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit all PRA comments by e-mail or U.S. post mail. To submit your comments by e-mail, send them to
For additional information about the information collection(s), contact Cathy Williams at (202) 418-2918 or send an e-mail to
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 7, 2007. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, Room 10236 NEOB, Washington, DC 20503, (202) 395-5887, or via fax at 202-395-5167 or via email to
For additional information or copies of the information collection(s), contact Jerry Cowden at 202-418-0447 or via e-mail at
The Federal Communications Commission (Commission) requires telecommunications carriers and other providers of telecommunications to contribute to the Universal Service Fund (USF) and other funds. Contribution revenue data, as well as other information, are reported by carriers and other providers of telecommunications on FCC Forms 499-A and 499-Q. Accompanying these forms are instructions on how to report revenue. This revision is necessary to incorporate the changes required by the Vonage Holdings Corp. Decision and TRS Contribution Order and will go into effect with the November 1, 2007 quarterly filing of FCC Form 499-Q.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 7, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Jasmeet K. Seehra, Office of Management and Budget (OMB), Room 10236 NEOB, Washington, DC 20503, (202) 395-3123, or via fax at (202) 395-5167 or via Internet at
If you would like to obtain or view a copy of this information collection, you may do so by visiting the FCC PRA Web page at:
For additional information or copies of the information collection(s), contact Cathy Williams at (202) 418-2918 or via the Internet at
The CBPA directs that Class A stations must comply with the operating requirements for full-service television broadcast stations. Therefore, beginning on the date of its application for a Class A license and thereafter, a station must be “in compliance” with the Commission's operating rules for full-service television stations, contained in 47 CFR part 73.
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 7, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Jasmeet K. Seehra, Office of Management and Budget (OMB), Room 10236 NEOB, 725 17th Street, NW., Washington, DC 20503, (202) 395-3123, or via fax at (202) 395-5167 or via Internet at
If you would like to obtain or view a copy of this information collection, you may do so by visiting the FCC PRA Web page at:
For additional information or copies of the information collection(s), contact Cathy
Currently, the Commission has specific complaint forms for the unauthorized conversion of a person's telephone service (“slamming”) (FCC Form 501), the broadcast of indecent, obscene, or profane material (FCC Form 475B), and the unlawful telemarketing, “junk faxing,” or e-mail messaging to a wireless device (FCC Form 1088). The current FCC Form 475 is used for all other types of complaints, although, as currently drafted, it is predominately oriented toward common carrier complaints.
The proposed FCC Form 2000 replaces current FCC Form 475, providing greater clarity and ease of use by separating the various complaint subject areas into separate subparts tailored to each subject. The Internet-based version of FCC Form 2000 first asks for the complainant's contact information, including name, address, telephone number, and e-mail address; then presents a “gateway” question to determine the general topic of the complaint: (1) Deceptive or unlawful advertising or marketing; (2) billing, privacy, or service quality; (3) disability access;
(4) emergency or public safety; (5) general media issues; or (6) other complaints. As described below, the form provides examples of the types of issues covered by each topic. After the complainant answers this question, the form asks additional questions geared to the specific type of violation reported. The form poses certain mandatory threshold questions that must be answered for the Commission to determine whether a violation has occurred. It also provides space for complainants to provide additional information and details that may be necessary or helpful to the Commission in investigating the complaint.
In printed format, FCC Form 2000 will have six subparts, one for each area described above.
Each subpart of the printable version of FCC Form 2000 consolidates the complainant's personal information with detailed questions about the specific violations alleged by the complainant.
The following descriptions of FCC Form 2000A, 2000B, 2000C, 2000D, 2000E and 2000F, therefore, refer to the printable subparts of FCC Form 2000.
This form would be used for complaints that do not come within the scope of any of the other subparts of FCC Form 2000. Some of the areas covered by this form would be interference to non-emergency services or communications, such as garage door openers or home appliances, as well as amateur or Citizens Band (CB) radio issues.
FCC Form 2000 will allow the Commission to collect detailed information from complainants concerning possible violations of the Act and the Commission's rules, which will enable the Commission to investigate such allegations more efficiently and to initiate enforcement actions against violators as appropriate. By collecting complaint information in a single, comprehensive template, the form will provide a standardized way for complainants to provide their information, thus reducing the need for further documentation or questions from FCC investigators to determine whether violations have occurred. This approach will ensure that complainants present their information in a way that maximizes the FCC's ability to take enforcement action against violators and protects complainants from violations that are unjust, unreasonable, and potentially hazardous to life and property. Additionally, FCC Form 2000's format reduces the need for complainants to compose narratives with all the information necessary for the Commission to begin an investigation, principally by including fields for and examples of the information most commonly needed for investigations of the most common types of violations. The form will allow the Commission to gather and review this information more efficiently. The information collected by FCC Form 2000 may ultimately become the foundation for enforcement actions and/or rulemaking proceedings, as appropriate.
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 7, 2007. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Jasmeet K. Seehra, Office of Management and Budget, Room 10236 NEOB, Washington, DC 20503, (202) 395-3123, or via fax at 202-395-5167 or via internet at
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
The recordkeeping requirement in Section 87.103 is necessary to demonstrate that all transmitters in the Aviation Service are properly licensed in accordance with the requirements of Section 103 of the Communications Act of 1934, as amended; 47 U.S.C. 301, No. 2020 of the International Radio Regulations, and Article 30 of the Convention on International Civil Aviation. The information used by FCC staff during inspection and investigations to ensure the particular station is licensed and operated in compliance with applicable rule, statutes and treaties. Section 87.103 requires (a)
The Federal Communications Commission will hold an Open Meeting on the subject listed below on Tuesday, August 7, 2007, which is scheduled to commence at 10 a.m. in Room TW-C305, at 445 12th Street, SW., Washington, DC. The prompt and orderly conduct of Commission business permits less than 7 days notice be given for consideration of this item.
Action by the Commission, August 3, 2007. Chairman Martin; Commissioners Copps, Adelstein, Tate and McDowell voting to consider this item.
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Include a description of the accommodation you will need including as much detail as you can. In addition, include a way we can contact you if we need more information. Make your request as early as possible; please allow at least 5 days advance notice. Last minute requests will be accepted, but may be impossible to fill. Send an e-mail to:
For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services call (703) 993-3100 or go to
Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Best Copy and Printing, Inc. (202) 488-5300; Fax (202) 488-5563; TTY (202) 488-5562. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio and video tape. Best Copy and Printing, Inc. may be reached by e-mail at
Additional information concerning this meeting may be obtained from Audrey Spivack or David Fiske, Office of Media Relations, (202) 418-0500; TTY 1-888-835-5322. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC's Audio/Video Events Web page at
Federal Communications Commission.
Notice.
The following applicants filed AM or FM proposals to change the community of license: APEX BROADCASTING, INC., Station WAVF, Facility ID 13890, BPH-20070705ADU, From HANAHAN, SC, To FORESTBROOK, SC; BOND BROADCASTING INC., Station WGEL, Facility ID 6343, BPH-20070619AAL, From GREENVILLE, IL, To TRENTON, IL; BRAD MAURICE COTHRAN, Station WXTN, Facility ID 27486, BP-20070702CUL, From LEXINGTON, MS, To BENTON, MS; CHAPARRAL BROADCASTING, INC., Station KLZY, Facility ID 164113, BMPH-20070615ACW, From HONOKAA, HI, To PAIA, HI; COUNTRY MOUNTAIN AIRWAVES, LLC, Station KQAZ, Facility ID 17391, BPH-20070611AHV, From SPRINGERVILLE, AZ, To PINETOP, AZ; EDUCATIONAL MEDIA FOUNDATION, Station WPLX, Facility ID 52906, BMP-20070703ABC, From GERMANTOWN, TN, To TURRELL, AR; ELECTRONIC APPLICATIONS RADIO SERVICES, Station WLHN, Facility ID 1724, BP-20070521ABD, From MUNCIE, IN, To ARLINGTON, IN; GOOD SAMARITAN EDUCATIONAL RADIO, INC., Station WKJD, Facility ID 86545, BMPED-20070116AAK, From COLUMBUS, IN, To NASHVILLE, IN; GOOD SHEPHERD RADIO INC., Station WXVW, Facility ID 90853, BMPED-20070327ABD, From VEEDERSBURG, IN, To DANVILLE, IL; GREAT LAKES RADIO, INC., Station WRUP, Facility ID 41825, BPH-20070619AAN, From MUNISING, MI, To PALMER, MI; J. L. BREWER BROADCASTING OF CLEVELAND, LLC, Station WHJK, Facility ID 66956, BPH-20070629BXS, From CLEVELAND, TN, To OOLTEWAH, TN; KONA COAST RADIO, LLC, Station NEW, Facility ID 170962, BNPH-20070502AHA, From STRATTON, CO, To ORDWAY, CO; MARATHON MEDIA GROUP, L.L.C., Station KLPW-FM, Facility ID 70301, BPH-20070614ADU, From UNION, MO, To ELSBERRY, MO; MILLER COMMUNICATIONS, INC., Station WWBD, Facility ID 6634, BPH-20070705ADV, From BAMBERG, SC, To ISLE OF PALMS, SC; MULTICULTURAL RADIO BROADCASTING LICENSEE, LLC, Station WNYG, Facility ID 5208, BP-20070601BDE, From BABYLON, NY, To MEDFORD, NY; NM LICENSING LLC, Station WKZQ-FM, Facility ID 24776, BPH-20070705ADT, From MYRTLE BEACH, SC, To HANAHAN, SC; THE RAFTT CORPORATION, Station KTON, Facility ID 60091, BP-20070607AAO, From BELTON, TX, To LANCASTER, TX; WAY-FM MEDIA GROUP, INC.,
Comments may be filed through October 9, 2007.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Tung Bui, 202-418-2700.
The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
Federal Communications Commission.
Notice; comments requested.
This document announces the release of and seeks public comment on ten research studies on media ownership intended to inform the Commission's review of its broadcast ownership rules.
The agency must receive comments on or before October 1, 2007 and reply comments on or before October 16, 2007.
Comments may be filed electronically using the Internet by accessing the Electronic Comment Filing System,
Michelle Connolly, Office of Strategic Planning & Policy Analysis, at (202) 418-1503. Press inquiries should be directed to Mary Diamond, Media Bureau, at (202) 418-2388.
1. The Commission announces the release of ten research studies on media ownership intended to inform the Commission's comprehensive review of its broadcast ownership policies undertaken in rulemaking proceeding MB Docket No. 06-121 involving the issues raised by the opinion of the U.S. Court of Appeals for the Third Circuit in
2. The following is a list of the media ownership studies released on July 31, 2007 and their respective authors and professional affiliations:
3. Interested parties may file comments on or before October 1, 2007 and reply comments on or before October 16, 2007. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS); (2) the Federal Government's eRulemaking Portal; or (3) by filing paper copies.
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format) send an e-mail to
4. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission's rules.
5. For further information, contact Michelle Connolly at (202) 418-1503 of the Office of Strategic Planning & Policy Analysis. Press inquiries should be directed to Mary Diamond, Media Bureau, at (202) 418-2388. TTY: (202) 418-7172 or (888) 835-5322.
Federal Housing Finance Board.
Notice.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Board (Finance Board) is seeking public comments concerning a 3 year extension by the Office of Management and Budget (OMB) of its approval of the information collection entitled “Federal Home Loan Bank Directors.” OMB has been assigned control number 3069-0002, which is due to expire on November 30, 2007.
Interested persons may submit comments on or before October 9, 2007.
Mail/Hand Delivery: Federal Housing Finance Board, 1625 Eye Street, NW., Washington, DC 20006, Attention: Public Comments.
Federal eRulemaking Portal:
We will post all public comments we receive on this notice without change, including any personal information you provide, such as your name and address, on the Finance Board Web site at
Patricia L. Sweeney, Program Analyst, Office of Supervision, by electronic mail at
Section 7 of the Federal Home Loan Bank Act (Bank Act) (12 U.S.C. 1427) and the Finance Board's implementing regulation, codified at 12 CFR part 915, establish the eligibility requirements and the procedures for electing and appointing Federal Home Loan Bank (Bank) directors. Under part 915, the Banks determine the eligibility of elective directors and director nominees and run the annual director election process. To determine eligibility, the Banks use the Federal Home Loan Bank Elective Director Eligibility Certification Form, which has not changed since the information collection was last cleared in 2004. A copy of the Form is attached to this Notice. The Finance Board welcomes comments on the Form.
In 2007, the Finance Board published two rules affecting the eligibility and selection of appointive Bank directors. The first rule, published in April 2007, requires the boards of directors of the Banks to submit to the Finance Board a list of individuals that includes information regarding each individual's eligibility and qualifications to serve as a Bank director. The Finance Board uses the list provided by each Bank to select well-qualified individuals to serve on the Bank's board of directors.
The likely respondents include Banks, Bank members, and prospective and incumbent Bank directors. The OMB number for the information collection is 3069-0002. The OMB clearance for the information collection expires on November 30, 2007.
The Finance Board estimates that the total number of respondents is 4,351, which includes 12 Banks, 4,000 Bank members, and 339 prospective and incumbent Bank directors. As explained below, the Finance Board estimates that the total annual hour burden for all respondents is 4,501.5 hours.
The Finance Board estimates the total annual average hour burden for each Bank to conduct the election of directors and to process Elective Director Eligibility Certification Forms is 235 hours. The estimate for the average hour burden for all Banks is 2,820 hours (12 Banks × 235 hours).
The Finance Board estimates the total annual average hour burden for all Bank members to participate in the election process is 1,075 hours. This includes the time necessary to consider elective director candidates and to cast votes. The Finance Board estimates that Bank members will consider 300 elective director candidates annually for a total of 75 hours (300 individuals × 15 minutes = 75 hours). The Finance Board estimates the total annual average hour burden for a Bank member to vote in the director election is 15 minutes for a total of 1,000 hours (4,000 voting members × 15 minutes = 1,000 hours).
The Finance Board estimates the total annual average hour burden for all prospective and incumbent elective directors is 75 hours. This includes a total annual average of 100 prospective elective directors (out of the 300 individuals the Banks consider), with 1 response per individual taking an average of 30 minutes (100 individuals × 30 minutes = 50 hours). It also includes a total annual average of 100 incumbent elective directors, with 1 response per individual taking an average of 15 minutes (100 individuals × 15 minutes = 25 hours).
The Finance Board estimates the total annual average hour burden for each Bank to recruit, review, and recommend individuals to be appointed as Bank directors is 28 hours. The estimate for the average hour burden for all Banks is 336 hours (12 Banks × 28 hours).
The Finance Board estimates the total annual average hour burden for all prospective and incumbent appointive directors is 195.5 hours. This includes a total annual average number of 84 prospective appointive directors with 1 response per individual taking an average of 2 hours (84 individuals × 2 hours = 168 hours). It also includes a total annual average of 55 incumbent appointive directors, with 1 response per individual taking an average of 30 minutes (55 individuals × 30 minutes = 27.5 hours).
The Finance Board requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of Finance Board functions, including whether the information has practical utility; (2) the accuracy of the Finance Board's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
By the Federal Housing Finance Board.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
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 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 office 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 August 23, 2007.
Board of Governors of the Federal Reserve System, August 3, 2007.
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 application also will 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. Additional information on all bank holding companies may be obtained from the National Information Center website at
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 September 4, 2007.
Board of Governors of the Federal Reserve System, August 3, 2007.
10 a.m. (Eastern Time), August 20, 2007.
4th Floor Conference Room, 1250 H Street, NW., Washington, DC 20005.
Open.
1. Approval of the minutes of the July 16, 2007 Board member meeting.
2. Thrift Savings Plan activity report by the Executive Director.
a. Monthly Participant Activity Report.
b. Monthly Investment Performance Report.
c. Legislative Report.
3. MetLife Audit Report.
Thomas J. Trabucco, Director, Office of External Affairs, (202) 942-1640.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing its intent to accept and consider a single source application (RFA-FDA-07-006) for the awarding of a Cooperative
Applications are due August 24, 2007.
Gladys M. Bohler, Office of Acquisitions and Grants Services, Food and Drug Administration, 5630 Fishers Lane, rm. 2105, Rockville, MD 20857, 301-827-7168, or e-mail:
In FY 2007, all applications must be received by August 24, 2007. Applications must be received by close of business on the established receipt date. Late applications may be accepted under extreme circumstances beyond the control of the applicant. Applicants not received on time will not be considered for review and will generally be returned to the applicant.
Applications must be submitted electronically through grants.gov. The application must be on SF424 R&R (Research and Related Portable Document Format). Exceptions may be made in unusual circumstances and on a case by case basis. Applicants must download the SF424 (R&R) application forms and 424 (R&R) Application Guide for this funding opportunity through grants.gov at
If electronic submission is impossible, please contact Gladys M. Bohler, Grants Management Specialist, at 301-827-7168 or by e-mail at
For the grants.gov electronic application process, applicants are required to register with the Central Contractor Registration (CCR) database. This database is a government-wide warehouse of commercial and financial information for all organizations conducting business with the Federal Government.
Registration with CCR is a requirement and is consistent with the government-wide management reform to create a citizen-centered Web presence and build e-gov infrastructures in and across agencies to establish a “single face to industry.” The preferred method for completing a registration is through the World Wide Web at
In order to access grants.gov, an applicant will be required to register with the Credential Provider. Information about this is available at
For issues regarding the administrative and financial management aspects of this notice, contact: Gladys M. Bohler by mail: Office of Acquisitions and Grants Services, Food and Drug Administration, 5630 Fishers Lane, Rockville, MD 20857; telephone: 301-827-7168; FAX: 301-827-7101; e-mail:
For issues regarding the programmatic aspects, contact: Mary C. Hitch, Senior Policy Advisor, Office of External Relations (HF-10), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857; telephone: 301-827-4406; FAX: 301-827-8030; e-mail:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined that MIVACRON (mivacurium chloride) injection equivalent to (EQ) 2 milligrams (mg) base/milliliter (mL) was not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for mivacurium chloride injection EQ 2 mg base/mL.
Christine F. Rogers, Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA applicants must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations” which is generally known as the “Orange Book.” Under FDA regulations, drugs are removed from the list if the agency withdraws or suspends approval
Under § 314.161(a)(1) (21 CFR 314.161(a)(1)), the agency must determine whether a listed drug was withdrawn from sale for reasons of safety or effectiveness before an ANDA that refers to that listed drug may be approved. FDA may not approve an ANDA that does not refer to a listed drug.
MIVACRON (mivacurium chloride) injection EQ 2 mg base/mL is the subject of approved NDA 20-098 held by Abbott Laboratories, Inc. (Abbott). MIVACRON is a short-acting neuromuscular blocking agent indicated for inpatients and outpatients, as an adjunct to general anesthesia, to facilitate tracheal intubation and to provide skeletal muscle relaxation during surgery or mechanical ventilation. FDA approved the NDA for MIVACRON on January 22, 1992. Abbott ceased marketing MIVACRON in July 2006.
Regulus Pharmaceutical Consulting, Inc., submitted a citizen petition dated October 25, 2006 (Docket No. 2006P-0445/CP1), under 21 CFR 10.30, requesting that the agency determine, as described in § 314.161, whether MIVACRON (mivacurium chloride) injection EQ 2 mg base/mL was withdrawn from sale for reasons of safety or effectiveness. The petitioner has identified no data or other information suggesting that MIVACRON was withdrawn from sale as a result of safety or effectiveness concerns.
We have reviewed our records and determined that Abbott's MIVACRON (mivacurium chloride) injection EQ 2 mg base/mL was not withdrawn from sale for reasons of safety or effectiveness. We have also independently evaluated relevant literature and data for adverse event reports and have determined that this product was not withdrawn for reasons of safety or effectiveness.
After considering the citizen petition and reviewing its records, FDA has determined that, for the reasons outlined in this notice, Abbott's MIVACRON (mivacurium chloride) injection EQ 2 mg base/mL was not withdrawn from sale for reasons of safety or effectiveness. Accordingly, the agency will list MIVACRON (mivacurium chloride) injection EQ 2 mg base/mL in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to MIVACRON (mivacurium chloride) injection EQ 2 mg base/mL may be approved by the agency as long as they meet all relevant legal and regulatory requirements for the approval of ANDAs. If FDA determines that labeling for this drug product should be revised to meet current standards, the agency will advise ANDA applicants to submit such labeling.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined that methotrexate injection, USP, preservative free, equivalent to (Eq.) 500 milligrams (mg) base/20 milliliters (mL) (25 mg/mL), was not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for methotrexate injection, preservative free, Eq. 500 mg base/20 mL (25 mg/mL).
Elena Cohen, Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA applicants must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is typically a version of the drug that was previously approved. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations” which is generally known as the “Orange Book.” Under FDA regulations, drugs are removed from the list if the agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162).
Under 21 CFR 314.161(a)(1), the agency must determine whether a listed drug was withdrawn from sale for reasons of safety or effectiveness before an ANDA that refers to that listed drug may be approved. FDA may not approve an ANDA that does not refer to a listed drug.
Methotrexate injection, USP, preservative free, Eq. 500 mg base/20 mL (25 mg/mL), is the subject of approved NDA 11-719 currently held by Mayne Pharma USA (Mayne). Although NDA 11-719 was originally approved in 1959, this formulation and dosage was approved in April 2005 (S-108). Methotrexate is an antifolate cytotoxic drug used in the treatment of a variety of malignancies, including acute lymphoblastic leukemia, osteosarcoma, advanced metastatic breast cancer, and others. It is also used to treat some inflammatory conditions such as rheumatoid arthritis. To date, Mayne has not marketed methotrexate injection, USP, preservative free, Eq. 500 mg base/20 mL (25 mg/mL). At the request of the sponsor, the product was moved to the discontinued section of the Orange Book in June 2005. In previous instances (see, e.g., the
SICOR Pharmaceuticals, Inc., submitted a citizen petition dated
After considering the citizen petition and reviewing agency records, FDA has determined that, for the reasons outlined in this document, methotrexate injection, preservative free, Eq. 500 mg base/20 mL (25 mg/mL), was not withdrawn from sale for reasons of safety or effectiveness. Accordingly, the agency will continue to list methotrexate injection, preservative free, Eq. 500 mg base/20 mL (25 mg/mL), in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to methotrexate injection, preservative free, Eq. 500 mg base/20 mL (25 mg/mL), may be approved by the agency as long as they meet all relevant legal and regulatory requirements for the approval of ANDAs. If FDA determines that labeling for these drug products should be revised to meet current standards, the agency will advise ANDA applicants to submit such labeling.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Guidance for Industry: Adequate and Appropriate Donor Screening Tests for Hepatitis B; Hepatitis B Surface Antigen (HBsAg) Assays Used to Test Donors of Whole Blood and Blood Components, Including Source Plasma and Source Leukocytes” dated July 2007. The guidance document provides recommendations to manufacturers of HBsAg assays that are intended to test donors of Whole Blood and blood components, including Source Plasma and Source Leukocytes, and to establishments using an HBsAg assay. Topics include recommendations on minimum sensitivity standards for HBsAg assays. This guidance finalizes the draft guidance entitled “Guidance for Industry: A Modified Lot-Release Specification for Hepatitis B Surface Antigen (HBsAg) Assays Used to Test Blood, Blood Components, and Source Plasma Donations” dated April 2002.
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of the guidance to the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 301-827-1800. See the
Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Joseph L. Okrasinski, Jr., Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210.
FDA is announcing the availability of a document entitled “Guidance for Industry: Adequate and Appropriate Donor Screening Tests for Hepatitis B; Hepatitis B Surface Antigen (HBsAg) Assays Used to Test Donors of Whole Blood and Blood Components, Including Source Plasma and Source Leukocytes” dated July 2007. The guidance document provides recommendations to manufacturers of HBsAg assays that are approved donor screening tests intended to screen donors of Whole Blood and blood components, including Source Plasma and Source Leukocytes for Hepatitis B, and to establishments using an HBsAg assay (See § 610.40(b) (21 CFR 610.40(b)). The document represents FDA's current thinking on minimum sensitivity for such HBsAg assays as they relate to donor testing “to reduce adequately and appropriately the risk of transmission of communicable disease” under § 610.40(b). Under 21 CFR 610.44, the manufacturers of HBsAg assays used to test donations must verify acceptable sensitivity and specificity of such kits by testing the kit-lots using an FDA reference panel. This guidance document recommends that all HBsAg detection assays used to test donors of Whole Blood and blood components, including Source Plasma and Source Leukocytes, have a lower limit of detection standard of 0.5ng HBsAg/mL or less.
In the
The guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the FDA's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may, at any time, submit to the Division of Dockets Management written or electronic comments (see
Persons with access to the Internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Guidance for Industry: Class II Special Controls Guidance Document: In Vitro HIV Drug Resistance Genotype Assay,” dated August 2007. The guidance document provides a means by which in vitro human immunodeficiency virus (HIV) drug resistance genotype assays may comply with special controls for class II devices. Elsewhere in this issue of the
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of the guidance to the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 301-827-1800. See the
Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Nathaniel L. Geary, Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210.
FDA is announcing the availability of a document entitled “Guidance for Industry: Class II Special Controls Guidance Document: In Vitro HIV Drug Resistance Genotype Assay,” dated August 2007. This guidance document was developed as a special control to support classification of the in vitro HIV drug resistance genotype assay from class III to class II (special controls). Also, it is intended for use in detecting HIV genomic mutations that confer resistance to specific antiretroviral drugs as an aid in monitoring and treating HIV infection.
In the
The guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the agency's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E (regulations governing premarket notification submissions) have been approved under OMB control number 0910-0120.
Interested persons may, at any time, submit written or electronic comments to the Division of Dockets Management (see
Persons with access to the Internet may obtain the guidance at either
Federal Emergency Management Agency, DHS.
Notice and request for comments.
The Federal Emergency Management Agency (FEMA), 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 a proposed revised information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the continued use of FEMA Form 95-22, Application for Admission, that is used to select participants for the U.S. Fire Administration (USFA) Executive Fire Officer Program (EFOP).
Public Law 93-498, the Fire Prevention and Control Act of 1974, created the National Fire Academy (NFA) which provides for courses and programs to train fire service personnel. Since 1985 USFA/NFA has sponsored and offered the EFOP, a professional development program for senior and executive level fire officers. The standard application form (FEMA Form 75-5, approved under OMB No. 1660-0005), used for all USFA/NFA courses, does not provide the sufficient information to select the most qualified applicants for the program. FEMA Form 95-22 will require a brief essay for questions specific to EFOP functions.
Interested persons should submit written comments to Chief, Records Management and Privacy, Information Resources Management Branch, Information Technology Services Division, Federal Emergency Management Agency, 500 C. Street, SW., Room 609, Washington, DC 20472.
Contact Chuck Burkell, (301) 447-1072 for additional information. You may contact the Records Management Branch for copies of the proposed collection of information at facsimile number (202) 646-3347 or e-mail address:
Federal Emergency Management Agency, DHS.
Notice and request for comments.
The Federal Emergency Management Agency (FEMA), 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 a continuing information collection. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), this notice seeks comments concerning the Mission Assignment (MA) form that is used to record requests for Federal assistance by State and Federal entities to FEMA, and the Action Request (AR) form which is used to request Federal assistance.
The MA form is necessary to support the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended, 42 U.S.C. 5121
A written request for Federal assistance may be submitted on an Action Request (AR) form. The AR form is the working document requesting Federal assistance.
Interested persons should submit written comments to Chief, Records Management and Privacy, Office of Management Directorate, Information Technology Services Division, Information Resources Management Branch, Federal Emergency Management Agency, Department of Homeland Security, 500 C. Street, SW., Room 609, Washington, DC 20472.
Bob Power, Branch Chief, Operations Branch at 202-646-7596 for additional information. You may contact the Records Management Branch for copies of the proposed collection of information at facsimile number (202) 646-3347 or e-mail at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Missouri (FEMA-1708-DR), dated June 11, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Missouri is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 11, 2007.
Clinton County for Individual Assistance (already designated for Public Assistance.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Kansas (FEMA-1711-DR), dated July 2, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Kansas is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of July 2, 2007.
Edwards and Pawnee Counties for Individual Assistance.
Harper County for Individual Assistance (already designated for Public Assistance).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Kansas (FEMA-1711-DR), dated July 2, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident period for this disaster is closed effective July 25, 2007.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Nebraska (FEMA-1714-DR), dated July 24, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated July 24, 2007, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and
I have determined that the damage in certain areas of the State of Nebraska resulting from severe storms and flooding during the period of May 28 to June 2, 2007, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Nebraska.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777. If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program also will be limited to 75 percent of the total eligible costs. Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Lee H. Rosenberg, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Nebraska to have been affected adversely by this declared major disaster:
Buffalo, Custer, Dawson, Frontier, Greeley, Hayes, Hitchcock, Howard, Kearney, Lincoln, Logan, Loup, Madison, Valley, and Wheeler Counties for Public Assistance.
All counties within the State of Nebraska are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Oklahoma (FEMA-1712-DR), dated July 7, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident period for this disaster is closed effective July 25, 2007.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oklahoma (FEMA-1712-DR), dated July 7, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
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 catastrophe declared a major disaster by the President in his declaration of July 7, 2007.
Nowata County for emergency protective measures [Category B], limited to direct Federal assistance under the Public Assistance program (already designated for Individual Assistance.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-1709-DR), dated June 29, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 29, 2007.
Cherokee, Runnels, Smith, and Travis Counties for Individual Assistance.
Brown, Comanche, Hamilton, and Llano Counties for Individual Assistance (already designated for Public Assistance, including direct Federal assistance.)
Hunt, Kaufman, Lamar, McCulloch, Menard, and Stephens Counties for Public Assistance, including direct Federal assistance.
Victoria and Williamson Counties for Public Assistance, including direct Federal assistance (already designated for Individual Assistance.)
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of final determination.
This document provides notice that the Bureau of Customs and Border Protection (CBP) has issued a final determination concerning the country of origin of certain printer cartridges which may be offered to the United States Government under an undesignated government procurement contract. CBP has concluded that, based upon the facts presented, the operations performed at the United States facility do not result in a substantial transformation of the goods. Therefore, the goods will not be considered to be products of the United States.
The final determination was issued on August 2, 2007. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination within 30 days of August 8, 2007.
Gerry O'Brien, Valuation and Special Programs Branch, Regulations and Rulings, Office of International Trade (202-572-8792).
Notice is hereby given that on August 2, 2007, pursuant to subpart B of part 177, Customs Regulations (19 CFR part 177, subpart B), CBP issued a final determination concerning the country of origin of certain printer cartridges which may be offered to the United States Government under an undesignated government procurement contract. This final determination, in HQ H009107, was issued at the request of Nukote International, Inc. under procedures set forth at 19 CFR part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18).
In the final determination, CBP concluded that, based upon the facts presented, the operations performed at the United States facility do not result in a substantial transformation of the goods. Therefore, the goods will not be considered to be products of the United States.
Section 177.29, Customs Regulations (19 CFR 177.29), provides that notice of final determinations shall be published in the
This is in response to your letter of March 26, 2007, requesting a final determination on behalf of Nukote International, Inc. (“Nukote”), pursuant to subpart B of Part 177, Customs and Border Protection (“CBP”) Regulations (19 CFR 177.21
This final determination concerns the country of origin of certain laser printer cartridge models. We note that Nukote is a party-at-interest within the meaning of 19 CFR 177.22(d)(1) and is entitled to request this final determination.
You request a final determination with respect to three manufacturing process scenarios and resulting end products. The first scenario involves laser toner cartridges for color laser printers, including both color and monochrome (black) cartridges. The second scenario involves monochrome (black) laser toner cartridges for conventional laser printers with an electronic chip. The third scenario involves monochrome (black) laser toner cartridges for conventional laser printers without an electronic chip.
You describe the first process as follows. Nukote collects empty toner cartridges from end users at collection sites in the United States and, to a substantially lesser extent, in Canada, Singapore, the United Kingdom, Hong Kong and China. Nukote also purchases used printer cartridges from United States-
Nukote then sends the cartridges to a foreign country, where they are sorted to remove units which cannot be remanufactured. This process identifies cartridge type and printer type, and removes damaged and broken parts and units that cannot be processed. The cartridges which can be remanufactured are then shipped to a different foreign facility, where Nukote has direct management and operational responsibility and where the operations performed are based on proprietary specifications developed by Nukote. At this facility, the used cartridges are split open, disassembled and separated into three sub-assemblies—the developer section, the toner hopper, and the waste hopper. The original doctor blade is cleaned and the original primary charge roller is sandblasted and recoated. The drum is removed from the waste hopper, which, along with the toner hopper, is scraped to remove plastic flash and residual foam seal material, and then blown out to remove residual toner from the original manufacturer. New foam seals are installed on the toner hopper and waste hopper units. New waste hopper drums, recovery blades and wiper blades are also installed. After being rebuilt with a clean blade, roller and gears, the developer section is temporarily assembled with a “host” toner section (the “host” hopper is used repeatedly for this test; it is not a part of an operating toner cartridge) and the rebuilt waste hopper. The temporarily-assembled unit is inserted in a printer which has been “hot-wired” to bypass the need for an electronic chip, which has not been installed. The cartridge then undergoes a test print to check that the seals do not leak and are capable of producing acceptable quality print. This mechanical test does not evaluate whether the cartridge will operate on its own in a printer. It could not do so, as the cartridge has not been charged with toner and the electronic chip has not been installed; without the chip, the cartridge is not operable, as it cannot communicate with the printer. The “host” hopper is then removed and the three main sub-assembly components (the developer section, the toner hopper, and the waste hopper) are prepared for shipment to Nukote's Rochester facility.
Final assembly of the printer cartridges occurs at Nukote's Rochester, New York facility. You state that the substantial majority of the operations at this facility are performed by skilled Nukote quality control and technical operations staff, which must complete a minimum of three to four weeks of training in order to become certified to engage in this activity. These operations consist of the following: (1) Incoming Quality Inspection. You state that the goods arrive without the electronic chip and toner that are necessary for the printer cartridge to perform any useful function. (2) Filling and Sealing. The toner hopper is filled with new chemical toner and the hopper is sealed with a plug. The toner in the first manufacturing process scenario is either of U.S. or foreign origin. (3) Mechanical Assembly. The waste hopper, developer section and toner hopper are assembled with screws, springs and clips. (4) Testing. Nukote “process tests” ten percent of the units for print quality and leakage. All of this testing is performed by a Nukote quality control technician and/or quality engineer. Nukote also “life tests” one to two percent of the units. During this process, all seals, clips, blades, PCRs, and rollers are visually inspected for cleanliness and proper assembly. (5) Inspection. One hundred percent of the units are visually inspected against a defined inspection criteria. (6) External Cleaning. The exterior of the units is cleaned by a pneumatic air line, a toner dust cloth and a dust collection device. (7) Installation of a Computer Chip. A custom-engineered and IP-protected chip, developed and manufactured in the United States, is manually installed in each unit. The chip enables the printer software to recognize the correct laser cartridge and permits the printer to tabulate the page count and toner volume level. The cartridge is non-functional without this chip. (8) Advance Preparation for Shipment. A shipping protector, lot control tag and shipping seals are applied. (9) Packaging for Shipment. The unit is placed in a shipping bag, protective endcaps are installed, an instruction sheet is added, a customer label is applied, and the unit is sealed in a customer-specific box. (10) Skidding and Shipment. The units are placed on a skid and sent to the shipping warehouse for movement to a distribution center in Tennessee. The cost of U.S. origin components for this scenario will vary from approximately 21% to 74%, depending on whether the toner is of U.S. or foreign origin.
The second process scenario involves conventional monochrome printer cartridges with computer chips. This process is substantially the same as the first process, with the following exceptions. The disassembly process at the foreign facility is slightly less complex because the cartridge itself is less complex than a chemical toner color cartridge. The toner is always of U.S. origin and is much less expensive than the toner for the color cartridge. The cost of the drum is considerably less than in the first scenario. The cost of U.S. origin components will range from approximately 69% to 76%, depending on whether certain components are of U.S. or foreign origin. As in the first scenario, a custom-engineered and IP-protected chip, developed and manufactured in the United States, is manually installed in each unit. The chip enables the printer software to recognize the correct laser cartridge and permits the printer to tabulate the page count and toner volume level.
The third manufacturing process scenario is different from the second only in that there is no computer chip in the third scenario. The cost of U.S. origin components will range from approximately 60% to 68%, depending on whether certain components are of U.S. or foreign origin. As in the second scenario, the toner is always of U.S. origin.
What is the country of origin of the subject laser printer cartridge models for the purpose of U.S. Government procurement?
Pursuant to Subpart B of Part 177, 19 CFR 177.21
Under the rule of origin set forth under 19 U.S.C. 2518(4)(B):
An article is a product of a country or instrumentality only if (i) it is wholly the growth, product, or manufacture of that country or instrumentality, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.
In determining whether the combining of parts or materials constitutes a substantial transformation, the determinative issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article.
In order to determine whether a substantial transformation occurs when components of various origins are assembled into completed products, CBP considers the totality of the circumstances and makes such determinations on a case-by-case basis. The country of origin of the item's components, extent of the processing that occurs within a country, and whether such processing renders a product with a new name, character, or use are primary considerations in such cases. Additionally, factors such as the resources expended on product design and development, extent and nature of post-
Nukote collects empty toner cartridges from end users at collection sites in the United States and, to a substantially lesser extent, in Canada, Singapore, the United Kingdom, Hong Kong and China. Nukote also purchases used printer cartridges from United States-based brokers. These used printer cartridges were originally manufactured at various locations in different countries. The cartridges are sorted at one foreign location and are then processed at a second foreign location and subsequently in the United States.
At the second foreign location, the cartridges are split open, disassembled, and separated into three sub-assemblies. Worn components of the sub-assemblies are replaced and made operational again. This work constitutes disassembly of the used cartridges, as well as certain preparation for the processing which will occur in the United States. At this point the goods are tested. It is claimed that the sub-assemblies are not functional without the chip which is later installed in the United States (at least in the two scenarios where the chip is involved).
The processing which occurs at Nukote's Rochester, New York facility includes inspection, filling and sealing, mechanical assembly, testing, cleaning, installation of a computer chip, preparation and packaging for shipment, and shipment. We do not believe these operations are complex enough to result in a substantial transformation of the sub-assemblies. The sub-assemblies are essentially made functional again at the foreign facility. While the chip which makes the cartridge work (in two of the three scenarios) is inserted in the United States, we find that the bringing together of the sub-assemblies in the United States does not result in a substantial transformation of the goods. For example, these operations in the United States are not as significant as those in NY G87305, where the cartridges were completely disassembled; salvageable parts were sorted into bins, cleaned, and reconditioned; major components, including the OPC drum and toner were replaced; and other new components were added.
In HQ 561232, dated April 20, 2004, CBP considered the steps necessary to create a fully functional FM tuner, including adjustments to the oscillator coil, two filter coils, and the demodulator coil, selecting and installing two resistors, and enclosing the item in a metal case. CBP held that “while these additional operations are required to create a fully functional product, and are of a certain complexity requiring technical skill, they do not change the essential character of the PCBA [printed circuit board assembly], which at this stage of production has the characteristics of the imported FM tuner but has not quite achieved full functionality.” Therefore, CBP held that there was not a second substantial transformation in the Philippines. We believe that HQ 561232 is relevant here as the imported sub-assemblies possess the characteristics of the printer cartridge but, as imported, have not achieved full functionality.
The operations performed at Nukote's Rochester, New York facility do not result in a substantial transformation of the cartridges. Therefore, the cartridges will not be considered to be products of the United States.
Sincerely,
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
HUD has recently undertaken efforts to modernize programs and processes in order to maintain a strong lending position with underserved and underserved borrowers. This information collection will serve to evaluate the level of satisfaction customers have with these new initiatives. The sample will consist of 1,000 FHA originating lenders with a production level of at least 28 loans for FY 2005.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-NEW) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail:
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
HUD has recently undertaken efforts to modernize programs and processes in order to maintain a strong lending position with underserved and underserved borrowers. This information collection will serve to evaluate the level of satisfaction customers have with these new initiatives. The sample will consist of 1,000 FHA originating lenders with a production level of at least 28 loans for FY 2005.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Fish and Wildlife Service, Interior.
Notice of issuance of permits for marine mammals.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Bureau of Land Management, U.S. Department of the Interior.
Notice of realty action.
The Bureau of Land Management (BLM) has examined and determined that two parcels of public land comprising 9.6 acres, more or less, located in Custer and Lemhi Counties, Idaho are suitable for a renewable, direct (non-competitive), 20-year agricultural use lease to The Nature Conservancy (TNC) pursuant to Section 302 (b) of The Federal Land Policy Management Act of 1976 (43 U.S.C. 1732 (b)), and the implementing regulations at 43 CFR part 2920, as amended. This action will resolve an historic encroachment occurring on public lands. The encroachment dating back to on or before 1976 was originally attributed to parties from whom TNC purchased property (adjacent to the subject parcels) in 2003. Rent for the use was determined by Department of the Interior appraisal to be BLM minimum annual lease fee of $250.00. Rent may be re-appraised annually, or at an interval not to exceed every 5 years to remain consistent with market trends.
Interested parties may submit comments to the BLM Challis Field Office Manager, at the below address. Comments must be received by not later than September 24, 2007. Only written comments will be accepted.
Address all written comments concerning this Notice to David Rosenkrance, BLM Challis Field Manager, 801 Blue Mountain Road, Challis, Idaho 83226-9304. Detailed information concerning this action, including but not limited to documentation related to compliance with applicable environmental and cultural resource laws, is available for review at the BLM Challis Field Office.
Tim Vanek, Realty Specialist at the above address or call (208) 879-6218.
The following described public land in Custer and Lemhi Counties, Idaho has been determined to be suitable for lease for the purpose of agricultural harvest (alfalfa hay). The BLM has determined that resource values will not be affected by the leasing of this parcel of public land. The proposed action complies with the BLM Challis Resource Management Plan (RMP) (1999). Compliance can be found under: Decision Land Tenure and Access under Goal 4 (Eliminate unauthorized use of public lands). As provided in 43 CFR 2920.5-4(b), land use authorizations may be offered on a negotiated, non-
Therefore, the BLM will accept for processing, an application to be filed by
The lease application must include a reference to this notice and comply in all respects with the regulations pertaining to land use authorization applications at 43 CFR 2920.5-2 and 2920.5-5(b).
If authorized, the lease would be subject to provisions of the Federal Land Policy Management Act of 1976, and all applicable regulations of the Secretary of the Interior, including but not limited to 43 CFR part 2920, and to valid existing rights.
The areas described contain 9.6 acres, more or less, in Custer and Lemhi Counties.
The United States (Lessor) shall reserve all leasable, locatable, and salable mineral resources and deposits in the subject parcel together with the right to prospect for, mine, and remove the same under applicable laws and regulations. The lease, when issued, will contain a covenant requiring TNC assign in the name of the Lessor that amount of water applied to the subject parcel during the use of the subject parcel by TNC. In the event the application of water to the public land ceases, this assignment shall terminate and full water right shall revert back to the sole ownership of TNC.
Comments must be received by the BLM Challis Field Manager at the address stated above, on or before the date stated above. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, be advised 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 from public review your personal identifying information, we cannot guarantee that we will be able to do so. Any adverse comments will be reviewed by the BLM Idaho Falls District Manager, who may sustain, vacate or modify this realty action. In the absence of any objections, or adverse comments, this proposed realty action will become the final determination of the Department of the Interior.
(Authority: 43 CFR 2920.4)
Minerals Management Service (MMS), Interior.
Notice of a reinstatement of an information collection (1010-0081).
To comply with the Paperwork Reduction Act of 1995 (PRA), MMS 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 30 CFR 282, Operations in the Outer Continental Shelf for Minerals Other than Oil, Gas, and Sulphur.
Submit written comments by October 9, 2007.
You may submit comments by any of the following methods listed below. Please use the Information Collection Number 1010-0081 as an identifier in your message.
• E-mail MMS at
• Fax: 703-787-1093. Identify with Information Collection Number 1010-0081.
• Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Cheryl Blundon; 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference “Information Collection 1010-0081” in your comments.
Cheryl Blundon, Regulations and Standards Branch at (703) 787-1607. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations of the subject collection of information.
Regulations at 30 CFR 282 implement these statutory requirements. However, there has been no activity in the OCS for minerals other than oil, gas and sulphur for many years and no information collected since we allowed the OMB approval to expire in 1991. Nevertheless, because these are regulatory requirements, the potential exists for information to be collected and we are requesting that OMB reinstate this collection of information.
We use the information required by 30 CFR 282 to determine if lessees are complying with the regulations that implement the mining operations program for minerals other than oil, gas, and sulphur. Specifically, MMS uses the information:
• To ensure that operations for the production of minerals other than oil, gas, and sulphur in the OCS are conducted in a manner that will result in orderly resource recovery, development, and the protection of the human, marine, and coastal environments.
• To ensure that adequate measures will be taken during operations to prevent waste, conserve the natural resources of the OCS, and to protect the environment, human life, and correlative rights.
• To determine if suspensions of activities are in the national interest, to facilitate proper development of a lease including reasonable time to develop a mine and construct its supporting facilities, or to allow for the construction or negotiation for use of transportation facilities.
• To identify and evaluate the cause(s) of a hazard(s) generating a suspension, the potential damage from a hazard(s) and the measures available to mitigate the potential for damage.
• For technical and environmental evaluations which provide a basis for MMS to make informed decisions to approve, disapprove, or require modification of the proposed activities.
We protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR 2), and 30 CFR 282.5, 282.6, and 282.7 and applicable sections of 30 CFR parts 280 and 281. No items of a sensitive nature are collected. Responses are mandatory.
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.
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.
United States International Trade Commission
August 20, 2007 at 2 p.m.
Room 101, 500 E. Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for Future Meetings: None.
2. Minutes.
3. Ratification List.
4. Inv. Nos. 701-TA-448 and 731-TA-1117 (Preliminary)(Certain Off-the-Road Tires from China)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before August 27, 2007).
5. Outstanding Action Jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By Order of the Commission.
The Department of Labor has submitted the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). Copies of the ICRs, announced herein with applicable supporting documentation; including inter alia a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the
Comments should be sent to Office of Information and Regulatory Affairs, Attn: John Kraemer, OMB Desk Officer for the Mine Safety and Health Administration (MSHA), Office of Management and Budget, 725 17th Street, NW., Room 10235, Washington, DC 20503, Telephone: 202-395-4816/ Fax: 202-395-6974 (these are not a toll-free numbers), E-mail:
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The Department of Labor has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). Copies of the ICR, announced herein with applicable supporting documentation; including inter alia a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Comments should be sent to Office of Information and Regulatory Affairs, Attn: Brian Harris-Kojetin, OMB Desk Officer for the Bureau of Labor Statistics (BLS), Office of Management and Budget, 725 17th Street, NW., Room 10235, Washington, DC 20503, Telephone: 202-395-4816 / Fax: 202-395-6974 (these are not toll-free numbers), E-mail:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The closing date for receipt of applications under this announcement is October 10, 2007. Applications must be received at the address below no later than 4 p.m. (Eastern Time). Application and submission information is explained in detail in Part IV of this SGA. Virtual Prospective Applicant Conferences will be held for this grant competition on August 14 and 15, 2007 at 1 p.m. Eastern Time. Additional information and links to registration for these Virtual Prospective Applicant Conferences will be posted on ETA's Web site at
The Employment and Training Administration (ETA), U.S. Department of Labor (DOL), announces the availability of approximately $125 million in grant funds for Community-Based Job Training Grants.
Community-Based Job Training Grants will be awarded through a competitive process to support workforce training for high-growth/high-demand industries through the national system of community and technical colleges. Funds will be awarded to individual community and technical colleges, community college districts, state community college systems, and One-Stop Career Centers to support or engage in a combination of capacity building and training activities for the purpose of building the capacity of community colleges to train individuals for careers in high-growth/high-demand industries in the local and/or regional economies. This Solicitation contains an exception for rural areas and other communities that are educationally underserved due to their lack of access to community or technical colleges.
In awarding Community-Based Job Training Grants, every effort will be made to fairly distribute grants across rural and urban areas and across the different geographic regions of the United States. It is anticipated that individual awards will range from $500,000 to $2 million.
This Solicitation provides background information and describes the application submission requirements, outlines the process that eligible entities must use to apply for funds covered by this Solicitation, and details how grantees will be selected.
Mailed applications must be addressed to the U.S. Department of Labor, Employment and Training Administration, Division of Federal Assistance, Attention: Eric Luetkenhaus, Reference SGA/DFA PY 07-01, 200 Constitution Avenue, NW., Room N-4716, Washington, DC 20210. Telefacsimile (FAX) applications will not be accepted. Information about applying online can be found in Section IV(C) of this document. Applicants are advised that mail delivery in the Washington area may be delayed due to mail decontamination procedures. Hand delivered proposals will be received at the above address.
This solicitation consists of eight parts:
• Part I is the funding opportunity description that includes background information on the topics of:
• Part II describes the size and nature of the anticipated awards.
• Part III describes eligibility information and other grant specifications.
• Part IV provides information on the application and submission process.
• Part V describes the criteria against which applications will be reviewed and evaluated, and explains the proposal review process.
• Part VI provides award administration information.
• Part VII contains DOL agency contact information.
• Part VIII lists additional resources of interest to applicants.
The Community-Based Job Training Grants (CBJTGs) are designed to support workforce training for high-growth/high-demand industries through the national system of community and technical colleges. The primary purposes of these grants are to build the capacity of community colleges to provide training and to train workers to develop the skills required to succeed in local or regional (i) industries and occupations that are expected to experience high-growth and (ii) industries where demand for qualified workers is outstripping the supply. Part A provides an overview of globalization, regional innovation and economic competitiveness and ETA's transformational vision of talent development in a regional economy; Part B; describes ETA's solutions-based approaches to workforce investment strategies; and Part C describes the critical elements of CBJTGs.
The world is now witnessing one of the greatest economic transformations in history. Revolutions in technology and information have ushered in the globalization of the economic marketplace. Globalization is marked by tremendous advances in communications, travel, and trade—allowing individuals instant access to commerce from almost anywhere in the world. At the same time, American businesses now compete not only with companies across the street, but also with companies around the globe.
Global competition is typically seen as a national challenge. In reality, regions are where companies, workers, researchers, entrepreneurs and governments come together to create a competitive advantage in the global marketplace. That advantage stems from the ability to transform new ideas and new knowledge into advanced, high quality products or services—in other words, to innovate.
Regions that are successful in creating a competitive advantage demonstrate the ability to organize “innovation assets”—people, institutions, capital and infrastructure—to generate growth and prosperity in the region's economy. These regions are successful because they have connected three key elements: Workforce skills and lifelong learning; learning strategies, investments and entrepreneurial strategies; and regional infrastructure and economic development strategies.
In the new global economy, a region's ability to develop, attract, and retain a well-educated and skilled workforce is a key factor in our nation's economic competitiveness. A region may possess a strong infrastructure and the investment resources for success, but without the talented men and women to use those elements for economic growth, they are meaningless. Talent can also drive investment and infrastructure because investment capital is smart money and will follow talent, while infrastructure can be built to support a growing economy.
Each year the federal government invests billions of dollars in a state and local workforce investment network to assist businesses in recruiting, training, and retaining a skilled workforce. This network is called the workforce investment system and consists of state and local workforce investment boards, state workforce agencies, and One-Stop Career Centers and their cooperating partners.
In this 21st century globally competitive economy, it is becoming increasingly important that the workforce system act as a strategic partner in regional economic development. As the leader in regional talent development, the workforce system aligns workforce investment dollars with regional economic growth goals by focusing on workforce and lifelong learning strategies that are demanded by employers and based on an understanding of future job growth in emerging, high-growth and economically vital industries and sectors of the American economy. Through this strategic alignment, the workforce system helps to ward off and respond to economic shocks, creating more stable and rewarding employment opportunities for the workforce. In addition, the system serves as a galvanizing partner by bringing together entities that can grow talent as well as leverage that talent base in attracting industry investment to the local or regional economy.
To maximize the impact of talent development activities, workforce investment boards must partner with a strong team composed of individuals and organizations necessary to transform the regional economy, including: Employers; educators at all levels, including community colleges; economic development entities; local, regional, and state government; the philanthropic community; faith-based and community organizations; research institutions; and other civic leaders with a stake in economic growth and talent development.
Within the context of these strategic partnerships, the workforce system should take a solutions-based approach to workforce development, focusing on systemic solutions that address short-term challenges while contributing to long-term talent development and economic growth. Partners should work collaboratively to:
(1) Identify the regional economy.
(2) Form the Core Leadership Group.
(3) Conduct a SWOT Analysis.
(4) Identify a Shared Regional Identity and Vision for the Regional Economy.
(5) Devise Strategies in Support of the Shared Vision.
(6) Leverage resources and implement.
Please note, this process is not linear—the steps may occur and reoccur depending on regional circumstances. The goal of this process is to ensure that workforce system resources help workers get education and training that aligns with regional industry-identified needs and job opportunities, and that these needs reflect economic development priorities in the region.
The Employment and Training Administration (ETA) has modeled the role of strategic partnerships in demand-driven workforce investment through the President's High Growth Job Training Initiative (HGJTI). Through the HGJTI, ETA identified high-growth, high-demand industries; evaluated their skill needs; and funded local and national partnership-based
The foundation of the HGJTI has been partnerships between the publicly funded workforce investment system, business and industry representatives, and the continuum of education. These partnerships engage each partner in its area of strength. Industry representatives and employers define workforce challenges facing the industry and identify the competencies and skills required for the industry's workforce. Education and training providers, such as community colleges, assist in developing competency models and curricula and train new and incumbent workers. The workforce investment system compiles and analyzes local labor market information, accesses human capital (e.g. youth, unemployed, underemployed, and dislocated workers), provides funding to support training for qualified individuals, and connects trained workers to good jobs.
The Community-Based Job Training Grants (CBJTGs) continue the work of the HGJTI by incorporating its focus on high-growth, high-demand industries and its emphasis on the role of strategic partnerships in workforce development while addressing the critical capacity constraints of community colleges.
Businesses in high growth, high demand industries face increasing difficulties in finding workers with the right skills. According to the Bureau of Labor Statistics, ninety percent of the fastest growing jobs in the United States require some level of education or training beyond high school. The accessibility and affordability of community college training, combined with the adaptability of community college curricula to changing skill needs, make community colleges a vital training resource for many U.S. workers. Furthermore, community colleges are closely connected to local and regional labor markets, making them well-positioned to prepare workers for good jobs with good wages in their regional economy.
However, community college leaders and industry executives report that many community colleges are unable to meet the demand for training in their region because of critical capacity constraints. These capacity constraints occur when community colleges lack sufficient resources to support training facilities and equipment, curriculum development, faculty appointments, clinical experiences, and/or other elements that are necessary to provide either the volume or quality of training that industry requires. Despite rising application rates, the reality of current state and local budgets often prevent community colleges from funding the programs, faculty, and student services needed to be responsive to regional workforce demands.
The CBJTGs build on the work of the High Growth Initiative by highlighting the critical role community colleges play as partners in a demand-driven workforce investment system, and by supporting community efforts to link training initiatives to the skill demands of local and regional employers. As a result, CBJTG activities will lead to an increased number of high-growth/high-demand firms being supported by regional workforce and education systems, and more individuals being trained and employed in high-growth/high-demand sectors.
Recognizing the growing need for regional economic competitiveness in the global economy, ETA has continued to evolve its strategies for supporting strategic workforce development. In February 2006, ETA launched the Workforce Innovation in Regional Economic Development (WIRED) Initiative, focusing on the role of talent development in driving regional economic competitiveness, leading to increased job growth and new opportunities for American workers. To optimize innovation and successful regional economic transformation, the WIRED framework brings together all the key players in a region to leverage their collective public and private sector assets and resources, and to devise strategies that focus on infrastructure, investment, and talent development.
The WIRED strategic framework supports regions in incorporating demand-driven talent and skills development into their larger economic strategies and integrating workforce development, economic development, and education efforts into a comprehensive system that is both flexible and responsive to the needs of business and workers. More information and tools to help implement a WIRED strategic framework can be found at
It is ETA's expectation that CBJTGs will contain at least seven critical elements. These elements consist of: (1) A focus on skill and competency needs of high-growth/high-demand industries that are Locally Defined in the Context of the Regional Economy; (2) strategic partnerships; (3) industry-driven capacity building and training efforts; (4) leveraged resources; (5) replication of successful models for broad distribution; (6) clear and specific outcomes; and (7) integration with regional economic and talent development strategies. These characteristics are reflected in the evaluation criteria in Part V and are described in further detail below.
The Workforce Investment Act of 1998 (Pub. L. 105-220) (WIA) emphasizes a workforce system driven by the needs of local employers. In order for America to remain competitive in the global economy, it is essential that ETA target its investments to support employers in high-growth/high-demand industries. Community colleges, Workforce Investment Boards, and One-Stop Career Centers play a vital role in this effort by understanding the workforce needs of these industries and providing training and other services to address those needs.
A high-growth/high-demand industry meets one or more of the following criteria: (1) Is projected to add substantial numbers of new jobs to the economy; (2) has a significant impact on the economy overall; (3) impacts the growth of other industries; (4) is being transformed by technology and innovation requiring new skill sets for workers; or (5) is a new and emerging business that is projected to grow. CBJTGs will support industry demand for training in local or regional high-growth/high-demand industries. Regions are typically defined as geographically contiguous areas and can include multiple counties and cities and cross state lines. A range of factors contribute to the formation of a region, including economic interdependence (such as a common industry or industries) and shared assets (such as human capital, research and development entities, educational institutions, and airports and other types of infrastructure). ETA encourages applicants to define local high-growth industries in the context of their regional economy by illustrating how the industry is aligned with and fits into the region's economic development activities.
ETA believes that strategic partnerships between community colleges; the workforce investment system, including One-Stop Career Centers; business and industry; and the continuum of education, including the
In order to maximize the long-term success of the proposed solution and to keep pace with the rapid changes in the economy and the nature of the skills and competencies necessary for work in these industries, these partnerships need to be substantial and sustained. ETA encourages partners to plan for the partnership's sustainability beyond the CBJTG investment period to enable ongoing assessment of industry workforce needs and collaborative development of solutions on a continual basis.
Within the context of the broader strategic partnership and as it relates to this grant, each collaborative partner should have clearly defined roles. These roles must be verified through a letter of commitment submitted by each partner. The letter of commitment must detail the role the partner will play in the project, including specific responsibilities and resources committed, if appropriate. The exact nature of these roles may vary depending on the issue areas being addressed and the scope and nature of the activities undertaken. However, ETA expects that each collaborative partner will, at a minimum, contribute in the following ways:
a. Employers must be actively engaged in the project and should participate fully in grant activities including: Defining the program strategy and goals; identifying needed skills and competencies; designing training approaches and curricula; implementing the program; contributing financial support; and, where appropriate, hiring qualified training graduates.
b. Education and training providers, including K-12 (elementary, middle, and high schools, as well as career and technical high schools), adult education, community and technical colleges, four-year colleges and universities, and other training entities, are important foundational partners to ensure the project's activities are tied to the broader continuum of education in the region. These entities assist in developing and implementing industry-driven workforce education strategies in partnerships with employers including competency models, curricula, and new learning methodologies, including technology-based learning.
c. The workforce investment system, which may include State and Local Workforce Investment Boards, State Workforce Agencies, and One-Stop Career Centers and their cooperating partners, as such terms are defined under the Workforce Investment Act, may play a number of roles, including: Identifying and assessing candidates for training; working collaboratively to leverage WIA investments; referring qualified candidates to the community college for enrollment in training programs; providing access to wrap-around supportive services, when appropriate; and connecting qualified training graduates to employers that have existing job openings. Additionally, the workforce investment system in general, and One-Stop Career Centers in particular, have substantive experience in tracking the outcomes of program participants. One-Stop Career Centers may coordinate, provide support, or manage the tracking of training recipients for the performance management aspect of the CBJTG.
Partnerships with faith-based and community organizations, while not required, are also encouraged. These organizations may provide a variety of grant services, such as case management, mentoring, and English language acquisition, among others. Faith-based and community-based organizations can also provide comprehensive supportive services, when appropriate.
Under CBJTGs, community colleges, or other entities as specified in the exception detailed in Section III(C)(5), must develop and implement a combination of capacity building and training activities that target skills and competencies demanded by local high-growth/high-demand industries as defined in the context of the region's economy. Applicants are not limited in the strategies and approaches they may employ to implement college capacity building and training strategies, provided the activities meet the following requirements:
a.
The credential awarded to participants upon completion should be based on the type of training provided through the grant and the requirements of the targeted occupation, and should be selected based on consultations with industry partners. For example:
i. Customized and short-term training should result in a performance-based certification or credential. This certification may be developed jointly by employers and the community college, based on defined knowledge and skill requirements for specific high-demand occupations/functions. Performance-based certifications may also be based on industry-recognized curriculum and standards.
ii. Training in information technology, allied health professions, and other fields with established professional standards and examinations should result in certification.
iii. In states where licensure is required for the specific occupation targeted by the training, the credentialing requirement should be set accordingly.
iv. In some instances, training provided under CBJTGs may lead to a degree after the grant program is over. In these instances, the credential required will be the college credit for each course leading to an Associate's or Applied Associate's degree.
b.
Examples of capacity building activities include, but are not limited to:
i. The development or adaptation of competency models and curricula to support training;
ii. The development of innovative curricula, teaching methods and instructional design to maximize the impact of the initiative in meeting the skills needs of employers;
iii. Innovative strategies to ensure availability of qualified and certified instructors;
iv. Procurement of equipment and simulation equipment necessary to train to industry-demanded skills;
v. Support for clinical experiences required for certification or licensure; or
vi. Development of technology-based distance learning curricula and programs to promote better access to education and training programs.
Capacity building activities must meet two criteria: (1) The proposed capacity building efforts must be directly linked to the specific training supported under the grant; and (2) grantees must use their grant funds in a manner consistent with the regulations and policies governing use of funds under Section 171(d) of WIA, which broadly allows the funds to be utilized to test an array of approaches to the provision of training services and supports the development and replication of effective training strategies. Applicants are strongly encouraged to review Section 171(d) of WIA and to review allowable types of capacity building activities under federal funds. In addition, OMB Circular A-21 provides guidance to educational institutions on allowable costs. Grantees may not utilize federal funds on unallowable activities, even if those activities are written in a successful application, and any such activities will need to be removed from a grant statement of work.
In their capacity building and training activities, ETA encourages CBJTG applicants, particularly those serving rural areas and other areas that are educationally underserved due to lack of access to community colleges, to look at technology-based distance learning options when building their capacity to provide training. Technology-Based Learning (TBL) is transforming the way people learn and can increase the geographic reach of training. TBL can be defined as the learning of content via all electronic technology, including the Internet, intranets, satellite broadcasts, audio and video tape, video and audio conference, Internet conferencing, chat rooms, bulletin boards, Web casts, computer-based instruction and CD-ROM. It encompasses related terms, such as online learning, Web-based learning, computer-based learning and e-learning. For example, a college may convert industry-specific curricula typically offered in traditional classroom settings to technology-based learning (e-learning or online) or develop technology-based learning training programs so that dislocated workers, incumbent workers, and/or new job entrants can access training 24 hours a day and seven days a week.
Projects funded through CBJTGs should leverage resources from key entities in the strategic partnership. Leveraging resources in the context of strategic partnerships accomplishes three goals: (1) It allows for the strategic pursuit of resources; (2) it increases stakeholder investment in the project at all levels including design and implementation phases; and (3) it broadens the impact of the project itself. Applicants are encouraged to leverage significant resources from key partners and other organizations to maximize the impact of the project on the community.
Leveraged resources include both federal and non-federal funds and may come from many sources. Businesses, faith-based and community organizations, economic development entities, education systems, and philanthropic foundations often invest resources to support workforce development. In addition, other federal, state, and local government programs may have resources available that can be integrated into the proposed project. Examples of such programs include other Department of Labor programs such as registered apprenticeship, as well as non-DOL One-Stop partner programs such as Vocational Rehabilitation, Adult Education, and Department of Education Pell Grants. Faith-based and community organizations may provide resources such as supportive services, mentoring, tutoring, and volunteers—all of which are important for grantees to leverage when assisting certain individuals targeted by these funds. For applicants who choose to leverage resources, please include the following information: (1) The total amount leveraged from federal sources; (2) the total amount leveraged from non-federal sources; (3) the partners contributing the resources; and (4) the projected activities, broken out by the source of the leveraged resource (federal or non-federal), to be implemented utilizing these resources.
ETA encourages CBJTG applicants and their strategic partners to be entrepreneurial as they seek out, utilize, and sustain these resources, whether they are in-kind or cash contributions, when creating capacity building and training strategies to effectively address the workforce challenges identified by industry.
ETA also encourages applicants to integrate WIA funding at the state and local level into their proposed project. Integrating WIA funds ensures that the full spectrum of assets available from the workforce system is leveraged to support capacity building and training activities. The wide variety of WIA programs and activities provide both breadth and depth to the proposed solution offered to both businesses and individuals. The use of WIA funds also serves to embed the solutions-based approach into the local or regional workforce investment system, which strengthens the system's ability to become more demand-driven.
ETA will award 5 bonus points to applications that demonstrate the integration of WIA training funds into grant activities, such as covering tuition costs for eligible new or incumbent workers. Examples of WIA training funds include Individual Training Accounts, customized training, and Career Advancement Accounts. Individual Training Accounts (ITAs) are training funds that can be used by individuals who have been determined eligible by their local One-Stop Career Center(s) to receive Workforce Investment Act (WIA) funded training. Customized training, defined under the Workforce Investment Act and 20 CFR 663.715, is designed to meet the special requirements of an employer; is conducted with a commitment by the employer to employ, or continue to employ, an individual on successful completion of the training; and has the
Career Advancement Accounts (CAAs) have been proposed in the President's Fiscal Year 2008 budget and are currently being piloted in eight states: Georgia, Indiana, Michigan, Minnesota, Missouri, Ohio, Pennsylvania, and Wyoming. CAAs are self-managed accounts an individual would apply for at a One-Stop Career Center that would enable the individual to gain the education and training needed to successfully enter, navigate, and advance in 21st century jobs.
CBJTGs are intended to drive the community college and workforce investment systems to be more responsive to the workforce demands of industry by making the products, models, and effective approaches that result from CBJTG investments available to both systems. To that end, grantees will develop the foundations and outcomes of CBJTG projects, including the learning and achievements resulting from the projects, into solutions-based models that can be shared with, and implemented by, other community colleges, the workforce system, and industry leaders.
ETA is currently pursuing an aggressive national dissemination strategy for grant products that focuses on widely distributing grantee tools, models, and products through a network of stakeholders including education and industry partners, and the public workforce system. The products and tools developed through the CBJTGs, including curriculum, competency models, distance learning tools, career awareness and outreach materials, research, case studies, career lattices, creation of industry skill centers, and Web sites, will be part of this dissemination strategy. CDs with available products will be developed and distributed to appropriate education, workforce, and business and industry association partners. All of these products will also be available online at
Workforce
The CBJTGs are fundamentally results-oriented. Grants are expected to generate clear and specific outcomes that are appropriate to the nature of the solution and size of the project; that are achievable by the partnership during the life of the grant; and that indicate progress towards meeting the workforce challenges identified by the partnership. Because CBJT grantees are expected to invest in customized strategies to address local and regional workforce and skills shortages, ETA recognizes that specific outcomes will vary from project to project based on the specific activities proposed by applicants. CBJTG applicants must demonstrate the effectiveness of the proposed training activities by creating appropriate outcome projections for the project, which will be considered baseline performance measures for the grant if awarded. Additionally, applicants should note that CBJT grantees must report to ETA, on a quarterly basis, their progress towards meeting the projected capacity building and training outcomes listed in their applications.
a.
In addition to Common Measures, grantees will be required to report the number and types of credentials awarded to trainees, if appropriate, and the number of individuals placed in employment related to training. Applications must include projections of the number and type of credentials to be awarded and, if appropriate, the number of individuals placed in employment related to training. Please note that the Common Measures provide only part of the information necessary to measure CBJTGs successes effectively. CBJTG recipients may also have additional outcome measures appropriate to their project.
On a quarterly basis, ETA will collect data from CBJT grantees on spending, program activities, participants, and all outcomes necessary to convey the full and accurate information on the performance of grantees and the program in general to policymakers and stakeholders. Applicants should note that proposals are evaluated based on outcomes, per the evaluation criteria in Section V(4)(A). Therefore, all outcomes and outcome projections provided in the application will become part of the project's statement of work as the baseline goals for the grant, should the application be funded. It is not ETA's intent to renegotiate performance outcomes after grant awards are made.
Please note, ETA has published in the
b.
Please note that capacity building outcomes and impacts of the proposed project must satisfactorily address the industry-identified workforce need and the capacity constraints identified by the community college, or other entity as specified in the exception detailed in Section III(C)(5).
Today's global economy requires new workforce development strategies that build on demand-driven approaches to propel economic growth. Successful workforce investment leads to the creation of new jobs by attracting new businesses and industries, and expanding existing companies in communities through a talent-rich workforce.
Maintaining America's competitive position in the global economy requires a workforce with postsecondary education credentials and the capacity to work in a high-technology environment while creatively and collaboratively adapting as new technologies and business process innovations evolve. To keep pace with change, workers require lifelong learning opportunities. Rather than simply training the workforce for today's jobs, community colleges, the workforce investment system, and other entities in the continuum of education must operate as a talent development system, meeting industry's present needs while also collaborating with the region's economic development system to identify and support emerging industries. The goal is to ensure the availability of an educated and prepared workforce that is able to compete in the global economy by attracting and sustaining industry's investment in regional economies.
While Community-Based Job Training Grants assist individual community colleges in building their capacity to provide training in high-growth/high-demand industry sectors of the economy, they also play a vital role in the development of a regional talent development system. Therefore, the capacity building and training activities occurring under CBJTGs should be aligned with, and integrated into, regional talent and economic development strategies. A regional approach under CBJTGs ensures that the full range of assets, resources, knowledge, and leadership are at the table to implement a solution that will address the critical capacity constraints faced by the community college while supporting talent development in the regional economy.
To demonstrate that their projects are aligned with and integrated into regional talent and economic development strategies, applicants should describe how their capacity building and training solution are part of or complement existing regional approaches under regional talent and economic development plans and initiatives or is the catalyst for bringing partners together to begin the analysis and strategic planning in their region. Additionally, applicants should demonstrate alignment with regional talent and economic development strategies by integrating regional partnerships into their proposed capacity building and training activities. In addition to the partners required under this Solicitation, applicants can demonstrate connection to regional talent and economic development activities through broader and deeper partnerships with regional business leadership and organizations, such as chambers of commerce; economic development organizations at the regional level; the philanthropic community; seed and venture capital organizations or individuals; investor networks; entrepreneurs; faith and community-based organizations; and other regional entities. Finally, for applicants leveraging resources, applicants should demonstrate that the funds leveraged come from regional partners or from existing or planned talent development efforts within the region.
ETA intends to fund approximately seventy-five (75) grants ranging from $500,000 to $2 million through this competition. However, this does not preclude ETA from funding grants at either a lower or higher amount, or funding a smaller or larger number of projects, based on the type and the number of quality submissions. Applicants are encouraged to submit budgets for quality projects at whatever funding level is appropriate to their project. Nevertheless, applicants should recognize that the funds available through this SGA are designed to complement additional leveraged resources rather than be the sole source of funds for the proposal.
The period of grant performance will be up to 36 months from the date of execution of the grant documents. This performance period shall include all necessary implementation and start-up activities, participant follow-up for performance outcomes, and grant close-out activities. A timeline clearly detailing these required grant activities and their expected completion dates must be included in the grant application. ETA may elect to exercise its option to award no-cost extensions to grants for an additional period, based on the success of the program and other relevant factors, if the grantee applies for, and provides a significant justification for, such an extension.
In order to be eligible for consideration under this solicitation, the applicant must be either: (1) An individual Community or Technical College, (2) a Community College District, (3) a state Community College System, or (4) a One-Stop Career Center in partnership with its Local Workforce Investment Board. For educationally underserved communities without access to community or technical colleges, there are other eligible applicants; please see Section III(C)(5) . Requirements for each of these applicant types are provided below.
1. Community or Technical College applicants must demonstrate that they are a public, accredited institution of higher education that predominantly awards Associate's Degrees. This definition includes tribally controlled colleges and universities. Private for-profit and private not-for-profit institutions of higher education are not eligible to apply under this Solicitation. For the purposes of this paragraph, an “Institution of Higher Education” is defined as an entity that has its own Federal Tax Identification Number and has direct control of its funds. Entities that do not meet the above criteria may
2. Community College District applicants must demonstrate that they are an education district organized by the state to define the community in which the college operates. Community College District applications must specify one or more community college(s) within the district where capacity building and training activities will occur under the grant.
3. State Community College System applicants must demonstrate that their office represents the management and supervision of a unified statewide system of community and technical colleges. State system applications must specify one or more community college(s) within the state where capacity building and training activities will occur under the grant.
4. One-Stop Career Centers, as established under Section 121 of the Workforce Investment Act of 1998 (Pub. L. 105-220). The eligible applicant for One-Stop Career Centers must be the One-Stop Operator, as defined under Section 121 of the Workforce Investment Act of 1998 (Pub. L. 105-220), on behalf of the One-Stop Career Center. The applicant must: (1) Have a letter of concurrence from the Workforce Investment Board; (2) demonstrate that the proposed activities are consistent with the state strategic Workforce Investment Act plan; and (3) demonstrate that the Local Workforce Investment Board, or its designated fiscal agent, will serve as the fiscal agent for the grant by clearly providing the legal name and EIN of the fiscal agent. The Workforce Investment Board's support and involvement in the project should be detailed in the letter of concurrence, which should also address the above requirements (2) and (3). Applications from One-Stop Career Centers without a letter of concurrence from their Workforce Investment Board will be considered non-responsive and will not be reviewed. One-Stop Career Center applications must specify one or more community college(s) where all capacity building and training activities will occur under the grant. One-Stop Career Center applicants should clearly note in the Abstract that they are applying under Section III(A)4, of the SGA. Additionally, in the abstract, One-Stop Career Center applicants should note that they are the One-Stop Career Center operator and provide the name of the One-Stop Career Center.
Cost sharing, matching, or cost participation is not required for eligibility; however, applicants are encouraged to leverage the resources of the partnership whenever possible. Five bonus points are available for applications that demonstrate that WIA training funds are integrated into grant activities.
1.
2.
Proposed capacity building activities must address barriers that impede the ability of the community college, or other entities specified in the exception detailed in Section III(C)(5), to meet local and regional industry demand for workforce training and must be directly linked to the specific training supported under the grant. Applicants may propose a cross-cutting capacity building and training strategy that will support training in more than one high-growth/high-demand industry if the applicant can demonstrate that skill needs in the identified industries are shared. Applicants that wish to propose training programs in two or more high-growth industries that do not share skill needs should do so through separate applications.
3.
4.
5.
Under this exception, the additional eligible applicants and requirements on training are listed below.
a. Public, accredited Institutions of Higher Education that award certificates and both two-year and four-year degrees, and satellite campuses of such Institutions, are eligible to apply under this exception. However, the emphasis for capacity building and training activities under the grant must be at the certificate or two-year Associate's Degree level. The public institution of higher education applicant is also required to be the training provider for applications submitted under this exception and will serve as a substitute for the required community college training provider detailed in Section III(C)(4);
b. Alternate Educational Entities that are governmental or not-for-profit organizations that directly deliver, or broker for delivery, post-secondary education opportunities in educationally underserved communities that lack access to community colleges are eligible to apply under this exception. Alternate Educational Entity applicants must demonstrate that: (1) The emphasis for capacity building and training activities under the grant must be at the certificate or two-year Associates Degree level; (2) the training is offered in partnership with a community college outside the underserved area and is acceptable for credit at or a credential from the partner community college; and (3) a component of the capacity building activities supports the partnering community college for the purposes of enhancing the training services provided by that college to the underserved area. Additionally, applications must specify one or more community college(s) where capacity building and training activities will occur under the grant.
6.
7.
This SGA contains all of the information and links to forms needed to apply for grant funding.
The proposal must consist of two (2) separate and distinct parts, Parts I and II. Applications that fail to adhere to the instructions in this section will be considered non-responsive and may not be given further consideration. Applicants who wish to apply do not need to submit a Letter of Intent. The completed application package is all that is required.
Part I of the proposal is the Cost Proposal and must include the following three items:
• The Standard Form (SF) 424, “Application for Federal Assistance” (available at
• All applicants for federal grant and funding opportunities are required to have a Data Universal Numbering System (DUNS) number provided by Dun and Bradstreet. See Office of Management and Budget (OMB) Notice of Final Policy Issuance, 68 FR 38402 (June 27, 2003). Applicants must supply their DUNS number on the SF 424. The DUNS number is a nine-digit identification number that uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access this Web site,
• The SF 424A Budget Information Form (available at
Please note that applicants that fail to provide either the SF 424, SF 424A or the budget narrative will be removed from consideration prior to the technical review process. If the proposal calls for integrating WIA or other federal funds or includes other leveraged resources, these funds should not be listed on the SF 424 or SF 424A Budget Information Form, but should be described in the budget narrative and in Part II of the proposal. The amount of DOL funding requested for the entire period of performance (up to 36 months) should be shown together on the SF 424 and SF 424A Budget Information Form. Please do not show only one year of funding on your SF 424 or SF424A. Applicants are also encouraged, but not required, to submit OMB Survey N. 1890-0014: Survey on Ensuring Equal Opportunity for Applicants, which can be found at
Part II of the application is the Technical Proposal, which demonstrates the applicant's capabilities to plan and implement the CBJTG in accordance with the provisions of this solicitation. The Technical Proposal is limited to twenty (20) double-spaced, single-sided, 8.5 inch x 11 inch pages with 12 point text font and one-inch margins. Applicants should number the Technical Proposal beginning with page number one. Any pages over the 20 page limit will not be reviewed. In addition, in attachments which may not exceed ten (10) pages, the applicant may provide resumes, a list of staff positions to be funded by the grant, statistical information, general letters of support, and other related material. The required letters of commitment from partners must be submitted as additional attachments and will not count against the allowable 10-page limit on attachments. Please note that applicants should not send letters of commitment or support separately to ETA because letters are tracked through a different system and will not be attached to the application for review. Additionally, the applicant must reference grant partners by organizational name in the text of the Technical Proposal. Except for the discussion of any leveraged resource to address the evaluation criteria, no cost data or reference to prices should be included in the Technical Proposal. In addition, the following information is required:
Please note that the abstract, summary of outcomes, table of contents, and time line are not included in the Technical Proposal page limitation, but have their own page limitations, listed above. Applications that do not provide Part II of the application may be removed from consideration prior to the technical review process.
Applications may be submitted electronically on www.grants.gov
The closing date for receipt of applications under this Solicitation is October 10, 2007. Applications must be received at the address below or successfully submitted through grants.gov no later than 4 p.m. (Eastern Time). Applications sent by e-mail, telegram, or facsimile (fax) will not be
ETA will post Frequently Asked Questions (FAQs) and host Virtual Prospective Applicant Conferences for this grant competition. The FAQs, as well as registration information for the Prospective Applicant Conferences will be posted on ETA's Web site at:
Mailed applications must be addressed to the U.S. Department of Labor, Employment and Training Administration, Division of Federal Assistance, Attention: Eric Luetkenhaus, Reference SGA/DFA PY 07-01, 200 Constitution Avenue, NW., Room N-4716, Washington, DC 20210. Applicants are advised that mail delivery in the Washington area may be delayed due to mail decontamination procedures. Hand delivered proposals will be received at the above address.
Applicants may apply online through Grants.gov (
This funding opportunity is not subject to Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs.”
Determinations of allowable costs will be made in accordance with the applicable Federal cost principles, e.g., Educational Institution—OMB Circular A-21. Disallowed costs are those charges to a grant that the grantor agency or its representative determines not to be allowed in accordance with the applicable Federal Cost Principles or other conditions contained in the grant. Applicants will not be entitled to reimbursement of pre-award costs.
Applications may be withdrawn by written notice at any time before an award is made. Applications may be withdrawn in person by the applicant or by an authorized representative thereof, if the representative's identity is made known and the representative signs a receipt for the proposal.
This section identifies and describes the criteria that will be used to evaluate proposals for a Community-Based Job Training Grant. These criteria and point values are:
Applicants must demonstrate a clear and specific need for the federal investment in the proposed activities by: (a) Identifying the industry or industries of focus; (b) establishing that the identified industry satisfies ETA's criteria for a high-growth/high-demand industry in the local or regional economy as described in Section I(C)(1) of this solicitation; (c) providing evidence of industry demand for training in the local or regional economy; and (d) describing in detail the capacity challenges the community college(s), or other entity as specified in the exception detailed in Section III(C)(5), faces that limit its ability to provide sufficient quantity or quality of training to meet the identified industry's demand.
Applicants may draw from a variety of resources for supporting data, including: Traditional labor market information, such as projections; industry data from trade or industry associations, Chambers of Commerce, or direct information from the local employers or industry; information on the local and regional economy from economic development agencies; and other transactional data, such as job vacancies.
In addition to the above, applicants applying under the exception detailed in Section III(C)(5) must also demonstrate that community college training is not reasonably available within commuting distance of the community in which grant activities will take place and that there are no viable technology-based or distance learning options available. Applicants may wish to use mileage, population, and access to classrooms, Internet and other technology, public transportation and other services, in their demonstration of community college training not being reasonably available in their community.
The applicant must demonstrate that the proposed project will be implemented by a strategic partnership that includes at least one entity from each of four categories: (1) The workforce investment system, which may include State and Local Workforce Investment Boards, State Workforce Agencies, and One-Stop Career Centers and their partners, as such terms are defined under WIA; (2) community and technical colleges; (3) employers and industry-related organizations such as associations and unions; and (4) the continuum of education, including the K-12 public education system. Please note, some applications submitted under the exception outlined in Section III(C)(5) may have a substitution for the community college partner. Please see Section III(C)(5) for more details.
The applicant must identify the partners by organizational name and category, explain the meaningful role each partner will play in the project, and document the resources leveraged from each partner. Collaborating partners must verify their role through a letter of commitment detailing the roles, responsibilities, and resources the partner will commit to the project. The letters of commitment must be attached to the proposal. Applicants must also identify resources leveraged from other organizations, including other workforce investment system partners.
ETA encourages, and will be looking for, applications that go beyond the minimum level of partnership and demonstrate broader, substantive and sustainable partnerships. Scoring on this criterion will be based on the following factors:
•
•
•
The applicant must describe its proposed capacity building and training strategies in full. Scoring on this criterion will be based on:
•
•
Applicants must demonstrate an outcome-based approach to managing and operating their CBJTG. This should be achieved by fully describing the measures that will be used to evaluate the success and impact of the project, and highlight the benefits and impact of the outcomes and products on the larger capacity constraint(s) described in the statement of need. Scoring on this criterion will be based on the following factors:
a.
b.
c.
d.
To satisfy this criterion, applicants must describe their proposed project management structure including, where appropriate, the identification of a proposed project manager, and discuss the proposed staffing pattern and the qualifications and experience of key staff members. Applicants should also provide evidence of the use of data systems to track outcomes in a timely and accurate manner. The applicant should include a description of organizational capacity and the organization's track record in projects similar to that described in the proposal and/or related activities of the primary partners.
Scoring under this criterion will be based on the extent to which applicants provide evidence of the following:
• The time commitment of the proposed staff is sufficient to ensure proper direction, management, and timely completion of the project;
• The roles and contribution of staff, consultants, and collaborative organizations are clearly defined and linked to specific objectives and tasks;
• The background, experience, and other qualifications of the staff are sufficient to carry out their designated roles; and
• The applicant organization has significant capacity to accomplish the goals and outcomes of the project, including the ability to collect and manage data in a way that allows consistent, accurate, and expedient reporting.
Scoring on this criterion will be based on the applicant's ability to demonstrate that their CBJTG project is aligned with and integrated into their region's talent development and economic development strategy. Applicants may receive up to 5 points by:
• Summarizing the region's strategic vision and workforce education strategies in support of talent development and economic growth; and
• Either describing how their capacity building and training solution is part of or complements existing approaches under regional talent development and economic development plans and initiatives; or describing how their CBJTG project is a catalyst for bringing partners together to begin the analysis and strategic planning in their region.
• Describing any regional partnerships that are part of their capacity building and training plans and detail how the partnerships are broader and deeper in scope than the local partnerships in place for the proposed capacity building and training activity. Regional partners may include regional business leadership and organizations, such as chambers of commerce; economic development entities at the regional level; the philanthropic community; seed and venture capital organizations or individuals; investor networks; entrepreneurs; and faith and community-based organizations.
• For applicants leveraging resources, describing how the funds leveraged come from regional partners or from existing or planned talent development efforts within the region.
ETA will award 5 bonus points to applications that demonstrate with evidence the integration of WIA training funds into grant activities. Examples of WIA training funds include, but are not limited to, Individual Training Accounts, customized training, and Career Advancement Accounts, as applicable.
To receive 5 bonus points, applicants must provide a detailed description of the role of Workforce Investment Act training resources in the CBJTG project that includes: (1) The type of WIA training funds leveraged; (2) the dollar amount leveraged; (3) the workforce system partner involved; (4) the role of the resources in the project; and (5) the impact of the Workforce Investment Act training funds. An example of 5-point description is: “The One Stop Career Center will leverage from its WIA resources $
Applications for the Community-Based Job Training Grants will be accepted after the publication of this announcement until the closing date. A technical review panel will make a careful evaluation of applications against the criteria set forth in Section V(A) of this Solicitation. These criteria are based on the policy goals, priorities, and emphases set forth in this SGA. Up to 105 points may be awarded to an application, based on the required information described in Section V(A) of this Solicitation. The ranked scores will serve as the primary basis for selection of applications for funding, in conjunction with other factors such as urban, rural, and geographic balance; industry balance; the availability of funds; and which proposals are most advantageous to the Government. The panel results are advisory in nature and not binding on the Grant Officer, who may consider any information that comes to his attention. DOL may elect to award the grant(s) with or without prior discussions with the applicants. Should a grant be awarded without discussions, the award will be based on the applicant's signature on the SF 424, which constitutes a binding offer.
All award notifications will be posted on the ETA Homepage (
All grantees will be subject to all applicable Federal laws, regulations, and the applicable OMB Circulars. The grant(s) awarded under this SGA will be subject to the following administrative standards and provisions, if applicable:
a. Workforce Investment Act—20 Code of Federal Regulations (CFR) Part 667. (General Fiscal and Administrative Rules).
b. Non-Profit Organizations—OMB Circulars A-122 (Cost Principles) and 29 CFR Part 95 (Administrative Requirements).
c. Educational Institutions—OMB Circulars A-21 (Cost Principles) and 29 CFR Part 95 (Administrative Requirements).
d. State and Local Governments—OMB Circulars A-87 (Cost Principles) and 29 CFR Part 97 (Administrative Requirements).
e. Profit Making Commercial Firms—Federal Acquisition Regulation (FAR)—48 CFR Part 31 (Cost Principles), and 29 CFR Part 95 (Administrative Requirements).
f. All entities must comply with 29 CFR Parts 93 and 98, and, where applicable, 29 CFR Parts 96 and 99.
g. The following administrative standards and provisions may also be applicable:
i. 29 CFR part 2, subpart D—Equal Treatment in Department of Labor Programs for Religious Organizations, Protection of Religious Liberty of Department of Labor Social Service Providers and Beneficiaries;
ii. 29 CFR part 30—Equal Employment Opportunity in Apprenticeship and Training;
iii. 29 CFR part 31—Nondiscrimination in Federally Assisted Programs of the Department of Labor—Effectuation of Title VI of the Civil Rights Act of 1964;
iv. 29 CFR part 32—Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance;
v. 29 CFR part 33—Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Department of Labor;
vi. 29 CFR part 35—Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance from the Department of Labor;
vii. 29 CFR part 36—Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance;
vii. 29 CFR part 37—Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Investment Act of 1998.
In accordance with Section 18 of the Lobbying Disclosure Act of 1995 (Pub. L. 104-65) (2 U.S.C. 1611) non-profit entities incorporated under Internal Revenue Service Code section 501(c) (4) that engage in lobbying activities are not eligible to receive Federal funds and grants.
Except as specifically provided in this Notice, DOL/ETA's acceptance of a proposal and an award of Federal funds to sponsor any program(s) does not provide a waiver of any grant requirements and/or procedures. For example, OMB Circulars require that an entity's procurement procedures must ensure that all procurement transactions are conducted, as much as practical, to provide open and free competition. If a proposal identifies a specific entity to provide services, the DOL/ETA's award does not provide the justification or basis to sole source the procurement, i.e., avoid competition, unless the activity is regarded as the primary work of an official partner to the application.
The grantee is required to provide the reports and documents listed below:
1. General Grant Information, including a summary of grant activities and a status update on leveraged resources and strategic partner activities;
2. A Grant Timeline that includes the progress of grant activities, the key deliverables for each quarter, and the products available each quarter;
3. Grant Outcomes, including information on all capacity building, training, employer, and grant deliverable outcomes as well as the anticipated impact of these outcomes on the community college, industry partners, and the broader community; and dissemination activities and events for grant deliverables. Training outcomes will include quarterly and cumulative reports on the projected outcomes that include, but are not limited to: enrollment, number completed training, number of certificates awarded, ETA's Common Measures, including entered employment, employment retention, and average earnings; number entered into employment related to training; and number receiving wage gains and promotions.
4. Highlights of Promising Approaches and Success Stories; and
5. Description of Technical Assistance Needs.
For further information regarding this SGA, please contact Melissa Abdullah, Grants Management Specialist, Division of Federal Assistance, at (202) 693-3346 (Please note this is not a toll-free number). Applicants should fax all technical questions to (202) 693-2705 and must specifically address the fax to the attention of Melissa Abdullah and should include SGA/DFA PY 07-01, a contact name, fax and phone number, and e-mail address. This announcement is being made available on the ETA Web site at
DOL maintains a number of web-based resources that may be of assistance to applicants.
• The Web site for the Employment and Training Administration (
• Short descriptions of previously funded Community-Based Job Training Grants can be found at
• The Workforce
• America's Service Locator (
• Career Voyages (
• Applicants are encouraged to review “Help with Solicitation for Grant Applications” (
• For a basic understanding of the grants process and basic responsibilities of receiving Federal grant support, please see “Guidance for Faith-Based and Community Organizations on Partnering with the Federal Government” (
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless such collection displays a valid OMB control number. Public reporting burden for this collection of information is estimated to average 20 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimated or any other aspect of this collection of information, including suggestions for reducing this burden, to the U.S. Department of Labor, the OMB Desk Officer for ETA, Office of Management and Budget, Room 10235, Washington, DC 20503. Please do not return the completed application to the OMB. Send it to the sponsoring agency as specified in this solicitation.
This information is being collected for the purpose of awarding a grant. The information collected through this “Solicitation for Grant Applications” will be used by the Department of Labor to ensure that grants are awarded to the applicant best suited to perform the functions of the grant. Submission of this information is required in order for the applicant to be considered for award of this grant. Unless otherwise specifically noted in this announcement, information submitted in the respondent's application is not considered to be confidential.
Notice.
The National Endowment for the Arts (NEA), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the NEA is soliciting comments concerning the proposed information collection to evaluate the impact of the Big Read audio guide distribution to public libraries. A copy of the current information collection request can be obtained by contacting the office listed below in the address section of this notice.
Written comments must be submitted to the office listed in the address section below on or before October 5, 2007. The NEA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Sunil Iyengar, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Room 616, Washington, DC 20506-0001, telephone (202) 682-5424 (this is not a toll-free number), fax (202) 682-5677.
The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of Nine Mile Point Nuclear Station, LLC (the licensee) to withdraw its application dated August 11, 2006, for a proposed amendment to Renewed Facility Operating License No. NPF-69 for the Nine Mile Point Nuclear Station, Unit No. 2, located in Oswego County, New York.
The proposed amendment would have modified Technical Specification 3.3.2.1, “Control Rod Block Instrumentation,” to change the number of startups allowed with the rod worth minimizer inoperable from one per calendar year to two per operating cycle.
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated August 11, 2006, and the licensee's letter dated July 17, 2007, which withdrew the application for license amendment. 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 will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet
For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission.
Request for résumés.
The U.S. Nuclear Regulatory Commission (NRC) seeks qualified candidates for the Advisory Committee on Reactor Safeguards (ACRS). Submit résumés to: Ms. Angelina Chapeton, Administrative Assistant, ACRS/ACNW&M, Mail Stop T2E-26, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or e-mail
The ACRS is a part-time advisory group which is statutorily mandated by the Atomic Energy Act of 1954, as amended. ACRS provides independent expert advice on matters related to the safety of existing and proposed nuclear power plants and on the adequacy of proposed reactor safety standards. Of primary importance are the safety issues associated with the operation of 104 commercial nuclear power plants in the United States and regulatory initiatives, including risk-informed and performance-based regulations, license renewal, power uprates, and the use of mixed oxide and high burnup fuels. An increased emphasis is being given to safety issues associated with new reactor designs and technologies, including passive system reliability and thermal hydraulic phenomena, use of digital instrumentation and control, international codes and standards used in multinational design certifications, material and structural engineering, and nuclear analysis and reactor core performance. The ACRS also has some involvement in security matters related to the integration of safety and security of commercial reactors. This work involves technical issues associated with consequence analyses and the assessment of effective mitigation strategies. See NRC Web site at
Criteria used to evaluate candidates include education and experience, demonstrated skills in nuclear reactor safety matters, the ability to solve complex technical problems, and the ability to work collegially on a board, panel, or committee. The Commission, in selecting its Committee members, considers the need for a specific expertise to accomplish the work expected to be before the ACRS. ACRS Committee members are appointed for four-year terms and normally serve no more than three terms. The Commission hopes to fill three vacancies as a result of this request. For these positions, the expertise must be at least 10 years of experience in one or more of the areas of Materials Engineering, Digital Instrumentation and Control, or plant Operations. Candidates with pertinent graduate level experience will be given additional consideration. Consistent with the requirements of the Federal Advisory Committee Act, the Commission seeks candidates with diverse backgrounds, so that the membership on the Committee will be fairly balanced in terms of the points of view represented and functions to be performed by the Committee.
Candidates will undergo a through security background check to obtain the security clearance that is mandatory for all ACRS members. The security background check will involve the completion and submission of paperwork to NRC. Candidates for ACRS appointments may be involved in or have financial interests related to NRC-regulated aspects of the nuclear industry. Because conflict-of-interest considerations may restrict the participation of a candidate in ACRS activities, the degree and nature of any such restriction on an individual's activities as a member will be considered in the selection process. Each qualified candidate's financial interests must be reconciled with applicable Federal and NRC rules and regulations prior to final appointment. This might require divestiture of securities or discontinuance of certain contracts or grants. Information regarding these restrictions will be provided upon request.
A résumé describing the educational and professional background of the candidate, including any special accomplishments, publications, and professional references should be provided. Candidates should provide their current address, telephone number, and e-mail address. All candidates will receive careful consideration. Appointment will be made without regard to factors such as race, color, religion, national origin, sex, age, or disabilities.
Candidates must be citizens of the United States and be able to devote approximately 100 days per year to Committee business. Résumés will be accepted until November 30, 2007.
General Atomics (GA or the licensee) holds two licenses, R-38 and R-67, for TRIGA reactors, that are classified as research and test reactors (RTRs), issued in accordance with the Atomic Energy Act (AEA) of 1954, as amended, by the U.S. Nuclear Regulatory Commission (NRC or the Commission). On August 8, 2005, the Energy Policy Act of 2005 (EPAct) was enacted. Section 652 of the EPAct amended section 149 of the AEA to require fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check of any person who is permitted unescorted access to a utilization facility, which includes the GA RTRs.
Prior to September 11, 2001, the Commission established physical protection requirements applicable to RTRs, which included storing and using special nuclear material in controlled access areas, monitoring the controlled access areas for unauthorized activities, and ensuring a response to all unauthorized activities.
Subsequent to the terrorist events of September 11, 2001, the NRC took various actions to ensure the acceptability of individuals for unescorted access to RTRs. RTRs were advised to consider taking additional
The RTR site-specific background investigations and checks were established using a graded approach, considering the specific configuration, uses and radiological risk of each facility, to provide acceptable protection of the special nuclear material and any associated radioactive materials. The background investigations and checks, at a minimum, verify identity, nationality, immigration status (if applicable), and determine whether the individual demonstrates a pattern of trustworthy and reliable behavior through facility-specific verification of various aspects of the person's background. This verification includes consideration of educational, military, employment and criminal histories. With regard to criminal history, some of the RTR facilities use FBI fingerprint-based criminal history records checks, while others use either State fingerprint-based criminal history records checks or criminal history records checks which do not include fingerprints. These background investigations or checks, through a combination of various elements, have provided additional assurance for the protection of the specific facility from insider threats.
Further, RTRs are required by Order dated September 29, 2006, to have FBI fingerprint-based identification and criminal history records checks for persons that are allowed access to Safeguards Information (SGI).
Previously, AEA section 149 only required fingerprinting and criminal history records checks of persons seeking unescorted access to facilities licensed under sections 103 and 104b of the AEA (i.e., power reactors). Power reactors are required by 10 CFR 73.57 to have fingerprint-based criminal history records checks performed as part of the granting of unescorted access to the facility. RTRs have not been subject to this requirement, and have only been required to limit access to authorized persons and to screen those persons for access in accordance with their security plans or procedures.
Congress left intact the Commission's authority to relieve persons by rule from the fingerprinting, identification, and criminal history records check requirements of section 149 of the AEA “if the Commission finds that such action is consistent with its obligations to promote the common defense and security and to protect the health and safety of the public.”
The NRC is planning a rulemaking to reexamine the extent of fingerprint-based criminal history records checks for unescorted access to RTRs to ensure adequate protection of the public health and safety and common defense and security. In the interim, the NRC has decided to implement this requirement, in part, prior to the completion of the rulemaking to provide acceptable, additional assurance that an individual with unescorted access to an RTR facility will not adversely impact the common defense and security or the public health and safety. Therefore, in accordance with section 149 of the AEA, as amended by the EPAct, the Commission is imposing the FBI criminal history records check requirements, as set forth in this Order, including the Attachment to this Order, on RTR licensees, including GA. These requirements will remain in effect until the Commission determines otherwise.
The AEA requires fingerprint-based criminal history records checks at utilization facilities. Section 11cc of the AEA defines a utilization facility as:
(1) Any equipment or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or
(2) any important component part especially designed for such equipment or device as determined by the Commission.
The Commission's rules, in 10 CFR 50.2, define a “[u]tilization facility” as “any nuclear reactor other than one designed or used primarily for the formation of plutonium or U-233.” Further, “Nuclear reactor” is defined as “an apparatus, other than an atomic weapon, designed or used to sustain nuclear fission in a self-supporting chain reaction.” These definitions include the GA RTRs.
For purposes of this Order, an individual who is granted “unescorted access” could exercise physical control over the special nuclear material possessed by the licensee, which would be of significance to the common defense and security or could adversely affect the health and safety of the public, such that the special nuclear material could be used or removed in an unauthorized manner without detection, assessment, or response by systems or persons designated to detect, assess or respond to such unauthorized use or removal. At RTRs, such individuals include those with the capability and knowledge to use the special nuclear material in the utilization facility or remove the special nuclear material from the utilization facility in an unauthorized manner without detection, assessment, and response by the physical protection system or related provisions or persons.
In addition, pursuant to 10 CFR 2.202, I find that in light of the common defense and security matters identified above, which warrant the issuance of this Order, the public health, safety, and interest require that this Order be effective immediately.
Accordingly, pursuant to sections 53, 104, 149, 161b, 161i, 161o, 182, and 186 of the AEA of 1954, as amended, and the Commission's regulations in 10 CFR 2.202, 10 CFR Part 50 and 10 CFR Part 73,
A. General Atomics shall comply with the following requirements:
1. The Licensee shall, within twenty (20) days of the date of this Order, establish and maintain a fingerprinting program for unescorted access that
2. The Licensee shall, in writing, within twenty (20) days of the date of this Order, notify the Commission (1) of receipt and confirmation that compliance with the Order will be achieved or (2) if it is unable to comply with any of the requirements described in the Attachment, or (3) if compliance with any of the requirements is unnecessary in its specific circumstances. The notification shall provide the Licensee's justification for seeking relief from or variation of any specific requirement.
B. In accordance with the NRC's “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information (Effective Immediately)” (EA-06-203) issued on September 29, 2006, (71 FR 59140, October 6, 2006), only the NRC-approved reviewing official shall review results from a FBI criminal history records check. In accordance with all other applicable requirements and the evaluation of the results of the FBI criminal history records check as specified in this Order, the reviewing official shall determine whether an individual may have, or continue to have, unescorted access. No person may have access to SGI or unescorted access to any utilization facility, or radioactive material or property subject to regulation by the NRC if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and criminal history records check, either that the person may not have access to SGI or that the person may not have unescorted access to a utilization facility, or radioactive material or property subject to regulation by the NRC.
C. Fingerprints shall be submitted and reviewed in accordance with the procedures described in the Attachment to this Order. Individuals who have been fingerprinted and granted access to SGI by the NRC-approved reviewing official in accordance with EA-06-203 (September 29, 2006), do not need to be fingerprinted again for purposes of authorizing unescorted access. In addition, individuals who have a favorably decided U.S. Government criminal history records check within the last five (5) years, or who have an active Federal security clearance have satisfied the EPAct fingerprinting requirement and need not be fingerprinted again, provided in each case that the appropriate documentation is made available to the Licensee's reviewing official. However, all other applicable requirements must be satisfied to allow any individual unescorted access to the facility.
D. The Licensee may allow any individual who currently has unescorted access, in accordance with applicable requirements, to continue to have unescorted access, pending a decision by the reviewing official (based on fingerprinting and a FBI criminal history records check) that the individual may continue to have unescorted access. The licensee shall complete implementation of the requirements of the Attachment to this Order by October 30, 2007.
Licensee responses to Condition A.2. shall be submitted to the Director, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
The Director, Office of Federal and State Materials and Environmental Management Programs, may, in writing, relax or rescind any of the above conditions upon demonstration of good cause by the Licensee.
In accordance with 10 CFR 2.202, the Licensee must, and any other person adversely affected by this Order may, submit an answer to this Order, and may request a hearing on this Order, within twenty (20) days of the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time in which to submit an answer or request a hearing must be made in writing to the Director, Office of Federal and State Materials and Environmental Management Programs , U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall, in writing and under oath or affirmation, specifically set forth the matters of fact and law on which the Licensee or other person adversely affected relies and the reasons as to why the Order should not have been issued. Any answer or request for a hearing shall be submitted to the Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Material Litigation and Enforcement at the same address, and to the Licensee if the answer or hearing request is by a person other than the Licensee. Because of possible delays in delivery of mail to United States Government offices, it is requested that answers and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to
If a hearing is requested by the Licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions as specified above in section III shall be final twenty (20) days from the date of this Order without further Order or proceedings.
If an extension of time for requesting a hearing has been approved, the provisions as specified above in Section III shall be final when the extension expires, if a hearing request has not been received. An answer or a request for hearing shall not stay the immediate effectiveness of this order.
For The Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
The Nuclear Regulatory Commission (NRC) is announcing the availability of draft NUREG-1614, Volume 4. “U.S. Nuclear Regulatory Commission, FY 2007-FY 2012 Strategic Plan,” dated July 2007. The comment period on the draft strategic plan ends September 7, 2007. Comments on the draft plan are to be submitted in electronic format (Microsoft Word) using e-mail to:
Draft NUREG-1614, Volume 4, is available for inspection and copying for a fee at the NRC Public Document Room, 11555 Rockville Pike, Rockville, Maryland. You may also electronically access NUREG-series publications and other NRC records at NRC's Public Electronic Reading Room at
A free single copy of Draft NUREG-1614, Volume 4, to the extent of availability, may be requested by writing to the Office of the Chief Information Officer, Reproduction and Distribution Services Section, U.S. Nuclear Regulatory Commission, Printing and Graphics Branch, Washington, DC 20555-0001; facsimile: 301-415-2289; e-mail:
Some publications in the NUREG series that are posted at NRC's Web site address
George S. Smolik, Planning Team Chief, Division of Planning, Budget, and Analysis, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7339.
The Government Performance and Results Act (GRPA) requires that an agency's strategic plan be updated for submission to the Congress and the President every three years. The NRC is developing a new strategic plan for FY 2007-FY 2012 to replace the agency's existing strategic plan.
The NRC is seeking comments on its draft FY 2007-FY 2012 Strategic Plan (ADAMS Accession No. ML072080203). The draft Strategic Plan establishes the agency's long-term strategic direction and outcomes. It provides a foundation to guide NRC's work and to allocate NRC's resources.
The NRC's draft FY 2007-FY 2012 Strategic Plan describes the agency's mission, vision, and strategic objective, which remain unchanged. The NRC's priority continues to be, as always, to ensure the adequate protection of public health, safety, and the environment, and promoting common defense and security.
The NRC's draft Strategic Plan also reflects the changes taking place in the regulatory environment associated with the use of radioactive materials, such as the expected receipt of applications to construct and operate new nuclear power plants, and the disposal of high-level radioactive waste. Further, the draft Strategic Plan addresses how the NRC will address these challenges, such as communications, human capital, and regulatory and organizational infrastructure.
The draft Strategic Plan identifies our two strategic goals, which focus on safety and security. The agency's Safety and Security goals, as well as their associated strategic outcomes, continue to accurately describe the agency's core functions, and therefore remain essentially unchanged. This focus on safety and security ensures that the NRC remains a strong independent, stable, and predictable regulator. The draft Strategic Plan also describes the agency's Organizational Excellence Objectives of Openness, Effectiveness, Timeliness, and Management, which characterize the manner in which the agency intends to support achieving the Safety and Security goals.
The NRC encourages all interested parties to comment on the draft Strategic Plan. The comment period ends September 7, 2007. Comments on the draft plan are to be submitted in electronic format (Microsoft Word) using e-mail to:
The final version of NUREG-1614, Volume 4, is expected to be released on or about December 31, 2007.
For the Nuclear Regulatory Commission.
On December 15, 2006, the Boston Stock Exchange, Inc. (“BSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
BSE proposes to amend the BOX Rules to add a new order functionality called an AAO that would automatically participate in any Improvement Auction (
The BOX Trading Host will round AAOs to the nearest minimum trading increment (up if the order is to sell and down if the order is to buy) and place it on the BOX Book (“AAO Limit Order”). The AAO Limit Order will be processed as a standard Limit Order as described in Chapter 5, Section 14(c)(i) of the BOX Rules and will be traded in accordance with Chapter 5, Section 16 of the BOX Rules.
An AAO will be eligible to participate in any Improvement Auction that may occur when the AAO is on the opposite side of the market from the order seeking improvement and the AAO Limit Price is equal to the National Best Bid or Offer (“NBBO”). If the AAO is eligible, the BOX trading engine will automatically create a new order (the “AAO Improvement Order”) at the end of the auction phase, but prior to any trade allocations, with the following terms:
(1) The quantity of the AAO Improvement Order will be the lesser of the remaining quantity on the BOX Book at the AAO Limit Price or the quantity of the order seeking improvement in the auction; and
(2) the price of the AAO Improvement Order will be equal to the price of the best Improvement Order, Primary Improvement Order, or unrelated order (on the same side of the market as the AAO) submitted to the Improvement Auction.
During an Improvement Auction, if the number of contracts executed in the Improvement Auction against the AAO Improvement Order is less than the quantity of the AAO Limit Order, then, prior to the processing of any other orders in the same series on the opposite side of the market as the AAO Limit Order, the quantity of the AAO Limit Order will be decremented on the BOX Book by the size of the executed quantity of the AAO Improvement Order. Any residual quantity that remains after part of an AAO has traded (either on the BOX Book or in the Improvement Auction) will continue to be eligible to trade in any subsequent Improvement Auctions. In addition, the residual quantity will maintain its priority on the BOX Book in accordance with Chapter V, Section 16 of the BOX Rules.
Any AAO Improvement Order created by the BOX Trading Host will be assigned the time priority of the related AAO Limit Order. As such, the AAO Improvement Order is granted time priority at its relevant price level in an Improvement Auction. Any modification to the AAO Maximum Improvement Price that causes the rounded AAO Limit Price to change or any increase in the quantity of the AAO will cause a new time priority to be assigned to the AAO Limit Order on the BOX Book. Any changes to the AAO Maximum Improvement Price that do not effect the AAO Limit Price will not cause a change to the time priority of the original order.
Additionally, a new AAO received in a particular series that is on the opposite side of the market from another AAO, which is already on the BOX Book, and is marketable at the AAO Maximum Improvement Price of the other booked AAO (
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
After careful review of the amended proposal, the ISE Letter, and the BSE Letter, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange
The proposal provides that the undisplayed penny price of an AAO resting on the BOX Book can execute against the undisplayed penny price of another AAO.
The commenter also argues that the AAO would not provide for additional price improvement opportunities, would discourage aggressive competition in the PIP, and would unfairly advantage the AAO in the PIP auction. First, the commenter contends that the AAO would not provide for any increased opportunities for price improvement in the PIP because the AAO Improvement Order would be generated at the conclusion of the three second exposure period (and thus not be broadcast to other BOX Participants) and would only match the best price provided by other BOX participants, even if the AAO contained an AAO Maximum Improvement Price that would provide additional price improvement to the PIP order.
In response, BSE argues that the AAO will provide increased price improvement opportunities because it would increase the size available at the best Improvement Order price.
The Commission agrees that the availability of the AAO should increase the ability of Public Customers to participate in Improvement Auctions.
The Commission further notes that an AAO Limit Order would only be eligible to participate in an Improvement Auction, and thus receive time priority, when the AAO Limit Order equals the NBBO on the opposite side of the Improvement Auction order at the start of the auction. The AAO is similar to the Market Maker Prime (“MMP”) designation in the PIP, in which a market maker that has a quote at the moment the PIP commences that is equal to the NBBO on the same side as the PIP Primary Improvement Order is eligible to be designated MMP for that particular PIP auction and receive priority over other Improvement Orders in the auction.
The commenter argues that the Penny Pilot Program
The Commission finds good cause to approve the proposal prior to the thirtieth day after the proposal was published for comment in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the rules of the Boston Options Exchange (“BOX”) to clarify how the BOX Trading Host systematically filters all orders against the National Best Bid and Offer (“NBBO”) to ensure that a trade-through to the detriment of the inbound order does not occur, and that the customer's interests are protected by making sure that any execution of its order on BOX is at a price at least as good as the best price available on any of the other options exchanges. The proposed rule filing also seeks to clarify how BOX currently processes such orders when the NBBO is either locked or crossed. The text of the proposed rule change is set forth below; new text is in
(a)—No change.
(b) Filtering of BOX In-Bound Orders [to Prevent Trade-Throughs].
i.
ii.-iv.—No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the BOX Rules to describe how the BOX Trading Host systematically filters all orders against the NBBO to ensure that a trade-through to the detriment of the inbound order does not occur. The proposal also describes how customers' interests are protected by making sure that any execution of his order on BOX is at a price at least as good as the best price available on any of the other options exchanges.
BOX's responsibility to the inbound customer or broker-dealer order is to ensure that its execution is at the best price available across all markets at that moment. Presently, BOX processes trades irrespective of whether the NBBO is locked, crossed, or “normal.” As a result of this practice, there is the potential to cause a trade-through. The purpose of this rule filing is to amend the BOX rules to recognize that only the price on the side of the NBBO opposite to the inbound order needs to be taken into account when filtering inbound orders, regardless of whether the NBBO is locked, crossed, or “normal,” and regardless of whether BOX is presently part of the NBBO on the opposite side from the order. The Exchange has obtained exemptive relief for any trade-throughs that occur as a result of this practice.
The following examples illustrate BOX's proposed processing of NBBO filtering:
In the following example (Example 9), the BOX best price on the same side of the market as the inbound order is crossed by the opposite side NBBO. In this particular case, it is impractical to expose the inbound executable order at the opposite NBBO as in the previous examples since BOX is already showing a better offer (of 2.10 versus the NBBO exposure price of 2.15) with which nobody has traded.
In this unique circumstance (where the same side BBO on BOX is crossed by the opposite side NBBO), BOX will immediately route the order to the exchange disseminating the best price, if possible, or reject the order back to the sender.
As illustrated by the above examples, the BOX NBBO filtering process ensures that a sell order is never executed on BOX at a price inferior to the best bid available at the other options exchanges; similarly, any order to buy an option would not be executed on BOX at price worse than the best offer available elsewhere at that moment. BOX believes that in the case of a crossed NBBO, it is in the inbound customer order's interest to execute at the best price on the opposite side of the NBBO on BOX, where possible, as this is much quicker than routing to an away exchange.
In connection with proposed rule change, the Exchange has respectfully
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
The Exchange has designated the proposed rule change as one that: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. Therefore, the foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate the rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On December 13, 2006, the Fixed Income Clearing Corporation (“FICC”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FICC is revising its rules concerning membership types, the membership application process, and the ongoing requirements of GSD members into a format that FICC believes will make such rules easier to locate and to understand by applicants and members. To accomplish this, FICC is amending current Rule 2 (retitled “Members”), is moving much of the content of current Rule 2 into a new Rule 2A (“Initial Membership Requirements”), and is revising Rule 3 (retitled “Ongoing Membership Requirements”). Other rules and provisions are being modified to make technical corrections where necessary and to be in harmony with analogous rules of FICC's affiliated clearing agency, the National Securities Clearing Corporation (“NSCC”).
FICC's current Rule 2 (“Comparison-Only and Netting Members”) sets forth the types of GSD memberships, eligibility requirements, application procedures, and member reporting requirements. FICC is revising Rule 2 to establish each GSD membership type: Comparison-Only Members, Netting Members, Sponsoring Members, Sponsored Members, and Funds-Only Settling Bank Members. Substantially all other provisions contained in the current Rule 2 are being moved to either new Rule 2A or revised Rule 3.
One exception to this is that FICC is deleting current Rule 2, Section 4 (“Financial Reports by Netting Applicants). FICC states that the rationale for such deletion is that FICC already advises applicants during the application process of the required financial reports depending on the category of membership for which is being applied and on the applicant entity type. In addition, FICC is setting forth in revised Rule 3 the financial reports that must be submitted by members to FICC on an ongoing basis.
FICC is also deleting section 1(f) of Rule 2, which provides that applicants that have been approved for membership must execute and deliver to FICC a membership agreement. This provision is redundant with existing Rule 2, Section 3, which will now appear in new Rule 2A, Section 7.
Prior to this rule change, the membership qualifications, financial standards, and operational requirements for each membership type were set forth in Rule 2 (“Comparison-Only and Netting Members”), Rule 3 (“Financial Responsibility, Operational Capability and Other Membership Standards of Comparison-Only and Netting Members”), and Rule 4 (“Clearing Fund, Watch List and Loss Allocation”). To consolidate this information, FICC is creating a new Rule 2A (“Initial Membership Requirements”) that will establish the initial membership eligibility requirements for all membership types and will set forth the process of membership application and evaluation. In addition, FICC is restructuring Rule 3 (“Ongoing Membership Requirements”) to contain all current GSD rule provisions regarding the continuing requirements of members.
The restructuring will encompass three substantive changes:
(a)
(b)
(c)
Other conforming and non-substantive changes are being made within the rules to accommodate this restructuring and to update cross-references where applicable.
FICC is amending the current definition of Person contained in GSD Rule 1 (“Definitions”) to indicate that the term will be used throughout the rules to mean a partnership, corporation, limited liability corporation, or other organization, entity, or individual.
FICC is amending the definition of Eligible Security to make clear that any security of an issuer that is on the Office of Foreign Assets and Control's (“OFAC”) Specially Designated Nationals list or a security from a country that is subject to OFAC sanctions may not be an eligible security at GSD. FICC is making the same change to the definition of Eligible Security in MBSD's Clearing and EPN rules.
The Bond Market Association is now known as the Securities Industry and Financial Markets Association. GSD is removing the definition of and references to The Bond Market Association from its rules and is replacing it with a definition for and references to The Securities Industry and Financial Markets Association.
FICC is clarifying the Governing Law provision contained in GSD's and MBSD's Clearing and EPN rules to state that the Clearing and EPN rules of GSD and MBSD are subject to New York law as applicable to contracts executed and performed in New York.
FICC is removing from GSD's rules the eligibility requirements for Insurance Company Netting Members because GSD does not currently have any such members. FICC will, however, retain the definition of Insurance Company Netting Member in its rules in the event that such an entity applies for membership in the future. Appropriate eligibility requirements would be reviewed at that time and proposed as additions to the rules.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, the Commission believes the proposal is consistent with the requirements of section 17A(b)(3)(F),
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 Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The purpose of the proposed rule change is to reduce the fees that NSCC charges for its Positions and Valuations service (“POV”), which is part of the Insurance and Retirement Processing Service (“IPS”) effective July 1, 2007.
In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of the proposed rule change is to reduce the fees that NSCC charges for its POV service effective July 1, 2007.
The transaction fees schedule for the IPS POV service is tiered according to the numbers of transaction processed. The following chart shows the current fees and the proposed reduced fees.
These fees are being reduced due to an increase in volume and revenue in NSCC's IPS over recent years which has resulted in excess revenue for these services.
The proposed rule change is consistent with the requirements of Section 17A of the Act
NSCC does not believe that the proposed rule change will have any impact or impose any burden on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. NSCC will notify the Commission of any written comments received by NSCC.
The foregoing rule change has become effective upon filing 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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
August 2, 2007.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission an amendment to Rule 103B (“Specialist Stock Allocation”) to permit specialist member organizations to trade Exchange-Traded Funds (“ETFs”) in a specialist capacity while at the same time registered as a specialist in securities which are a component thereof, subject to Exchange approval of policies and procedures demonstrably isolating information regarding the respective issues. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
When approved by the Commission on May 7, 2001,
This restriction is necessary to avoid the possibility of “wash sales” in a situation where the specialist in the ETF needs to hedge by buying or selling component stock of the ETF, and could inadvertently be trading with a proprietary bid or offer made by a specialist in the same member organization who is making a market in the component security.
The rule amendment proposed a solution to the problem by providing that member organizations could conduct the ETF activities in a separate member organization. The Exchange states that, while concerns regarding wash sales in the context of ETF and component security trading remain real, the costs and expenses of maintaining two separate member organizations, both to the member organization
Accordingly, the Exchange is proposing to permit member organizations, subject to Exchange approval, to establish policies and procedures to isolate
The Exchange states that its Division of Member Firm Regulation has a Chinese Wall examination program to evaluate the integrity of information barriers to ensure confidentiality of trading information among the various trading departments at its member firms and their approved persons and will adapt it to the review of specialist firms also trading ETFs along with component securities. These information barriers are, and will continue to be, tested and reviewed on site for breaches and weaknesses by Exchange examination staff on an annual basis and for cause, when warranted. To determine whether the firm has developed and implemented adequate information barriers between its Specialist Equity and ETF Trading Operations, examiners will review, on-site, the combined specialist firm's written policies and procedures and physical layout for adequacy. In addition, appropriate individuals both within the affected departments as well as other areas of the specialist firm will be interviewed to determine whether firm policies have been appropriately disseminated and implemented. Also, the examiners will test member organization controls and will determine, based upon their review, whether the firm's relevant information barriers and related policies and procedures are adequate to preclude the improper sharing of trading information (both equity and ETF) and whether there have been any apparent breaches of those barriers. In addition, the Exchange will periodically assess its surveillance and examination procedures to determine whether they are adequate to assure that member organizations and market participants do not engage in manipulative or improper trading. The Exchange believes that these measures will assure the adequate and appropriate surveillance of the single member organization permitted by the proposed amendments.
The isolation of trading activities acts to address the issue of “wash sales” in the context of ETF and component securities. The rule does not, however, prohibit usual and customary sharing of information regarding trades after the fact, and so allows appropriate risk and hedging activity, treasury management and other such similar activities.
The Exchange believes that the proposed rule change is consistent with the provisions of section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change; or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”)
OneChicago is proposing to amend its policies and procedures relating to the reporting of block trades and Exchange of Futures for Physical (“EFP”) transactions. The text of the proposed rule change is available on OneChicago's Web site (
The Exchange has prepared statements concerning the purpose of, and basis for, the proposed rule change, burdens on competition, and comments received from its members, participants, and others. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
OneChicago proposes to amend its Block Trade Reporting Procedures (“Block Reporting Procedures”) and its EFP Transactions: Guidelines and Reporting Procedures (“EFP Reporting Procedures”) to permit reporting of block trades and EFP transactions through the OneChicago Block & EFP Trading System (“OneChicago BETS”). In addition, OneChicago proposes to make conforming changes to OneChicago Policies: Block Trades, Pre-Execution Discussions and Cross Trades (“Block Trade Policy”).
OneChicago BETS permits authorized traders to trade and report block trades, as well as match and report EFP transactions electronically.
The amendments to the EFP Reporting Procedures would add language to make it clear that entering into an EFP via OneChicago BETS would fulfill the requirement to complete an EFP Transaction Report in a form and manner approved by the Exchange. Under the proposed rule change, if a transaction is matched by OneChicago BETS, then the party that traded against the resting bid or offer (the “Aggressor”) would be obligated to enter the base price into OneChicago BETS from which a futures price would be generated by adding the matched differential.
The proposed rule change would also eliminate the requirement in the EFP Reporting Procedures that the parties to the transaction exchange their respective Trade Reporter IDs and agree upon a unique trade ID to be used when recording the terms of their trade. Since the Exchange has the Trade Reporter IDs and provides a unique trade ID for each trade, it is no longer necessary to have the Trade Reporters exchange and create such IDs. Conforming language was also added to clarify that the OOM Help Desk will only compare the details on trades that are not reported through OneChicago BETS.
Conforming changes are also proposed for the Block Trade Policy. Thus, under the proposal, the buyer of a block trade could agree that the seller is not obligated to report a block trade; language requiring the OOM Help Desk to provide a trade identification and requiring traders to provide the OOM Help Desk trade identification when reporting a block trade would be deleted; and new language would be added to make clear that OOM Help Desk would only report block trades reported to them telephonically to the OneChicago trade engine.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
OneChicago does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Pursuant to section 19(b)(7)(B) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
The U.S. Small Business Administration (SBA) Region X Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a National Regulatory Fairness Hearing on Thursday, August 23, 2007, at 2:30 p.m. The forum will take place at the Boise Metro Chamber of Commerce, 250 S. 5th Street, Basement Conference Center, Boise, ID 83701. The purpose of the meeting is for Business Organizations, Trade Associations, Chambers of Commerce and related organizations serving small business concerns to report experiences regarding unfair or excessive Federal regulatory enforcement issues affecting their members.
Anyone wishing to attend or to make a presentation must contact Tom Bergdoll, in writing or by fax in order to be placed on the agenda. Tom Bergdoll, District Director, SBA, Idaho District Office, 380 East Parkcenter Boulevard, Suite 330, Boise, ID 83706, phone (208) 334-9004, Ext. 325 and fax (202) 481-5840, e-mail:
For more information, see our Web site at
The U.S. Small Business Administration (SBA) Region VIII Regulatory Fairness Board and the SBA Office of the National Ombudsman will hold a National Regulatory Fairness Hearing on Tuesday, August 21, 2007, at 9:30 a.m. The forum will take place at the Montana State University Billings, College of Professional Studies and Lifelong Learning, 2804 3rd Avenue North, Billings, MT 59101. The purpose of the meeting is for Business Organizations, Trade Associations, Chambers of Commerce and related organizations serving small business concerns to report experiences regarding unfair or excessive Federal regulatory enforcement issues affecting their members.
Anyone wishing to attend or to make a presentation must contact Rena Carlson, in writing or by fax in order to be placed on the agenda. Rena Carlson, Business Development Specialist, SBA, Montana District Office, 10 West 15th Street, Suite 1100, Helena, MT 59626, phone (406) 441-1086 and fax (202) 481-4195, e-mail:
For more information, see our Web site at
Office of the Secretary, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the U.S. Department of Transportation's (DOT) intention to request extension of a previously approved information collection.
Comments on this notice must be received by October 9, 2007.
You may submit comments (identified by DOT DMS Docket Number OST-07-28901) by any of the following methods:
• Web Site:
• Fax 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
• Hand Delivery: West Building, Ground Floor, Rm. W-12-140, 1200 New Jersey Ave., SE., Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except on Federal holidays.
• Federal eRulemaking Portal: Go to
•
Ellen Shields, Business Policy Division, M-61, Office of the Senior Procurement Executive, Office of the Secretary, (202) 366-4268. Refer to OMB Control Number 2105-0531.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Office of the Secretary, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the U.S. Department of Transportation's (DOT) intention to request extension of a previously approved information collection.
Comments on this notice must be received by October 9, 2007.
You may submit comments (identified by DOT DMS Docket Number OST-07-28902) by any of the following methods:
• Web Site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590-0001.
• Hand Delivery: West Building, Ground Floor, Rm. W-12-140, 1200 New Jersey Ave., SE., Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except on Federal holidays.
• Federal eRulemaking Portal: Go to
•
Ellen Shields, Business Policy Division, M-61, Office of the Senior Procurement Executive, Office of the Secretary, (202) 366-4268. Refer to OMB Control Number 2105-0520.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received.
This notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before August 28, 2007.
You may send comments identified by Docket Number FAA-2007-28785 using any of the following methods:
•
•
•
•
•
•
We will post all comments we receive, without change, to
Tyneka Thomas (202) 267-7626 or Frances Shaver (202) 267-9681, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. This notice is published pursuant to 14 CFR 11.85.
Transtar, Inc. (Transtar), a noncarrier, has filed a verified notice of exemption to control Texas & Northern Railway Company (T&NR), a Class III rail carrier, as a result of Transtar's acquisition of all of T&NR's issued and outstanding stock (except certain qualifying shares)
The transaction will be consummated on or after August 22, 2007.
USS, a noncarrier, owns all of the issued and outstanding stock of Transtar, which is a noncarrier holding company. Transtar in turn owns all of the issued and outstanding stock of one Class II carrier, the Elgin, Joliet and Eastern Railway Company, and the following five Class III carriers: Birmingham Southern Railroad Company; Delray Connecting Railroad Company; The Lake Terminal Railroad Company; McKeesport Connecting Railroad Company; and Union Railroad Company (collectively, the Transtar Railroads). USS acquired control of T&NR pursuant to a notice of exemption in
Transtar represents and warrants that: (i) T&NR does not connect with any of the Transtar Railroads; (ii) the acquisition of control is not part of a series of anticipated transactions that would connect T&NR with any of the railroads in the Transtar corporate family; and (iii) the transaction does not involve a Class I carrier. Transtar also represents and warrants that the transaction will not result in: (i) Any adverse changes in service levels to the public; (ii) significant operational changes; or (iii) changes in the competitive balance with carriers outside the corporate family. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interest of its employees. Because the transaction involves the control of one Class II and one or more Class III carriers, the exemption is subject to the labor protection requirements of 49 U.S.C. 11326(b).
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35070, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of all pleadings must be served on A. Bradley Cramer, Jr., United States Steel Corporation, 600 Grant Street, Room 1500, Pittsburgh, PA 15219-2800; and John A. Vuono, Vuono & Gray, LLC, 310 Grant Street, Suite 2310, Pittsburgh, PA 15219.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Four Rivers Transportation, Inc. (Four Rivers), Paducah & Louisville Railway, Inc. (P&L), and Evansville Western Railway, Inc. (EVWR) (collectively, parties) have filed a verified notice of exemption under 49 CFR 1180.2(d)(3) for a transaction within a corporate family. The proposed transaction involves the restructuring of the Four Rivers corporate family.
Four Rivers, a noncarrier, currently directly owns and controls P&L and the Appalachian & Ohio Railroad, Inc. (A&O). P&L directly owns and controls EVWR. Through P&L, Four Rivers indirectly controls EVWR. P&L is a Class II rail carrier that owns and operates approximately 262 miles of rail line, all within the Commonwealth of Kentucky, and EVWR is a Class III rail carrier that operates approximately 124 miles of rail line in Illinois and Indiana. A&O is a Class III rail carrier that leases and operates over 158 miles of rail line, all located within West Virginia.
The parties propose to consummate the transaction on or after August 23, 2007.
The restructuring will allow the transfer of direct control of EVWR from P&L to Four Rivers and provide a more efficient corporate structure.
This is a transaction within a corporate family of the type specifically exempted from prior review and approval of 49 CFR 1180.2(d)(3). According to the parties, the transaction will not result in adverse changes in service levels, significant operational changes, or changes in the competitive balance with carriers outside the corporate family.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Because the transaction involves the control of one Class II and one or more Class III rail carriers, the exemption is subject to the labor protection requirements of 49 U.S.C. 11326(b).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35043, must be filed with the Surface Transportation Board, 395 E. Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on William A. Mullins, Baker & Miller PLLC, 2401 Pennsylvania Avenue, NW., Suite 300, Washington, DC 20037.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
On July 19, 2007, Norfolk Southern Railway Company (NSR) filed with the Board a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon an approximately 15.34-mile line of railroad, extending between milepost VB-0.12 in Norfolk, VA, and milepost VB-15.46 in Virginia Beach, VA. The line traverses United States Postal Service Zip Codes 23451, 23452, 23453, 23454, 23455, 23456, 23457, 23462, 23502, 23504, 23509, and 23510, and includes the stations of Park Ave., Tidewater, Glenrock, Greenwich, Euclid, Thalia, Rosemont, Lynnhaven, Oceana Wye, London Bridge, and Oldfield.
The line does not contain federally granted rights-of-way. Any documentation in NSR's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuing this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by November 6, 2007.
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each OFA must be accompanied by a $1,300 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than August 28, 2007. Each trail use request must be accompanied by a $200 filing fee.
All filings in response to this notice must refer to STB Docket No. AB-290 (Sub-No. 293X), and must be sent to: (1) Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001; and (2) James R. Paschall, Norfolk Southern Railway Company, Three Commercial Place, Norfolk, VA 23510-2191. Replies to the petition are due on or before August 28, 2007.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Services at (202) 245-0230 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA will generally be within 30 days of its service.
Board decisions and notices are available on our Web site at http://www.stb.dot.gov.
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before September 7, 2007 to be assured of consideration.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
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 comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. The Office of Thrift Supervision within the Department of the Treasury will submit the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. Today, OTS is soliciting public comments on its proposal to extend this information collection.
Submit written comments on or before October 9, 2007.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to (202) 906-6518; or send an e-mail to
You can request additional information about this proposed information collection from Patricia Goings, Financial Analyst, Applications (202) 906-5668, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Comments should address one or more of the following points:
a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS;
b. The accuracy of OTS's estimate of the burden of the proposed information collection;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collection on respondents, including through the use of information technology.
We will summarize the comments that we receive and include them in the OTS request for OMB approval. All comments will become a matter of public record. In this notice, OTS is soliciting comments concerning the following information collection.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
VA Forms 20-8734 and 20-8734a are used by VA personnel during regularly scheduled educational compliance survey visit, as well as during investigations of equal opportunity complaints, to identify areas where there may be disparate treatment of members of protected groups. VA Form 20-8734 is used to gather information from post-secondary proprietary schools below college level. The information is used to assure that VA-funded programs comply with equal opportunity laws. VA Form 20-8734a, is used to gather information from students and instructors at post-secondary proprietary schools below college level. The information is used to assure that participants have equal access to equal treatment in VA-funded programs. If
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
National Cemetery Administration, Department of Veterans Affairs.
Notice.
The National Cemetery Administration (NCA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Mechelle Powell at (202) 461-4114 or FAX (202) 273-6695.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, NCA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of NCA's functions, including whether the information will have practical utility; (2) the accuracy of NCA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary:
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary:
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary:
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Mary Stout (202) 273-8664 or FAX (202) 273-9381.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. Request to Submit Estimate, Form Letter 10-90.
b. Veterans Application for Assistance in Acquiring Home Improvement and Structural Alterations, VA Form 10-0103.
c. Application for Adaptive Equipment Motor Vehicle, VA Form 10-1394.
d. Prosthetic Authorization for Items or Services, VA Form 10-2421.
e. Prosthetic Service Card Invoice, VA Form 10-2520.
f. Prescription and Authorization for Eyeglasses, VA Form 10-2914.
a. VA Form Letter 10-90 is used to obtain the estimated price for prosthetic devices.
b. VA Form 10-0103 is used to determine eligibility/entitlement and reimbursement of individual claims for home improvement and structural alterations.
c. VA Form 10-1394 is used to determine eligibility/entitlement and reimbursement of individual claims for automotive adaptive equipment.
d. VA Form 10-2421 is used for the direct procurement of new prosthetic appliances and/or services. The form standardizes the direct procurement authorization process, eliminating the need for separate purchase orders, expedites patient treatment and improves the delivery of prosthetic services.
e. VA Form 10-2520 is used by the vendors as an invoice and billing document. The form standardizes repair/treatment invoices for prosthetic services rendered and standardizes the verification of these invoices. The veteran certifies that the repairs were necessary and satisfactory. This form is furnished to vendors upon request.
f. VA Form 10-2914 is used as a combination prescription, authorization and invoice. It allows veterans to purchase their eyeglasses directly. If the form is not used, the provisions of providing eyeglasses to eligible veterans may be delayed.
a. Form Letter 10-90—708.
b. VA Form 10-0103—583.
c. VA Form 10-1394—1,000.
d. VA Form 10-2421—67.
e. VA Form 10-2520—47.
f. VA Form 10-2914—3,333.
a. Form Letter 10-90—5 minutes.
b. VA Form 10-0103—5 minutes.
c. VA Form 10-1394—15 minutes.
d. VA Form 10-2421—4 minutes.
e. VA Form 10-2520—4 minutes.
f. VA Form 10-2914—4 minutes.
a. Form Letter 10-90—8,500.
b. VA Form 10-0103—7,000.
c. VA Form 10-1394—4,000.
d. VA Form 10-2421—1,000.
e. VA Form 10-2520—700.
f. VA Form 10-2914—50,000.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 9, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives under Public Law 92-463 (Federal Advisory Committee Act) that the Executive Committee to the Department of Veterans Affairs Voluntary Service (VAVS) National Advisory Committee (NAC) will meet October 15-16, 2007, at the Rosen Centre Hotel, Orlando, Florida. The sessions will begin at 8:30 a.m. each day and end at 5 p.m. on October 15 and at
The NAC consists of 59 national organizations and advises the Secretary, through the Under Secretary of Health, on the coordination and promotion of volunteer activities within VA health care facilities. The Executive Committee consists of 19 representations from the NAC member organizations and acts as the NAC governing body during the period between NAC annual meetings.
On October 15, agenda topics will include NAC goals and objectives, the minutes of the May 2007 meeting, a Veterans Health Administration update, a VAVS update of the Voluntary Service group's progress, and emerging issues since the May 2007 NAC annual meeting. They will also include the Parke Board update, evaluations of the May 2007 annual meeting and plans for 2008 NAC annual meeting, to include workshops and plenary sessions.
On October 16, agenda topics will include 2009 NAC annual meeting planning, recommendations, from the May 2007 NAC annual meeting, subcommittee reports, standard operating procedure revisions, new business and Executive Committee appointments.
No time will be allocated at this meeting for receiving oral presentations from the public. However, interested persons may either attend or file statements with the Committee. Written statements may be field either before the meeting or within 10 days after the meeting and addressed to: Ms. Laura Balun, Designated Federal Officer, Voluntary Service Office (10C2), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Ms Balun can be contacted by phone at (202) 273-8952.
By Direction of the Secretary.
Department of Veterans Affairs, Office of Research and Development.
Notice of intent.
Notice is hereby given that the Department of Veterans Affairs, Office of Research and Development, intends to grant Preventative Nutrient Company, Inc., Northridge, CA USA, an exclusive license to practice the following patent applications: U.S. Patent 7,144,865 issued on December 5, 2006 entitled “Compositions and Methods for Treating Obesity”; U.S. Patent Application 5,834,032 issued on November 10, 1998 entitled “Compositions and Methods for Treating Diabetes”; and U.S. Provisional Patent Application 60/892,785 filed on March 2, 2007 entitled “Compositions and Methods for Treating Alzheimer's Disease.”
Comments must be received within fifteen (15) days from the date of this published Notice.
Send comments to: Amy E. Centanni, Director of Technology Transfer, Department of Veterans Affairs, Office of Research and Development, Attn: 12TT 810 Vermont Avenue, NW., Washington, DC 20420, Telephone: (202) 254-0199; Facsimile: (202) 254-0460; e-mail:
Copies of the published patent applications may be obtained from the U.S. Patent and Trademark Office at
It is in the public interest to so license these inventions as Preventative Nutrient Company, Inc., submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published Notice, the Department of Veterans Affairs Office of Research and Development receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Office of Postsecondary Education, Department of Education.
Notice of proposed rulemaking.
The Secretary proposes to amend the regulations on Student Assistance General Provisions; Federal Perkins Loan (Perkins Loan) Program; Federal Supplemental Educational Opportunity Grant (FSEOG) Program; Federal Family Education Loan (FFEL) Program; William D. Ford Federal Direct Loan (Direct Loan) Program; Federal Pell Grant (Pell Grant) Program; and Academic Competitiveness Grant (ACG) and National Science and Mathematics Access to Retain Talent Grant (National SMART Grant) Programs. The proposed regulations would reduce administrative burden for program participants, provide benefits to students and borrowers, and protect taxpayers' interests.
We must receive your comments on or before September 7, 2007.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments.
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For information related to
For information related to
For information related to all Cash Management issues and
For information related to
If you use a telecommunications device for the deaf, you may call the Federal Relay Service at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the first contact person listed under
As outlined in the section of this notice entitled “Negotiated Rulemaking,” significant public participation, through four public hearings and three negotiated rulemaking sessions, has occurred in developing this NPRM. Therefore, in accordance with the requirements of the Administrative Procedure Act, the Department invites you to submit comments regarding these proposed regulations within 30 days. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the programs.
During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments, in person, in room 8037, 1990 K Street, NW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the first person listed under
Section 492 of the Higher Education Act of 1965, as amended (HEA), requires the Secretary, before publishing any proposed regulations for programs authorized by Title IV of the HEA, to obtain involvement in the development of the proposed regulations. After obtaining advice and recommendations from individuals and representatives of groups involved in the Federal student financial assistance programs, the Secretary must subject the proposed regulations to a negotiated rulemaking process. All proposed regulations that the Department publishes must conform to final agreements resulting from that process unless the Secretary reopens the process or provides a written explanation to the participants stating why the Secretary has decided to depart from the agreements. Further information on the negotiated rulemaking process can be found at:
On August 18, 2006, the Department published a notice in the
The Department developed a list of proposed regulatory changes from advice and recommendations submitted by individuals and organizations in testimony submitted to the Department in a series of four public hearings held on:
• September 19, 2006, at the University of California-Berkeley in Berkeley, California.
• October 5, 2006, at the Loyola University in Chicago, Illinois.
• November 2, 2006, at the Royal Pacific Hotel Conference Center in Orlando, Florida.
• November 8, 2006, at the U.S. Department of Education in Washington, DC.
In addition, the Department accepted written comments on possible regulatory changes submitted directly to the Department by interested parties and organizations. A summary of all comments received orally and in writing is posted as background material in the docket. Transcripts of the regional meetings can be accessed at
At its first meeting, the General Provisions Committee reached agreement on its protocols and proposed agenda. These protocols provided that the non-Federal negotiators would not represent the interests of stakeholder constituencies, but would instead participate in the negotiated rulemaking process based on each Committee member's experience and expertise in the Title IV, HEA programs.
The following members made up the General Provisions Committee:
• Rebecca Thompson and Justin Klander (alternate), United States Student Association and Minnesota State College Student Association, respectively.
• Elaine Neely-Eacona and Susan Little (alternate), Kaplan Higher Education and University of Georgia, respectively.
• David Glezerman and Anne Gross (alternate), Temple University and National Association of College and University Business Officers, respectively.
• Stephen Sussman and Maureen R. Budetti (alternate), Barry University and National Association of Independent Colleges and Universities, respectively.
• Linda Michalowski and Carol Mowbray (alternate), California Community Colleges and Northern Virginia Community College, respectively.
• Kay Noah Stroud and Beverly Young (alternate), Appalachian State University and California State University, respectively.
• Stacey Ludwig and Paula Luff (alternate), Western Governors University and DePaul University, respectively.
• Steven Dill, Robert Collins (alternate), and Nancy Broff (alternate), Lincoln Education Services, Inc., Apollo Group, Inc., and Career College Association, respectively.
• Mary Ann Welch, representing National Association of State Student Grant and Aid Programs.
• Starlith Chiquita Carter and Ray Testa (alternate), National Accrediting Commission of Cosmetology Arts and Sciences and National Motion Member Schools/Regis, respectively.
• Lloyd Robertson, representing Chase EdFinance.
• Brian Kerrigan, representing U.S. Department of Education.
During the later two meetings, the General Provisions Committee reviewed and discussed drafts of proposed regulations. At the final meeting in April 2007, the General Provisions Committee reached consensus on all of the proposed regulations in this document. More information on the work of this Committee can be found at:
We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.
The definition of
The definition of
The proposed regulations would move the definitions of
The proposed regulations would move the definition of
The proposed definition of
Upon consolidation in § 668.2(b), these definitions would be removed from the individual program regulations.
As part of the rulemaking discussions, the Department also recommended changing the
Specifically, for a standard term (semester, trimester, or quarter) credit hour program or a nonstandard term credit hour program (with or without terms that are substantially equal in length), § 668.4(a) defines payment periods to be the terms. Title IV grant and loan funds are disbursed to students in these programs by the payment period—the term—except for nonstandard term credit hour programs with terms that are not substantially equal in length. For those programs, §§ 682.604(c)(7) and 685.301(b)(5) require an institution to make the second disbursement of FFEL and Direct Loan funds, respectively, at the later of (1) the calendar midpoint of the loan period, or (2) the date the student has completed half of the coursework in the loan period.
For a nonterm credit hour program, under § 668.4(b) payment periods are considered to be completed when the student has completed half of the number of credit hours and half of the number of weeks of instructional time in the academic year or program, as appropriate. Title IV grant and loan funds are disbursed to students in these programs by the payment period (i.e., a second disbursement is made when the first payment period is complete), except for FFEL and Direct Loan funds. When paying FFEL and Direct Loan funds to a student in a nonterm credit hour program, an institution may not make a second disbursement until the later of (1) the calendar midpoint of the loan period, or (2) the date that the student has completed half of the academic coursework in the loan period (§§ 682.604(c)(7) and 685.301(b)(5)). Section 668.4(b)(3) provides that, if an institution is unable to determine when a student in a nonterm credit hour program has completed half of the credit hours in a program, academic year, or remainder of a program in order to determine when a student begins a new payment period, the student is considered to begin the second payment period at the later of the date, as determined by the institution, when the student has completed half of the academic coursework in the program, academic year, or remainder of a program, or the calendar midpoint of the program, academic year, or remainder of a program.
For a clock hour program, § 668.4(c) defines the payment period as the point when a student has completed half of the clock hours in the academic year or program, as appropriate. Again, Title IV grant and loan funds are disbursed to students in these programs by the payment period, except for FFEL and Direct Loan funds. When paying FFEL and Direct Loan funds to a student in a clock hour program, an institution may not make a second disbursement until the later of (1) the calendar midpoint of the loan period, or (2) the date that the student has completed half of the clock hours in the loan period (§§ 682.604(c)(8) and 685.301(b)(6)). Section 668.164(b)(3) contains requirements that address when an institution may count excused absences as completed clock hours for purposes of determining completion of a payment period.
Currently, for the remainder of a program equal to or less than one-half of an academic year for clock hour programs and nonterm credit hour programs, the remainder of the program is the payment period (§ 668.4(b)(2)(iii) and (c)(2)(iii)).
The regulations contain a few exceptions to these disbursement regulations. Section 668.4(d) allows an institution to choose to have more than the defined two payment periods for nonterm credit hour programs and clock hour programs. In addition, the FFEL and Direct Loan regulations in §§ 682.604(c)(6)(ii) and 685.301(b)(3)(ii) require that, for a loan period that is one payment period, the loan funds must be paid in two installments, the second not being delivered until the calendar midpoint of the loan period, unless the institution is exempt under the cohort
Section 668.164(b) would now specify that an institution must disburse all Title IV grant and loan funds on a payment period basis, and would require, generally, that an institution disburse all Title IV grant and loan funds once each payment period. As a result, FFEL and Direct Loan funds would now be disbursed using the payment period definitions in § 668.4 for all types of programs.
To facilitate this change, several changes to the payment period definitions in § 668.4 would be necessary. First, the proposed regulations would divide nonstandard term credit hour programs into two categories. Nonstandard term credit hour programs with terms that are substantially equal in length would, along with standard term programs, continue to use the academic term as the payment period for both Title IV grant and loan funds.
Payment periods for nonstandard term credit hour programs with terms that are not substantially equal in length would be addressed in new § 668.4(b). The proposed regulations would specify two sets of payment periods for these programs: one for Title IV grant and Perkins Loan funds, and one for FFEL and Direct Loan funds. The payment periods for Title IV grant and Perkins Loan funds would be the academic term, as in current regulations. The proposed FFEL/Direct Loan payment periods are based on the current FFEL/Direct Loan disbursement requirements found in §§ 682.604(c)(7) and 685.301(b)(5). However, an institution would not be permitted to make a second disbursement until a student had successfully completed half of the coursework and half of the weeks of instructional time rather than making that disbursement at the later of the calendar midpoint, or the student's completion of half of the coursework. The definition of terms that are
The second change to § 668.4 would add a time component to the definition of payment periods for clock hour programs so that, in addition to requiring a student to complete half of the clock hours, the proposed regulations would require that a student complete half of the weeks of instructional time before a second disbursement may be made. As a result of this change and the change requiring FFEL and Direct Loan funds to be disbursed on a payment period basis, proposed § 668.4(c) would require that all Title IV grant and loan funds, including FFEL and Direct Loan funds, for students in nonterm credit hour and clock hour programs be disbursed when the student successfully completes half of the weeks of instructional time and half of the credit hours/clock hours in the academic year/program. The added time component (for clock hour programs) would be new for second disbursements of Title IV grant and Perkins Loan fund disbursements, and second disbursements of FFEL and Direct Loan funds would no longer be disbursed at the later of the calendar midpoint of the loan period, or the student's successful completion of half of the coursework/clock hours for nonterm credit hour and clock hour programs, respectively.
In addition, the proposed regulations would remove current § 668.4(d) so that an institution would no longer be permitted to choose to have more than the defined two payment periods for nonterm credit hour programs and clock hour programs. The proposed regulations would require that, for example, an institution with a clock hour program of 900 hours, must disburse funds using two 450-hour payment periods, not three 300-hour payment periods. The requirements that address when an institution may count excused absences as completed clock hours for purposes of determining completion of a payment period would be moved from § 668.164(b)(3) to new § 668.4(e).
Originally, the Department suggested changing the payment period definition for a remainder of a program equal to or less than one-half of an academic year for clock hour programs, nonterm credit hour programs, and nonstandard term credit hour programs with terms that are not substantially equal in length. Rather than treating the entire remainder of a program as the payment period, the Department suggested dividing the remainder into two payment periods to be consistent with how the HEA requires that FFEL and Direct Loan funds be disbursed. Some non-Federal negotiators felt that such a change would not be in the best interest of students who currently benefit from receiving the entire Title IV grant or Perkins Loan amount for the payment period up front. Ultimately, the Committee agreed to continue to define the payment period for a remainder of a program equal to or less than one-half of an academic year to be the remainder of the program for nonstandard term credit hour programs with terms that are not substantially equal in length, nonterm credit hour programs, and clock hour programs (see proposed §§ 668.4(b)(2)(ii) and 668.4(c)(2)(iii)).
Disbursements of FFEL and Direct Loan funds for these payment periods would still have to be made in two installments. The regulations in §§ 682.604(c)(6)(ii) and 685.301(b)(3)(ii) would continue to require that, for a loan period that is one payment period, the loan funds must be paid in two installments, unless the institution is exempt under the cohort default rate exception in § 682.604(c)(10) or § 685.301(b)(8). However, instead of requiring that the institution not deliver a second installment until the calendar midpoint of the loan period, these proposed regulations would require an institution to wait until the student has successfully completed half of the number of credit hours or clock hours, as appropriate, and half of the number of weeks of instructional time in the payment period.
Section 668.164(b) would include cross-references to this FFEL/Direct Loan exception to the requirement that an institution disburse Title IV grant and loan funds once each payment period. In addition, § 668.164(b) would include cross-references to the other existing exceptions to these regulations, whereby an institution is permitted to disburse a student's FSEOG, Pell Grant, ACG, and National SMART Grant for the payment period in installments to best meet the student's needs (§§ 676.16(a)(3), 690.76, and 691.76).
Changes would be made to the definitions of payment periods for nonterm credit hour programs, clock hour programs and, with respect to the FFEL/Direct Loan payment periods definition, for nonstandard term credit hour programs with terms that are not substantially equal in length, to require that a student successfully complete half of the credit hours or clock hours, as appropriate, to progress to the next
Another change to the payment period definitions in § 668.4 would extend to clock hour programs the provision that addresses how to identify the end of a payment period when an institution is unable to determine when a student in a nonterm credit hour program has completed half of the credit hours in a program, academic year, or remainder of a program. In addition, the measure of time used to make the determination would be changed from the calendar midpoint to completion of half of the weeks of instructional time. Thus, under new § 668.4(c)(3), if an institution is unable to determine when a student in a nonterm credit hour program or a clock hour program has completed half of the hours in a program, academic year, or remainder of a program in order to determine when a student begins a new payment period, the student is considered to begin the second payment period at the later of (1) the date, as determined by the institution, when the student has completed half of the academic coursework in the program, academic year, or remainder of a program, or (2) the date, as determined by the institution, when the student has completed half of the number of weeks of instructional time in the program, academic year, or remainder of the program.
Finally, a new paragraph (d) would be added to § 668.4 to make clear that, when an institution qualifies for the cohort default rate exemption in § 682.604(c)(10) or § 685.301(b)(8) for a nonstandard term credit hour program, a nonterm credit hour program, or a clock hour program, the payment period for purposes of FFEL or Direct Loan funds is the loan period for those portions of the program to which the cohort default rate exemption applies. For example, if the loan period for a nonterm credit hour program is three months in length and the institution meets the cohort default rate exemption, that three-month loan period is the payment period and only one disbursement of the loan is required for that period.
Where these proposed regulations would deviate from this alignment, they would do so for the reasons that follow.
Traditionally, for credit hour term based programs, including nonstandard term credit hour programs with terms that are not substantially equal in length, the payment periods have been the terms. Because, under section 428G(a) of the HEA, disbursements of FFEL funds (and, by extension, Direct Loan funds) for these programs must be disbursed in two equal installments for the period of enrollment, Title IV grant and loan disbursements have not always aligned. To align them in all cases, Title IV grant and Perkins Loan funds would have to be disbursed on the same basis as FFEL and Direct Loan funds. However, the Committee agreed that inconsistency was acceptable in this case because of the benefit students receive from receiving Title IV grant and Perkins Loan funds more frequently. For this same reason, the Committee ultimately decided to define payment periods for the remainder of a program less than half of an academic year to be the remainder of the program for nonterm credit hour programs, clock hour programs, and, for FFEL and Direct Loan funds, nonstandard term credit hour programs with terms that are not substantially equal in length. Terms that are substantially equal in length would continue to be defined as they were in the FFEL and Direct Loan regulations.
To continue to allow an institution some flexibility to meet a student's individual circumstances, no change would be made to the FSEOG, Pell Grant, ACG, and National SMART Grant regulations that permit an institution to pay the grant amount for the payment period at such times and in such installments in each payment period as the institution determines will best meet the student's needs. So, although, an institution with a 900 clock hour program that currently has three 300 clock hour payment periods would be required to change to two 450 clock hour payment periods, the institution could choose to pay FSEOG, Pell Grant, ACG, or National SMART Grant funds in, for example, two installments each payment period if it determines that apportioning those funds best meets the student's needs.
New paragraph (d) would be added to § 668.4 to reflect the statutory provisions that affect disbursements for institutions that qualify for the cohort default rate exemption in § 682.604(c)(1) or § 685.301(b)(8) for a nonstandard term credit hour program, a nonterm credit hour program, or a clock hour program.
The proposed regulations would incorporate the Department's longstanding policy that a student must successfully complete half of the clock hours or credit hours, as appropriate, to progress to the next payment period for clock hour programs, for nonterm credit hour programs, and, under the FFEL/Direct Loan payment periods definition, for nonstandard term credit hour programs with terms that are not substantially equal in length. So that these requirements would be consistently applied by institutions, some non-Federal negotiators asked, and the Committee agreed, to add a definition of
As a result of the use of calendar time as the time component, second disbursements of FFEL and Direct Loan funds for less than full-time students in nonstandard term credit hour programs with terms that are not substantially equal in length, nonterm credit hour programs, and clock hour programs may be made at the midpoint of the period of enrollment in calendar time, even if the student has not completed half of the hours in the period of enrollment. That is, a less than full-time student in one of these programs may receive the annual loan limit for the period of enrollment regardless of his or her enrollment status. However, the student is not eligible for another loan until he or she has completed all the credit hours or clock hours, as applicable, and the weeks in the period of enrollment.
Instead of receiving the second disbursement at the calendar midpoint of the period of enrollment (the academic year or program, as applicable), the student would receive the second disbursement after he or she completes half of the credit hours or clock hours, as applicable, and half of the weeks of instructional time in the payment period. An example of the effects of this change is published as Appendix C to the preamble—Title IV disbursements—Less-than-full-time enrollment. The example shows that, under current requirements, the student would receive the second loan disbursement at the calendar midpoint of the period of enrollment (the academic year). Under the proposed change, the student would receive the second disbursement after completion of half of the credit hours and half of the weeks of instructional time in the academic year. Because the student in the example is a half-time student, this would not occur until the student has successfully completed 24 credit hours and 30 weeks of instructional time.
A conforming change would be made to the definition of
For nonstandard term credit hour programs with terms that are not substantially equal in length, the proposed regulations would specify two sets of payment periods: One for Title IV grant and Perkins Loan funds, and one for FFEL and Direct Loan funds (again, see the discussion under “Payment periods and disbursements of Title IV grant and loan funds”). As only one payment period may be used for determining earned Title IV grant and loan funds for a student who withdraws, the institution would have to choose, or the regulations could provide, which payment period to use. Changes to § 668.22(e)(5) would require an institution to always use the payment period during which the student withdrew that ends later, for Return of Title IV Funds calculations for a credit hour program that is measured in nonstandard terms that are not substantially equal in length, when the student receives aid under both payment period definitions. Aid that is disbursed for the payment periods that overlap the payment period that ends later would have to be attributed to the payment period that ends later.
An example of this change is published as Appendix D to the preamble—Return of Title IV Funds—Payment periods for nonstandard term credit hour programs with terms not substantially equal in length. The student in this example withdrew on the 50th day after the start of classes. The student's FFEL/Direct Loan funds were disbursed for the first FFEL/Direct Loan payment period—i.e., the first half of the academic year. The student's Pell Grant funds were disbursed for the first Pell Grant payment period—i.e., the first term, which is 10 weeks in length. The FFEL/Direct Loan payment period is the payment period during which the student withdrew that ends later, so that is the payment period that the institution would be required to use for the Return of Title IV Funds calculation under these proposed regulations. The first two Pell Grant payment periods overlap with the first FFEL/Direct Loan payment period, so aid that was disbursed or could have been disbursed for those two payment periods would be attributed to the first FFEL/Direct Loan payment period. All of the first Pell Grant payment period falls within the first FFEL/Direct Loan payment period, so all of the Pell Grant funds that were disbursed for the first payment period would be included in the calculation. The second Pell Grant payment period of six weeks overlaps with the first FFEL/Direct Loan payment period for five of those weeks. To determine the amount of Pell Grant funds that could have been disbursed that are attributable to the five weeks, the institution would take the full amount of Pell Grant funds that could have been disbursed for the second Pell Grant payment period, and multiply it by five-sixths.
If a student who withdraws from a nonstandard term credit hour program with terms that are not substantially equal in length is disbursed aid or could have been disbursed aid using only one of the two payment period definitions, that is the payment period that would be used for the calculation of earned aid, and no attribution of funds would be necessary.
In the one case where an institution would not be allowed to use consistent disbursement periods, i.e., for a credit hour program that is measured in nonstandard terms that are not substantially equal in length (see the discussion under “Payment periods and disbursements of Title IV grant and loan funds”), the Department originally suggested that § 668.22 be changed to require an institution to select and consistently use either the Title IV grants/Perkins loan payment period or the FFEL/Direct Loan payment period for the Return of Title IV Funds calculations and attribute to that payment period the aid that was disbursed or could have been disbursed for the overlapping payment periods. However, under this proposal, if the payment period that ended sooner is used and funds for the overlapping payment period that ended later had already been disbursed, an institution would have to return immediately the amount of Title IV funds attributed to a period beyond the payment period being used. Using the example in Appendix D to the preamble—Return of Title IV Funds—Payment periods for nonstandard term credit hour programs with terms not substantially equal in length, if the institution chose to use the Pell Grant payment period during which the student withdrew for the Return of Title IV Funds calculation, the funds from the FFEL/Direct Loan payment period, which ends five weeks after the Pell Grant payment period, would have to be attributed. To determine the amount of FFEL/Direct Loan funds attributable to the Pell Grant payment period, the institution would multiply the full amount of the FFEL/Direct Loan disbursement by ten-fifteenths (two-thirds). The remaining amount of the disbursed FFEL/Direct Loan would be attributed to the second Pell Grant payment period. Because the second Pell Grant payment period is after the period used in the Return of Title IV Funds calculation, all funds attributed to that period would have to be returned.
Such a result would raise issues such as how soon the institution would have to return those funds, would the institution be required to return any amount disbursed directly to the
The Department initially proposed a definition of
The phrase “regular and substantive interaction,” which is also used in the definition of
The treatment of FFEL and Direct Loan funds when a student leaves the institution before beginning class is addressed in §§ 682.604(d)(3) and (4) and 685.303(b)(3), respectively. An institution must return any loan proceeds credited to the student's account, as well as the amount paid to the institution by or on behalf of the student, not to exceed the total amount of loan funds disbursed. If any FFEL funds have been disbursed to the institution but have not been delivered to the student, the institution must return those funds in accordance with the Title IV cash management requirements in § 668.167.
The regulations for FFEL and Direct Loan funds would mirror existing requirements whereby, in addition to being required to return the amount of FFEL and Direct Loan funds credited to the student's account, an institution would be responsible for returning the amount paid to the institution by or on behalf of the student, not to exceed the total amount of loan funds disbursed. Also in accordance with current requirements, an institution would not be responsible for returning any FFEL and Direct Loan funds that are disbursed directly to a student before the student begins attendance, other than as noted above. The proposed regulations would specify that an institution must notify the lender or Secretary, as appropriate, of amounts disbursed directly to the student that are outstanding, so that the lender or Secretary can issue a 30-day demand letter to the student as required under current regulations. Institutions would not be responsible for returning loan funds that are disbursed directly to the student by the lender for a student in a study-abroad program or for a student attending a foreign school.
A new requirement would be added to require an institution to return FFEL or Direct Loan funds that it disbursed directly to a student if the institution knew that the student would not begin attendance prior to disbursing the funds directly to the student. This would apply, for example, if a student notified the institution that he or she would not be attending or if the institution expelled the student prior to directly disbursing the funds.
The proposed regulations would require an institution to return those funds as soon as possible, but no later than 30 days after the date that the institution becomes aware that the student will not attend or has not begun attendance. The proposed regulations would specify when a return is considered to have been made in a timely manner. Specifically, the regulations would provide that an institution returns funds when it— (1) Deposits or transfers the funds into the bank account it maintains for Federal funds; (2) initiates an electronic funds transfer (EFT) to transfer the funds; (3) initiates an electronic transaction that instructs an FFEL lender to adjust a borrower's loan for the amount of the “returned funds;” or (4) issues a check.
The regulations would make clear that, as with the current requirements in § 668.21, these provisions apply if an institution is unable to document the student's attendance at any class. Finally, § 682.604 has been changed to clarify how to handle FFEL funds that an institution has delivered, versus those that were disbursed to the institution, but were not delivered by the institution.
The Department originally suggested changing the FFEL and Direct Loan requirements to mirror those applicable to Title IV grant and Perkins Loan funds. That is, an institution would be responsible for returning any FFEL and Direct Loan funds that were disbursed to a student before the student began attendance, even if the institution had disbursed the funds directly to the student. Some non-Federal negotiators felt, and the Department agreed, that such a change would cause institutions to reduce their potential liability by refusing to disburse FFEL and Direct Loan funds prior to the start of classes, thereby denying funds needed by students to begin classes. As a result, the Committee agreed to language that would reflect the current regulations for the treatment of FFEL and Direct Loan funds when a student does not begin attendance, with one addition. The Committee agreed that an institution should be liable for any FFEL and Direct Loan funds that the institution disbursed to a student if the institution knew that the student would not be beginning attendance because the institution should have known not to make the disbursement.
The establishment of a 30-day timeframe for the return of funds for which an institution is responsible would ensure that institutions return Title IV funds in a timely manner. Some negotiators felt that the timeframe should be consistent with the 45-day timeframe for the return of funds by an institution in accordance with the “Return of Title IV Funds” requirement in § 668.22, which prescribes the requirements for returning Title IV grant and loan funds when a student withdraws during a payment period or period of enrollment. The Department stated that it does not believe the additional 15 days is necessary because, unlike the Return of Title IV Funds requirements, no calculation is required to determine the amount of funds an institution must return.
The timely return requirements are the same as those currently found in § 668.173 and were added to provide consistency with the requirements applicable to returns made in accordance with the Return of Title IV Funds requirements in § 668.22 for students who withdraw during a payment period or period of enrollment.
In accordance with § 668.22(a)(5)(iii)(C), if an institution receives confirmation from the student, or parent for a PLUS loan, that he or she wants the Title IV loan funds credited to the student's account or paid directly to the student or parent, the institution must make the post-withdrawal disbursement within 120 days of the date that it determined that the student withdrew.
A corresponding change would make clear that, after receiving confirmation from a student, or parent in the case of a PLUS loan, that he or she wants a post-withdrawal disbursement of Title IV loan funds credited to his or her account, or disbursed directly, an institution must make the post-withdrawal disbursement as soon as possible, but no later than 120 days after the date of the institution's determination that the student withdrew (as defined in current § 668.22(l)(3)).
Although the non-Federal negotiators agreed that it is implied that required institutional actions must be done as soon as possible, the Committee agreed that it was beneficial to specify this in the regulations. Prompt action is more likely to ensure that contact will be made with a student who is no longer in attendance at the institution.
If an institution issues a check but the check is not cashed or is returned as undeliverable to the institution, the proposed regulations would require the institution to send the funds back to the Secretary or FFEL lender no later than 240 days after the date the check was issued.
In cases where an institution attempts to disburse the funds by issuing a check or initiating an EFT to the student's or parent's bank account, and the check or EFT is returned as undeliverable, the proposal would allow the institution to make subsequent attempts to disburse the funds as long as those attempts are made within 45 days of the date the check or EFT were returned. If the institution makes a subsequent attempt by issuing a check, and that check is not cashed or is returned as undeliverable, the institution would be required to send the funds back to the Department or lender no later than 240 days after the date it initially attempted to disburse the funds.
In addition, the proposed regulations would make clear that Title IV, HEA program funds never escheat to a State, regardless of any State law.
Originally the Department proposed a 180-day timeframe for returning funds. The non-Federal negotiators noted that this timeframe would be difficult to meet since many checks are valid for 180 days. Instead, they suggested timeframes ranging from 210 days to one year or more (the 210-day timeframe would accommodate a typical 180-day check and allow for one monthly bank reconciliation to see if the check was still outstanding). The Department agreed that more time was needed and subsequently proposed a maximum 240-day timeframe. The Committee agreed to this timeframe.
With regard to a check or EFT that is returned as undeliverable, the Department originally proposed that an institution could make one more attempt. This proposal was later modified to allow as many attempts as an institution wanted to make as long as it made those attempts promptly (within 45 days after the date the check or EFT is returned).
The proposed regulations would require an institution to identify in its notice to a student the specific location at the institution where the student can
With regard to bank accounts, an institution may not require or rely on a student to open an account. In cases where the institution opens a bank account on behalf of a student, establishes a process the student follows to open a bank account, or similarly assists the student in opening the account, the institution would need to satisfy the following provisions:
1. It must obtain written consent from the student to open the bank account.
2. It must inform the student of the terms and conditions of accepting and using the account.
3. It must not make any claims against the funds in the account unless it obtains the student's permission or the institution is correcting an error in transferring funds in accordance with banking protocols.
4. It must ensure that the student does not incur any costs in opening the account or initially receiving any type of automated teller machine (ATM) card, stored-value card, or other similar device that is used to access funds in the account.
5. It must ensure that the student has convenient access to a branch office of the bank or ATMs of the bank in which the account was opened (or ATMs of another bank) so that the student does not incur any cost in making cash withdrawals.
6. It must ensure that the debit card, stored-value card, ATM card, or other device can be widely used (the institution may not limit the use of the card or device to particular vendors).
7. It must not market or portray the account, card, or device as a credit card or subsequently convert it to a credit card.
As used in the context of these proposed regulations, “bank account” means a Federal Deposit Insurance Corporation (FDIC) insured account such as a checking or savings account, or a similar account that underlies a stored-value card or other transaction device.
Also, the proposed regulations would amend the provision under which an institution (with the student's permission) holds credit balance funds for a student by providing that the institution may issue a stored-value card or other similar device that enables the student to access those funds.
To address this situation, the Department initially proposed to the non-Federal negotiators that a check is issued on the date it is mailed, or handed over, to the student. The non-Federal negotiators argued that this approach was too limiting and would unnecessarily force institutions to mail checks to students who intended to pick up their checks or to students who did not update their mailing address. A compromise was reached under which the check pickup provision would be maintained, but if the student did not pick up the check within 21 days the institution would have to immediately disburse the credit balance funds some other way or return the funds.
With regard to expanding the use of EFTs for making direct payments to students, the proposal generally mirrors the guidance published in the Department's Dear Colleague Letter GEN-05-16 of October 17, 2005, questions and answers 18 through 21, by identifying certain provisions that an institution must satisfy when it makes an EFT to a student's bank account. The Dear Colleague Letter is available at
Finally, in response to questions from the non-Federal negotiators relating to school-issued smart cards, or similar transaction devices, the proposal would allow the use of such cards where an institution already has the student's permission to hold Title IV credit balance funds on his or her behalf.
The Department initially proposed to maintain the current 120-day late disbursement period but eliminate any subsequent requests. Some non-Federal negotiators argued that the post 120-day late disbursement provision benefited students who did everything they were asked to do and should be maintained in its current form or as part of some type of appeal procedure. Other non-Federal negotiators believed that the 120-day period afforded institutions adequate time to make late disbursements. If the disbursements were not made, the negotiators stated that the institution should assume responsibility and use its own funds to make the disbursements. In the end, an agreement was reached providing 180 days to make a late disbursement.
In addition, the regulations in § 668.165(a)(2) provide that an institution must notify a student whenever it credits a student's account with funds from a Title IV, HEA program loan. The institution must send the notice no earlier than 30 days before, and no later than 30 days after, it credits the student's account. A student then has 14 days to inform the institution if he or she wishes to cancel all or a portion of the loan or loan disbursement. If the institution receives a cancellation request within this 14-day period, it must comply with the student's request and cancel the loan, return the loan proceeds, or do both.
If the institution obtains affirmative confirmation, then it would continue to comply with the current loan cancellation provisions.
If the institution does not obtain affirmative confirmation, it would be required to notify the student no earlier than 30 days before, but no later than seven days after, it credits the student's account with loan funds. Moreover, the institution would be required to give the student 30 days (instead of the current 14 days) to cancel all or a portion of the loan or loan disbursement.
The proposed regulations would define
For this reason, we initially proposed that as part of the process for notifying a student of the amounts and types of loans he or she was eligible to receive for an award year, or through another process, the institution would obtain affirmative confirmation from the student for those loans. Some of the non-Federal negotiators noted that there are already several disclosures made to students regarding their loans and opined that affirmative confirmation was either not needed or that any marginal benefit would be outweighed by the cost and complexity of implementing it. Other non-Federal negotiators stated that their institutions currently use an affirmative confirmation process.
In lieu of affirmative confirmation we then proposed to modify the loan cancellation provisions by (1) requiring an institution to notify a student no later than the date that loan funds were credited to his or her account (instead of up to 30 days after that), and (2) giving the student more time (30 days instead of 14) to cancel all or a portion of the loan. Some of the non-Federal negotiators countered by suggesting that the Department give institutions a choice between doing affirmative confirmation or complying with the expanded loan cancellation regulations. We agreed to provide this choice.
An institution is allowed to maintain excess cash for seven days under two tolerance options. Under the first option, the institution may maintain excess cash for an amount up to one percent of the total amount of funds it drew down in the previous year. Under the second option, the institution may maintain excess cash for an amount up to three percent of its prior-year drawdowns, if the funds are drawn down during a period of peak enrollment.
In instances where the Secretary finds that an institution maintains excess cash for an amount or time period greater than that allowed under the tolerance options, the regulations prescribe the method used to calculate a liability for maintaining those funds and provide that the Secretary may initiate a proceeding to fine, limit, suspend, or terminate the institution's participation in the Title IV, HEA programs.
Also, the proposed regulations would eliminate the three percent excess cash tolerance option and simplify the provisions addressing the consequences for maintaining excess cash.
We initially proposed to eliminate both tolerance options in view of the progress the Department and institutions have made over the last 10 years in moving more and more to a student-level reporting and authorization process, and the timeliness and predictability of transferring funds electronically. Some of the non-Federal negotiators objected, arguing that some tolerance is still needed. We agreed to keep the one percent tolerance option.
With regard to the consequences for maintaining excess cash, we believe the current regulations are unnecessarily complex in specifying the method used to calculate an interest liability. In addition, the provision alerting institutions that the Secretary may initiate an adverse action for maintaining excess cash is redundant, since the Secretary may take an adverse action for any finding, depending on the gravity and materiality of the violation. Instead, and perhaps more likely, we note that the Secretary may place an institution on cash monitoring or reimbursement.
Another topic addressed by the Committee was the minimum period of time for which a loan may be certified or originated for transfer students. Currently transfer students in a program that measures academic progress in credit hours but does not use a semester, trimester, or quarter system or measures progress in clock hours are allowed to borrow only the remaining balance of their loan amounts when they have already had a loan for an academic year (or a program of less than an academic year) made to them at a previous school where the loan period at the previous school overlaps the loan period at the school the students transfer into. Since the minimum period of time for which a school can certify a loan is the lesser of the program (or remaining portion of the program) or the academic year, transfer students with one academic year or more remaining in their program often are eligible to borrow only a small amount of money (the remaining balance) for a period of time associated with the first full academic year (usually 30 weeks) remaining in their program.
One non-Federal negotiator believed that this was unfair, and suggested that transfer students in these types of programs should be allowed to obtain loans for the remaining portion of the program or academic year, instead of for the whole program or academic year when the prior school certified or originated a loan for a period of enrollment that overlaps the period of enrollment at the new school. That negotiator and other non-Federal negotiators argued that this should be the case because the new school is only certifying or originating a loan for the remaining balance of the students' annual loan amount, not for the entire
Another non-Federal negotiator pointed out that often when students complete a degree program at a school that measures academic progress in credit hours but does not use a semester, trimester, or quarter system, and then immediately start another degree program, they are allowed to borrow only the remaining balance of their annual loan amount for the first academic year of their second degree program. This occurs when the last loan made to complete the first degree program had been for less than an academic year. Since the minimum period of time for which a school can certify a loan is the lesser of the program (or remaining portion of the program) or the academic year, students finishing one degree program and starting a second degree program in the situation noted above are eligible to borrow only a small amount of money (the remaining balance) for a period of time associated with the first full academic year (usually 30 weeks) of their second degree program.
Therefore, the Committee agreed that, for these students in these types of programs, where the school certified or originated a loan for less than an academic year for the completion of one degree program, it should be allowed to certify or originate a loan for the beginning of the second degree program for the remaining portion of the academic year, instead of for the whole academic year.
Under the proposed change to § 690.63(a)(1), traditional programs would continue to be allowed to use this formula. However, several non-Federal negotiators suggested that, because certain other programs (i.e., those that start their semesters, trimesters, or quarters on a periodic (e.g., monthly) basis for different cohorts of students) are substantially similar in nature to traditional semester, trimester, or quarter programs, they also should be allowed to use this formula. These negotiators suggested that this issue be added to the negotiated rulemaking agenda, and the Committee agreed to do so. After discussion of this issue, the Committee members agreed that, if these programs meet the criteria applicable to them in proposed § 690.63(a)(1), they should be allowed to use the same formulas that traditional semester, trimester, or quarter programs are allowed to use.
The formula used for programs using credit hours without terms or clock hours is specified in current § 690.63(e). It is used for such programs regardless of the program length and it generally works well when applied to programs that are an academic year or more in length; however, a non-Federal negotiator pointed out that, for certain short programs (less than an academic year in length), application of the formula results in the student qualifying for less of an award than might be deemed appropriate based on the length of the program. For example, a student with a Scheduled Pell Grant Award of $4050, generally receives $4050 for a program that is one academic year in length (e.g., a program of 900 clock hours scheduled to be taken over a 30-week period). Such a student might expect to receive two-thirds of that Scheduled Award ($2700) for a shorter program that is two-thirds as long, e.g., a program of 600 clock hours scheduled to be taken over a 20-week period. However, currently such a student would receive only four-ninths of the Scheduled Award ($1800) instead of two-thirds of the Scheduled Award ($2700) for such a program. Therefore, the non-Federal negotiator suggested that this issue be added to the agenda, and the Committee agreed to do so.
During negotiations, it was noted that the above result occurs because of the way the current formula addresses the fact that an academic year is measured in both (credit or clock) hours and weeks of instructional time. Consider, for example, the 600-hour, 20-week program mentioned above. Even though the program is less than an academic year long, it must have a defined academic year, and we will assume here that its defined academic year is 900 clock hours and 30 weeks of instructional time. Because the definition of
In response, the Department proposed an alternative calculation. This alternative continues to address the fact that an academic year is defined by both (credit or clock) hours and weeks of instructional time. However, the proposed calculation multiplies the student's Scheduled Award by only one of the two fractions that address reductions in program length and hours (the lesser of the two where the fractions are not the same), instead of multiplying the Scheduled Award by the two fractions sequentially. Note that while one of the two fractions used in the proposed regulations is slightly different than one of the two fractions in the current regulations, the two fractions in both the proposed and the current regulations basically attempt to account for (1) the weeks of instructional time for which the student is being paid compared to the weeks of instructional time in the academic year, and (2) the credit or clock hours for which the student is being paid compared to the credit or clock hours in the academic year. The first fraction in the current regulations was primarily designed to address course compression—that is, for example, to the extent that a one academic year program (in terms of credit or clock hours) was scheduled to be completed in fewer weeks of instructional time than was a similar program taken over the full 30 weeks in the defined academic year, the student's award was going to be reduced. However, to the extent that there would be a full complement of credit or clock hours in the program compared to the credit or clock hours in the academic year, the second fraction would not result in a further reduction. While this formula generally worked as intended for longer programs that were compressed, it ended up penalizing students in shorter programs that had not been compressed, because there would still be two reductions for those students instead of one. The first one occurred because there were fewer weeks of instructional time (even though the course had not been compressed) in the program compared to the weeks of instructional time in a full academic year, and the second one occurred because there were fewer credit or clock hours in the program compared to the credit or clock hours in a full academic year.
Using the lesser of the two fractions (where they are not the same) to determine the amount for which the student qualifies results in the student's award being reduced by the greater amount when there could be a reduction in the award to account for (1) the program having fewer hours, and (2) the program having fewer weeks of instructional time. By using the lesser of the two fractions, the proposed regulations would continue to address both of these measures. However, because a student enrolling in a shorter program will attend school for fewer weeks compared to the time the student would have attended for enrollment in a longer program (other factors such as enrollment status being equal), having sequential reductions for both of those measures reduces the student's award twice for what is really only one reason, i.e., the program is just a shorter program. Therefore, to ensure that a student's award is not subject to such a double reduction, only the greater of the two possible reductions comes into play when those reductions would not be the same. The Committee agreed with this alternative approach proposed by the Department.
Because the formula used for correspondence study programs without terms is similar to the formula used for programs using clock hours or credit hours without terms, the Department also proposed in § 690.66(a) to make a
The Committee agreed that if the proposed changes related to calculating payments for a payment period were adopted for the Pell Grant Program, comparable changes should be adopted for the ACG and National SMART Grant programs. Therefore, proposed changes in § 691.63 that track the proposed changes in § 690.63 are also being published in this NPRM.
The following appendices will not appear in the Code of Federal Regulations:
Under Executive Order 12866, the Secretary must determine whether the regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.
Pursuant to the terms of the Executive Order, we determined that this proposed regulatory action will not have an annual effect on the economy of more than $100 million. Therefore, this action is not “economically significant” and subject to OMB review under section 3(f)(1) of Executive Order 12866. In accordance with the Executive order, the Secretary has assessed the potential costs and benefits of this regulatory action and has determined that the benefits justify the costs.
These proposed regulations address a broad range of issues affecting students, borrowers, schools, lenders, guaranty agencies, secondary market participants, and third-party servicers participating in the Pell Grant, FSEOG, FWS, ACG, National SMART Grant, FFEL, Direct Loan, or Perkins Loan programs. Prior to the start of negotiated rulemaking, a list of proposed regulatory changes was developed from advice and recommendations by interested parties and organizations submitted through testimony at public hearings and written comments submitted directly to the Department of Education in Washington, DC. Staff within the Office of Postsecondary Education also identified issues for discussion and negotiation.
A broad range of alternatives to the proposed regulations was considered as part of the negotiated rulemaking process. These alternatives are reviewed in detail under the
Many of the proposed regulations merely consolidate current regulations, codify the Department's guidance, or make relatively minor changes intended to establish consistent definitions or streamline program operations across the various Federal student aid programs; in the absence of data to the contrary, the Department believes the additional clarity and enhanced efficiency resulting from these changes represent benefits with little or no countervailing costs or additional burden. This belief is strongly supported by the fact that the Committee reached consensus on the proposed regulations. Nonetheless, the Department is interested in comments on possible administrative burdens related to the proposed regulations.
Benefits provided in these regulations include the clarification or consolidation of regulations or definitions involving enrollment statuses, independent study for direct assessment programs, cash management rules, disbursement and payment periods, return of Title IV aid, and the calculation of Pell Grant awards.
Because entities affected by these regulations already participate in the Title IV, HEA programs, these lenders, guaranty agencies, and schools must already have established systems and procedures in place to meet program eligibility requirements. All the proposed regulations involve discrete changes in specific parameters associated with existing guidance and regulations rather than entirely new requirements. Accordingly, entities wishing to continue to participate in the Federal student aid programs have already absorbed most of the administrative costs related to implementing these proposed regulations. Marginal costs over this baseline are primarily related to one-time system changes that, while possibly significant in some cases, are an unavoidable cost of continued program participation. The Department is particularly interested in comments on possible administrative burdens related to these system or process changes.
Elsewhere in this
As required by OMB Circular A-4 (available at
Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§” and a numbered heading; for example, § 682.209 Repayment of a loan.)
• Could the description of the proposed regulations in the
• What else could we do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the
The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. These proposed regulations would affect institutions of higher education, lenders, and guaranty agencies that participate in Title IV, HEA programs, individual students, and loan borrowers. The U.S. Small Business Administration (SBA) Size Standards define these institutions as “small entities” if they are for-profit or nonprofit institutions with total annual revenue below $5,000,000 or if they are institutions controlled by governmental entities with populations below 50,000. Guaranty agencies are State and private nonprofit entities that act as agents of the Federal government, and as such are not considered “small entities” under the Regulatory Flexibility Act. Individuals are also not defined as “small entities” under the Regulatory Flexibility Act.
A significant percentage of the schools and lenders participating in the Federal student loan programs meet the definition of “small entities.” While these schools and lenders fall within the SBA size guidelines, the proposed regulations would not impose significant new costs on these entities.
The Secretary invites comments from small institutions and lenders participating in the Federal student loan programs as to whether they believe the proposed changes would have a significant economic impact on them and, if so, requests evidence to support that belief.
Sections 668.4, 668.10, 668.21, 668.22, 668.164, 668.165, 674.16, 676.16, 682.200, 682.603, 682.604, 685.301, and 685.303, contain information collection requirements. Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department has submitted a copy of these sections to OMB for its review.
By making a number of changes to the payment period definitions and disbursement requirements, these proposed regulations would, with few exceptions, align disbursements for all Title IV grant and loan programs.
Inconsistent requirements for disbursing Title IV grant and loan funds for certain types of programs can result in a student receiving second or subsequent disbursements of his or her grant funds or Perkins Loan funds at a different point in time than second disbursements of his or her FFEL or Direct Loan funds. Changes to the regulations that would achieve greater consistency in the timing of the disbursements of Title IV grant and loan funds are proposed to reduce this burden and confusion for institutions and students.
These proposed changes include—(1) Specifying that an institution must disburse all Title IV grant and loan funds on a payment period basis; (2) requiring, generally, that an institution disburse all Title IV grant and loan funds once each payment period; (3) adding a time component to the payment period definitions for clock hour programs to make the disbursements of Title IV grant and Perkins Loan funds conform with the disbursements of FFEL and Direct Loan funds, which must, by law, include a time component; (4) using weeks of instructional time as the time component for determining all Title IV grant and loan disbursements; (5) removing the institutional option to have more than two payment periods for nonterm credit hour programs and clock hour programs; and (6) extending to clock hour programs the provision that addresses how to identify the end of a payment period when an institution is unable to determine whether a student in a nonterm credit hour program has completed half of the credit hours in a program, academic year, or remainder of a program.
We estimate that the proposed changes will decrease burden for individuals and schools. We estimate that the proposed changes will decrease burden for individuals and institutions by 3,599 hours and 14,397 hours, respectively. Thus, we estimate that these proposed regulations will reduce burden by 17,996 hours in OMB Control Number 1845-0022.
These proposed regulations would add a definition of
In the short-term, we expect no additional burden to be associated with direct assessment programs. We are currently aware of only one institution that utilizes such programs. Therefore, this section is not subject to the Paperwork Reduction Act of 1995.
The proposed regulations would consolidate requirements for returning any Perkins Loan, FSEOG, Pell Grant, ACG, National SMART Grant, and FFEL and Direct Loan funds under § 668.21, and eliminate these requirements from §§ 682.604(d)(3) and (4) and 685.303(b)(3). The proposed regulations would hold the institution responsible for returning FFEL and Direct Loan funds disbursed or paid directly to the student, if the institution knew the student would not attend before the funds were disbursed and establishes a timeframe within which the FFEL and Direct Loan funds must be returned. Finally, the proposed regulations clarify the meaning of “delivered” vs. “disbursed” FFEL and Direct Loan funds.
The proposed changes do not increase burden for institutions, lenders, or guaranty agencies.
The proposed regulations would eliminate the current requirement that an institution notify a student who has withdrawn from school and obtain the student's permission before making a post-withdrawal disbursement of Title IV grant funds directly to the student. In addition, the proposed regulations would require the institution to make a post-withdrawal disbursement of such grant funds to the student within 30 days of the date the institution
For loan funds instead of grant funds, a change is proposed for making a post-withdrawal disbursement of Title IV loan proceeds which, although retaining the borrower notice and confirmation process in the current regulations, requires the disbursement “as soon as possible,” but no later than 120 days after determination of the student's withdrawal. Adding the language “as soon as possible” to the current 120-day limit for disbursement of post-withdrawal Title IV loan proceeds will have no affect on paperwork burden.
We estimate that the proposed changes will decrease burden for individuals and institutions by 201 hours and 302 hours, respectively. Thus, we estimate that this proposed regulation will reduce burden by 503 hours as reflected in OMB Control Number 1845-0022.
The proposed regulations would modify current authorization and notification requirements related to making direct payments to a student. The proposed regulations would allow an institution to pay a student directly through expanded electronic funds transfer methods such as debit cards, stored-value cards, ATM cards or other transaction devices. We estimate that the proposed changes will decrease the burden for institutions through the ability to use expanded electronic processes for making direct payments.
We estimate that the proposed changes will decrease burden for institutions by 254,475 hours as reflected in OMB Control Number 1845-0038.
The proposed regulations would provide institutions the choice between active and passive confirmation of a loan. In addition, the proposed regulations would codify existing practice that an institution is not responsible for returning loans that it disbursed directly to a student. If an institution chooses active confirmation, the process is unchanged from current requirements. If an institution chooses passive confirmation of a loan, the proposed regulations change the timeframes for notice to the student, but do not substantially change the content of such notice. Therefore, we estimate that there will be no change in the burden.
The proposed regulations would clarify existing requirements for certifying FFEL and Direct Loans in certain situations. We believe there will be no overall change in the burden.
The proposed regulations would incorporate into §§ 682.603 and 685.301 the Department's longstanding policy that provides that (1) for standard term, credit hour programs, a student regains eligibility for a new annual loan limit after the calendar period associated with the academic year has elapsed, and (2) for nonstandard term credit hour, nonterm credit hour, and all clock hour programs, a student regains eligibility for a new annual loan limit only after completing both the credit or clock hours and the weeks of instructional time in the academic year.
In addition, the proposed regulations would apply the policy for standard term, credit hour programs to nonstandard term credit hour programs with terms that are substantially equal in length and that are at least nine weeks in length regains. That is, a student enrolled in a nonstandard term, credit hour program with terms that are substantially equal in length and that are at least nine weeks in length would regain eligibility for a new annual loan limit when the calendar time associated with the academic year has elapsed. This proposed change would be consistent with final regulations published in the
The proposed regulations eliminate an exception in the regulations that allows an institution to make a single disbursement of a Perkins Loan or FSEOG award if the total amount of that loan or award for an academic year is less than $501. Eliminating the exception merely harmonizes the disbursement requirements for these programs and has no impact on burden.
Consistent with the discussion above, the following chart describes the sections of the proposed regulations involving information collections, the information being collected, and the collections the Department will submit to the Office of Management and Budget for approval and public comment under the Paperwork Reduction Act.
If you want to comment on the proposed information collection requirements, please send your comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for U.S. Department of
• Deciding whether the proposed collections are necessary for the proper performance of our functions, including whether the information will have practical use;
• Evaluating the accuracy of our estimate of the burden of the proposed collections, including the validity of our methodology and assumptions;
• Enhancing the quality, usefulness, and clarity of the information we collect; and
• Minimizing the burden on those who must respond. This includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.
OMB is required to make a decision concerning the collections of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
These programs are not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
The Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
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Administrative practice and procedure, Colleges and universities, Consumer protection, Education, Grant programs—education, Loan programs—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
Administrative practice and procedure, Colleges and universities, Consumer protection, Education, Employment, Grant programs—education, Loan programs—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
Administrative practice and procedure, Colleges and universities, Education, Loans program—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
Colleges and universities, Elementary and secondary education, Grant programs—education, Student aid.
For the reasons discussed in the preamble, the Secretary proposes to amend parts 668, 674, 676, 682, 685, 690, and 691 of title 34 of the Code of Federal Regulations as follows:
1. The authority citation for part 668 continues to read as follows:
20 U.S.C. 1001, 1002, 1003, 1085, 1088, 1091, 1092, 1094, 1099c, and 1099c-1, unless otherwise noted.
2. Section 668.2(b) is amended by adding, in alphabetical order, the definitions
(b) * * *
(1) For a program that measures progress in credit hours and uses standard terms (semesters, trimesters, or quarters), 12 semester hours or 12 quarter hours per academic term.
(2) For a program that measures progress in credit hours and does not use terms, 24 semester hours or 36 quarter hours over the weeks of instructional time in the academic year, or the prorated equivalent if the program is less than one academic year.
(3) For a program that measures progress in credit hours and uses nonstandard terms (terms other than semesters, trimesters or quarters) the number of credits determined by—
(i) Dividing the number of weeks of instructional time in the term by the number of weeks of instructional time in the program's academic year; and
(ii) Multiplying the fraction determined under paragraph (b)(3)(i) of
(4) For a program that measures progress in clock hours, 24 clock hours per week.
(5) A series of courses or seminars that equals 12 semester hours or 12 quarter hours in a maximum of 18 weeks.
(6) The work portion of a cooperative education program in which the amount of work performed is equivalent to the academic workload of a full-time student.
(7) For correspondence coursework, a full-time courseload must be—
(i) Commensurate with the full-time definitions listed in paragraphs (1) through (6) of this definition; and
(ii) At least one-half of the coursework must be made up of non-correspondence coursework that meets one-half of the institution's requirement for full-time students.
(1) Is not receiving title IV aid as an undergraduate student for the same period of enrollment;
(2) Is enrolled in a program or course above the baccalaureate level at an institution of higher education, or is enrolled in a program leading to a first professional degree; and
(3) Has completed the equivalent of at least three academic years of full-time study at an institution of higher education, either prior to entrance into the program or as part of the program itself.
(2) A student enrolled solely in a program of study by correspondence who is carrying a work load of at least 12 hours of work per week, or is earning at least six credit hours per semester, trimester, or quarter. However, regardless of the work, no student enrolled solely in correspondence study is considered more than a half-time student.
(2) In addition to meeting the definition in paragraph (1) of this definition, a student is only considered an undergraduate for purposes of the Federal Supplemental Educational Opportunity Grant (FSEOG) Program, the Federal Pell Grant Program, the Academic Competitiveness Grant (ACG) Program, and National Science and Mathematics Access to Retain Talent (SMART) Grant Program if the student has not yet earned a baccalaureate or first professional degree. However, for purposes of 34 CFR 690.6(c)(5) students who have completed a baccalaureate program of study and who are subsequently completing a State-required teacher certification program are treated as undergraduates.
(3) For purposes of dual degree programs that allow individuals to complete a bachelor's degree and either a graduate or first professional degree within the same program, a student is considered an undergraduate student for at least the first three academic years of that program.
3. Section 668.4 is revised to read as follows:
(a)
(b)
(1) For Pell Grant, ACG, National SMART Grant, FSEOG, and Perkins Loan program funds, the payment period is the academic term;
(2) For FFEL and Direct Loan program funds—
(i) For a student enrolled in an eligible program that is one academic year or less in length—
(A) The first payment period is the period of time in which the student successfully completes half of the number of credit hours in the program and half of the number of weeks of instructional time in the program; and
(B) The second payment period is the period of time in which the student successfully completes the program; and
(ii) For a student enrolled in an eligible program that is more than one academic year in length—
(A) For the first academic year and any subsequent full academic year—
(
(
(B) For any remaining portion of an eligible program that is more than half an academic year but less than a full academic year in length—
(
(
(C) For any remaining portion of an eligible program that is not more than half an academic year, the payment period is the remainder of the program.
(c)
(1) For a student enrolled in an eligible program that is one academic year or less in length—
(i) The first payment period is the period of time in which the student successfully completes half of the number of credit hours or clock hours, as applicable, in the program and half of the number of weeks of instructional time in the program; and
(ii) The second payment period is the period of time in which the student successfully completes the program or the remainder of the program.
(2) For a student enrolled in an eligible program that is more than one academic year in length—
(i) For the first academic year and any subsequent full academic year—
(A) The first payment period is the period of time in which the student successfully completes half of the number of credit hours or clock hours, as applicable, in the academic year and half of the number of weeks of instructional time in the academic year; and
(B) The second payment period is the period of time in which the student successfully completes the academic year;
(ii) For any remaining portion of an eligible program that is more than half an academic year but less than a full academic year in length—
(A) The first payment period is the period of time in which the student successfully completes half of the number of credit hours or clock hours, as applicable, in the remaining portion of the program and half of the number of weeks of instructional time remaining in the program; and
(B) The second payment period is the period of time in which the student successfully completes the remainder of the program; and
(iii) For any remaining portion of an eligible program that is not more than half an academic year, the payment period is the remainder of the program.
(3) For purposes of paragraphs (c)(1) and (c)(2) of this section, if an institution is unable to determine when a student has successfully completed half of the credit hours or clock hours in a program, academic year, or remainder of a program, the student is considered to begin the second payment period of the program, academic year, or remainder of a program at the later of the date, as determined by the institution, on which the student has successfully completed—
(i) Half of the academic coursework in the program, academic year, or remainder of the program; or
(ii) Half of the number of weeks of instructional time in the program, academic year, or remainder of the program.
(d)
(e)
(1) The institution has a written policy that permits excused absences; and
(2) The number of excused absences under the written policy for purposes of paragraph (e) of this section does not exceed the lesser of—
(i) The policy on excused absences of the institution's accrediting agency or, if the institution has more than one accrediting agency, the agency designated under 34 CFR 600.11(b);
(ii) The policy on excused absences of any State agency that licenses the institution or otherwise legally authorizes the institution to operate in the State; or
(iii) Ten percent of the clock hours in the payment period.
(f)
(g)
(i) Reenters that program after 180 days;
(ii) Transfers into another program at the same institution within any time period; or
(iii) Transfers into a program at another institution within any time period.
(2) For a student described in paragraph (g)(1) of this section—
(i) For the purpose of calculating payment periods only, the length of the program is the number of credit hours and the number of weeks of instructional time, or the number of clock hours and the number of weeks of instructional time, that the student has remaining in the program he or she enters or reenters; and
(ii) If the remaining hours and weeks constitute half of an academic year or less, the remaining hours constitute one payment period.
(3) Notwithstanding the provisions of paragraph (g)(1) of this section, an institution may consider a student who transfers into another program at the same institution to remain in the same payment period if—
(i) The student is continuously enrolled at the institution;
(ii) The coursework in the payment period the student is transferring out of is substantially similar to the coursework the student will be taking when he or she first transfers into the new program;
(iii) The payment periods are substantially equal in length in weeks of instructional time and credit hours or clock hours, as applicable; and
(iv) There are little or no changes in institutional charges associated with the payment period to the student.
(h)
(1) Terms are
(2) A student
4. Section 668.10 is amended by:
A. In paragraph (a)(3)(ii), removing the word “or” immediately after the figure “668.4(a)” and adding, in its place, the punctuation “,”, and by adding the words “, or (c),” immediately after the parenthetical “(b)”.
B. Revising paragraph (a)(3)(iii).
C. Removing paragraphs (a)(3)(v) and (3)(vi).
The revision reads as follows:
(a) * * *
(3) * * *
(iii) A week of instructional time in a direct assessment program is any seven-day period in which at least one day of educational activity occurs. Educational activity in a direct assessment program includes regularly scheduled learning sessions, faculty-guided independent study, consultations with a faculty mentor, development of an academic action plan addressed to the competencies identified by the institution, or, in combination with any of the foregoing, assessments. It does not include credit for life experience. For purposes of direct assessment programs, independent study occurs when a student follows a course of study with predefined objectives but works with a faculty member to decide how the student is going to meet those objectives. The student and faculty member agree on what the student will do (e.g., required readings, research, and work products), how the student's work will be evaluated, and on what the relative timeframe for completion of the work will be. The student must interact with the faculty member on a regular and substantive basis to assure progress within the course or program.
5. Section 668.21 is revised to read as follows:
(a) If a student does not begin attendance in a payment period or period of enrollment, the institution must—
(1) Return all title IV, HEA program funds that were credited to the student's account at the institution or disbursed directly to the student for that payment period or period of enrollment, for Federal Perkins Loan, FSEOG, Federal Pell Grant, ACG, and National SMART Grant program funds; and
(2) For FFEL and Direct Loan funds—
(i)(A) Return all FFEL and Direct Loan funds that were credited to the student's account at the institution for that payment period or period of enrollment; and
(B) Return the amount of payments made directly by or on behalf of the student to the institution for that payment period or period of enrollment, up to the total amount of the loan funds disbursed;
(ii) For remaining amounts of FFEL or Direct Loan funds disbursed directly to the student for that payment period or period of enrollment, the institution is not responsible for returning the funds, but must immediately notify the lender or the Secretary, as appropriate, when it becomes aware that the student will not or has not begun attendance so that the lender or Secretary will issue a final demand letter to the borrower in accordance with 34 CFR 682.412 or 34 CFR 685.211, as appropriate; and
(iii) Notwithstanding paragraph (a)(2)(ii) of this section, if an institution knew that a student would not begin attendance prior to disbursing FFEL or Direct Loan funds directly to the student for that payment period or period of enrollment (e.g., the student notified the institution that he or she would not attend, or the institution expelled the student), the institution must return those funds.
(b) The institution must return those funds for which it is responsible under paragraph (a) of this section to the respective title IV, HEA program as soon as possible, but no later than 30 days after the date that the institution becomes aware that the student will not or has not begun attendance.
(c) For purposes of this section, the Secretary considers that a student has not begun attendance in a payment period or period of enrollment if the institution is unable to document the student's attendance at any class during the payment period or period of enrollment.
(d) In accordance with procedures established by the Secretary or FFEL Program lender, an institution returns title IV, HEA funds timely if—
(1) The institution deposits or transfers the funds into the bank account it maintains under § 668.163 no later than 30 days after the date that the institution becomes aware that the student will not or has not begun attendance;
(2) The institution initiates an electronic funds transfer (EFT) no later than 30 days after the date that the institution becomes aware that the student will not or has not begun attendance;
(3) The institution initiates an electronic transaction, no later than 30 days after the date that the institution becomes aware that the student will not or has not begun attendance, that informs an FFEL lender to adjust the borrower's loan account for the amount returned; or
(4) The institution issues a check no later than 30 days after the date that the institution becomes aware that the student will not or has not begun attendance. An institution does not satisfy this requirement if—
(i) The institution's records show that the check was issued more than 30 days after the date that the institution becomes aware that the student will not or has not begun attendance; or
(ii) The date on the cancelled check shows that the bank used by the Secretary or FFEL Program lender endorsed that check more than 45 days after the date that the institution becomes aware that the student will not or has not begun attendance.
6. Section 668.22 is amended by:
A. Revising paragraph (a)(5).
B. Adding paragraph (e)(5)(iii).
The revision and addition read as follows:
(a) * * *
(5)(i) A post-withdrawal disbursement must be made from available grant funds before available loan funds.
(ii)(A) If outstanding charges exist on the student's account, the institution may credit the student's account up to the amount of outstanding charges with all or a portion of any—
(
(
(B)(
(
(
(iii)(A) The institution must provide within 30 days of the date of the institution's determination that the student withdrew, as defined in paragraph (l)(3) of this section, a written notification to the student, or parent in the case of parent PLUS loan, that—
(
(
(
(
(
(B) The deadline for a student, or parent in the case of a parent PLUS loan, to accept a post-withdrawal disbursement under paragraph (a)(5)(iii)(A) of this section must be the same for both a confirmation of a direct disbursement of the post-withdrawal disbursement of loan funds and a confirmation of a post-withdrawal disbursement of loan funds to be credited to the student's account.
(C) If the student, or parent in the case of a parent PLUS loan, submits a timely response that confirms that they wish to receive all or a portion of a direct disbursement of the post-withdrawal disbursement of loan funds, or confirms that a post-withdrawal disbursement of loan funds may be credited to the student's account, the institution must disburse the funds in the manner specified by the student, or parent in the case of a parent PLUS loan, as soon as possible, but no later than 120 days after the date of the institution's determination that the student withdrew, as defined in paragraph (l)(3) of this section.
(D) If a student, or parent in the case of a parent PLUS loan, submits a late response to the institution's notice requesting confirmation, the institution may make the post-withdrawal disbursement of loan funds as instructed by the student, or parent in the case of a parent PLUS loan (provided the institution disburses all the funds accepted by the student, or parent in the case of a parent PLUS loan), or decline to do so.
(E) If a student, or parent in the case of a parent PLUS loan, submits a late response to the institution and the institution does not choose to make the post-withdrawal disbursement of loan funds, the institution must inform the student, or parent in the case of a parent PLUS loan, in writing of the outcome of the post-withdrawal disbursement request.
(F) If the student, or parent in the case of a parent PLUS loan, does not respond to the institution's notice, no portion of the post-withdrawal disbursement of loan funds that the institution wishes to credit to the student's account, nor any portion of loan funds that would be disbursed directly to the student, or parent in the case of a parent PLUS loan, may be disbursed.
(iv) An institution must document in the student's file the result of any notification made in accordance with paragraph (a)(5)(iii) of this section of the student's right to cancel all or a portion of loan funds or of the student's right to accept or decline loan funds, and the final determination made concerning the disbursement.
(e) * * *
(5) * * *
(iii) For a program that measures progress in credit hours and uses nonstandard terms that are not substantially equal in length, if the institution uses the payment period to determine the treatment of title IV grant or loan funds for a category of students found in paragraph (e)(5)(ii)(B) of this section, the institution must—
(A)(
(
(B) For students in the category who are disbursed or could have been disbursed aid using only the payment period definition in § 668.4(b)(1) or the payment period definition in § 668.4(b)(2), use the payment period definition for which title IV, HEA program funds were disbursed for a student's calculation under this section.
7. Section 668.161 is amended by revising paragraph (b) to read as follows:
(b)
8. Section 668.164 is amended by:
A. Revising paragraphs (b), (c), and (d).
B. Revising paragraph (g)(4)(i).
C. Adding a new paragraph (h).
The revisions and addition read as follows:
(b)
(i) For FFEL and Direct Loan funds, 34 CFR 682.604(c)(6)(ii) or 34 CFR 685.301(b)(3) applies; or
(ii) For FSEOG, Federal Pell Grant, ACG, and National SMART Grant funds, an institution chooses to make more
(2) The provisions of paragraph (b)(1) of this section do not apply to the disbursement of FWS Program funds.
(3) Except as provided in paragraph (g) of this section, an institution may disburse title IV, HEA program funds to a student or parent for a payment period only if the student is enrolled for classes for that payment period and is eligible to receive those funds.
(c)
(i) Releasing to the student or parent a check provided by a lender to the institution under the FFEL Program;
(ii) Issuing a check payable to and requiring the endorsement of the student or parent. An institution issues a check on the date that it—
(A) Mails the check to the student or parent; or
(B) Notifies the student that the check is available for immediate pickup at a specified location at the institution. The institution may hold the check for up to 21 days after the date it notifies the student. If the student does not pick up the check within this 21-day period, the institution must immediately mail the check to the student or parent, initiate an EFT to the student's or parent's bank account, or return the funds to the appropriate title IV, HEA program;
(iii) Initiating an electronic funds transfer (EFT) to a bank account designated by the student's or parent; or
(iv) Dispensing cash for which the institution obtains a signed receipt from the student or parent.
(2) For purposes of this section, “bank account” means an FDIC insured account such as a checking or savings account, or a similar account that underlies a stored-value card or other transaction device.
(3) An institution may request, but not require or rely on, the student or parent to open a bank account. If the institution opens a bank account on behalf of a student or parent, establishes a process the student or parent follows to open a bank account, or similarly assists the student or parent in opening a bank account, the institution must—
(i) Obtain in writing affirmative consent from the student or parent to open that account;
(ii) Before the account is opened, inform the student or parent of the terms and conditions associated with accepting and using the account;
(iii) Not make any claims against the funds in the account without the written permission of the student or parent, except for correcting an error in transferring the funds in accordance with banking protocols;
(iv) Ensure that the student or parent does not incur any cost in opening the account or initially receiving any type of debit card, stored-value card, other type of automated teller machine (ATM) card, or similar transaction device that is used to access the funds in that account;
(v) Ensure that the student has convenient access to a branch office of the bank or ATMs of the bank in which the account was opened (or ATMs of an affiliated bank), so that the student does not incur any cost in making cash withdrawals from that office or ATMs;
(vi) Ensure that the debit, stored-value or ATM card, or other device can be widely used,
(vii) Not market or portray the account, card, or device as a credit card or credit instrument, or subsequently convert the account, card, or device to a credit card or credit instrument.
(d)
(1) Current year charges for—
(i) Tuition and fees;
(ii) Board, if the student contracts with the institution for board;
(iii) Room, if the student contracts with the institution for room; and
(iv) If the institution obtains the student's or parent's authorization under § 668.165(b), other educationally related charges incurred by the student at the institution; and
(2) Prior award year charges for a total of not more than $200 for—
(i) Tuition and fees, room, or board; and
(ii) If the institution obtains the student's or parent's authorization under § 668.165(b), other educationally related charges incurred by the student at the institution.
(g) * * *
(4) * * *
(i) An institution may not make a late disbursement later than 180 days after the date of the institution's determination that the student withdrew, as provided in § 668.22, or for a student who did not withdraw, 180 days after the date the student otherwise becomes ineligible.
(h)(1) Notwithstanding any State law (such as a law that allows funds to escheat to the State), an institution must return to the Secretary, lender, or guaranty agency, as applicable, any title IV, HEA program funds that it attempts to disburse directly to a student or parent but the student or parent does not receive or negotiate those funds.
(2) If a disbursement is made by check and the check is not cashed, an institution must return those funds no later than 240 days of the initial attempt to disburse them.
(i) If a check is returned to the institution, or an EFT is rejected, the institution may, as long as it does so within 45 days of the funds being returned to the institution, make additional attempts to disburse the funds. If the institution has not made another attempt to disburse those funds, they must be returned to the Secretary, lender, or guaranty agency, as applicable, before the 45 day period ends.
(ii) All attempts to disburse the funds must end and the institution must return those funds to the Secretary, lender, or guaranty agency, as applicable, by the end of the 240-day period.
9. Section 668.165 is amended by:
A. Revising paragraph (a).
B. Revising paragraph (b)(1).
The revisions read as follows:
(a)
(2) Except in the case of a post-withdrawal disbursement made in accordance with § 668.22(a)(5), if an institution credits a student's account at the institution with Direct Loan, FFEL, or Federal Perkins Loan Program funds, the institution must notify the student or parent of—
(i) The anticipated date and amount of the disbursement;
(ii) The student's right or parent's right to cancel all or a portion of that loan or loan disbursement and have the loan proceeds returned to the holder of that loan. However, if the institution releases a check provided by a lender under the FFEL Program, the institution is not required to provide this information; and
(iii) The procedures and time by which the student or parent must notify the institution that he or she wishes to cancel the loan or loan disbursement.
(3) The institution must provide the notice described in paragraph (a)(2) of this section in writing—
(i) No earlier than 30 days before, and no later than 30 days after, crediting the student's account at the institution, if the institution obtains affirmative confirmation from the student under paragraph (a)(6)(i) of this section; or
(ii) No earlier than 30 days before, and no later than seven days after, crediting the student account at the institution, if the institution does not obtain affirmative confirmation from the student under paragraph (a)(6)(i) of this section.
(4)(i) A student or parent must inform the institution if he or she wishes to cancel all or a portion of a loan or loan disbursement.
(ii) The institution must return the loan proceeds, cancel the loan, or do both, in accordance with program regulations provided that the institution receives a loan cancellation request—
(A) The later of the first day of a payment period or 14 days after the date it notifies the student or parent of his or her right to cancel all or a portion of a loan, if the institution obtains affirmative confirmation from the student under paragraph (a)(6)(i) of this section; or
(B) Within 30 days of the date the institution notifies the student or parent of his or her right to cancel all or a portion of a loan, if the institution does not obtain affirmative confirmation from the student under paragraph (a)(6)(i) of this section.
(iii) If a student or parent requests a loan cancellation after the period set forth in paragraph (a)(4)(ii)(A) or (B) of this section, the institution may return the loan proceeds, cancel the loan, or do both, in accordance with program regulations.
(5) An institution must inform the student or parent in writing regarding the outcome of any cancellation request.
(6) For purposes of this section—
(i) Affirmative confirmation is a process under which an institution obtains written confirmation of the types and amounts of title IV, HEA program loans that a student wants for an award year before the institution credits the student's account with those loan funds; and
(ii) An institution is not required to return any loan proceeds that it disbursed directly to a student or parent.
(b) * * *
(1) If an institution obtains written authorization from a student or parent, as applicable, the institution may—
(i) Use the student's or parent's title IV, HEA program funds to pay for charges described in § 668.164(d)(2) that are included in that authorization; and
(ii) Except if prohibited by the Secretary under the reimbursement or cash monitoring payment method, hold on behalf of the student or parent any title IV, HEA program, funds that would otherwise be paid directly to the student or parent under § 668.164(e). Under this provision, the institution may issue a stored-value card or other similar device that allows the student or parent to access those funds at his or her discretion to pay for educationally related expenses.
10. Section 668.166 is revised to read as follows:
(a)
(i) Received those funds from the Secretary; or
(ii) Deposited or transferred to its Federal account previously disbursed title IV, HEA program funds received from the Secretary, such as those resulting from award adjustments, recoveries, or cancellations.
(2) The provisions of this section do not apply to the title IV, HEA program funds that an institution receives from the Secretary under the just-in-time payment method.
(b)
(c)
(1) Requiring the institution to reimburse the Secretary for the costs the Secretary incurred in providing that excess cash to the institution; and
(2) Providing funds to the institution under the reimbursement payment method or cash monitoring payment method described in § 668.163(d) and (e), respectively.
(Authority: 20 U.S.C. 1094)
11. The authority citation for part 674 continues to read as follows:
20 U.S.C. 1087aa-1087hh and 20 U.S.C. 421-429 unless otherwise noted.
12. Section 674.2 is amended by:
A. In paragraph (a), adding to its list, in alphabetical order, the terms
B. In paragraph (b), removing the definitions for
13. Section 674.16 is amended by removing paragraph (g) and redesignating paragraphs (h) and (i) as paragraphs (g) and (h), respectively.
14. The authority citation for part 676 continues to read as follows:
20 U.S.C. 1070b-1070b-3, unless otherwise noted.
15. Section 676.2 is amended by:
A. In paragraph (a), adding to its list, in alphabetical order, the term
B. In paragraph (b), removing the definition for
16. Section 676.16 is amended by removing paragraph (e) and redesignating paragraph (f) as paragraph (e).
17. The authority citation for part 682 continues to read as follows:
20 U.S.C. 1071 to 1087-2, unless otherwise noted.
18. Section 682.200 is amended by:
A. In paragraph (a)(1), adding to its list, in alphabetical order, the terms
B. In paragraph (b), removing the definitions for
The revision reads as follows:
(b) * * *
19. Section 682.207(e) is amended by removing the parenthetical “(10)” and adding, in its place, the parenthetical “(8)”.
20. Section 682.208(f)(1)(iii)(A) is amended by removing the figure “§ 682.604(d)(4)” and adding, in its place, the figure “34 CFR 668.21(a)(2)(ii)”.
21. Section 682.603 is amended by:
A. Revising paragraph (f)(1).
B. Redesignating paragraphs (g), (h), and (i) as paragraphs (h), (i), and (j), respectively.
C. Adding a new paragraph (g).
D. In the introductory text of newly redesignated paragraph (h)(1) and the text of newly redesignated paragraph (h)(2), removing the parenthetical “(10)” and adding, in its place, the parenthetical “(8)”.
The revision and addition read as follows:
(f)(1)(i) The minimum period of enrollment for which a school may certify a loan application is—
(A) At a school that measures academic progress in credit hours and uses a semester, trimester, or quarter system, or has terms that are substantially equal in length with no term less than nine weeks in length, a single term (e.g., a semester or quarter); or
(B) Except as provided in paragraphs (f)(1)(ii) or (iii) of this section, at a school that measures academic progress in clock hours, or measures academic progress in credit hours but does not use a semester, trimester, or quarter system and does not have terms that are substantially equal in length with no term less than nine weeks in length, the lesser of—
(
(
(ii) For a student who transfers into a school with credit or clock hours from another school, and the prior school certified or originated a loan for a period of enrollment that overlaps the period of enrollment at the new school, the new school may certify a loan for the remaining portion of the program or academic year. In this case the school may certify a loan for an amount that does not exceed the remaining balance of the student's annual loan limit.
(iii) For a student who completes a degree program at a school, where the student's last loan to complete that program had been for less than an academic year, and the student then begins a new degree program at the same school, the school may certify a loan for the remainder of the academic year. In this case the school may certify a loan for an amount that does not exceed the remaining balance of the student's annual loan limit at the loan level associated with the new program.
(g)(1) If a school measures academic progress in an educational program in credit hours and uses either standard terms (semesters, trimesters, or quarters) or nonstandard terms that are substantially equal in length, and each term is at least nine weeks of instructional time in length, a student is considered to have completed an academic year and progresses to the next annual loan limit when the academic year calendar period has elapsed.
(2) If a school measures academic progress in an educational program in nonstandard terms that are not substantially equal in length or each term is not at least nine weeks of instructional time in length, or in credit hours and does not have academic terms, a student is considered to have completed an academic year and progresses to the next annual loan limit at the later of—
(i) The student's completion of the weeks of instructional time in the student's academic year; or
(ii) The date, as determined by the school, that the student has successfully completed the academic coursework in the student's academic year.
(3) If a school measures academic progress in an educational program in clock hours, a student is considered to have completed an academic year and progresses to the next annual loan limit at the later of—
(i) The student's completion of the weeks of instructional time in the student's academic year; or
(ii) The date, as determined by the school, that the student has successfully completed the clock hours in the student's academic year.
(4) For purposes of paragraphs (g)(1) and (g)(2) of this section, terms in a loan period are substantially equal in length if no term in the loan period is more than two weeks of instructional time longer than any other term in that loan period.
22. Section 682.604 is amended by:
A. Revising paragraph (c)(6).
B. Removing paragraphs (c)(7) and (c)(8).
C. Redesignating paragraphs (c)(9), (c)(10), and (c)(11) as paragraphs (c)(7), (c)(8), and (c)(9), respectively.
D. In newly redesignated paragraph (c)(9), removing the parenthetical “(g)” and adding, in its place, the parenthetical “(h)”.
E. Revising paragraph (d)(3).
F. Removing paragraph (d)(4).
The revisions read as follows:
(c) * * *
(6) Unless the provision of § 682.207(d) applies—
(i) If a loan period is more than one payment period, the school must deliver loan proceeds at least once in each payment period; and
(ii) If a loan period is one payment period, the school must make at least two deliveries of loan proceeds during that payment period. The school may not make the second delivery until the student successfully completes half of the number of credit hours or clock hours and half of the number of weeks of instructional time in the payment period.
(d) * * *
(3) If a student does not begin attendance in the period of enrollment—
(i) Disbursed loan proceeds must be handled in accordance with 34 CFR 668.21; and
(ii) Undelivered loan funds held by the school must be handled in accordance with 34 CFR 668.167.
23. The authority citation for part 685 continues to read as follows:
20 U.S.C. 1087a
24. Section 685.102 is amended by:
A. In paragraph (a)(1), adding to its list, in alphabetical order, the terms
B. In paragraph (a)(3), removing from its list, the terms
C. In paragraph (b), removing the definition of
The revision reads as follows:
(b) * * *
25. Section 685.301 is amended by:
A. Redesignating paragraph (a)(9)(ii) as paragraph (a)(9)(iv).
B. Revising paragraph (a)(9)(i).
C. Adding new paragraphs (a)(9)(ii) and (iii).
D. Revising paragraphs (b)(2) and (b)(3).
E. Removing paragraphs (b)(5) and (b)(6).
F. Redesignating paragraphs (b)(7) and (b)(8) as paragraphs (b)(5) and (b)(6), respectively.
G. Redesignating paragraphs (c) and (d) as paragraphs (d) and (e), respectively.
H. Adding a new paragraph (c).
The revisions and additions read as follows:
(a) * * *
(9)(i) The minimum period of enrollment for which a school may originate a Direct Loan application is—
(A) At a school that measures academic progress in credit hours and uses a semester, trimester, or quarter system, or has terms that are substantially equal in length with no term less than nine weeks in length, a single academic term (e.g., a semester or quarter); or
(B) Except as provided in paragraph (a)(9)(ii) or (iii) of this section, at a school that measures academic progress in clock hours, or measures academic progress in credit hours but does not use a semester, trimester, or quarter system and does not have terms that are substantially equal in length with no term less than nine weeks in length, the lesser of—
(
(
(ii) For a student who transfers into a school with credit or clock hours from another school, and the prior school originated or certified a loan for a period of enrollment that overlaps the period of enrollment at the new school, the new school may originate a loan for the remaining portion of the program or academic year. In this case the school may originate a loan for an amount that does not exceed the remaining balance of the student's annual loan limit.
(iii) For a student who completes a degree program at a school, where the student's last loan to complete that program had been for less than an academic year, and the student then begins a new degree program at the same school, the school may originate a loan for the remainder of the academic year. In this case the school may originate a loan for an amount that does not exceed the remaining balance of the student's annual loan limit at the loan level associated with the new program.
(b) * * *
(2) An institution must disburse the loan proceeds on a payment period basis in accordance with 34 CFR 668.164(b).
(3) Unless paragraphs (b)(4) or (b)(8) of this section applies—
(i) If a loan period is more than one payment period, the school must disburse loan proceeds at least once in each payment period; and
(ii) If a loan period is one payment period, the school must make at least two payments during that payment period. The school may not make the second payment until the student successfully completes half of the number of credit hours or clock hours and half of the number of weeks of instructional time in the payment period.
(c)
(2) If a school measures academic progress in an educational program in nonstandard terms that are not substantially equal in length or each term is not at least nine weeks of instructional time in length, or in credit hours and does not have academic terms, a student is considered to have completed an academic year and progresses to the next annual loan limit at the later of—
(i) The student's completion of the weeks of instructional time in the student's academic year; or
(ii) The date, as determined by the school, that the student has successfully completed the academic coursework in the student's academic year.
(3) If a school measures academic progress in an educational program in clock hours, a student is considered to have completed an academic year and progresses to the next annual loan limit at the later of—
(i) The student's completion of the weeks of instructional time in the student's academic year; or
(ii) The date, as determined by the school, that the student has successfully completed the clock hours in the student's academic year.
(4) For purposes of paragraphs (c)(1) and (c)(2) of this section, terms in a loan period are substantially equal in length if no term in the loan period is more than two weeks of instructional time longer than any other term in that loan period.
26. Section 685.303 is amended by revising paragraph (b)(3) to read as follows:
(b) * * *
(3) If a student does not begin attendance in the period of enrollment, disbursed loan proceeds must be
27. The authority citation for part 690 continues to read as follows:
20 U.S.C. 1070a, unless otherwise noted.
28. Section 690.2 is amended by:
A. In paragraph (b), adding to its list, in alphabetical order, the terms
B. In paragraph (c), removing the definitions for
29. Section 690.63 is amended by revising paragraphs (a)(1) and (e) to read as follows:
(a)(1) Programs using standard terms with at least 30 weeks of instructional time. A student's Federal Pell Grant for a payment period is calculated under paragraphs (b) or (d) of this section if—
(i) The student is enrolled in an eligible program that—
(A) Measures progress in credit hours;
(B) Is offered in semesters, trimesters, or quarters; and
(C) Requires the student to enroll for at least 12 credit hours in each term in the award year to qualify as a full-time student; and
(ii) The program uses an academic calendar that provides at least 30 weeks of instructional time in—
(A) Two semesters or trimesters in the fall through the following spring, or three quarters in the fall, winter, and spring, none of which overlaps any other term (including a summer term) in the program; or
(B) Any two semesters or trimesters, or any three quarters where—
(
(
(
(e)
(1) Determining the student's Scheduled Federal Pell Grant using the Payment Schedule; and
(2) Multiplying the amount determined under paragraph (e)(1) of this section by the lesser of—
30. Section 690.66 is amended by revising paragraph (a) to read as follows:
(a) An institution calculates the Federal Pell Grant for a payment period for a student in a program of study offered by correspondence courses without terms, but not including any residential component, by—
(1) Determining the student's annual award using the half-time Disbursement Schedule; and
(2) Multiplying the annual award determined from the Disbursement Schedule for a half-time student by the lesser of—
31. The authority citation for part 691 continues to read as follows:
20 U.S.C. 1070a-1, unless otherwise noted.
32. Section 691.2 is amended by:
A. In paragraph (b), adding to its list, in alphabetical order, the term
33. Section 691.8 is amended by removing paragraph (c).
34. Section 691.63 is amended by revising paragraphs (a)(1) and (e) to read as follows:
(a)(1)
(i) The student is enrolled in an eligible program that—
(A) Measures progress in credit hours;
(B) Is offered in semesters, trimesters, or quarters; and
(C) Requires the student to enroll for at least 12 credit hours in each term in the award year to qualify as a full-time student; and
(ii) The program uses an academic calendar that provides at least 30 weeks of instructional time in—
(A) Two semesters or trimesters in the fall through the following spring, or three quarters in the fall, winter, and spring, none of which overlaps any other term (including a summer term) in the program; or
(B) Any two semesters or trimesters, or any three quarters where—
(
(
(
(e)
(1) Determining that the student is attending at least full-time;
(2) Determining the student's ACG or National SMART Grant Scheduled Award; and
(3) Multiplying the ACG or National SMART Grant amount determined under paragraph (e)(2) of this section by the lesser of—
Federal Aviation Administration (FAA), DOT.
Final rule.
This action introduces new airworthiness standards to evaluate the performance and handling characteristics of transport category airplanes in icing conditions. This action will improve the level of safety for new airplane designs when operating in icing conditions, and harmonizes the U.S. and European airworthiness standards for flight in icing conditions.
This final rule becomes effective October 9, 2007.
Don Stimson, FAA, Airplane & Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone: (425) 227-1129; fax: (425) 227-1149, e-mail:
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (
(2) Visiting the FAA's Regulations and Policies Web page at
(3) Accessing the Government Printing Office's Web page at
You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number or amendment number of this rulemaking.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact a local FAA official, or the person listed under
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design and performance of aircraft. This regulation is within the scope of that authority because it prescribes new safety standards for the design of transport category airplanes.
Currently, § 25.1419, “Ice protection,” requires transport category airplanes with approved ice protection features be capable of operating safely within the icing conditions identified in appendix C of part 25. This section requires applicants to perform flight testing and conduct analyses to make this determination. Section 25.1419 only requires an applicant to demonstrate that the airplane can operate safely in icing conditions if the applicant is seeking to certificate ice protection features.
Although an airplane's performance capability and handling qualities are important in determining whether an airplane can operate safely, part 25 does not have specific requirements on airplane performance or handling qualities for flight in icing conditions. In addition, the FAA does not have a standard set of criteria defining what airplane performance capability and handling qualities are needed to be able to operate safely in icing conditions. Finally, § 25.1419 fails to address certification approval for flight in icing conditions for airplanes without ice protection features.
Service history shows that flight in icing conditions may be a safety risk for transport category airplanes. We found nine accidents since 1983 in the National Transportation Safety Board's accident database that may have been prevented if this rule had been in effect. In evaluating the potential for this rulemaking to avoid future accidents, we considered only past accidents involving tailplane stall or potential airframe ice accretion effects on drag or controllability. We did not consider accidents related to ground deicing since this amendment does not change the ground deicing requirements. We also limited our search to accidents involving aircraft certificated to the icing standards of part 25 (or its predecessor).
This amendment addresses the following National Transportation Safety Board (NTSB) safety recommendations related to airframe icing:
1. NTSB Safety Recommendation A-91-087
This amendment requires applicants to investigate the susceptibility of airplanes to ice-contaminated tailplane stall during airworthiness certification. An accompanying Advisory Circular (AC) will provide detailed guidance on acceptable means of compliance, including flight tests in icing conditions where the airplane's configuration is changed from flaps and landing gear retracted to flaps and landing gear in the landing position.
2. NTSB Safety Recommendation A-96-056
This amendment partially addresses safety recommendation A-96-056 by revising the certification standards to ensure that transport category airplanes are properly tested for the critical icing conditions defined in appendix C of part 25. We are considering future rulemaking action to address icing conditions beyond those covered by appendix C of part 25, and to provide flightcrews with a means to positively determine when they are in icing conditions that exceed the limits for aircraft certification.
3. NTSB Safety Recommendation A-98-094
This amendment partially addresses safety recommendation A-98-094 by requiring the same maneuvering capability requirements at the minimum operating speeds in the most critical icing conditions defined in appendix C of part 25 as are currently required in non-icing conditions. We are considering future rulemaking action to address supercooled large droplet icing conditions.
4. NTSB Safety Recommendation A-98-096 is also a result of the same accident discussed under Safety Recommendation A-98-094, above. The NTSB recommended the FAA require, during type certification, that manufacturers and operators of all transport category airplanes certificated to operate in icing conditions install stall warning/protection systems that provide a cockpit warning (aural warning and/or stick shaker) before the onset of stall when the airplane is operating in icing conditions.
This amendment requires adequate stall warning margin to be shown with the most critical ice accretion for transport category airplanes approved to fly in icing conditions. Except for the short time before icing conditions are recognized and the ice protection system activated, this stall warning must be provided by the same means as for non-icing conditions. Although neither an aural stall warning or stick shaker is required under this amendment, all recently certificated transport category airplanes have used either a stick shaker or an aural warning to warn the pilot of an impending stall. We do not anticipate any future transport category airplane designs without a cockpit warning of an impending stall.
This amendment is based on the notice of proposed rulemaking (NPRM), Notice No. 05-10, which was published in the
These changes were proposed to ensure that minimum operating speeds determined during certification of all future transport category airplanes will provide adequate maneuver capability in icing conditions for all phases of flight and all airplane configurations. They would also harmonize the FAA's regulations with those expected to be adopted by the European Aviation Safety Agency (EASA). This harmonization would not only benefit the aviation industry economically, but also maintain the necessary high level of aviation safety.
Twelve commenters responded to the NPRM: Four private citizens, Airbus Industrie (Airbus), the Air Line Pilots Association (ALPA), The Boeing Company (Boeing), Dassault Aviation (Dassault), the General Aviation Manufacturers Association (GAMA), the National Transportation Safety Board (NTSB), Raytheon Aircraft Company (Raytheon), and the United Kingdom Civil Aviation Authority (U.K. CAA).
Seven of these commenters explicitly expressed support for the rule, none opposed it. Many of the commenters suggested specific improvements or clarifications. Summaries of their comments and our responses (including explanations of changes to the final rule in response to the comments) are provided below.
The proposed § 25.119 would require applicants to comply with the landing climb performance requirements in both icing and non-icing conditions. Raytheon stated that proposed § 25.119(b) is unclear as to whether the engine bleed configuration for showing compliance should include bleed extraction for operation of the airframe and engine ice protection systems (IPS). Raytheon pointed out that engine bleed extraction for operating the airframe and engine IPS could affect engine acceleration time, which would affect the thrust level used for showing compliance. Raytheon noted that the means of compliance in the proposed AC addresses this issue, but recommended that it be clarified within the rule.
While we agree that engine bleed extraction could affect the thrust level used to show compliance with § 25.119(b), we disagree that the rule needs to be revised to state the bleed configuration. For flight in icing conditions, § 25.21(g)(1) requires compliance to be shown assuming normal operation of the airplane and its IPS in accordance with the operating limitations and operating procedures established by the applicant and provided in the Airplane Flight Manual (AFM). The bleed configuration of the engines would be part of the AFM operating procedures that must be used to show compliance with § 25.119(b). As noted by Raytheon, the guidance provided in the AC accompanying this final rule reminds applicants that the
Boeing proposed using the landing ice accretion for showing compliance with the approach climb gradient requirement in icing conditions, rather than the holding ice accretion as proposed in § 25.121(d)(2)(ii). Boeing recommended this change to harmonize with EASA's proposed rule.
We consider it inappropriate to use the landing ice accretion for compliance with § 25.121(d). Section 25.121(d) specifies the minimum climb capability, in terms of a climb gradient, that an airplane must be capable of achieving in the approach configuration with one engine inoperative. This requirement involves the approach phase of flight, which occurs before entering the landing phase. Depending on the IPS design and the procedures for its use, the landing ice accretion (which is defined as the ice accretion after exiting the holding phase and transitioning to the landing phase) may be smaller than the holding ice accretion. For example, there may be a procedure to use the IPS to remove the ice when transitioning to the landing phase so that the protected areas are clear of ice for landing. It would be inappropriate to allow any reduction in the ice accretion to be used for the approach climb gradient (in the approach phase) resulting from using the IPS in the landing phase.
We note that neither EASA's Notice of Proposed Amendment (NPA) covering the same icing-related safety issues (NPA 16/2004) nor our NPRM define an ice accretion specific to the approach phase of flight. Both proposals used holding ice for compliance in icing conditions because holding ice was considered to be conservative for this flight phase. Therefore, we believe that it is appropriate to define an additional ice accretion that would be specifically targeted at the approach phase of flight. We have added the following definition as paragraph (a)(5) in part II of appendix C:
“Approach ice is the critical ice accretion on the unprotected parts of the airplane, and any ice accretion on the protected parts appropriate to normal IPS operation following exit from the holding flight phase and transition to the most critical approach configuration.”
Section 25.121(d)(2)(ii) is also revised to refer to this definition. The definition of landing ice is revised to be the ice accretion after exiting from the approach phase (rather than after the holding phase as proposed) and redesignated as paragraph (a)(6).
Finally, applicants would still have the option to use a more conservative ice accretion in accordance with paragraph (b) of part II of appendix C. Therefore, applicants would have the option of using the holding ice accretion as proposed in the NPRM if it was more critical than the approach ice accretion.
Proposed § 25.125(a)(2) would require landing distances to be determined in icing conditions if the landing approach speed, V
We agree that this comparison should be made at the maximum landing weight and have revised § 25.125(a)(2) of the final rule accordingly. We consider this to be a clarifying change that will not impose an additional burden on applicants.
As noted in the discussion of the previous comment, proposed § 25.125(a)(2) would require the landing distance to be determined in icing conditions if the landing approach speed, V
Raytheon noted that a change in stall speed is not the only factor that might affect landing distance in icing conditions. For example, idle thrust might be adjusted by an engine control system designed to maintain sufficient bleed flow to support the demands of engine and airframe ice protection. Also, landing procedures for icing conditions might be different than for non-icing conditions. Raytheon suggested revising proposed § 25.125(a)(2) to require that the landing distance must also be determined in icing conditions if the thrust settings or landing procedures used in icing conditions would cause an increase in the landing distance.
One of the primary safety concerns addressed by proposed § 25.125 is to maintain a minimum speed margin above the stall speed for an approach and landing in icing conditions. This is achieved by increasing the landing approach speed (V
An increase in V
In evaluating the potential costs and effects of the proposed change, we could not find any existing airplanes where, if the requirement proposed by the commenter had been in effect, it would have required an applicant to determine a longer landing distance in icing conditions. In nearly all cases, applicants have not used different thrust or power settings or different procedures for landing in icing conditions. Airplane manufacturers indicated that they did not anticipate this relationship to change for future designs.
When different thrust or power settings or procedures have been used for landing in icing conditions, V
Therefore, we see no need to amend the proposed requirement as recommended by Raytheon.
Proposed appendix C, part II(a)(6) defined sandpaper ice as a thin, rough layer of ice. A private citizen notes the NPRM did not specifically state how sandpaper ice should be used or considered in showing compliance with any of the proposed airplane performance and handling qualities requirements. This commenter suggested amending proposed § 25.143(i)(1) to add that if normal operation of the horizontal tail IPS allows ice to form on the tail leading edge, sandpaper ice must also be considered in determining the critical ice accretion. (Proposed § 25.143(i)(1) would require applicants to demonstrate the airplane is safely controllable, per the applicable requirements of § 25.143, with the ice accretion defined in appendix C that is most critical for the particular flight phase.)
Appendix C, part II(a) requires applicants to use the most critical ice accretion to show compliance with the applicable subpart B airplane performance and handling requirements in icing conditions. The determination of the most critical ice accretion must consider the full range of atmospheric icing conditions of part I of appendix C as well as the characteristics of the IPS (per § 25.21(g)(1) and appendix C, part II(a)). This includes consideration of thin, rough layers of ice (known as sandpaper ice) as well as any other type of ice accretion that may occur in the applicable atmospheric icing conditions, taking into account the operating characteristics of the IPS and the flight phase.
Since the requirement to use the most critical ice accretion includes consideration of sandpaper ice and sandpaper ice is not referenced elsewhere in the rule, we have removed appendix C, part II(a)(6) from the final rule. The AC that we are issuing along with this final rule, or shortly thereafter, provides further information on the use of sandpaper ice in showing compliance. (This AC will be available in the Regulatory Guidance Library (RGL) when issued.)
As noted in the discussion of the previous comment, proposed § 25.143(i)(1) would require applicants to demonstrate the airplane is safely controllable, per the applicable requirements of § 25.143, with the ice accretion defined in appendix C that is most critical for the particular flight phase. Raytheon stated that because ice accretion before normal system operation is addressed separately in § 25.143(j), the controllability demonstration required by § 25.143(i)(1) should be limited to only the most critical ice accretion defined in appendix C part II(a) rather than all of appendix C.
For purposes of the controllability demonstrations required by § 25.143(i)(1), appendix C, parts I and II(a), (b), (c), and (d) apply. Appendix C, part II(e) only applies to §§ 25.143(j) and 25.207(h), which are the only subpart B requirements pertaining to flight in icing conditions before activation of the IPS. We acknowledge that this limited applicability of appendix C, part II(e) is unclear in the language proposed, and we have revised the final rule to include a sentence that specifies this limitation.
Raytheon stated that proposed § 25.143(i)(2), which states that a push force from the pilot must be required throughout a pushover maneuver down to zero g or full down elevator, is inconsistent with allowing a pull force for recovery from the maneuver. Raytheon noted that the FAA stated in the NPRM that a force reversal (that is, a push force becoming a pull force) is unacceptable, implying that the pilot should only be permitted to relax his or her push force to initiate recovery. The 50-pound limit for recovery in the proposed § 25.143(i)(2) appears to allow up to 50 pounds of force reversal to develop during the maneuver, including at the initiation of recovery from the maneuver. Raytheon stated that they object to the proposed requirement and continue to support the industry proposal for the pushover maneuver submitted to ARAC by the Flight Test Harmonization Working Group. The industry proposal specified there must be no force reversal down to 0.5 g (the limit of the operational flight envelope) and a prompt recovery from zero g (or full down elevator control if zero g cannot be obtained) with less than 50 pounds of stick force. Raytheon stated that the 50-pound pull force was not intended as a limit for the subsequent pull-up maneuver during recovery from the push-over test.
The FAA continues to disagree with the industry proposal, and Raytheon did not offer any new evidence or rationale that would lead us to reconsider our position. As stated in the NPRM, certification testing and service experience have shown that testing to only 0.5 g is inadequate, considering the relatively high frequency of experiencing 0.5 g in operations. Since the beginning of the 1980s, the practice of many certification authorities has been to require testing to lower load factors. The industry proposal for determining the acceptability of a control force reversal (as described in the NPRM) was subjective and would have led to inconsistent evaluations. Requiring a push force to zero g removes subjectivity in the assessment of the airplane's controllability and provides readily understood criteria of acceptability. Any lesser standard would not give confidence that the problem has been fully addressed.
We do not consider the requirement for a push force to be needed to reach zero g, coupled with allowing a pull force of up to 50 pounds during the recovery, to be inconsistent with our position that force reversals are unacceptable within the normal flight envelope. The pushover maneuver ends when zero g is reached (or when full down elevator is achieved if zero g cannot be reached). The recovery is a separate pull-up maneuver, initiated by the pilot, to regain the original flight path. It is acceptable for this maneuver to require a pull force, but the pull force must not exceed 50 pounds, which is the maximum pitch force permitted by the existing § 25.143(c) (renumbered as § 25.143(d) by this amendment) for short term application of force using one hand. No changes were made.
Airbus noted that proposed § 25.143(i)(2) would allow the required pushover maneuver to end before zero g is reached if the airplane is limited by elevator power. Airbus commented that safe design characteristics other than limited elevator power may also prevent an aircraft from reaching zero g during the pushover maneuver (e.g., flight envelope protections designed into fly-by-wire control systems). Airbus proposed revising the proposed rule to allow the pushover maneuver to end before reaching zero g for other safe design characteristics that prevent reaching zero g.
We agree with Airbus and have revised § 25.143(i)(2) to include consideration of other design characteristics of the flight control system that may prevent reaching zero g in the pushover maneuver.
Raytheon stated that the proposed requirement for flight in icing conditions is more stringent than the requirements applicable to non-icing conditions. Proposed § 25.143(i)(3) would require that any changes in force that the pilot must apply to the pitch control to maintain speed with increasing sideslip angle must be steadily increasing with no force reversals. Raytheon notes the non-icing subpart B static lateral-directional stability requirements of § 25.177 do not specify that the pitch forces cannot reverse. For example, a push force at small sideslip angles that changes to a pull force as sideslip increases is acceptable.
Raytheon noted that it would not be unusual for an airplane to require an increase in pull force with increasing sideslip. If the tailplane or a portion of it developed aerodynamic separation as sideslip increases, then to maintain 1-g flight the elevator hinge moment would require further pull force that could be sudden or become excessive. Raytheon notes this undesirable characteristic would comply with proposed § 25.143(i)(3).
Raytheon and another commenter (a private citizen) proposed that the proposed rule be revised to eliminate the requirements that the pitch force be steadily increasing with increasing sideslip and that there be no reversal. Instead, these commenters suggested that the requirement should be limited to ensuring that there is no abrupt or uncontrollable pitching tendency.
The FAA agrees with the commenters that small, gradual changes in the pitch control force may not be objectionable or unsafe, and that the proposed requirement is unnecessarily more stringent than the requirements for non-icing conditions. The safety concern is sudden or large pitch force changes that would be difficult for the pilot to control. Therefore, we have changed § 25.143(i)(3) in the final rule to read as follows:
“Any changes in force that the pilot must apply to the pitch control to maintain speed with increasing sideslip angle must be steadily increasing with no force reversals, unless the change in control force is gradual and easily controllable by the pilot without using exceptional piloting skill, alertness, or strength.”
Under this new language, abrupt changes in the control force characteristic, unless so small as to be unnoticeable, would not be considered to meet the requirement that the force be steadily increasing. A gradual change in control force is a change that is not abrupt and does not have a steep gradient. It can be easily managed by a pilot of average skill, alertness, and strength. Control forces in excess of those permitted by § 25.143(d) would be considered excessive.
Existing § 25.207(c) requires at least a 3 knot or 3% speed margin between the stall warning speed (V
The U.K. CAA noted that proposed § 25.207(e) would allow stall warning in icing conditions to occur at a speed slower than the speed for the maximum lift capability of the wing (also known as the 1g stall speed). This would not be true for non-icing conditions because of § 25.207(c). According to U.K. CAA, if the stall warning speed is slower than the 1g stall speed, the airplane will have little or no maneuvering capability at the point that the airplane gives the pilot a warning of an impending stall. The U.K. CAA stated that in an operational scenario, if the airplane slows to a speed slightly above the stall warning speed, any attempt to maneuver the airplane or further reduce speed could lead to an immediate stall. This situation is of most concern to the U.K. CAA in the landing phase because, unlike the cruise or takeoff phases, there are limited options for the crew to recover from a stall. The airplane is already at low altitude and descending towards the ground, the power setting is low, and the potential to trade height for speed is extremely limited.
Due to this concern, the U.K. CAA recommended making the non-icing stall warning speed margin requirements of § 25.207(c) and (d) also apply to icing conditions, but only when the airplane is in the landing configuration. Since the proposed § 25.207(e) was intended to be used in place of § 25.207(c) and (d) for icing conditions, the U.K. CAA suggested that, if § 25.207(c) and (d) are applied to the landing configuration in icing conditions, then § 25.207(e) need not be applied to the landing configuration.
In developing the proposed rule, the FAA accepted a determination by the Flight Test Harmonization Working Group (FTHWG) that the same handling qualities standards should generally apply to flight in icing conditions as apply to flight in non-icing conditions. In certain areas, however, the FTHWG decided that the handling qualities standards for non-icing conditions were inappropriate for flight in icing conditions. In these areas, the FTHWG recommended alternative criteria for flight in icing conditions.
The stall warning margin was one of the areas where the FTHWG recommended alternative criteria for flight in icing conditions. The FTHWG determined that applying the existing stall warning margin requirements of § 25.207(c) and (d) to icing conditions would be far more stringent than the best current practices and would unduly penalize designs that have not exhibited safety problems in icing conditions. The FTHWG further determined the stall warning requirements of the existing § 25.207(c) and (d) could be made less stringent for icing conditions without compromising safety. As a result, we proposed the less stringent § 25.207(e) to address stall warning margin requirements for icing conditions in place of § 25.207(c) and (d).
No changes have been made to this final rule as a result of the U.K. CAA's comment. We acknowledge that the U.K. CAA has pointed out a deficiency with safety implications in the proposed stall warning requirements. However, U.S. manufacturers' initial cost analysis of the U.K. CAA's recommended changes indicates these changes may significantly increase the costs of this rulemaking beyond the benefits provided due to uncertainties in how the increased stall warning margin requirement would affect airplane type certification testing, certification program schedules, and the design of stall warning systems.
In addition, the U.K. CAA's recommended changes would introduce significant regulatory differences from EASA's airworthiness certification requirements, and might not completely resolve the potential safety issue. For these reasons we believe that additional time and aviation industry participation are needed to determine an appropriate way to address this safety concern. However, we do not believe it is appropriate to delay issuance of this final rule pending resolution of this issue.
This final rule significantly improves the affected airworthiness standards and the benefits of these improvements should be achieved as soon as possible. It also satisfies a number of important NTSB recommendations. As these improvements are being implemented, we will continue to work closely with EASA and industry to address the issue raised by the U.K. CAA. This subject has been included on EASA's 2008 rulemaking agenda, and we will work with them in that context to agree on a harmonized approach. Once these efforts are completed, we will initiate new rulemaking, if appropriate, to adopt any necessary revisions to part 25.
Proposed § 25.207(h)(2)(ii) would require compliance with the stall characteristics requirements of § 25.203, using the stall demonstration prescribed by § 25.201, for flight in icing conditions before the IPS is activated. This requirement would apply if the stall warning required by § 25.207 is provided by a different means for flight in icing conditions than for non-icing conditions. The stall demonstration prescribed by § 25.201 requires that the stalling maneuver be continued to the point where the airplane gives the pilot a clear and distinctive indication of an acceptable nature that the airplane is stalled.
Raytheon disagreed with this proposal because the ice accretion resulting from a delay in activating the IPS is a short term transient condition. According to Raytheon, the intent should be to demonstrate only the ability to prevent a stall, rather than to also ensure that the airplane has good stall characteristics. Raytheon stated that it is unnecessary to consider that the pilot might ignore the stall buffeting and continue to increase angle-of-attack until the airplane is stalled. To comply with the proposed rule, Raytheon argued that an airplane with a stick pusher stall identification system would be required to have its stick pusher activation based on a contaminated wing leading edge for non-icing conditions. This would require increased takeoff and landing speeds and negatively impact all takeoff and landing performance.
Raytheon also stated that the cost impacts would be excessive for what is only a transient condition. Raytheon's position is that there is no need to consider the airplane's handling qualities after it has stalled. It should be sufficient to show that the pilot can prevent stalling if the recovery maneuver is not begun until at least three seconds after the onset of stall warning, which is also required by the proposed § 25.207(h)(2)(ii).
We do not agree with Raytheon's comments. Because of human factors considerations, proposed § 25.207(b) generally requires that the same means of providing a stall warning be used in both icing and non-icing conditions. Therefore, if a stick shaker is used for stall warning in non-icing conditions (as is the case for most transport category airplanes) it must also be used for stall warning in icing conditions. The reason for this proposed requirement is that in icing accidents and incidents where the airplane stalled before the stick shaker activated, flightcrews have not recognized the buffeting associated with ice contamination in time to prevent stalling. Proposed § 25.207(h)(2)(ii) allows a different means of providing stall warning in icing conditions only for the relatively short time period between when the airplane first enters icing conditions and when the IPS is activated. (This exception to the proposed § 25.207(b) is further limited such that it only applies when the procedures for activating the IPS do not involve waiting until a certain amount of ice has been accumulated.)
Because there is still a safety concern with flightcrews recognizing a stall warning that is provided by a different means than the flightcrew would normally experience, we consider it essential that the airplane also be shown to have safe stall characteristics. Poor stalling characteristics with an iced wing have directly contributed to the severity of icing accidents involving a stall in icing conditions.
As for Raytheon's comment about the cost impacts, we evaluated these as part of the regulatory evaluation conducted for the NPRM, and we do not agree that the cost impacts associated with this requirement are excessive. In addition, the adopted § 25.207 will not require airplanes with stick pusher stall identification systems to have their stick pusher activation based on a contaminated wing leading edge for non-icing conditions. Section 25.207(h)(2)(ii) does not apply if the same stall warning means is used for non-icing and icing conditions. If a stick shaker is used for stall warning and if the stick shaker activation point must be advanced due to the effect of the ice accreted before activation of the IPS, this would result in the same negative effect on takeoff and landing speeds. However, if the procedures for activating the IPS ensure that it is activated before any ice accretes on the wings, neither the stick shaker activation point nor the takeoff and landing speeds will be affected. This could be accomplished, for example, by using an ice detector that would activate the IPS before ice accretes on the wings, or by procedures for activating the IPS based on environmental conditions conducive to icing, but before ice would actually accrete on the wings.
Proposed § 25.253(c) specifies the maximum speed for demonstrating stability characteristics in icing conditions. Proposed § 25.253(c)(3) allows this speed to be limited to the speed at which it is demonstrated that the airframe will be free of ice accretion due to the effects of increased dynamic pressure. Raytheon stated that experience has shown that ice shapes dissipate quickly at high altitude and high Mach numbers. Raytheon suggested revising § 25.253(c)(3) to specify the altitude and/or Mach number range that ice shapes would dissipate.
Although we agree that past experience shows that ice shapes dissipate or detach at high altitude and high Mach numbers, the applicable range may vary with airplane type. The particular conditions under which the ice accretions dissipate or detach should be justified as part of the certification program. Since this is consistent with proposed § 25.253(c), we made no changes to the final rule.
Proposed appendix C, part II(a) defines how to determine the critical ice accretions for each phase of flight. The NTSB commented that for each phase of flight, the applicant should be required to demonstrate that the shape, chordwise and spanwise, and the roughness of the shapes accurately reflect the full range of appendix C conditions in terms of mean effective drop diameter, liquid water content, and temperature during each phase of flight. Additionally, the NTSB suggested that we review the justification and selection of the most critical ice shape for each phase of flight.
Although we believe the proposed requirements already address the NTSB's concerns, we have revised appendix C, part II(a) for additional clarity. We added text to state that applicants must demonstrate that the full range of atmospheric icing conditions specified in part I of appendix C have been considered, including the mean effective drop diameter, liquid water content, and
ALPA noted that the takeoff ice accretions defined in proposed appendix C, part II(a)(2) do not include the entire takeoff flight path. As defined in § 25.111, the takeoff flight path ends at either 1,500 feet above the takeoff surface, or the height at which the transition from the takeoff to the en route configuration is completed and the final takeoff speed (V
ALPA's comment points out an oversight in the text of the proposal. Appendix C, part II(a)(2) has been revised to include the entire takeoff flight path as defined in § 25.111. We consider this to be a technical clarification that does not impose a significant additional burden on applicants.
For the pre-activation ice identified in Appendix C, part II(e), ALPA did not support the 30-second time period for the flightcrew to see and respond to ice accreting on the airplane as stated in paragraphs 2c(4)(a) and (b) of Appendix 1, Airframe Ice Accretion, of proposed AC 25.21-1X. ALPA believes that the ice accreted during a more operationally realistic timeframe and the potential degradations in aircraft performance and handling qualities must be accounted for during certification in order to make the proposed requirements and acceptable means of compliance an effective combination. While a well designed human factors study could determine an appropriate time, ALPA proposed that at least the 2-minute time period contained in 14 CFR 33.77, Foreign object ingestion—ice, be used as the time to visually recognize ice is accreting until definitive studies can be completed.
The FAA believes that ALPA has misunderstood the use of the 30-second time period in the proposed AC 25.21-1X acceptable means of compliance. The FAA does not expect the flightcrew to see and respond to ice accumulating on the airplane within 30 seconds. In accordance with § 25.21(g), compliance must be shown using ice accretions consistent with the AFM operating procedures. First, applicants must determine the ice accretion that would be on the airplane when the AFM procedures call for activating the IPS. Then, the 30-second time period is used in combination with the continuous maximum icing environment, as defined in appendix C of part 25, as a standard for determining the additional ice that could accrete on the airplane before the pilot actually activates the IPS. Since the appendix C maximum continuous icing envelope represents at least the 99th percentile of encounters with continuous maximum icing (that is, 99% of the time, less icing would occur), it would take significantly longer than 30 seconds in nearly all actual icing events for the airplane to accrete this much ice.
As a result of this comment, the FAA reviewed the proposed AC 25.21-1X text. Although the use of a-30 second time period in a continuous maximum icing environment is clearly stated, the FAA believes that the text is incomplete regarding what we expect applicants to consider in determining the ice accretion specified by the AFM procedures for activating the IPS. The FAA is revising the proposed AC to state that this ice accretion should be easily recognizable by the pilot under all foreseeable conditions (for example, at night in clouds). No changes have been made to the regulatory requirements.
Dassault noted that, in Europe, the critical ice accretion is limited to a maximum thickness of 3 inches. Dassault did not find such a limitation in the NPRM, nor in the proposed advisory circular (AC) 25.21-1X related to the NPRM. Dassault noted that this omission could result in carrying out performance and handling tests with unrealistic ice accretions (particularly those assumed to build up on the unprotected parts of the airplane during the 45-minute holding flight phase referenced in ACs 25.21-X and 25.1419-1A).
We did not make any changes to the final rule because several existing ACs provide guidance for the size of the most critical ice accretions that should be considered. This longstanding guidance considers a 45-minute holding condition within an icing cloud. Since this guidance is not regulatory, we have accepted applicants' use of service history and other experience with other compliance criteria to determine the maximum ice accretion that needs to be considered. We will continue to address this issue in the same manner. The AC being issued along with this final rule refers to these alternative methods of compliance and provides guidance for their use.
A private citizen commented that icing conditions should be monitored by more than the pilot's eyesight. We are unable to address the commenter's issue in this rulemaking because this rulemaking only addresses performance and handling qualities requirements for the current methods of ice detection (which include detection by visual means). However, we are pursuing separate rulemaking for future airplane designs relative to allowable methods for detecting icing and determining when to activate the IPS. In NPRM 07-07, “Activation of Ice Protection,” published in the
ALPA recommended modifying all rule language to eliminate references and rule provisions for waiting until a finite amount of ice has accumulated before activating the IPS. ALPA stated that delayed activation of the IPS has been a factor in several accidents and incidents. ALPA also pointed out that the FAA has adopted 17 airworthiness directives requiring immediate activation of IPS at the first sign of ice accretion for a number of airplane types where the previous practice was to wait until a specified amount of ice had accumulated on the airplane. ALPA noted that after an exhaustive review of accident and incident data, ARAC recommended an operating rule that would remove the option of delaying activation of the IPS.
Except for the airworthiness directives referenced by ALPA, current regulations do not prohibit AFM procedures that call for delaying activation of the IPS until a specified amount of ice has accreted. Although we strongly encourage activating the IPS at the first sign of ice accretion, there may be some designs for which delayed activation is currently acceptable, safe, and appropriate. For example, some thermal wing IPS can currently be used in either an anti-ice or deice mode. In the deice mode, the wing IPS is not activated until a certain amount of ice
The purpose of this rulemaking is to provide appropriate performance and handling qualities requirements, considering the currently accepted procedures for activating the IPS. Establishing new requirements for acceptable methods for activating the IPS is beyond the scope of this rulemaking. As ALPA noted, however, ARAC has recommended the FAA adopt new requirements that would ensure flightcrews are provided with a clear means to know when to activate the IPS in a timely manner. We are pursuing separate rulemaking in response to this ARAC recommendation. In NPRM 07-07, “Activation of Ice Protection,” published in the
Several commenters noted that the FAA did not fully harmonize the NPRM with the EASA's NPA covering the same icing-related safety issues. They recommended harmonizing the two rule proposals.
We worked closely with EASA to ensure that there are no significant regulatory differences between this amendment and EASA's anticipated final rule. However, since EASA's final rule has not yet been issued, we cannot guarantee that the two final rules will be completely harmonized. We believe that any differences will be primarily editorial and not significant regulatory differences.
GAMA requested that the FAA review the regulatory flexibility evaluation in the interest of accuracy.
We reviewed the regulatory flexibility evaluation and reaffirmed the determination that this proposed rule would not have a significant economic impact on a substantial number of small entities. All U.S. part 25 aircraft manufacturers exceed the Small Business Administration small-entity criteria of 1,500 employees for aircraft manufacturers.
GAMA stated that it appeared the cost proposal considered U.S. manufactured aircraft while the benefit section included international products. GAMA believes that the same aircraft population should be used when determining cost versus benefit. Additionally, GAMA stated that it appeared it was assumed that cost was only attributed to entirely new TC products. GAMA believes it would be appropriate to consider the economic impact to some amount of amended TC and STC projects as well.
Section 1 of Executive Order 12866 states “Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people.” Section 5 states “In order to reduce the regulatory burden on the American people, their families, their communities, their State, local, and tribal governments and their industries * * *.” Therefore, regulatory evaluations and flexibility analyses focus on American people and American industries.
American industries, such as manufacturers and operators of aircraft, must comply with regulations promulgated by Federal agencies. Foreign firms are not required to comply with U.S. regulations unless they choose to sell or operate their aircraft in America.
We determined the costs for this proposal by analyzing only American manufacturing industries, since foreign firms are not required to comply with U.S. regulations unless they choose to sell or operate their aircraft in America. While we do consider foreign manufactured aircraft in the benefit section, we determined the benefits by analyzing only American operators of those aircraft. Hence, the intent of Executive Order 12866 was satisfied.
We did include amended TCs in the analysis. Each TC includes all derivatives for a particular aircraft model. For example, TC No. A16WE initially covered only the Boeing 737-100, but was later amended to include the -200 through -900 Boeing 737 models.
Future applicants for approval of changed products are subject to § 21.101 (Changed Product Rule). There are several provisions of § 21.101 allowing future applicants of changed products to comply with earlier regulation amendments. We have already determined that benefits of the Changed Product Rule exceed the costs. Therefore, we do not estimate the benefits and costs of changed products for new certification rules.
A private citizen claimed that the value of the fatalities avoided by this proposal would be in the neighborhood of $20 billion.
The number of averted fatalities and injuries is based on the historical accident rate extrapolated into the future. The FAA used $3.0 million for an avoided fatality and $132,700 for the additional associated medical and legal costs' for a fatality. The derivation for these values is discussed in the “Economic Values for FAA Investment and Regulatory Decisions, A Guide.”
There are no current or new requirements for information collection associated with this amendment.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.
In conducting these analyses, FAA has determined this rule (1) has benefits that justify its costs, is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not “significant” as defined in DOT's Regulatory Policies and Procedures; (2) will not have a significant economic impact on a substantial number of small entities; (3) will not reduce barriers to international trade; and (4) does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector. These analyses, available in the docket, are summarized below.
This portion of the preamble summarizes the FAA's analysis of the economic impacts of a final rule amending part 25 of Title 14, Code of Federal Regulations (14 CFR) to change the regulations applicable to transport category airplanes certificated for flight in icing conditions. It also includes summaries of the regulatory flexibility determination, the international trade impact assessment, and the unfunded mandates assessment. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.
The estimated potential benefits of avoiding 3 accidents over the 45-year analysis interval are $89.2 million ($23.6 million in present value at seven percent). To obtain these benefits, over the 45-year analysis interval, manufacturers will incur additional certification costs of $9.8 million and the operators of these airplanes will pay $52.5 million in additional fuel-burn. We estimate the total cost of this final rule to be about $62.3 million and the seven percent present value cost of the rule will be about $23.0 million.
• Operators of part 25 U.S.-registered aircraft conducting operations under FAR Parts 121, 129, and 135, and
• Manufacturers of those part 25 aircraft.
This evaluation makes the following assumptions:
1. This final rule is assumed to become effective immediately.
2. The production runs for newly certificated part 25 airplane models is 20 years.
3. The average life of a part 25 airplane is 25 years.
4. We analyzed the costs and benefits of this final rule over the 45-year period (20 + 25 = 45) 2006 through 2050.
5. We used a 10-year certification compliance period. For the 10-year life-cycle period, the FAA calculated an average of four new certifications will occur.
6. We used $3.0 million as the value of an avoided fatality.
7. New airplane certifications will occur in year one of the analysis time period.
The benefits of this final rule consist of the value of lives saved due to avoiding three accidents involving part 25 airplanes operating in icing conditions. Based on the historic accident rate, we estimate that a total of 12 fatalities could potentially be avoided by adopting the final rule. Over the 45-year period of analysis, the potential benefit of the propose rule will be $89.2 million ($23.6 million in present value at seven percent).
We estimate the costs of this final rule to be about $62.3 million ($23.0 million in present value at seven percent) over the 45-year analysis period. The total cost of $62.3 million equals the fixed certification costs of $9.8 million incurred in the first year plus the variable annual fuel burn cost of $52.5 million over the 45-year analysis period.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
In the interest of accuracy, one commenter requested we review the determination we made in the proposed rules regulatory flexibility evaluation. We reviewed the determination from the proposed rule and came to the same conclusions for this final rule for the reasons discussed below.
Currently U.S. manufactured part 25 aircraft type certificate holders include: The Boeing Company, Cessna Aircraft Company (a subsidiary of Textron Inc.), Raytheon Company, and Gulfstream Aerospace Corporation (a wholly owned subsidiary of General Dynamics). All United States part 25 aircraft manufacturers exceed the Small Business Administration small-entity criteria of 1,500 employees for aircraft manufacturers.
This rule will add an additional weighted average monthly fuel burn cost of about $42 per airplane, which is less than an hour of fuel burn and thus a minimal additional cost to all operators.
Given that manufacturers are not small entities and operators incur a minimal additional cost, as the FAA Administrator, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will impose the same costs on domestic and international entities and thus has a neutral trade impact.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million.
This final rule does not contain such a mandate. The requirements of Title II do not apply.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications.
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. In the NPRM, we requested comments on whether the proposed rule should apply differently to intrastate operations in Alaska. We didn't receive any comments, and we have determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.
The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action,” and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 44701, 44702, and 44704.
(g) The requirements of this subpart associated with icing conditions apply only if the applicant is seeking certification for flight in icing conditions.
(1) Each requirement of this subpart, except §§ 25.121(a), 25.123(c), 25.143(b)(1) and (b)(2), 25.149, 25.201(c)(2), 25.207(c) and (d), 25.239, and 25.251(b) through (e), must be met in icing conditions. Compliance must be shown using the ice accretions defined in appendix C, assuming normal operation of the airplane and its ice protection system in accordance with the operating limitations and operating procedures established by the applicant and provided in the Airplane Flight Manual.
(2) No changes in the load distribution limits of § 25.23, the weight limits of § 25.25 (except where limited by performance requirements of this subpart), and the center of gravity limits of § 25.27, from those for non-icing conditions, are allowed for flight in icing conditions or with ice accretion.
(b) * * *
(3) The airplane in other respects (such as flaps, landing gear, and ice accretions) in the condition existing in the test or performance standard in which V
(a) The takeoff speeds prescribed by § 25.107, the accelerate-stop distance prescribed by § 25.109, the takeoff path prescribed by § 25.111, the takeoff distance and takeoff run prescribed by § 25.113, and the net takeoff flight path prescribed by § 25.115, must be determined in the selected configuration for takeoff at each weight, altitude, and ambient temperature within the operational limits selected by the applicant—
(1) In non-icing conditions; and
(2) In icing conditions, if in the configuration of § 25.121(b) with the takeoff ice accretion defined in appendix C:
(i) The stall speed at maximum takeoff weight exceeds that in non-icing conditions by more than the greater of 3 knots CAS or 3 percent of V
(ii) The degradation of the gradient of climb determined in accordance with § 25.121(b) is greater than one-half of the applicable actual-to-net takeoff flight path gradient reduction defined in § 25.115(b).
(c) * * *
(3) A speed that provides the maneuvering capability specified in § 25.143(h).
(g) * * *
(2) A speed that provides the maneuvering capability specified in § 25.143(h).
(h) In determining the takeoff speeds V
(c) * * *
(3) * * *
(iii) 1.7 percent for four-engine airplanes.
(4) The airplane configuration may not be changed, except for gear retraction and automatic propeller feathering, and no change in power or thrust that requires action by the pilot may be made until the airplane is 400 feet above the takeoff surface; and
(5) If § 25.105(a)(2) requires the takeoff path to be determined for flight in icing conditions, the airborne part of the takeoff must be based on the airplane drag:
(i) With the takeoff ice accretion defined in appendix C, from a height of 35 feet above the takeoff surface up to the point where the airplane is 400 feet above the takeoff surface; and
(ii) With the final takeoff ice accretion defined in appendix C, from the point where the airplane is 400 feet above the takeoff surface to the end of the takeoff path.
In the landing configuration, the steady gradient of climb may not be less than 3.2 percent, with the engines at the power or thrust that is available 8 seconds after initiation of movement of the power or thrust controls from the minimum flight idle to the go-around power or thrust setting—
(a) In non-icing conditions, with a climb speed of V
(b) In icing conditions with the landing ice accretion defined in appendix C, and with a climb speed of V
(b)
(1) The steady gradient of climb may not be less than 2.4 percent for two-engine airplanes, 2.7 percent for three-engine airplanes, and 3.0 percent for four-engine airplanes, at V
(i) The critical engine inoperative, the remaining engines at the takeoff power or thrust available at the time the landing gear is fully retracted, determined under § 25.111, unless there is a more critical power operating condition existing later along the flight path but before the point where the airplane reaches a height of 400 feet above the takeoff surface; and
(ii) The weight equal to the weight existing when the airplane's landing gear is fully retracted, determined under § 25.111.
(2) The requirements of paragraph (b)(1) of this section must be met:
(i) In non-icing conditions; and
(ii) In icing conditions with the takeoff ice accretion defined in appendix C, if in the configuration of § 25.121(b) with the takeoff ice accretion:
(A) The stall speed at maximum takeoff weight exceeds that in non-icing conditions by more than the greater of 3 knots CAS or 3 percent of V
(B) The degradation of the gradient of climb determined in accordance with § 25.121(b) is greater than one-half of the applicable actual-to-net takeoff flight path gradient reduction defined in § 25.115(b).
(c)
(1) The steady gradient of climb may not be less than 1.2 percent for two-engine airplanes, 1.5 percent for three-engine airplanes, and 1.7 percent for four-engine airplanes, at V
(i) The critical engine inoperative and the remaining engines at the available maximum continuous power or thrust; and
(ii) The weight equal to the weight existing at the end of the takeoff path, determined under § 25.111.
(2) The requirements of paragraph (c)(1) of this section must be met:
(i) In non-icing conditions; and
(ii) In icing conditions with the final takeoff ice accretion defined in appendix C, if in the configuration of § 25.121(b) with the takeoff ice accretion:
(A) The stall speed at maximum takeoff weight exceeds that in non-icing conditions by more than the greater of 3 knots CAS or 3 percent of V
(B) The degradation of the gradient of climb determined in accordance with § 25.121(b) is greater than one-half of the applicable actual-to-net takeoff flight path gradient reduction defined in § 25.115(b).
(d)
(1) The steady gradient of climb may not be less than 2.1 percent for two-engine airplanes, 2.4 percent for three-engine airplanes, and 2.7 percent for four-engine airplanes, with—
(i) The critical engine inoperative, the remaining engines at the go-around power or thrust setting;
(ii) The maximum landing weight;
(iii) A climb speed established in connection with normal landing procedures, but not exceeding 1.4 V
(iv) Landing gear retracted.
(2) The requirements of paragraph (d)(1) of this section must be met:
(i) In non-icing conditions; and
(ii) In icing conditions with the approach ice accretion defined in appendix C. The climb speed selected for non-icing conditions may be used if the climb speed for icing conditions, computed in accordance with paragraph (d)(1)(iii) of this section, does not exceed that for non-icing conditions by more than the greater of 3 knots CAS or 3 percent.
(a) For the en route configuration, the flight paths prescribed in paragraph (b) and (c) of this section must be determined at each weight, altitude, and ambient temperature, within the operating limits established for the airplane. The variation of weight along the flight path, accounting for the progressive consumption of fuel and oil by the operating engines, may be included in the computation. The flight paths must be determined at a speed not less than V
* * *
(b) The one-engine-inoperative net flight path data must represent the actual climb performance diminished by a gradient of climb of 1.1 percent for two-engine airplanes, 1.4 percent for three-engine airplanes, and 1.6 percent for four-engine airplanes—
(1) In non-icing conditions; and
(2) In icing conditions with the en route ice accretion defined in appendix C, if:
(i) A speed of 1.18 V
(ii) The degradation of the gradient of climb is greater than one-half of the applicable actual-to-net flight path reduction defined in paragraph (b) of this section.
(a) The horizontal distance necessary to land and to come to a complete stop (or to a speed of approximately 3 knots for water landings) from a point 50 feet above the landing surface must be determined (for standard temperatures, at each weight, altitude, and wind within the operational limits established by the applicant for the airplane):
(1) In non-icing conditions; and
(2) In icing conditions with the landing ice accretion defined in appendix C if V
(b) In determining the distance in paragraph (a) of this section:
(1) The airplane must be in the landing configuration.
(2) A stabilized approach, with a calibrated airspeed of not less than V
(i) In non-icing conditions, V
(A) 1.23 V
(B) V
(C) A speed that provides the maneuvering capability specified in § 25.143(h).
(ii) In icing conditions, V
(A) The speed determined in paragraph (b)(2)(i) of this section;
(B) 1.23 V
(C) A speed that provides the maneuvering capability specified in § 25.143(h) with the landing ice accretion defined in appendix C.
(3) Changes in configuration, power or thrust, and speed, must be made in accordance with the established procedures for service operation.
(4) The landing must be made without excessive vertical acceleration, tendency to bounce, nose over, ground loop, porpoise, or water loop.
(5) The landings may not require exceptional piloting skill or alertness.
(c) For landplanes and amphibians, the landing distance on land must be determined on a level, smooth, dry, hard-surfaced runway. In addition—
(1) The pressures on the wheel braking systems may not exceed those specified by the brake manufacturer;
(2) The brakes may not be used so as to cause excessive wear of brakes or tires; and
(3) Means other than wheel brakes may be used if that means—
(i) Is safe and reliable;
(ii) Is used so that consistent results can be expected in service; and
(iii) Is such that exceptional skill is not required to control the airplane.
(d) For seaplanes and amphibians, the landing distance on water must be determined on smooth water.
(e) For skiplanes, the landing distance on snow must be determined on smooth, dry, snow.
(f) The landing distance data must include correction factors for not more than 50 percent of the nominal wind components along the landing path opposite to the direction of landing, and not less than 150 percent of the nominal wind components along the landing path in the direction of landing.
(g) If any device is used that depends on the operation of any engine, and if the landing distance would be noticeably increased when a landing is made with that engine inoperative, the landing distance must be determined with that engine inoperative unless the use of compensating means will result in a landing distance not more than that with each engine operating.
(c) The airplane must be shown to be safely controllable and maneuverable with the critical ice accretion appropriate to the phase of flight defined in appendix C, and with the critical engine inoperative and its propeller (if applicable) in the minimum drag position:
(1) At the minimum V
(2) During an approach and go-around; and
(3) During an approach and landing.
(d) The following table prescribes, for conventional wheel type controls, the maximum control forces permitted during the testing required by paragraph (a) through (c) of this section:
(e) Approved operating procedures or conventional operating practices must be followed when demonstrating compliance with the control force limitations for short term application that are prescribed in paragraph (d) of this section. The airplane must be in trim, or as near to being in trim as practical, in the preceding steady flight condition. For the takeoff condition, the airplane must be trimmed according to the approved operating procedures.
(f) When demonstrating compliance with the control force limitations for long term application that are prescribed in paragraph (d) of this section, the airplane must be in trim, or as near to being in trim as practical.
(i) When demonstrating compliance with § 25.143 in icing conditions—
(1) Controllability must be demonstrated with the ice accretion defined in appendix C that is most critical for the particular flight phase;
(2) It must be shown that a push force is required throughout a pushover maneuver down to a zero g load factor, or the lowest load factor obtainable if limited by elevator power or other design characteristic of the flight control system. It must be possible to promptly recover from the maneuver without exceeding a pull control force of 50 pounds; and
(3) Any changes in force that the pilot must apply to the pitch control to
(j) For flight in icing conditions before the ice protection system has been activated and is performing its intended function, the following requirements apply:
(1) If activating the ice protection system depends on the pilot seeing a specified ice accretion on a reference surface (not just the first indication of icing), the requirements of § 25.143 apply with the ice accretion defined in appendix C, part II(e).
(2) For other means of activating the ice protection system, it must be demonstrated in flight with the ice accretion defined in appendix C, part II(e) that:
(i) The airplane is controllable in a pull-up maneuver up to 1.5 g load factor; and
(ii) There is no pitch control force reversal during a pushover maneuver down to 0.5 g load factor.
(b) The warning must be furnished either through the inherent aerodynamic qualities of the airplane or by a device that will give clearly distinguishable indications under expected conditions of flight. However, a visual stall warning device that requires the attention of the crew within the cockpit is not acceptable by itself. If a warning device is used, it must provide a warning in each of the airplane configurations prescribed in paragraph (a) of this section at the speed prescribed in paragraphs (c) and (d) of this section. Except for the stall warning prescribed in paragraph (h)(2)(ii) of this section, the stall warning for flight in icing conditions prescribed in paragraph (e) of this section must be provided by the same means as the stall warning for flight in non-icing conditions.
(e) In icing conditions, the stall warning margin in straight and turning flight must be sufficient to allow the pilot to prevent stalling (as defined in § 25.201(d)) when the pilot starts a recovery maneuver not less than three seconds after the onset of stall warning. When demonstrating compliance with this paragraph, the pilot must perform the recovery maneuver in the same way as for the airplane in non-icing conditions. Compliance with this requirement must be demonstrated in flight with the speed reduced at rates not exceeding one knot per second, with—
(1) The more critical of the takeoff ice and final takeoff ice accretions defined in appendix C for each configuration used in the takeoff phase of flight;
(2) The en route ice accretion defined in appendix C for the en route configuration;
(3) The holding ice accretion defined in appendix C for the holding configuration(s);
(4) The approach ice accretion defined in appendix C for the approach configuration(s); and
(5) The landing ice accretion defined in appendix C for the landing and go-around configuration(s).
(f) The stall warning margin must be sufficient in both non-icing and icing conditions to allow the pilot to prevent stalling when the pilot starts a recovery maneuver not less than one second after the onset of stall warning in slow-down turns with at least 1.5 g load factor normal to the flight path and airspeed deceleration rates of at least 2 knots per second. When demonstrating compliance with this paragraph for icing conditions, the pilot must perform the recovery maneuver in the same way as for the airplane in non-icing conditions. Compliance with this requirement must be demonstrated in flight with—
(1) The flaps and landing gear in any normal position;
(2) The airplane trimmed for straight flight at a speed of 1.3 V
(3) The power or thrust necessary to maintain level flight at 1.3 V
(h) For flight in icing conditions before the ice protection system has been activated and is performing its intended function, the following requirements apply, with the ice accretion defined in appendix C, part II(e):
(1) If activating the ice protection system depends on the pilot seeing a specified ice accretion on a reference surface (not just the first indication of icing), the requirements of this section apply, except for paragraphs (c) and (d) of this section.
(2) For other means of activating the ice protection system, the stall warning margin in straight and turning flight must be sufficient to allow the pilot to prevent stalling without encountering any adverse flight characteristics when the speed is reduced at rates not exceeding one knot per second and the pilot performs the recovery maneuver in the same way as for flight in non-icing conditions.
(i) If stall warning is provided by the same means as for flight in non-icing conditions, the pilot may not start the recovery maneuver earlier than one second after the onset of stall warning.
(ii) If stall warning is provided by a different means than for flight in non-icing conditions, the pilot may not start the recovery maneuver earlier than 3 seconds after the onset of stall warning. Also, compliance must be shown with § 25.203 using the demonstration prescribed by § 25.201, except that the deceleration rates of § 25.201(c)(2) need not be demonstrated.
(a) For land planes and amphibians, the following applies:
(1) A 90-degree cross component of wind velocity, demonstrated to be safe for takeoff and landing, must be established for dry runways and must be at least 20 knots or 0.2 V
(2) The crosswind component for takeoff established without ice accretions is valid in icing conditions.
(3) The landing crosswind component must be established for:
(i) Non-icing conditions, and
(ii) Icing conditions with the landing ice accretion defined in appendix C.
(b)
(c)
(1) 300 knots CAS;
(2) V
(3) A speed at which it is demonstrated that the airframe will be free of ice accretion due to the effects of increased dynamic pressure.
(b) * * *
(1) * * *
(i) * * *
(ii) The icing conditions specified in § 25.1419 if certification for flight in icing conditions is requested.
(c) In showing compliance with paragraph (b) of this section, the pilot strength required may not exceed the limits set forth in § 25.143(d), subject to the conditions set forth in paragraphs (e) and (f) of § 25.143.
If the applicant seeks certification for flight in icing conditions, the airplane must be able to safely operate in the continuous maximum and intermittent maximum icing conditions of appendix C. To establish this—
(a) * * *
(c)
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(b) In order to reduce the number of ice accretions to be considered when demonstrating compliance with the requirements of § 25.21(g), any of the ice accretions defined in paragraph (a) of this section may be used for any other flight phase if it is shown to be more critical than the specific ice accretion defined for that flight phase. Configuration differences and their effects on ice accretions must be taken into account.
(c) The ice accretion that has the most adverse effect on handling qualities may be used for airplane performance tests provided any difference in performance is conservatively taken into account.
(d) For both unprotected and protected parts, the ice accretion for the takeoff phase may be determined by calculation, assuming the takeoff maximum icing conditions defined in appendix C, and assuming that:
(1) Airfoils, control surfaces and, if applicable, propellers are free from frost, snow, or ice at the start of the takeoff;
(2) The ice accretion starts at liftoff;
(3) The critical ratio of thrust/power-to-weight;
(4) Failure of the critical engine occurs at V
(5) Crew activation of the ice protection system is in accordance with a normal operating procedure provided in the Airplane Flight Manual, except that after beginning the takeoff roll, it must be assumed that the crew takes no action to activate the ice protection system until the airplane is at least 400 feet above the takeoff surface.
(e) The ice accretion before the ice protection system has been activated and is performing its intended function is the critical ice accretion formed on the unprotected and normally protected surfaces before activation and effective operation of the ice protection system in continuous maximum atmospheric icing conditions. This ice accretion only applies in showing compliance to §§ 25.143(j) and 25.207(h).
Agricultural Marketing Service, USDA.
Proposed rule.
On April 2, 2001, the Agricultural Marketing Service (AMS) implemented the Livestock Mandatory Reporting (LMR) program as required by the Livestock Mandatory Reporting Act of 1999 (1999 Act). The statutory authority for the program lapsed on September 30, 2005. In October 2006, legislation was enacted to reauthorize the 1999 Act until September 30, 2010, and to amend the swine reporting requirements of the 1999 Act (Pub. L. 109-296) (Reauthorization Act). This rulemaking is necessary to re-establish the regulatory authority for the program's continued operation and incorporate the swine reporting changes contained within the Reauthorization Act as well as make other changes to enhance the program's overall effectiveness and efficiency based on AMS' experience in the administration of the program over the last 6 years.
Written comments on the regulatory provisions of this proposed rule must be received on or before September 7, 2007 to be assured of consideration. Written comments on the information collection and recordkeeping provisions of this proposed rule must be received on or before October 9, 2007 to be assured of consideration.
Comments can be submitted on the Internet at:
Warren P. Preston, Chief, Livestock and Grain Market News Branch at (202) 720-6231, fax (202) 690-3732, or e-mail
The 1999 Act was enacted into law on October 22, 1999, (Pub. L. 106-78) as an amendment to the Agriculture Marketing Act of 1946 (7 U.S.C. 1621
The statutory authority for the program lapsed on September 30, 2005. In October 2006, legislation was passed to reauthorize the 1999 Act until September 30, 2010, and amend swine reporting requirements.
Because reauthorization was not completed by September 30, 2005, AMS sent letters to each packer required to report under the 1999 Act requesting their voluntary cooperation in continuing to submit information. Based on the response to AMS's request for voluntary packer participation in LMR, most reports have continued to be published. The only reports that are not being published are imported boxed lamb cuts and slaughter cow reports. AMS has continued compliance audits during the lapse in authority for the mandatory program for companies that agreed to continue submitting information and will continue this practice until the effective date of this regulatory action.
The 1999 Act as originally passed provided for the mandatory reporting of market information by Federally inspected livestock processing plants that have slaughtered an average number of livestock during the immediately preceding 5 calendar years (125,000 for cattle and 100,000 for swine), including any processing plant that did not slaughter during the immediately preceding 5 calendar years if the Secretary determines that the plant should be considered a packer based on the plant's capacity. For entities that did not slaughter during the immediately preceding 5 calendar years, such as a new plant or existing plant that begins operations, AMS projects the plant's annual slaughter or production based upon the plant's estimate of annual slaughter capacity to determine which entities meet the definition of a packer as defined in this regulation.
The 1999 Act also gave the Secretary of Agriculture (Secretary) the latitude to provide for the reporting of lamb information. Under the 2000 final rule implementing the program, Federally inspected lamb processing plants that slaughtered an average of 75,000 head of lambs or processed an average of 75,000 lamb carcasses during the immediately preceding 5 calendar years were required to submit information to AMS. Additionally, a lamb processing plant that did not slaughter an average of 75,000 lambs or process an average of 75,000 lamb carcasses during the immediately preceding 5 calendar years was required to report information if the Secretary determined the processing plant should be considered a packer based on its capacity. In addition, the final rule also established that for any calendar year, an importer of lamb that imported an average of 5,000 metric tons of lamb meat products per year during the immediately preceding 5 calendar years report information on the domestic sales of imported boxed lamb cuts. Additionally, an importer that did not import an average of 5,000 metric tons of lamb meat products during the immediately preceding 5 calendar years was required to report information if the Secretary determined that the person should be considered an importer based on their volume of lamb imports. On September 2, 2004, AMS published a final rule (69 FR 53783) (2004 final rule) that revised the threshold for importers to 2,500 metric tons and modified the definition of carlot when used in reference to boxed lamb cuts.
The Reauthorization Act did not modify the cattle reporting requirements contained in the 1999 Act. The 1999 Act requires that a cattle packer whose Federally inspected plant slaughtered an average of at least 125,000 cattle per year for the preceding 5 calendar years or did not slaughter cattle during the preceding 5 calendar years but is considered a packer based on plant capacity as determined by the Secretary, report market information to the Secretary. They are required to report the prices for each type of cattle purchase, categorized to clearly delineate imported from domestic market purchases, negotiated purchase, formula marketing arrangement, and forward contract; the quantity of cattle, categorized to clearly delineate imported from domestic market purchases, purchased on a live weight
The 1999 Act further requires that a packer report marketing information not later than 9 a.m. central time on the first reporting day of each week for cattle bought by the type of purchase for the prior week. In addition, the 1999 Act states that packers must report weekly information on the first reporting day not later than 9 a.m. central time for cattle purchased on a formula or contract marketing arrangement and slaughtered the prior week. However, under this proposed regulation, the required information for the weekly submission for cattle purchased on a formula would be obtained by aggregating packers' daily submissions of this information. Therefore, no additional weekly submission would be required for this purchase type. The Secretary would issue a public report not later than 10 a.m. central time on the first reporting day of the current slaughter week.
The 1999 Act also mandates that a packer report information on boxed beef cut sales to the Secretary at least twice each reporting day not less frequently than once before and once after 12 noon central time. This information includes the price per hundredweight, the quantity in each lot of boxed beef cuts sold, information regarding the characteristics of each lot (i.e., domestic vs. export sale, USDA Quality Grade, etc.), the type of beef cut and the trim specification. The Secretary would report this information to the public twice each reporting day.
The Reauthorization Act revised the requirements for swine reporting. Under the 1999 Act, the term packer includes a Federally inspected plant that slaughtered an average of at least 100,000 swine per year during the immediately preceding 5 calendar years. Under the Reauthorization Act, the term packer also includes a person that slaughtered an average of at least 200,000 sows, boars, or combination thereof per year during the immediately preceding 5 calendar years. Additionally, in the case of a swine processing plant or person that did not slaughter swine during the immediately preceding 5 calendar years, it shall be considered a packer if the Secretary determines the processing plant or person should be considered a packer under this subpart after considering its capacity.
The Reauthorization Act separated the reporting requirements for sows and boars from barrows and gilts. For barrows and gilts, the packer must report to the Secretary not later than 7 a.m. central time on each reporting day information regarding all swine purchased or priced, during the prior business day of the packer. The Reauthorization Act modified the reporting time for information regarding all barrows and gilts slaughtered during the prior business day from not later than 7 a.m. central time to not later than 9 a.m. central time on each reporting day. The packer must report all purchase data including the number of barrows and gilts purchased, barrows and gilts scheduled for delivery and the base price and purchase data for slaughtered barrows and gilts for which a price has been established. The information also includes all slaughter data for the total number of barrows and gilts slaughtered including information concerning the net price, average net price, lowest net price, highest net price, average carcass weight, average sort loss, average backfat, average lean percentage, and total slaughter quantity. However, the information on the lowest net price and highest net price can be obtained from the LMR system from packers' submissions. Therefore, under this proposed rule, there is no requirement for packers to submit this information separately. Packers reporting the average lean percentage must report the manner in which the average lean percentage is calculated as well as whenever a change in such calculation is made. In doing so, the packer shall make available to the Secretary the underlying data, applicable methodology and formulae, and supporting materials used to determine the average lean percentage, which the Secretary will convert to the carcass measurements or lean percentage of the swine of the individual packer to correlate to a common percent lean measurement. Additionally, the information to be reported includes packer purchase commitments, which shall be equal to the number of barrows and gilts scheduled for delivery to a packer for slaughter each of the next 14 calendar days.
The Secretary would publish the information in a prior day report not later than 8 a.m. central time for all swine purchased and 10 a.m. central time for all barrows and gilts slaughtered on the reporting day on which the information is received from the packer. In addition, as required by the Reauthorization Act, the Secretary shall publish a net price distribution for all barrows and gilts slaughtered on the previous day not later than 3 p.m. central time.
The Reauthorization Act also requires packers that process barrows and gilts to report to the Secretary in the morning not later than 10 a.m. central time and in the afternoon not later than 2 p.m. central time each reporting day. The reporting requirements for the morning and afternoon reports contained in the Reauthorization Act for barrows and gilts were not altered from those contained in the 1999 Act. The information to be reported is the same for the morning and afternoon reports and includes an estimate of (1) the total number of barrows and gilts purchased by each method of pricing, (2) the total number of barrows and gilts purchased, and (3) the base price paid for all negotiated purchases of market hogs and the base price paid for each type of purchase of market hogs other than through a negotiated purchase. This information must be submitted for all covered transactions made up to within one half hour of each specified reporting time. Packers completing transactions during the one half hour prior to the previous reporting time will report those transactions at the next prescribed reporting time. The Secretary will make the morning report available to the public not later than 11 a.m. central time and the afternoon report at 3 p.m. central time on each reporting day.
The Reauthorization Act requires each packer of sows and boars to report to the Secretary not later than 9:30 a.m. central time, or such other time as the Secretary considers appropriate, on each reporting day, information regarding all sows and boars purchased or priced during the prior business day of the packer. The information to be reported includes the total number of sows and boars purchased, each divided into at least three weight classes specified by the Secretary, the number of sows and boars that qualify as packer-owned swine, the average price paid for all sows and boars, the average price paid for sows and boars in each weight class, the number of sows and boars for which prices are determined, by each type of purchase, and the average prices for sows and boars for which prices are determined, by each type of purchase. The Secretary would publish the information in a prior day report not later than 11 a.m. central time on the reporting day on which the information is received from the packer. Under the 1999 Act, the reporting requirements for sows and boars were the same as the
The Secretary will compile and issue a weekly noncarcass merit premium report on the first reporting day of the week not later than 5 p.m. central time. This report would be prepared from information furnished to the Secretary by packers who must report not later than 4 p.m. central time on the first reporting day of the week. The information required includes noncarcass merit premiums used and paid to producers during the prior slaughter week by category.
The 1999 Act provides that the Secretary review the information required to be reported by packers at least once every two years. Also, the 1999 Act directs the Secretary to promulgate regulations that specify additional information to be reported by packers if the Secretary determines information currently reported does not accurately reflect the methods by which swine are valued or priced, or account for the fact that packers that slaughter a significant majority of the swine produced in the United States no longer use backfat or lean percentage factors as indicators of price.
The Reauthorization Act did not change the lamb reporting provisions contained in the 1999 Act. The 1999 Act gives the Secretary the authority to establish a mandatory lamb price reporting program that will provide timely, accurate, and reliable market information. It does not specify the requirements for establishing a mandatory lamb price reporting program as it does for cattle and swine. Accordingly, in the 2000 final rule, AMS established a mandatory lamb price reporting program based upon its extensive knowledge of the lamb industry and market news reporting of lamb.
Under the established program, a lamb packer whose Federally inspected plant slaughtered or processed an average of at least the equivalent of 75,000 lambs each year for the preceding 5 calendar years reports to the Secretary once daily the price of each type of lamb purchase, negotiated purchase, formula marketing arrangements, forward contract, quantity of lamb purchased on live weight or carcass weight, a range and average estimated live weights, quality grade, premiums and discounts, class type, pelt type, state of origin, and estimated dressing percentage. The Secretary issues a report to the public on this information not less than once each day.
Lamb packers are required to report to the Secretary on a weekly basis on the second reporting day of the week information from the prior week. This information includes the quantity and certain carcass characteristics of lambs purchased through a formula marketing arrangement or forward contract that were slaughtered, and the quantity and carcass characteristics of packer owned lamb that were slaughtered. Reported information includes, by type of purchase, the quantity of lamb purchased on live weight and carcass weight basis that were slaughtered, the quality grade, premiums and discounts paid, and dressing percentage. In addition, a lamb packer is required to report the quantity and basis level for forward contracts, the range and average of intended premiums and discounts, and the expected slaughter date. Under this proposed rule, packers would also be required to report information on the quantity of lambs purchased on a negotiated basis.
The Secretary makes available to the public the information on the second reporting day of the current slaughter week.
Packers report information on daily sales of carcass lamb and sales of boxed lamb cuts each reporting day. Under this proposed rule, packers would also be required to report carcass purchases. Due to the changing structure of the lamb industry, an increasing number of transactions are not required to be reported under the existing regulation. Requiring packers to also report their carcass purchases would greatly increase the volume of covered transactions.
For sales and purchases of carcass lamb, the information includes prices for each lot, the type of sale, the quantity of each sale quoted in number of carcasses, the USDA grade, the estimated weight range, and delivery date. For sales of boxed lamb cuts, the packer reports the price for each lot, the quantity for each lot quoted by product weight, the type of sale, branded product characteristics, if applicable, the USDA quality and yield grade, the cut of lamb, the product state of refrigeration, the weight range of each cut, and the delivery period. The Secretary issues to the public a report on carcass lamb sales and boxed lamb cut sales once each reporting day.
For any calendar year, a lamb importer who imports an average of 2,500 metric tons of lamb meat products per year during the immediately preceding 5 calendar years reports to the Secretary weekly the prices received for imported lamb cuts sold on the domestic market. Additionally, an importer that does not import an average of 2,500 metric tons of lamb meat products during the immediately preceding 5 calendar years is also required to report the above information, if the Secretary determines that the person should be considered an importer based on their volume of lamb imports.
The administrative provisions of the 1999 Act set forth the requirements for maintaining confidentiality regarding the packer reporting of proprietary information and list the conditions under which Federal employees can release such information. These administrative provisions also establish that the Secretary can make necessary adjustments in the information reported by packers and take action to verify the information reported, and directs the Secretary to report and publish reports by electronic means to the maximum extent practical. The 1999 Act provides for what constitutes violations of that Act, such as failure to report the required information on time or failure to report accurate information. The Reauthorization Act did not change any of these provisions.
The section on enforcement establishes a civil penalty—$10,000—for each violation and provides for the Secretary's issuance of cease and desist orders. This section also provides for notice and hearing of violations before the Secretary, judicial review, issuance of an injunction or restraining order, and establishes a civil penalty for failure to obey a cease and desist order.
The fees section directs the Secretary to not charge or assess fees for the submission, reporting, receipt, availability, or access to published reports or information collected through this program.
The section on recordkeeping requires each packer to make available to the Secretary on request for 2 years the original contracts, agreements, receipts, and other records associated with any transaction relating to the purchase, sale, pricing, transportation, delivery, weighing, slaughter, or carcass characteristics of all livestock and livestock products, as well as such records or other information that is necessary or appropriate to verify the accuracy of information required to be reported. Also, the 1999 Act provides that reporting entities will not be required to report new or additional information that they do not generally have available or maintain, or the provisions of which would be unduly burdensome.
Further, the 1999 Act provides that the Secretary may suspend any requirement if the Secretary determines that the application of the requirement would be inconsistent with the Act.
The requirements of this proposed regulation are discussed in detail in the sections immediately following. However, for the ease of the reader, this section contains descriptions and rationale of the substantive changes that have been made as compared to the December 1, 2000, and September 2, 2004, (that modified reporting requirements for lamb) final rules that were published in the
To reduce the recordkeeping burden on lamb importers, the Agency is proposing to modify the recordkeeping requirement to allow lamb importers to maintain a record of sale that evidences only the date the sale occurred rather than the time and date. Because lamb importers are required to report only weekly, the date the sale occurred is sufficient for recordkeeping purposes.
The Agency is proposing to modify the definition of the term “discount” by adding “or other characteristic” to allow for the inclusion of other types of discounts such as a discount for an animal's age, which is currently utilized by several reporting packers.
The Agency is also proposing to modify the definitions of the terms “negotiated purchased” and “negotiated sale” by removing the language “and agreement on a delivery day.” Under the current program, a transaction is not required to be reported if the specific delivery day is not known. Deleting this language would provide for more timely price reporting if the only piece of information not known is the delivery day.
The Agency is proposing to add a definition for the term “negotiated grid purchase.” When the LMR program was first implemented on April 2, 2001, negotiated grid purchases, purchases in which the base price is determined by seller-buyer interaction from which premiums are added and discounts are subtracted, were coded in packer submissions as formulas, as the system was not initially configured to allow these two distinct transaction types to be coded separately. The Agency subsequently made a programming change to rectify this problem and is proposing this definition for clarity.
The Agency is proposing to add a definition for the term “percent lean” for clarification with respect to cow and bull reporting requirements. The Agency is also proposing to add a definition for the term “person” for clarity.
The majority of the changes that are being proposed with respect to cattle reporting relate to the separation of the reporting requirements for cows and bulls. Separation of the reporting requirements for cows and bulls is being proposed to minimize the reporting burden on cow and bull packers where possible and to make the information published for cows and bulls and the resulting meat products more meaningful to the industry.
The Agency is proposing to modify the definition of the term “boxed beef” to remove references to age limitations on products and to require packers to report transactions for frozen primals, subprimals, and cuts in addition to the current requirement for packers to submit information on frozen beef trimmings and boneless processing beef. Neither the 1999 Act nor the Reauthorization Act defines the term “boxed beef.” Hence the term must be defined by regulation. These proposed modifications to the definition would provide for more complete reporting of the boxed beef trade, consistent with the law's purpose of improving the price and supply reporting conditions of USDA. Although the revised definition of “boxed beef” potentially would result in the reporting of more transactions by packers to AMS, the Agency believes that there would be little to practically no increase in the reporting burden to packers. The cost to packers of reporting all trades versus sorting out trades beyond certain parameters is minimal, and in many cases, may even be less burdensome than sorting out transactions prior to submission to AMS.
In the 2000 final rule, the definition of “boxed beef” specified that the product not exceed one of three different dates from manufacture, depending on the specific item in question. For example, primals, subprimals, and cuts fabricated from subprimals were not to be older than 14 days from the date of manufacture, while fresh ground beef, beef trimmings, and boneless processing beef were not to be older than 7 days from the date of manufacture. By removing references to these different cutoff dates, there would be less confusion in terms of what information reporting packers are required to submit, and hence, less uncertainty regarding the information that is subsequently reported and disseminated by AMS. In addition, new technologies in packaging and processing continue to extend the shelf life of meat products, and product that may have been considered aged or distressed at the time of the 2000 final rule may now be well within its usable shelf life. Removing references to product age in the definition of “boxed beef” would reflect such changes in the state of the industry.
The 2000 final rule defined “boxed beef” to include fresh primals, subprimals, cuts fabricated from subprimals, ground beef, beef trimmings, and boneless processing beef. The definition also included frozen beef trimmings and boneless processing beef. By removing the references to fresh or frozen product, the proposed rule would reduce confusion on the part of reporting packers regarding whether or not to submit information on particular trades. AMS believes that this modification of the definition of “boxed beef” would result in minimal to virtually no increase in burden to reporting packers. In the case of frozen products, numerous reporting packers already submit information on all frozen products. Due to the nature of their electronic systems, it is in many cases often less burdensome for packers to submit everything rather than having to sort through eligible transactions. AMS believes that reporting of trade in frozen products would provide a more accurate and comprehensive picture of the market for boxed beef, consistent with the purposes of the 1999 Act to improve the price and supply reporting services of USDA. For instance, trading of frozen product picked up with the reopening of foreign markets following the closures that resulted from the discovery of a cow with bovine spongiform encephalopathy in the United States in December 2003. Because a majority of packers are reporting frozen boxed beef trades, AMS has been able to show the number of frozen export loads in its comprehensive boxed beef cutout report. Requiring all packers to submit information on frozen product trades would ensure that such reporting would represent a more complete reflection of market conditions.
Comments are invited on the proposed modifications to the definition of “boxed beef” with respect to removing references to the age of the product and whether it is fresh or frozen. In particular, comments are invited on the potential utility of obtaining information on trades that would be excluded under the definition
The Agency is proposing to modify the definition of the term “carlot-based” such that for cow and bull boxed beef items, the term “carlot-based” would include any transaction between a buyer and seller consisting of 5,000 pounds or more of one or more individual items. This modification reflects current industry practice with respect to the marketing of cow and bull products.
The Agency is proposing to modify the definition of the term “terms of trade” to clarify that the requirement to report the terms of trade applies only to steers and heifers to coincide with the proposed separation of reporting requirements for cows and bulls from steers and heifers. The definition of “terms of trade” has also been modified to require packers to distinguish between negotiated transactions that are scheduled for delivery not later than 14 days and those negotiated transactions that are scheduled for delivery more than 14 days, but fewer than 30 days. Under current guidance provided by AMS, transactions that are for delivery more than 14 days out are to be coded as forward contracts. This proposed modification would not require packers to submit additional transactions, but it would allow AMS to separately identify these types of transactions, which is a concern of some in the industry.
The Agency is proposing to modify the definition of the term “type of purchase” to include “negotiated grid purchase” as a type of purchase.
The Agency is proposing to add a definition for the term “white cow” to provide clarity to the cow and bull reporting requirements.
The Agency has modified and renumbered the sections that relate to the daily and weekly reporting requirements for live cattle. Section 59.101 and section 59.103 contain the daily and weekly reporting requirements for steers and heifers. Section 59.102 contains the daily reporting requirements for cows and bulls.
With regard to section 59.101, packers would no longer be required to report the range of weights of cattle purchased. In addition, the phrase “or other characteristics” has been added to the premium and discount reporting requirement to allow for the reporting of other kinds of premiums and discounts such as those associated with an animal’s age.
Section 59.102 contains the reporting requirements for cow and bull purchases. In an effort to reduce the reporting burden on cow and bull packers, only the information that pertains to the way cows and bulls are marketed would be required to be reported. For example, cow and bull packers no longer have to report committed and delivered information. In addition, there would no longer be a weekly reporting requirement for cows and bulls.
With regard to section 59.103, packers would be required to report the quantity of cattle purchased on a negotiated basis and on a negotiated grid basis that were slaughtered in addition to the current requirement to report the number of cattle purchased through forward contracts, formula marketing arrangements and the quantity and carcass characteristics of packer-owned cattle that were slaughtered. In addition, packers would be required to provide the basis level month and delivery year for all cattle purchased through forward contracts in addition to the current requirement to report the basis level and delivery month. These changes are necessary to make the information published in AMS market reports more meaningful and useable by the industry by providing a complete picture of the prior week's slaughter with respect to the numbers of cattle harvested under each purchase type. Prices for negotiated purchases and negotiated grid purchases are collected currently, but prior week slaughter numbers for these types of purchases are not now collected. However, the addition of this reporting requirement is expected to have little impact on the reporting burden to packers, while contributing to the completeness of the information disseminated under the program.
Another change under section 59.103 is that packers would be required to provide the basis level month and delivery year for all cattle purchased through forward contracts in addition to the current requirement to report the basis level and delivery month. The basis level month and delivery year are necessary to provide a more accurate picture of the forward contract market and would allow AMS to publish more meaningful information. Also, the added information reflects the current industry practice of sometimes contracting out very far into the future, making it necessary to know the delivery year to categorize transactions properly according to not only the month but also the year of delivery.
Finally, in another effort to reduce the burden on reporting packers, the weekly requirement to report information for cattle purchased through a formula marketing arrangement and slaughtered during the prior slaughter week has been removed as the Agency can obtain this information by aggregating packers’ daily submissions.
As required by the Reauthorization Act, the reporting requirements for sows and boars have been separated from the reporting requirements for barrows and gilts. Thus under this proposed rule, section 59.202 contains the reporting requirements for barrows and gilts and section 59.303 contains the reporting requirements for sows and boars.
The Reauthorization Act also made a few other modifications to the swine reporting provisions. Specifically, the definition of a packer has been modified to also include a person that slaughtered an average of 200,000 head of sows, boars, or combination thereof per year during the immediately preceding 5 calendar years. Under the 1999 Act, a packer was defined as a swine processing plant that slaughtered an average of at least 100,000 swine per year during the immediately preceding 5 calendar years. The Reauthorization Act also changes the reporting timeframe for packers to submit prior day slaughtered swine information from 7 a.m. central time to 9 a.m. central time and requires the Secretary to publish a net price distribution on all barrows and gilts slaughtered the previous day.
In addition to the changes required by the Reauthorization Act, the Agency has made a few other minor modifications to reduce the reporting burden on swine packers. A definition of the term “inferior hog” has been added to allow packers to exclude information on inferior hogs, which are discounted in the marketplace, from their data submissions to AMS. Also, the requirement to submit information on the lowest net price and the highest net price has been removed as the Agency can obtain this information from the LMR system from packer submissions.
As previously discussed, the Reauthorization Act did not change the reporting provisions for lamb. However, the Agency is proposing a few changes to reduce the reporting burden on lamb packers where possible and to provide more meaningful information in AMS market reports.
The Agency is proposing to delete the definitions for the terms “lambs committed” and “terms of trade” as the
With respect to weekly reporting, the Agency is proposing to require packers to submit information on the quantity of lambs purchased through a negotiated purchase that were slaughtered in addition to the current requirement to submit this type of information on packer-owned lambs, lambs purchased through forward contracts, and lambs purchased under a formula arrangement. This change would allow AMS to publish more meaningful market information in AMS market reports.
With respect to reporting requirements for lamb carcasses, the Agency is proposing to require packers to submit information on their carcass purchases in addition to the current requirement to report carcass sales. Due to the changing structure of the lamb industry, an increasing number of transactions are not required to be reported under the existing regulation. Requiring packers to also report their carcass purchases will greatly increase the volume of covered transactions and will allow AMS to publish more meaningful information in AMS market reports.
Proposed Subpart A of Part 59, General Provisions, covers those requirements pertinent to all aspects of mandatory reporting. Section 59.10 details how packers and importers would be required to report information and how reporting will be handled over weekends and holidays. Electronic reporting would be required for all information collection. Electronic reporting would involve the transfer of data from a packer’s or importer’s existing electronic recordkeeping system to a centrally located AMS electronic database. The packer or importer would be required to organize the information in an AMS-approved format before electronically transmitting the information to AMS.
Once the required information has been entered into the AMS database, it would be aggregated and processed into various market reports that would be released according to the daily and weekly time schedule set forth in these proposed regulations.
Section 59.20 identifies the recordkeeping requirements imposed by the 1999 Act and these regulations on packers and importers. Reporting packers and importers would be required to maintain and to make available the original contracts, agreements, receipts, and other records associated with any transaction relating to the purchase, sale, pricing, transportation, delivery, weighing, slaughter, or carcass characteristics of all livestock. In addition, they would be required to maintain such records or other information as is necessary or appropriate to verify the accuracy of the information required to be reported under these regulations. All of the above mentioned paperwork must be maintained by packers and importers for at least 2 years. Further, packers would be required to maintain a record to indicate the time a lot of cattle or swine was purchased, or a unit of boxed beef cuts was sold, as occurring either before 10 a.m. central time, between 10 a.m. and 2 p.m. central time, or after 2 p.m. central time. Lamb packers would be required to maintain a record to indicate the time a lot of lambs was purchased or a lot of lamb carcasses was purchased or sold or boxed lamb cuts was sold, as occurring either before 2 p.m. central time or after 2 p.m. central time. For lamb importers, the record of sale shall evidence the date the sale occurred. However, to allow packers and importers time to collect, assemble and submit the information to AMS by the prescribed deadlines, all covered transactions up to within one half hour of the specified reporting times would be reported.
Lastly, under Subpart A, Section 59.30 details the general definitions of terms used throughout the regulations, which would be applicable to all subparts. The majority of these definitions remain unchanged from those that were published in the 2000 final rule. However, as previously discussed, the following changes have been made: Minor modifications to the definitions of “discount”, “negotiated purchase”, and “negotiated sale”; the addition of a definition for “negotiated grid purchase”; the addition of a definition of “percent lean”; and the addition of a definition of “person”.
Proposed Subpart B of Part 59 states what is required to be reported in the cattle and boxed beef sectors. For the most part, the reporting requirements are similar to those published in the December 1, 2000, final rule. The specific changes that are being proposed have been discussed in a previous section in this document. Section 59.100 provides definitions of cattle terms used in Subpart B, including the definition of packer, which identifies which entities would be required to report under this proposed rule. In any calendar year, the term cattle packer includes any Federally inspected cattle plant that slaughtered an average of 125,000 head of cattle a year for the immediately preceding 5 calendar years. Additionally, the term includes any processing plant that did not slaughter cattle during the immediately preceding 5 calendar years if the Secretary determines that the plant should be considered a packer based on its capacity.
For entities that did not slaughter cattle during the immediately preceding 5 calendar years, such as a new plant or existing plant that begins operations, AMS will project the plant’s annual slaughter or production based upon the plant’s estimate of annual slaughter capacity to determine which entities meet the definition of a packer as defined in these regulations.
The definition of “boxed beef” includes fresh and frozen primals, subprimals, cuts fabricated from subprimals (with some exclusions), and fresh and frozen ground beef, beef trimmings, and boneless processing beef.
The definition of “terms of trade” applies to steers and heifers only and includes the percentage of steers and heifers purchased by a packer as a negotiated purchase that are scheduled to be delivered to the plant for slaughter not later than 14 days and the percentage of slaughter steers and heifers purchased by a packer as a negotiated purchase that are scheduled to be delivered to the plant for slaughter more than 14 days but fewer than 30 days.
The term “type of purchase” with respect to cattle, means a negotiated purchase, negotiated grid purchase, a formula market arrangement, and a forward contract.
The term “white cow” means a cow on a ration that tends to produce white fat.
As previously discussed, the reporting requirements for cows and bulls have been separated from the reporting requirements for steers and heifers, which will reduce the reporting burden on cow and bull packers. Section 59.101 discusses the daily reporting requirements for steer and heifer transactions, including what information would be reported, when it would be reported, and when it would be published. Steer and heifer plants covered under the rule would report the details of their purchases twice each day to AMS (once by 10 a.m. central time, and once by 2 p.m. central time) and
The Reauthorization Act made several changes to the swine reporting provisions. The Agency made a few other minor modifications, which are discussed in detail in a previous section in this document, for clarity and to reduce the reporting burden on packers.
Proposed Subpart C of Part 59 lists the requirements of swine reporting beginning with Section 59.200, which establishes definitions for terms used throughout the subpart including the definition of a packer. In any calendar year, the term swine packer includes a Federally inspected plant that slaughtered an average of at least 100,000 swine per year during the immediately preceding 5 calendar years and a person that slaughtered an average of at least 200,000 sows, boars, or combination thereof per year during the immediately preceding 5 calendar years. Additionally, in the case of a swine processing plant or person that did not slaughter swine during the immediately preceding 5 calendar years, it shall be considered a packer if the Secretary determines the processing plant or person should be considered a packer under this subpart after considering its capacity. For entities that did not slaughter swine during the immediately preceding 5 calendar years, such as a new plant or existing plant that begins operations, AMS will project the plant's annual slaughter or production based upon the plant's estimate of annual slaughter capacity to determine which entities meet the definition of a packer as defined in these regulations.
Section 59.202 discusses the daily reporting requirements for barrows and gilts including what information would be reported, when it would be reported, and when it would be published.
For barrows and gilts, packers required to report under this rule would report the details of their barrows and gilts purchases three times each day including a prior day report not later than 7 a.m. central time, a morning report not later than 10 a.m. central time, and an afternoon report not later than 2 p.m. central time, including all covered transactions made up to within one half hour of each specified reporting time. Packers completing transactions during the one half hour prior to the previous reporting time would report those transactions at the next prescribed reporting time. This information would be published by the Secretary each reporting day not later than 8 a.m. central time, 11 a.m. central time, and 3 p.m. central time, respectively. For barrows and gilts, packers required to report under this rule would also have to report not later than 9 a.m. central time on each reporting day information regarding all barrow and gilts slaughtered during the prior business day. This information would be published by the Secretary each reporting day not later than 10 a.m. central time. In addition, the Secretary would publish a net price distribution for all barrow and gilts slaughtered on the previous day not later than 3 p.m. central time. Section 59.203 details the reporting requirements for sows and boars. Under this proposed rule, each sow and boar packer would report to the Secretary not later than 7 a.m. central time on each reporting day information regarding all sows and boars purchased or priced during the prior business day of the packer. This information would be published by the Secretary each reporting day not later than 8 a.m. central time. Section 59.204 details the requirements for reporting weekly swine information to AMS including what would be reported, when it would be reported, and when it would be published. On the first reporting day of each week, not later than 4 p.m. central time, packers would be required to report information on noncarcass merit premiums used and paid to producers during the prior slaughter week by category. This information would be published on the first reporting day of each week not later than 5 p.m. central time.
Proposed Subpart D of Part 59 covers the mandatory reporting of lambs. The 1999 Act gives the Secretary the authority to establish a mandatory lamb price reporting program but does not set forth the requirements. AMS proposes to resume the previously established mandatory lamb price reporting program with some modifications as discussed in a previous section in this document.
Section 59.300 provides definitions for terms used throughout Subpart D including definitions for packer and for
For entities that did not slaughter lambs during the immediately preceding 5 calendar years, such as a new plant or existing plant that begins operations, AMS will project the plant's annual slaughter or production based upon the plant's estimate of annual slaughter capacity to determine which entities meet the definition of a packer as defined in these regulations.
For any calendar year, the term lamb importer includes any importer that imported an average of 2,500 metric tons of lamb meat products per year during the immediately preceding 5 calendar years. Additionally, for any calendar year, the term importer includes any lamb importer that did not import an average of 2,500 metric tons of lamb meat products during the immediately preceding 5 calendar years if the Secretary determines that the person should be considered an importer based on their volume of lamb imports.
For importers of lamb meat products, AMS will annually review import lamb volume data obtained from the United States Bureau of Customs and Border Protection to determine which importers are required to report imported boxed lamb cut sales information under these regulations.
Under this proposed rule, several changes have been made to the definitions section that was published in the 2000 final rule. To facilitate the publication of more meaningful information in AMS market reports, a definition of “yield grade lamb carcass reporting” has been added, which will help clarify the requirements for reporting USDA yield grade information. In addition, the definitions of “lambs committed” and “terms of trade” have been deleted as the requirement to submit the information associated with these definitions has been removed as it is not used by the industry.
Section 59.301 covers the daily reporting requirements for live lamb transactions including what would be reported, when it would be reported, and when it would be published. Lamb plants covered under the rule would report the details of their live lamb purchases once each day to AMS, to include all covered transactions made up to within one half hour of the specified reporting time. Lamb plants completing transactions during the one half hour prior to the previous reporting time would report those transactions at the next prescribed reporting time. The Secretary would publish this information not less than once each day. Section 59.302 covers the same type of information for weekly reporting of live lamb transactions. Packers would be required to report information regarding the prior slaughter week, including among other things the number of lambs purchased through a negotiated purchase that were slaughtered, on the first reporting day of each week to be published by the Secretary on the same day. Finally, Section 59.303 covers the reporting requirements for transactions of lamb carcasses and boxed lamb cuts including what would be reported, when it would be reported, and when it would be published. Packers would be required to report details of their sales and purchases of carcass lambs once each day and the Secretary would publish the information once each day. Packers would be required to report details of their sales of boxed lamb cuts, including applicable branded product. This information would be published once each day. These plants would be required to reference the Institutional Meat Purchase Specifications (IMPS) for Fresh Lamb and Mutton Series 200, United States Department of Agriculture, Agricultural Marketing Service, Livestock and Seed Program, where applicable.
Importers of boxed lamb cuts would be required to report the required information of their prior week sales of imported boxed lamb cuts on the domestic market, including applicable branded product on the first reporting day of each week and this information would be published by the Secretary on the same day.
Subpart E of Part 59 covers the OMB control number 0581-0186 assigned pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) for the information collection requirements listed in Subparts B through D of Part 59. All required information must be reported to AMS in a standardized format. The standardized format is embodied in 16 data collection forms that are included in Appendix E at the end of this document. Cattle packers will utilize up to seven of these forms (not all cattle packers must submit all cattle forms) (Appendix A) when reporting information to AMS including four for daily cattle reporting, two for weekly cattle reporting, and one for daily boxed beef cuts reporting. Swine packers will utilize up to three forms (not all swine packers must submit all swine forms) (Appendix B), two for daily reporting of swine purchases and one for weekly reporting of non-carcass merit premium information. Lamb packers will utilize up to six of these forms (not all lamb packers must submit all lamb forms) (Appendix C) when reporting information to AMS, including one for daily lamb reporting, three for weekly lamb reporting, one for daily and weekly boxed lamb cuts reporting, and one for daily lamb carcass reporting. Lamb importers will utilize one of these forms when reporting information to AMS for reporting weekly imported boxed lamb cut sales.
The final section of this document contains a series of five appendices. These appendices will not appear in the Code of Federal Regulations. The first three appendices, Appendices A to C, have already been discussed above. They describe the forms that will be used by those required to report information under this program. Appendix D contains guidelines for those entities required to report information on how to use the forms. The actual forms are contained in Appendix E.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. Section 259 of the 1999 Act prohibits States or political subdivisions of a State to impose any requirement that is in addition to, or inconsistent with, any requirement of the 1999 Act with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products. In addition, the 1999 Act does not restrict or modify the authority of the Secretary to administer or enforce the Packers and Stockyards Act of 1921 (7 U.S.C. 181
AMS has considered the potential civil rights implications of this rule on minorities, women, or persons with disabilities to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This review included persons that are employees of the entities that are subject to this regulation. This proposed rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Further, this proposed rule would not deny any persons or groups the benefits of the program or subject any persons or groups to discrimination.
This proposed rule has been reviewed under Executive Order 13132, Federalism. This Order directs agencies to construe, in regulations and otherwise, a Federal Statute to preempt State law only when the statute contains an express preemption provision. This rule is required by the 1999 Act. Section 259 of the 1999 Act, Federal Preemption, states, “In order to achieve the goals, purposes, and objectives of this title on a nationwide basis and to avoid potentially conflicting State laws that could impede the goals, purposes, or objectives of this title, no State or political subdivision of a State may impose a requirement that is in addition to, or inconsistent with, any requirement of this subtitle with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products.”
Prior to the passage of the 1999 Act, several States enacted legislation mandating, to various degrees, the reporting of market information on transactions of cattle, swine, and lambs conducted within that particular State. However, since the National program was implemented on April 2, 2001, these State programs are no longer in effect. Therefore, there are no Federalism implications associated with this rulemaking.
This proposed rule has been determined to be significant for purposes of Executive Order 12866 and therefore has been reviewed by the Office of Management and Budget (OMB). In accordance with Executive Order 12866, this preliminary regulatory analysis contains a statement of the need for the proposed rule, an examination of alternative approaches, and an analysis of benefits and costs.
This proposed rule implements the Reauthorization Act, which reauthorized the 1999 Act and amended the swine reporting provisions of that Act. As stated in the 1999 Act, the purpose of the Act is to establish a program of information regarding the marketing of cattle, swine, lambs, and the products of such livestock that provides information that can be readily understood by producers; improves the price and supply reporting services of the Department of Agriculture; and encourages competition in the marketplace for livestock and livestock products. (7 U.S.C. 1635)
This proposed rule facilitates open, transparent price discovery and provides all market participants, both large and small, with comparable levels of market information. The proposed rule is expected to reduce the time and resources that market participants would otherwise expend to assess current market conditions, reduce risk and uncertainty, and contribute to considerations of fairness and equity to all participants in the marketplace. However, these anticipated benefits are difficult to measure and quantify.
This proposed rule is strictly an informational measure and does not impose any restrictions on the form, timing, or location of procurement and sales arrangements in which subject packers and importers may engage. Therefore, costs of the proposed rule are simply the costs associated with system development and maintenance, data submission, and recordkeeping activities of the packers and importers required to report information under this proposed rule, plus the costs to the Federal government for operation of the program. However, most of the entities that would be required to report under this proposed rule already reported information prior to expiration of the 1999 Act on September 30, 2005, and have since continued to do so voluntarily. As a result, incremental costs for implementation of this proposed rule are negligible relative to total costs associated with the program. Moreover, total costs estimated for this proposed rule are lower than costs estimated in the 2000 final rule expressed in comparable current (May 2007) dollar values.
Total costs to reporting packers and importers are estimated at approximately $724,000 per year, while costs to the Federal government for operation of the program total $6.3 million per year. By comparison, the total costs to reporting packers and importers in the 2000 final rule (65 FR 75464) were estimated at $836,000 per year in current dollars, while costs to the Federal government in FY 2001 were estimated at $6.9 million in current dollars. In current dollar terms, the proposed rule represents a reduction of $112,000 in estimated annual costs to reporting packers and importers, and a reduction of $600,000 in estimated annual costs to the Federal government.
For both respondents and the Federal government, total costs for the proposed rule are estimated at approximately $7.0 million annually, while total costs for the 2000 final rule were estimated at $7.8 million annually in current dollars. Because the Act expires on September 30, 2010, the proposed rule is assumed to have a life cycle of 4 years. At a real discount rate of 3 percent, the discounted present value of the total private and public sector costs for the proposed rule is estimated at $26.9 million for the duration of the program, compared to $29.7 million for the 2000 final rule (expressed in current dollars over a 4-year life cycle). This represents a reduction of $2.8 million over the life of the proposed rule in comparison to the 2000 final rule. At a real discount rate of 7 percent, the discounted present value of the total private and public sector costs for the proposed rule is estimated at $25.5 million for the duration of the program, compared to $28.1 million for the 2000 final rule (expressed in current dollars over a 4-year life cycle). This represents a reduction of more than $2.6 million over the life of the proposed rule in comparison to the 2000 final rule.
This proposed rule implements the Reauthorization Act, which reauthorized the 1999 Act and amended the swine reporting provisions of that Act. The 1999 Act first became law on October 22, 1999, as an amendment to the Agricultural Marketing Act of 1946. The first reports disseminated under LMR were issued in April 2001. In December 2004, the 1999 Act was reauthorized through September 30, 2005. The legislative authority lapsed until October 5, 2006, when it was reauthorized through September 30, 2010, with the Reauthorization Act. During the two periods of lapsed mandatory reporting authority, most firms that would have been required to report information under the requirements of LMR continued to
The 1999 Act as amended by the Reauthorization Act directs the Department of Agriculture (USDA) “to establish a program of information regarding the marketing of cattle, swine, lambs, and products of such livestock.” This Act contains specific requirements that provide limited discretionary authority for regulatory implementation of many of the law's provisions. As a result, many of the provisions within this proposed rule represent straightforward implementation of the requirements of this Act.
As stated in the 1999 Act, the purpose of the statute is to establish a program that—
(1) provides information that can be readily understood by producers, packers, and other market participants, including information with respect to the pricing, contracting for purchase, and supply and demand conditions for livestock, livestock production, and livestock products;
(2) improves the price and supply reporting services of the Department of Agriculture; and
(3) encourages competition in the marketplace for livestock and livestock products. (7 U.S.C. 1635)
Increasingly, transactions between livestock producers and meat packers occur by way of private negotiations rather than through public trades. Compared to prices established in public markets, prices established in private transactions are difficult to observe, collect, summarize, and disseminate. Data reported by USDA's Grain Inspection, Packers and Stockyards Administration (GIPSA) show that of total cattle purchases by reporting packers, the share purchased in public markets declined from 30.2 percent in 1977 to 12.0 percent in 2004.1 For hogs, the decline was larger, dropping from 27.5 percent in 1977 to just 1.7 percent in 2004.
Open, transparent price discovery provides all market participants with comparable levels of market information, providing each economic agent with similar information. The decline in public market trading of livestock over the years led to increasingly opaque price discovery in these markets. As stated in the 1999 Act, mandatory livestock reporting provides a means of providing information to market participants and improving the price and supply reporting services of USDA.
Similar to many sectors of the economy, both the livestock production and meat packing industries have undergone substantial consolidation during the past few decades. However, the rate and extent of the consolidation among meat packers has been greater compared to livestock producers.
The four-firm concentration ratio for steer and heifer slaughter increased from 35.7 percent in 1980 to 81.1 percent in 2004.
According to the National Agricultural Statistics Service (NASS), the number of cattle operations in the United States declined from 1.6 million in 1980 to 983,000 in 2005. Over the same time period, the number of hog and pig operations declined from 667,000 to 67,000, while the number of sheep and lamb operations declined from 120,000 to 68,000. Thus, consolidation occurred among livestock production operations, but the number of livestock operations still far exceeds the number of livestock packers.
For slaughter livestock, the predominant marketing relationship is characterized by comparatively small livestock operations dealing with large meat packing firms. In addition, markets for slaughter livestock are local or regional in geographic scope. The distances over which it is economically rational to transport slaughter livestock is dictated by differences in relative prices for livestock in different geographic areas versus shipping costs. Shipping costs include not only costs of trucking equipment, labor, fuel, insurance and other out-of-pocket expenses, but also include additional stress and weight shrink of animals hauled for greater distances and longer periods of time. In these regionalized trade areas, there typically are relatively large numbers of livestock operations, but only a handful of packers for any given type of slaughter animal. As a result, relatively few packers engage in many, frequent negotiations and completed transactions with a large number of producers. In contrast, even larger livestock operations typically engage in negotiations with a few packers within their economically viable trade area and may only complete transactions with one or two packers. Smaller livestock operations may only engage in sales transactions a few times per year, while packers procure livestock to run their plants every business day of the year. The 1999 Act and the Reauthorization Act were passed by Congress in light of these structural and organizational conditions present in the livestock and meat industries.
The proposed rule does not constitute economic regulation of the permissible business practices in which meat packers and importers may engage. Affected entities are free to conduct their businesses in any manner consistent with other relevant Federal, State, and local laws and regulations. The proposed rule only requires that the subject entities disclose information about their livestock purchases and meat sales to AMS, which will then process, summarize, and disseminate the information. The identity of persons, including parties to a contract, and proprietary business information will be kept confidential in accordance with the 1999 Act.
AMS believes that the proposed rule represents the most cost effective means of fulfilling the statutory mandate of 1999 Act as amended by the Reauthorization Act. While this Act provides some discretionary authority for operation of the program, many of the definitions, reporting times, and disclosure requirements are specified in the law itself. Since the program was first implemented in April 2001, experience has proven that electronic reporting is the least-cost means for both subject entities and AMS to comply with the requirements of the Reauthorization Act. During the periods in which mandatory reporting requirements lapsed (including October 2005 through the present), entities that continued to report voluntarily did so through electronic submission of information in the same manner as had been required under mandatory reporting authority.
The LMR system provides two methods for firms to transmit livestock mandatory reporting data to the system: A web interface and electronic data transfer. For most firms, electronic data transfer provides the most efficient
The baseline for this analysis is the LMR program as it currently operates. Specifically, the baseline is the LMR program as directed by the 1999 Act and implemented by the 2000 final rule. Although the 2000 final rule expired when the 1999 Act expired on September 30, 2005, the current voluntary participation by most packers allows the LMR program to function nearly identically to how it operated under the mandatory authority of the 1999 Act.
Despite the fundamental role played by market information for private and public decision-making, research, outlook, and analysis, there is comparatively little empirical research on market reporting in and of itself. Likewise, there is a paucity of quantitative research regarding the benefits and costs of LMR specifically.
Perry, et al. note that some local and regional market news reports were no longer available after the implementation of LMR because of the program's confidentiality restrictions.
Ward provides perhaps the most comprehensive review and assessment of research relating to LMR.
Livestock mandatory reporting under this proposed rule will provide comprehensive information on slaughter livestock, beef, and lamb meat prices. Using the information submitted by packers under the provisions of the 1999 Act, AMS publishes over 100 daily, weekly, and monthly reports covering market transactions for fed cattle, swine, lamb, beef, and lamb meat. Based on the information available, AMS estimates that reports issued under LMR cover approximately 95 percent of slaughter hogs, 77 percent of the slaughter cattle, 60 percent of slaughter sheep, 41 percent of boxed lamb, 26 percent of the carcass lamb, and 93 percent of boxed beef. AMS market reports are utilized by producers and others in the marketing chain to formulate contracts and make marketing decisions, and by other Government agencies to make policy decisions, settle trade disputes, and in a variety of other functions. Despite the fundamental role played by price information in underpinning fair, competitive, and efficient markets, quantifying the impact of mandatory livestock reporting is difficult. There is a considerable economic literature addressing the value of information, but little research on the economics of market reporting in and of itself.
Although this proposed rule is not identical to the 2000 final rule, most of the regulatory provisions are the same or only slightly modified from that rule. As such, costs for firms subject to the proposed rule will be similar to costs required to comply with the 2000 final rule. Hence, the methods for developing the cost estimates presented in this preliminary impact analysis largely follow from the methods used in developing the cost estimates contained in the final impact analysis published in the
For reporting packers and importers, there are essentially three phases required to comply with this proposed rule: (1) Development or modification of a system for electronic reporting of data and periodic system maintenance, updating, and compliance; (2) ongoing submission of required data; and (3) maintenance of records for a period of 2 years following submission of data to AMS. AMS estimates that most costs associated with this proposed rule will result from costs associated with ongoing submission of required data. As explained below, AMS expects that there will be relatively low costs imposed on reporting packers and importers for program startup, systems maintenance and updating, and records maintenance.
AMS estimates that approximately 65 packers and importers, representing approximately 115 plants or establishments, would be required to submit information under this proposed rule. However, most of these firms already have established systems for reporting information to AMS because they were subject to the requirements of the program when it was in effect from 2001 through 2005. Moreover, most firms have continued to report data voluntarily to AMS during the period that the Act expired on September 30, 2005, to the present. These firms will need to modify their current data reporting systems to be compatible with the requirements of the proposed rule.
AMS estimates that there will be an average of about three additional packers and importers annually that will reach the size thresholds for reporting under this proposed rule, but that had not previously reported under the requirements of the Act. Some of these firms will be new entrants to the industry and others will have increased their slaughter volume to the level at which they are required to submit data under the requirements of the law and this proposed rule. These firms will need to develop an electronic interface to translate the information from their existing computerized recordkeeping systems into the standardized format required for automated submission of the data to AMS. Firms with existing reporting systems will need to modify the electronic interface to accommodate changes in reporting requirements. AMS estimates that 15 hours of development and computer programming time per plant will be required to develop or modify the interface.
Electronic data transmission of information is accomplished using an interface with an existing electronic recordkeeping system. In most cases, the information packers and importers are required to report already exists in internal computerized recordkeeping systems. Packers and importers will provide for the translation of the information from their existing electronic recordkeeping system into the required AMS standardized format. Once accomplished, the information will be electronically transmitted to AMS where it will be automatically loaded into an AMS database. AMS estimates that the development and computer programming to establish and maintain this interface will require an industry average of 15 hours per respondent per year. AMS estimates the employer costs for employee total compensation per hour to average $44.82, which is the average for all civilian management, professional, and related occupations for the second quarter of 2006 according to Bureau of Labor Statistics. The management, professional, related occupations category includes the managers who would oversee development and maintenance of the electronic interface and the computer systems and programming personnel who would actually implement and maintain the interface. With 15 hours of time, AMS estimates the total cost, on average, for the electronic interface development and maintenance to be $672.30 per year.
Additionally, AMS estimates the annual cost per respondent for the storage of the electronic data files submitted to AMS in compliance with the reporting provisions of this rule to be $1,923.10 (see Paperwork Reduction Act section for a full discussion). This estimate includes the cost of electronic data storage media, backup electronic data storage media, and backup software required to maintain an estimated annual electronic recordkeeping and backup burden of 20 megabytes, on average, per respondent. In addition, this estimate includes the cost per employee to maintain such records which is estimated to average 70 hours per year at $21.33 per hour for a total employee compensation component cost of $1,493.10 per year. For this record maintenance activity, AMS estimates the employer costs for employee total compensation per hour to average $21.33, which is the average for all civilian office and administrative support occupations for the second quarter of 2006 according to data from the Bureau of Labor Statistics.
In this rule, information collection requirements include the submission of the required information on a daily and weekly basis in the standard format provided in the following forms: (1) Live Cattle Daily Report (Current Established Prices), (2) Live Cattle Daily Report (Committed and Delivered Cattle), (3) Live Cattle Weekly Report, (4) Cattle Premiums and Discounts Weekly Report, (5) Cow/Bull Plant Delivered Bids (Dressed Basis), (6) Live Cow/Bull Daily Purchase Report, (7) Boxed Beef Daily Report, (8) Swine Prior Day Report, (9) Swine Daily Report, (10) Swine Noncarcass Merit Premium Weekly Report, (11) Live Lamb Daily Report (Current Established Prices), (12) Live Lamb Weekly Report (13) Live Lamb Weekly Report (Formula Purchases), (14) Lamb Premiums and Discounts Weekly Report, (15) Boxed Lamb Daily Report, and (16) Lamb Carcass Report. Copies of these 16 forms are included in Appendices at the end of this proposed rule.
Cattle packers will utilize up to seven of these forms (Appendix A) when reporting information to AMS including two for daily cattle reporting, three for weekly cattle reporting, and one for daily boxed beef cuts reporting. AMS estimates the total data submission cost burden to cattle packers to be $237,734. In comparison, the annual data submission cost burden to cattle packers was estimated at $266,560 in the 2000 final rule, which took effect in April 2001. According to the Bureau of Labor Statistics CPI inflation calculator, $1.00 in 2001 has the same buying power as $1.17 today. More precisely, the inflation factor to convert the average Consumer Price Index for 2001 to the current (May 2007) value is 1.174. In current dollar terms, then, the estimated data submission cost burden to cattle packers under the 2000 final rule equals $312,941. Thus, the total data submission cost burden to cattle packers is estimated at $75,207 less in the proposed rule compared to the 2000 final rule expressed in comparable current dollar terms.
Swine packers will utilize up to three forms (Appendix B), two for daily reporting of swine purchases and one for weekly reporting of non-carcass merit premium information. AMS estimates the total data submission cost burden to swine packers to be $153,329. In comparison, the annual data submission cost burden to swine packers was estimated at $166,400 in the 2000 final rule. In current dollar terms using the CPI inflation calculator, the estimated data submission cost burden to swine packers under the 2000 final rule would be $195,354. Thus, the total data submission cost burden to swine packers is estimated at $42,025 less in the proposed rule compared to the 2000 final rule expressed in comparable current dollar terms.
Lamb packers will utilize up to six of these forms (Appendix C) when reporting information to AMS including two for daily lamb reporting, three for weekly lamb reporting, one for daily and weekly boxed lamb cuts reporting and one for daily and weekly lamb carcass reporting. Lamb importers will utilize one of these forms when reporting information to AMS for reporting weekly imported boxed lamb cut sales. AMS estimates the total data submission cost burden to lamb packers and lamb importers to be $31,846. In comparison, the annual data submission cost burden to lamb packers and lamb importers was estimated at $48,390 in the 2000 final rule. In current dollar terms using the CPI inflation calculator, the estimated data submission cost burden to lamb packers and lamb importers under the 2000 final rule would be $56,810. Thus, the total data submission cost burden to lamb packers and lamb importers is estimated at $24,964 less in the proposed rule compared to the 2000 final rule expressed in comparable current dollar terms.
The cost estimates for the proposed rule are discussed in detail in the Paperwork Reduction Act Section.
The total cost burden to packers and importers required to submit information under this proposed rule includes initial startup and annual maintenance costs for electronic submission of data, annual recordkeeping costs, and annual data submission costs. Total reporting costs to cattle packers are estimated to be $7,548 per plant, $5,544 for swine packers, $5,724 for lamb slaughtering plants, and $2,688 for lamb importers. In comparison, total reporting costs in the 2000 final rule were estimated to be $7,420 per plant for cattle packers, $5,308 for swine packers, $7,860 for lamb slaughtering plants, and $2,070 for lamb importers. In current dollar values, however, estimated costs in the 2000 final rule equal $8,711 per plant for cattle packers, $6,232 for swine packers, $9,228 for lamb slaughtering plants, and $2,430 for lamb importers. With the exception of lamb importers, which have an increase of $258, estimated total reporting costs per plant for all respondents are lower in the proposed rule than in the 2000 final rule expressed in comparable current dollar values.
In addition to these costs to packers for submitting information, the mandatory price reporting program will cost approximately $6.3 million per fiscal year to the Federal government. The 50 staff years required to administer and produce high quality mandatory price reports include reporters, auditors, clerical personnel, and computer specialists. These employees will be located in three AMS offices located across the country. Salary-related costs
The authority for the Act expires on September 30, 2010. Therefore, this proposed rule would be effective for approximately 4 years (2007-2010). Annual costs for this proposed rulemaking are estimated at approximately $7.0 million per year: $723,929 for respondents to submit and maintain data plus $6.3 million to USDA for operation of the LMR program. At a real discount rate of 3 percent, the discounted present value of the total cost to the private sector and the Federal government for the life of the program would be $26.9 million. Using estimated costs from the 2000 final rule and assuming the same 4-year duration, the comparable discounted present value for the life of the program would be $29.7 million expressed in current dollars. Thus, estimated total program costs are reduced by $2.8 million over the life cycle of the proposed rule in comparison to the 2000 final rule at the 3 percent discount rate. At a real discount rate of 7 percent, the discounted present value of the total cost to the private sector and the Federal government for the life of the program would be $25.5 million. Using estimated costs from the 2000 final rule and assuming the same 4-year duration, the comparable discounted present value for the life of the program would be $28.1 million expressed in current dollars. Estimated total program costs are reduced by more than $2.6 million over the life cycle of the proposed rule in comparison to the 2000 final rule at the 7 percent discount rate. The present values for the 4-year life of the program assume that all costs are incurred at the beginning of each year of the program.
According to Small Business Administration (SBA) definitions, a meat packing firm having fewer than 500 employees is a small business. This criterion applies to most of the firms required to report under the proposed rule, including all of the cattle and swine packers. Some of the lamb importers required to report under this proposed rule are brokerage operations that do not slaughter lambs. For meat and meat product merchant wholesalers, the SBA defines a firm having fewer than 100 employees as a small business.
In formulating this proposed rule, particular consideration was given to reducing the burden on entities while still achieving the objectives of the rule. Under the proposed rule, thresholds are set that define those entities that are required to report information on purchases of live cattle, swine and lambs, as well as information on domestic and export sales of boxed beef cuts including applicable branded product, and sales of lamb carcasses, boxed lamb cuts including applicable branded product, and imported boxed lamb cuts including applicable branded product.
These packers and importers are required to report to AMS the details of all transactions involving purchases of livestock, domestic and export sales of boxed beef cuts including applicable branded product, sales of domestic boxed lamb cuts including applicable branded product, imported boxed lamb cuts including applicable branded product, and lamb carcasses. Cattle and swine information will be reported to AMS according to the schedule directed by this proposed rule with purchases of swine reported three times each day, purchases of cattle twice each day, and sales of domestic and exported boxed beef cuts, including applicable branded product, reported twice each day. Lamb information will be reported to AMS according to the schedule mandated by this rule with purchases of lambs reported once each day and sales of lamb carcasses reported once each day. Previous week sales of imported boxed lamb cuts including applicable branded boxed lamb cuts will be reported once weekly on the first reporting day of the week.
In any calendar year, only Federally inspected cattle plants that slaughtered an average of 125,000 head of cattle a year for the immediately preceding 5 calendar years are required to report. Additionally, any Federally inspected cattle plant that did not slaughter cattle during the immediately preceding 5 calendar years is required to report if the Secretary determines that the plant should be considered a packer required to report based on its capacity. For entities that did not slaughter cattle during the immediately preceding 5 calendar years, such as a new plant or existing plant that resumes operations, the AMS will project the plant's annual slaughter or production based upon the plant's estimate of annual slaughter capacity to determine which entities meet the definition of a packer as defined in the law and these proposed regulations. This accounts for an expected 49 out of 636 Federally inspected cattle plants or 7.7 percent of all Federally inspected cattle plants.
For any calendar year, any Federally inspected swine plant that slaughtered an average of 100,000 head of swine a year for the immediately preceding 5 calendar years is required to report information, as is any person that
In any calendar year, a Federally inspected lamb plant that slaughtered the equivalent of an average of 75,000 head of lambs a year for the immediately preceding 5 calendar years is considered a packer and required to report. A packer includes a Federally inspected processing plant that purchases and processes an average of 75,000 lamb carcasses annually rather than slaughter live lambs. Additionally, any Federally inspected processing plant that did not slaughter an average of 75,000 lambs during the immediately preceding 5 calendar years if the Secretary determines that the plant should be considered a packer based on the capacity of the processing plant is required to report. This accounts for an expected 10 lamb plants and 6 importers. The expected total of 10 out of 484 lamb plants amounts to 2.1 percent of all Federally inspected lamb plants.
For any calendar year, lamb importers that imported an average of 2,500 metric tons of lamb meat products per year during the immediately preceding 5 calendar years are required to report. Additionally, any lamb importer that did not import an average of 2,500 metric tons of lamb meat products during the immediately preceding 5 calendar years if the Secretary determines that the person should be considered an importer based on the volume of lamb imports is required to report. Some lamb plants may also be importers.
An estimated 92.3 percent of all Federally inspected cattle plants, 91.5 percent of all Federally inspected swine plants, and 97.9 percent of all Federally inspected lamb plants in the U.S. are exempted by this proposed rule from reporting information. For all livestock species, there were 793 slaughter plants under Federal inspection and 2,060 slaughter plants under other forms of inspection (such as State inspection) on January 1, 2007. Plants that are not under Federal inspection are smaller operations that would be considered small businesses. An estimated 110 livestock slaughter plants will be required to report under this proposed rule. Conversely, 2,743 or 96.1 percent of all livestock plants in the United States would be exempt from mandatory reporting under this proposed rule.
According to U.S. Census Bureau Statistics of U.S. Businesses, there were 1,718 animal (except poultry) slaughtering
The companies required to report under the Act and this proposed rule represent the largest slaughtering operations in each respective species. This proposed rule will require mandatory reporting by an estimated 60 livestock slaughtering firms representing the largest cattle, swine, and sheep slaughtering companies. This fact, coupled with the Statistics of U.S. Businesses data leads to the conclusion that 46 of the livestock slaughtering firms required to report under this proposed rule have 500 employees or more. Therefore, AMS estimates that 14 of the 60 livestock slaughtering firms required to report under this proposed rule are small businesses as defined by SBA. In percentage terms, about 23 percent of the animal slaughtering companies required to report under this proposed rule are small businesses. In terms of the industry, this rule requires reporting by only 0.8 percent of all small businesses in the animal (except poultry) slaughtering industry. Moreover, the firms required to report are the largest of the firms in the industry classified as small businesses.
U.S. Census Bureau statistics are not sufficiently disaggregated to enable inferences to be drawn about the small business classification of the lamb carcass and lamb meat importers required to report under the proposed rule. However, based on its knowledge of the industry and previous experience with livestock mandatory reporting, AMS estimates that all of the lamb importers would be classified as small businesses under the SBA size standard of fewer than 100 employees for meat and meat product merchant wholesalers.
Once the required information has been entered into the AMS database, it will be aggregated and processed into various market reports which will be released according to the daily and weekly time schedule set forth in these regulations.
As an alternative, based on prior experience, AMS found that some of the smaller entities covered under mandatory reporting would benefit from a web-based system for data submission. Accordingly, AMS developed a system that will be available to firms that find it to be more cost effective than developing an electronic interface to submit data to AMS.
AMS estimates the total annual burden on each cattle packer and boxed beef processing firm to average $7,548, including $4,953 for annual costs associated with electronically submitting data, $672 for startup/annual maintenance costs, and $1,923 for the storage and maintenance of electronic files that were submitted to AMS. This figure was calculated by estimating the time required to complete the necessary data submission and factoring by the
AMS estimates the total annual burden on each swine packing firm to be $5,544, including $2,949 for annual costs associated with electronically submitting data, $672 for startup/annual maintenance costs, and $1,923 for the storage and maintenance of electronic files that were submitted to AMS. This estimate does not include costs associated with reporting sales of pork products, which are not required to be reported. As with cattle packers, annual costs for smaller swine packing operations likely will be less than the average, while costs for larger operations likely will exceed the average.
AMS estimates the total annual burden on each lamb packer to be $5,724 including $3,129 for annual costs associated with electronically submitting data, $672 for startup/annual maintenance costs, and $1,923 for the storage and maintenance of electronic files that were submitted to AMS. AMS estimates the total annual burden on each importer of lamb to be $2,688, including $93 for annual costs associated with electronically submitting data, $672 for startup/annual maintenance costs, and $1,923 for the storage and maintenance of electronic files that were submitted to AMS.
In addition, AMS has not identified any relevant Federal rules that are currently in effect that duplicate, overlap, or conflict with this proposed rule. AMS will continue to report market information collected through its voluntary market reporting program provided the collection of such information does not duplicate the information collection requirements of this proposed rule.
Professional skills required for recordkeeping under this proposed rule are not different than those already employed by the reporting entities. Reporting will be accomplished using computers or similar electronic means. AMS believes the skills needed to maintain such systems are already in place in those small businesses affected by this proposed rule.
AMS recognizes that most economic impact of this proposed rule on those small entities required to report involves the manner in which information must be reported to the Secretary. However, in developing this proposed rule, AMS considered other means by which the objectives of this rule could be accomplished, including reporting the required information by telephone, facsimile and regular mail. AMS believes these alternatives are not capable of meeting the program objectives, especially timely reporting. The Reauthorization Act prescribes specific times that reporting entities must report to AMS and similarly prescribes specific times for publication of reports by AMS. AMS believes electronic submission to be the only method capable of allowing AMS to collect, review, process, aggregate and publish reports while complying with the specific time-frames set forth in the Act.
To respond to concerns of smaller operations, AMS developed a web-based input forms for submitting data online. Based on prior experience, AMS found that some of the smaller entities covered under mandatory price reporting would benefit from such a web-based submission system. Accordingly, AMS developed such a system for program implementation.
Additionally, to further assist small businesses, AMS may provide for an exception to electronic reporting in emergencies, such as power failures or loss of Internet accessibility, or in cases when an alternative is agreeable to AMS and the reporting entity.
Other than these alternatives, there are no other practical and feasible alternatives to the methods of data transmission that are less burdensome to small businesses. AMS will work actively with those small businesses required to report to minimize the burden on them to the maximum extent practicable.
To assist the industry in achieving compliance with this rule, during the period between publication of this proposed rule and its effective date, AMS will provide assistance and training to covered entities as needed to ensure that they have been given the technical information necessary to comply with the electronic data transmission requirements.
In accordance with OMB regulation (5 CFR Part 1320) that implements the Paperwork Reduction Act (44 U.S.C. 3501-3520) (PRA), the information collection requirements associated with this program have been previously approved by OMB and assigned OMB control number 0581-0186. A revised information collection package has been submitted to OMB for approval of a 2,862 hour decrease in total burden hours. In accordance with 5 CFR Part 1320, we have included below a description of the reporting and recordkeeping requirements and an estimate of the annual burden on packers that would be required to report information under this proposed rule.
In this rule, information collection requirements include the submission of the required information on a daily and weekly basis in the standard format provided in the following forms: (1) Live Cattle Daily Report (Current Established Prices), (2) Live Cattle Daily Report (Committed and Delivered Cattle), (3) Live Cattle Weekly Report, (4) Cattle Premiums and Discounts Weekly Report, (5) Cow/Bull Plant Delivered Bids (Dressed Basis), (6) Live Cow/Bull Daily Purchase Report, (7) Boxed Beef Daily Report, (8) Swine Prior Day Report, (9) Swine Daily Report, (10) Swine Noncarcass Merit Premium Weekly Report, (11) Live Lamb Daily Report (Current Established Prices), (12) Live Lamb Weekly Report, (13) Live Lamb Weekly Report (Formula Purchases), (14) Lamb Premiums and Discounts Weekly Report, (15) Boxed Lamb Daily Report, and (16) Lamb Carcass Report. Copies of these 16 forms are included in Appendices at the end of this rule. Cattle packers will utilize up to seven of these forms (not all cattle packers must submit all cattle forms) (Appendix A) when reporting information to AMS, including four for daily cattle reporting, two for weekly cattle reporting, and one for daily boxed beef cuts reporting. Swine packers will utilize up to three forms (not all swine packers must submit all swine forms) (Appendix B), two for daily reporting of swine purchases and one for weekly reporting of non-carcass merit premium information. Lamb packers will utilize up to six of these forms (not all lamb packers must submit all lamb forms) (Appendix C) when reporting information to AMS, including one for daily lamb reporting, three for weekly lamb reporting, one for daily and weekly boxed lamb cuts reporting, and one for daily lamb carcass reporting. Lamb importers will utilize one of these forms when reporting information to AMS for reporting weekly imported boxed lamb cut sales.
These information collection requirements have been designed to minimize disruption to the normal business practices of the affected entities. Each of these forms requires the minimal amount of information necessary to properly describe each reportable transaction, as required under this proposed rule. The number of forms is a result of an attempt to reduce the complexity of each form.
AMS is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services and for other purposes.
AMS is inviting comments from all interested parties concerning the information collection and recordkeeping requirements contained in this proposed rule. Comments are specifically invited on: (1) The accuracy of the Agency's burden estimate of the proposed collection of information including the validity of the methodology and the assumptions used; (2) ways to minimize the burden of the collection of information on those who would be required to respond, including through the use of appropriate electronic collection methods; (3) whether the proposed collection of information was sufficient or necessary for the proper performance of the functions of the agency as mandated by the Act; and (4) ways to enhance the quality, utility, and clarity of the information to be collected. Comments can be submitted on the Internet at:
A 30-day comment period is provided for interested persons to comment on the regulatory provisions of this proposed rule. The 30-day period is deemed appropriate in order to provide a sufficient amount of time to comment while resuming the program's operation under the Act as soon as possible. The comment period for the information collection and recordkeeping requirements contained in this proposed rule is 60 days.
Cattle, Hogs, Sheep, Livestock, Lamb.
For the reasons set forth in the preamble, it is proposed that Title 7, Chapter I of the Code of Federal Regulations be amended as follows:
1. Part 59 is revised to read as follows:
7 U.S.C. 1635-1636h
(a)
(b)
(c)
(1) Ensures that the information is published on a national and a regional or statewide basis as the Secretary determines to be appropriate;
(2) Ensures that the identity of a reporting person or the entity which they represent is not disclosed; and
(3) Market information reported to the Secretary by packers and importers shall be aggregated in such a manner that the market reports issued will not disclose the identity of persons, packers and importers, including parties to a contract and packer's and importer's proprietary information.
(d)
(e)
(f)
(a)
(1) The original contracts, agreements, receipts, and other records associated with any transaction relating to the purchase, sale, pricing, transportation, delivery, weighing, slaughter, or carcass characteristics of all livestock or livestock products; and
(2) Such records or other information as is necessary or appropriate to verify the accuracy of the information required to be reported under the Act and this Part.
(b)
(1) Before 10 a.m. central time;
(2) Between 10 a.m. and 2 p.m. central time; or
(3) After 2 p.m. central time.
(c)
(1) Before 2 p.m. central time; or
(2) After 2 p.m. central time.
(d)
(1) Before 2 p.m. central time; or
(2) After 2 p.m. central time.
A record of sale by an importer of lamb cuts shall evidence the date the sale occurred.
(e)
(3) Lamb packers and importers must report all sales of boxed lamb items by the applicable Institutional Meat Purchase Specifications (IMPS) item number or the boxed lamb items' cutting and trimming specifications.
The following definitions apply to this part.
(2) When used in reference to lamb carcasses, the term ‘lot’ means a group of one or more lamb carcasses sharing a similar weight range category and comprising a single transaction between a buyer and seller; or
(3) When used in reference to boxed beef and lamb, the term ‘lot’ means a group of one or more boxes of beef or lamb items sharing cutting and trimming specifications and comprising a single transaction between a buyer and seller.
The following definitions apply to this subpart.
(1) Fed steers;
(2) Fed heifers;
(3) Fed Holsteins and other fed dairy steers and heifers;
(4) Cows; and
(5) Bulls.
(2) When used in reference to boxed beef, the term ‘formula marketing arrangement’ means the advance commitment of boxed beef by any means other than through a negotiated purchase or a forward contract, using a method for calculating price in which the price is determined at a future date.
(2) When used in reference to boxed beef, the term ‘forward contract’ means an agreement for the sale of boxed beef, executed in advance of manufacture, under which the base price is established by reference to publicly available quoted prices.
(1) Whether a packer provided any financing agreement or arrangement with regard to the steers and heifers;
(2) Whether the delivery terms specified the location of the producer or the location of the packer's plant;
(3) Whether the producer is able to unilaterally specify the date and time during the business day of the packer that the cattle are to be delivered for slaughter; and
(4) The percentage of steers and heifers purchased by a packer as a negotiated purchase that are scheduled to be delivered to the plant for slaughter not later than 14 days and the percentage of slaughter steers and heifers purchased by a packer as a negotiated purchase that are scheduled to be delivered to the plant for slaughter more than 14 days, but fewer than 30 days.
(a)
(1) The prices for cattle (per hundredweight) established on that day, categorized by:
(i) The type of purchase;
(ii) The quantity of cattle purchased on a live weight basis;
(iii) The quantity of cattle purchased on a dressed weight basis;
(iv) The estimated weights of cattle purchased;
(v) An estimate of the percentage of the cattle purchased that were of a quality grade of Choice or better; and
(vi) Any premiums or discounts associated with weight, quality grade, yield grade, or other characteristic expressed in dollars per hundredweight on a dressed basis.
(2) The quantity of cattle delivered to the packer (quoted in numbers of head) on that day, categorized by:
(i) The type of purchase;
(ii) The quantity of cattle delivered on a live weight basis; and
(iii) The quantity of cattle delivered on a dressed weight basis.
(3) The quantity of cattle committed to the packer (quoted in numbers of head) as of that day, categorized by:
(i) The type of purchase;
(ii) The quantity of cattle committed on a live weight basis; and
(iii) The quantity of cattle committed on a dressed weight basis.
(4) The terms of trade regarding the cattle, as applicable.
(b)
(a)
(1) The base bid price (per hundredweight) intended to be paid for slaughter cow and bull carcasses on that day not later than 10 a.m. central time categorized by:
(i) Weight; and
(ii) For slaughter cows, percent lean (e.g., breaker, boner, cutter (lean)).
(2) The prices for cattle (per hundredweight) purchased during the previous day not later than 2 p.m. central time categorized by:
(i) The type of purchase;
(ii) The quantity of cattle purchased on a live weight basis;
(iii) The quantity of cattle purchased on a dressed weight basis;
(iv) The estimated weight of the cattle purchased;
(v) The quality classification; and
(vi) Any premiums or discounts associated with weight or quality expressed in dollars per hundredweight on a dressed basis.
(3) The volume of cows and bulls slaughtered the previous day.
(b)
(a)
(1) The quantity of cattle purchased through a negotiated basis that were slaughtered;
(2) The quantity of cattle purchased through a negotiated grid basis that were slaughtered;
(3) The quantity of cattle purchased through forward contracts that were slaughtered;
(4) The quantity of cattle delivered under a formula marketing arrangement that were slaughtered;
(5) The quantity and carcass characteristics of packer-owned cattle that were slaughtered;
(6) The quantity, basis level, basis level month, and delivery month and year for all cattle purchased through forward contracts;
(7) The range and average of intended premiums and discounts (including those associated with weight, quality grade, yield grade, or type of cattle) that are expected to be in effect for the current slaughter week.
(b)
(a)
(1) The price for each lot of each boxed beef sale, quoted in dollars per hundredweight on a F.O.B. plant basis;
(2) The quantity for each lot of each sale, quoted by number of pounds sold; and
(3) The information regarding the characteristics of each sale is as follows:
(i) The type of sale;
(ii) The branded product characteristics, if applicable;
(iii) The grade for steer and heifer beef (e.g., USDA Prime, USDA Choice or better, USDA Choice, USDA Select, ungraded no-roll product);
(iv) The grade for cow beef or packer yield and/or quality sort for cow beef (e.g., Breakers, Boners, White Cow, Cutters (lean));
(v) The cut of beef, referencing the most recent version of the Institutional Meat Purchase Specifications (IMPS), when applicable;
(vi) The trim specification;
(vii) The weight range of the cut;
(viii) The product delivery period; and
(ix) The beef type (steer/heifer, dairy steer/heifer, or cow).
(b)
The following definitions apply to this subpart.
(1) A person that directly or indirectly owns, controls, or holds with power to vote, 5 percent or more of the outstanding voting securities of the packer;
(2) A person 5 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the packer; and
(3) A person that directly or indirectly controls, or is controlled by or under common control with, the packer.
(1) Hog class;
(2) Type of purchase; and
(3) Packer-owned swine.
(1) Hog class;
(2) Type of purchase; and
(3) Packer-owned swine.
(1) A negotiated purchase;
(2) Other market formula purchase;
(3) A swine or pork market formula purchase; and
(4) Other purchase arrangement.
(a)
(b)
(1) Packer-sold swine; and
(2) All other swine.
(a)
(1) All purchase data, reported by lot, including:
(i) The total number of barrows and gilts purchased;
(ii) The total number of barrows and gilts scheduled for delivery to a packer for slaughter;
(iii) The base price and weight for all barrows and gilts purchased on a live weight basis; and
(iv) The base price and premiums and discounts paid for carcass characteristics for all barrows and gilts purchased on a carcass basis for which a price has been established. For barrows and gilts that were not priced, this information shall be reported on the next prior day report after the price is established.
(2) The following slaughter data for the total number of barrows and gilts slaughtered:
(i) The average net price;
(ii) The average carcass weight;
(iii) The average sort loss;
(iv) The average backfat;
(v) The average loin depth;
(vi) The average lean percentage; and
(vii) Total quantity slaughtered.
(3) Packer purchase commitments, which shall be equal to the number of barrows and gilts scheduled for delivery to a packer for slaughter for each of the next 14 calendar days.
(4) The Secretary shall publish the information obtained under this paragraph (a) in a prior day report not later than 8 a.m. central time for all barrows and gilts purchased and 10 a.m. central time for all barrows and gilts slaughtered on the reporting day on which the information is received from the packer. In addition, the Secretary shall publish a net price distribution for all barrows and gilts slaughtered on the previous day not later than 3 p.m. central time.
(b)
(1) The packer's best estimate of the total number of barrows and gilts, and barrows and gilts that qualify as packer-owned swine, expected to be purchased throughout the reporting day through each type of purchase;
(2) The total number of barrows and gilts, and barrows and gilts that qualify as packer-owned swine, purchased up to that time of the reporting day through each type of purchase;
(3) All purchase data for base market hogs purchased up to that time of the reporting day through negotiated purchases; and
(4) All purchase data for base market hogs purchased through each type of purchase other than negotiated purchase up to that time of the reporting day, unless such information is unavailable due to pricing that is determined on a delayed basis. The packer shall report information on such purchases on the first reporting day or scheduled reporting time on a reporting day after the price has been determined.
(5) The Secretary shall publish the information obtained under this paragraph (b) in the morning report as soon as practicable, but not later than 11 a.m. central time, on each reporting day.
(c)
(1) The packer's best estimate of the total number of barrows and gilts, and barrows and gilts that qualify as packer-owned swine expected to be purchased throughout the reporting day through each type of purchase;
(2) The total number of barrows and gilts, and barrows and gilts that qualify as packer-owned swine, purchased up to that time of the reporting day through each type of purchase;
(3) The base price paid for all base market hogs purchased up to that time
(4) The base price paid for all base market hogs purchased through each type of purchase other than negotiated purchase up to that time of the reporting day, unless such information is unavailable due to pricing that is determined on a delayed basis. The packer shall report information on such purchases on the first reporting day or scheduled reporting time on a reporting day after the price has been determined.
(5) The Secretary shall publish the information obtained under this paragraph (c) in the afternoon report as soon as practicable, but not later than 3 p.m. central time, on each reporting day.
(a)
(1) The total number of sows and boars purchased divided into at least three weight groups as specified by the Secretary;
(2) The average price paid by each purchase type for all sows in each weight class specified by the Secretary; and
(3) The average price paid by each purchase type for all boars in each weight class specified by the Secretary.
(4) The packer is required to report only the volume of sows and boars that qualify as packer owned swine and shall omit packer owned sows and boars from all average price calculations.
(5) The Secretary shall publish the information obtained under this paragraph (a) as soon as practicable, but not later than 8 a.m. central time, on the reporting day on which the information is received from the packer.
(b) [Reserved]
(a)
(1) Each category of standard noncarcass merit premiums used by the packer in the prior slaughter week; and
(2) The dollar value (in dollars per hundred pounds of carcass weight) paid to producers by the packer, by category.
(b)
(c)
The following definitions apply to this subpart.
(2) When used in reference to boxed lamb, the term `formula marketing arrangement' means the advance commitment of boxed lamb by any means other than through a negotiated purchase or a forward contract, using a method for calculating price in which the price is determined at a future date.
(2) When used in reference to boxed lamb, the term `forward contract' means an agreement for the sale of boxed lamb, executed in advance of manufacture, under which the base price is established by reference to publicly available quoted prices.
(a)
(1) The prices for lambs (per hundredweight) established on that day as F.O.B. feedlot or delivered at the plant, categorized by:
(i) The type of purchase;
(ii) The class of lamb;
(iii) The quantity of lambs purchased on a live weight basis;
(iv) The quantity of lambs purchased on a dressed weight basis;
(v) A range and average of estimated live weights of lambs purchased;
(vi) An estimate of the percentage of the lambs purchased that were of a quality grade of Choice or better;
(vii) Any premiums or discounts associated with weight, quality grade, yield grade, or any type of purchase;
(viii) Lamb State of origin;
(ix) The pelt type; and
(x) The estimated lamb dressing percentage.
(2) The Secretary shall make the information available to the public not less than once each reporting day.
(b) [Reserved]
(a)
(1) The quantity of lambs purchased through a negotiated purchase that were slaughtered;
(2) The quantity of lambs purchased through forward contracts that were slaughtered;
(3) The quantity of lambs delivered under a formula marketing arrangement that were slaughtered;
(4) The quantity and carcass characteristics of packer-owned lambs that were slaughtered;
(5) The quantity, basis level, and delivery month for all lambs purchased through forward contracts;
(6) The following information applicable to the current slaughter week. The range and average of intended premiums and discounts (including those associated with weight, quality grade, yield grade, or type of lamb) that are expected to be in effect for the current slaughter week; and
(7) The following information for lambs purchased through a formula marketing arrangement and slaughtered during the prior slaughter week, categorized to clearly delineate domestic from imported market purchases:
(i) The quantity (quoted in both numbers of head and pounds) of lambs;
(ii) The weighted average price paid for a carcass, including applicable premiums and discounts;
(iii) The range of premiums and discounts paid;
(iv) The weighted average of premiums and discounts paid; and
(v) The range of prices paid.
(b)
(a)
(1) The price for each lot of each lamb carcass transaction, quoted in dollars per hundredweight on an F.O.B. plant basis;
(2) The quantity for each lot of each transaction, quoted by number of carcasses sold and purchased; and
(3) The following information regarding the characteristics of each transaction:
(i) The type of transaction;
(ii) The USDA quality grade of lamb;
(iii) The USDA yield grade;
(iv) The estimated weight range of the carcasses; and
(v) The product delivery period.
(b)
(1) The price for each lot of each boxed lamb cut sale, quoted in dollars per hundredweight on a F.O.B. plant basis;
(2) The quantity for each lot of each sale, quoted by product weight sold; and
(3) The following information regarding the characteristics of each transaction:
(i) The type of sale;
(ii) The branded product characteristics, if applicable;
(iii) The USDA quality grade of lamb;
(iv) The cut of lamb, referencing the most recent version of the Institutional Meat Purchase Specifications (IMPS), when applicable;
(v) USDA yield grade, if applicable;
(vi) The product state of refrigeration;
(vii) The weight range of the cut; and
(viii) The product delivery period.
(c)
(1) The price for each lot of a boxed lamb cut sale, quoted in dollars per hundredweight on a F.O.B. plant basis;
(2) The quantity for each lot of a transaction, quoted by product weight sold; and
(3) The following information regarding the characteristics of each transaction:
(i) The type of sale;
(ii) The branded product characteristics, if applicable;
(iii) The cut of lamb, referencing the most recent version of the Institutional Meat Purchase Specifications (IMPS), when applicable;
(iv) The product state of refrigeration;
(v) The weight range of the cut; and
(vi) The product delivery period.
(d)
The information collection and recordkeeping requirements of this part have been previously approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. Chapter 35 and have been assigned OMB Control Number 0581-0186.
The following Appendices will not appear in the Code of Federal Regulations.
The following 7 forms referenced in Subpart B Part 59 visually represent the mandatory cattle and boxed beef market information that is required to be reported to the Agricultural Marketing Service.
LS-113 Live Cattle Daily Report (Current Established Prices).
LS-114 Live Cattle Daily Report (Committed and Delivered Cattle).
LS-115 Live Cattle Weekly Report.
LS-117 Cattle Premiums and Discounts Weekly Report.
LS-131 Cow/Bull Plant Delivered Bids (Dressed Basis).
LS-132 Live Cow/Bull Daily Purchase Report.
LS-126 Boxed Beef Daily Report.
The following 3 forms referenced in Subpart C of Part 59 visually represent the mandatory swine market information that is required to be reported electronically to the Agricultural Marketing Service.
LS-118 Swine Prior Day Report.
LS-119 Swine Daily Report.
LS-120 Swine Noncarcass Merit Premium Weekly Report.
The following 6 forms referenced in Subpart D of Part 59 visually represent the mandatory lamb market information that is required to be reported electronically to the Agricultural Marketing Service.
LS-121 Live Lamb Daily Report (Current Established Prices).
LS-123 Live Lamb Weekly Report.
LS-124 Live Lamb Weekly Report (Formula Purchases).
LS-125 Lamb Premiums and Discounts Report.
LS-128 Boxed Lamb Report.
LS-129 Lamb Carcass Report.
The following mandatory reporting form guidelines will be used by persons required to report electronically transmitted mandatory market information to the Agricultural Marketing Service.
The first 10 fields of each mandatory reporting form provide the following information: identification number (plant establishment number or importer ID number), company name (name of parent company), plant street address (street address for plant), plant city (city where plant is located), plant state (state where plant is located), plant zip code (zip code where plant is located), contact name (the name of the corporate representative contact at the plant), phone number (full phone number for the plant including area code), reporting date (date the information was submitted (mm/dd/yyyy), and reporting time, if applicable (the submission time corresponding to the 10 a.m. and the 2 p.m. reporting requirements). The reporting time requirement is only applicable to forms LS-113 Live Cattle Daily Report (current established prices), LS-114 Live Cattle Daily Report (Committed and Delivered Cattle), LS-126 Boxed Beef Daily Report, LS-131 Cow/Bull Plant Delivered Bids (Dressed Basis) (10 a.m. submission only), LS-132 Live Cow/Bull Daily Purchase Report, and LS-119 Swine Daily Report.
(a)
(1) LS-113— Live Cattle Daily Report (current established prices).
(i) Lot identification (11). Enter code used to identify the lot to the packer.
(ii) Source (12). Enter ‘1’, domestic, if cattle were purchased inside of the 50 States, or ‘2’, imported, if cattle were purchased outside of the 50 States.
(iii) Purchase type code (13). Enter the code that describes the type of purchase.
(iv) Class code (14). Enter the code that best describes the type of cattle.
(v) Selling basis (15a-b). For 15a, enter ‘1’ if cattle were purchased on a live basis or ‘2’ if cattle were purchased on a dressed basis. For 15b, enter ‘1’ if cattle are shipped on an FOB feedlot basis or ‘2’ if cattle are delivered at the plant.
(vi) Head count (16). Enter the quantity of cattle in the lot in number of head.
(vii) Estimated average weight (17). Enter the estimated average weight of the lot in pounds.
(viii) Average price (18). Enter the price established on that day for the lot in dollars per hundredweight.
(I) For negotiated purchases, enter the price that was agreed upon.
(II) For formula purchases, enter the base price when established (with estimated grading information if not yet known). Then enter the final net price with all actual grading information when it is known.
(III) For forward contract purchases, enter the base price when established (with estimated grading information if not yet known). Then enter the final net price paid on the contract with actual grading information.
(IV) For negotiated grid purchases, enter the base price when established (with estimated grading information if not yet known). Then enter the final net price with all actual grading information.
(ix) Percent Choice or better (19). Enter the percentage of the number of cattle in the lot of a quality grade of Choice or better.
(x) Classification code (20). Enter the code which best describes the quality of the majority of the cattle in the lot.
(xi) Dressing percentage (21). Enter an average dressing percentage for the cattle in the lot. For negotiated purchases, enter an estimate. For all other purchase types, enter the actual average dressing percentage.
(xii) Origin (22). Enter the 2-letter postal abbreviation for the State in which the cattle were fed to slaughter weight. For imported cattle enter “CN” for Canada.
(xiii) Premiums and discounts paid (23a-h). Enter the total net value of the adjustment for the lot (in dollars per hundredweight) for any premiums associated with weight, quality, yield or other expressed as a positive value and for any discounts associated with weight, quality, yield or other expressed as a negative value in parenthesis.
(xiv) Terms of Trade (24a-d).
(I) Packer financing (24a). Enter ‘1’ (yes) or ‘2’ (no) in response to: “Did packer provide financing agreement or arrangement with regards to the cattle?”
(II) Delivery location (24b). Enter ‘1’ if delivery terms specify producer location, ‘2’ if they specify packer's plant location.
(III) Delivery Date (24c). Enter ‘1’ if producer sets date of delivery for slaughter unilaterally; otherwise enter ‘2’ for packer.
(IV) Delivered (24d). Enter ‘1’ if negotiated purchased cattle are to be delivered for slaughter 14 or less days from the committed, purchased, or priced date. Enter ‘2’ if they are
(2) LS-114—Live Cattle Daily Report (committed and delivered cattle).
(i) Lot identification (11). Enter code used to identify the lot to the packer.
(ii) Purchasing basis (12). Enter ‘1’ if cattle are delivered or ‘2’ if cattle are committed.
(iii) Source (13). Enter ‘1’, domestic, if cattle are purchased within the 50 States or ‘2’, imported, if cattle are purchased outside of the 50 States.
(iv) Purchase type code (14). Enter the code that best describes the type of purchase.
(v) Class Code (15). Enter the code that best describes the type of cattle in the lot.
(vi) Selling basis (16). Enter ‘1’ if cattle were purchased on a live basis or a ‘2’ if cattle were purchased on a dressed basis.
(vii) Head count (17). Enter the quantity of cattle in the lot in number of head.
(viii) Origin (18). Enter the 2-letter postal abbreviation for the State in which the cattle were fed to slaughter weight. For imported cattle, enter “CN” for Canada.
(ix) Terms of Trade (19a-d). Enter when applicable, otherwise leave blank.
(I) Packer financing (19a). Enter ‘1’ (yes) or ‘2’ (no) in response to: “Did packer provide financing agreement or arrangement with regards to the cattle?”
(II) Delivery location (19b). Enter ‘1’ if delivery terms specify producer location, ‘2’ if they specify packer's plant location.
(III) Delivery Date (19c). Enter ‘1’ if producer sets date of delivery for slaughter unilaterally; otherwise enter ‘2’ for packer.
(IV) Delivered (19d). Enter ‘1’ if negotiated purchased cattle are to be delivered for slaughter 7 or less days from the committed, purchased, or priced date. Enter ‘2’ if they are to be delivered for slaughter between 8 and 14 days from the date the cattle were committed, purchased, or priced.
(3) LS-115—Live Cattle Weekly Report
(i) Packer-Owned lot identification (11). Enter code used to identify the lot of packer-owned cattle to the packer.
(ii) Packer-Owned source (12). Enter ‘1’, domestic, if packer-owned cattle are from within the 50 States or ‘2’, imported, if cattle are from outside of the 50 States.
(iii) Packer-Owned head count (13). Enter the quantity of packer-owned cattle in the lot in number of head.
(iv) Packer-Owned actual carcass weight range (14). Enter the actual average carcass weight of the lot in pounds.
(v) Packer-Owned average dressing percentage (15). Enter the average dressing percentage of the lot of packer-owned cattle.
(vi) Percentage yield grade 3 or better (16). Enter the percentage of packer-owned cattle in the lot of a yield grade of 3 or better.
(vii) Quality grade percentage (17). Enter the percentage of packer-owned cattle in the lot of a quality grade of Choice or better.
(viii) Prior week slaughtered cattle head counts ( ) (18-25). Enter the total number of head of cattle slaughtered for the prior week that were purchased through forward contracts, the total number of head for cattle purchased through formula arrangements, the total number of head of cattle purchased through negotiated cash, and the total number of head purchased through negotiated grids, categorized by domestic or imported sources. Enter this information once per each week's submission.
(ix) Forward contract purchases lot identification ( ) (26). Enter code used to identify forward contracted cattle to the packer.
(x) Forward contract purchases head count (27). Enter quantity of forward contracted cattle in the lot in number of head.
(xi) Forward contract purchases basis level (28). Enter the agreed upon adjustment to a future price to establish the final price of the forward contracted cattle in dollars per one hundred pounds.
(xii) Forward contract purchases delivery month (29). Enter the delivery month of the cattle purchased through forward contracts as a 3-letter abbreviation.
(xiii) Forward contract purchases delivery year (30).
(xiv) Forward contract purchases basis level month (31). Enter the basis month which the contract was based off of. Use 3-letter abbreviation.
(4) LS-117—Cattle Premiums and Discounts Weekly Report.
(i) Enter the premiums and discounts (in dollars per hundredweight) expected to be in effect for the current slaughter week for each applicable category of premium and discount (11-34). For ‘other’ categories (35-39), provide a brief description of the basis for the premium/ discount along with the value of the premium/discount. Enter negative values in parenthesis.
(5) LS-131—Cow/Bull Plant Delivered Bids.
Enter the plant delivered bids the plant expects to have in effect for that day in dollars per cwt. for each category.
(6) LS-132—Live Cow/Bull Daily Purchase report.
(i) Lot identification (11). Enter code used to identify the lot to the packer.
(ii) Source (12). Enter ‘1’, domestic, if cattle were purchased inside of the 50 States, or ‘2’, imported, if cattle were purchased outside of the 50 States.
(iii) Purchase type code (13). Enter the code that describes the type of purchase.
(iv) Class code (14). Enter the code that best describes the type of cattle.
(v) Selling basis (15a-b). For 15a, enter ‘1’ if cattle were purchased on a live basis or ‘2’ if cattle were purchased on a dressed basis. For 15b, enter ‘1’ if cattle are shipped on an FOB feedlot basis or ‘2’ if cattle are delivered at the plant.
(vi) Head count (16). Enter the quantity of cattle in the lot in number of head.
(vii) Estimated average weight (17). Enter the estimated average weight of the lot in pounds.
(viii) Average price (18). Enter the price established on that day for the lot in dollars per hundredweight.
(I) For negotiated purchases, enter the final net price that was paid.
(II) For formula purchases, enter the base price when established (with estimated grading info if not yet known). Then enter the final net price with all actual grading information when it is known.
(III) For forward contract purchases, enter the base price when established (estimated grading info if not yet known). Then enter the final net price paid on the contract with actual grading information.
(V) For negotiated grid purchases, enter the base price when established (estimated grading info if not yet known). Then enter the final net price with all actual grading information.
(ix) Classification code (19). Enter the code which best describes the quality of the majority of the cattle in the lot.
(x) Origin (20). Enter the 2-letter postal abbreviation for the State in which the cattle were fed to slaughter weight. For imported cattle enter “CN” for Canada.
(xi) Premiums and discounts paid (21a-f). Enter the total net value of the adjustment for the lot (in dollars per hundredweight) for any premiums associated with weight, quality, yield or other expressed as a positive value and for any discounts associated with weight, quality, yield or other expressed as a negative value in parenthesis.
(7) LS-126—Boxed Beef Daily Report. For lots comprising multiple items, provide information for each item in a separate record identified with the same lot identification or purchase order number.
(i) Lot identification or purchase order number (11). Enter code used to identify the lot to the packer.
(ii) Destination (12). Enter ‘1’, domestic, for product shipped within the 50 States; or ‘2’, exported, for product shipped overseas; or ‘3’, exported, for product shipped NAFTA (Canada or Mexico).
(iii) Purchase type code (13). Enter the code corresponding to the sale type of the lot of boxed beef.
(iv) Delivery period code (14). Enter the code corresponding to the delivery time period of the lot of boxed beef.
(v) Refrigeration (15). Enter ‘1’ if the product is sold in a fresh condition or ‘2’ if the product is sold in a frozen condition.
(vi) Class code (16). Enter the code that best describes the class of cattle from which the boxed beef was produced.
(vii) Classification code (17). Enter the code corresponding to the grade of the boxed beef.
(viii) Beef cut (18a-b). Enter the numerical code corresponding to the Institutional Meat Purchase Specifications (IMPS) (3 to 4 characters) (18a) or the internal corporate descriptor used to identify the product (18b). Descriptors must be entered consistently for all submissions.
(ix) Trim spec code (19). Enter the code corresponding to the trim level of the boxed beef.
(x) Weight (20). Enter the code corresponding to the relative weight of the product. Where weight is a factor, enter ‘1’ to signify the lighter weight range, ‘2’ to signify the middle weight range, or ‘3’ to signify the heavier weight range. Where weight is not a factor, enter ‘4’ to signify all weights or mixed.
(xi) Total product weight (21). Enter the total weight of the boxed beef cut in the lot in pounds.
(xii) Price (22). Enter the price received for each boxed beef cut in the lot in dollars per one hundred pounds, FOB Plant basis.
(xiii) USDA Certified schedule code (23). Enter the code for the USDA Certified
(xiv) Branded product code (24a-b). Enter the quality grade code (24a) and the yield grade code (24b) that best describes the brand. Leave blank if not applicable.
(b)
(1) LS-118—Swine Prior Day Report.
(i) Slaughtered swine lot identification (11). Enter code used to identify the lot of slaughtered swine to the packer.
(ii) Slaughtered swine class code (12). Enter the code that best describes the type of slaughtered swine in the lot.
(iii) Slaughtered swine purchase type code (13). Enter the code that describes the type of purchase for the slaughtered swine in the lot.
(iv) Slaughtered swine head count (14). Enter the quantity of slaughtered swine in the lot in number of head.
(v) Slaughtered swine base price (15). Enter the base price established on that day for the lot of slaughtered swine in dollars per one hundred pounds.
(vi) Slaughtered swine average net price (16). Enter the average net price established on that day for the lot of slaughtered swine in dollars per one hundred pounds.
(vii) Slaughtered swine average live weight (17). Enter the average live weight of the lot of swine in pounds if slaughtered swine were purchased on a live basis, otherwise leave blank.
(viii) Slaughtered swine average carcass weight (18). Enter the average carcass weight of the lot of slaughtered swine in pounds.
(ix) Slaughtered swine average sort loss (19). Enter the average sort loss for the lot of slaughtered swine in dollars per one hundred pounds.
(x) Slaughtered swine average backfat (20). Enter the average backfat measurement for the lot of slaughtered swine in inches rounded to the nearest tenth of an inch.
(xi) Slaughtered swine average loin depth (21). Enter the average loin depth measurement for the lot of slaughtered swine in inches rounded to the nearest tenth of an inch.
(xii) Slaughtered swine average lean percentage (22). Enter the average lean percentage for the lot of slaughtered swine.
(xiii) Purchased swine lot identification (23). Enter code used to identify the lot of purchased swine to the packer.
(xiv) Purchased swine ownership code (24). Enter code which best describes the source of the purchased swine whether packer-owned, purchased from another packer, or all other swine.
(xv) Purchased swine class code (25). Enter the code that best describes the type of purchased swine.
(xvi) Purchased swine purchase type code (26). Enter the code that describes the type of purchase for the purchased swine.
(xvii) Purchased swine head count (27). Enter the quantity of purchased swine in the lot.
(xviii) Purchased swine average live weight (28). Enter the average live weight of the lot of swine in pounds if swine were purchased on a live basis, otherwise leave blank.
(xix) Purchased swine base price (29). Enter the base price established on that day for the lot of purchased swine in dollars per one hundred pounds.
(xx) Purchased swine origin (30). Enter the 2-letter postal abbreviation for the State in which the swine were fed to slaughter weight.
(xxi) Scheduled swine (31-44). Enter the number of head of purchase commitment swine that were scheduled for delivery for each of the next 14 days. Enter the total quantity currently scheduled for each day at the time of reporting for each submission.
(2) LS-119—Swine Daily Report.
(i) Purchased swine lot identification (11). Enter code used to identify the lot of purchased swine to the packer.
(ii) Purchased swine purchase type code (12). Enter the code that describes the type of purchase for the swine in the lot.
(iii) Purchased swine average live weight (13). Enter the average live weight of the lot of swine in pounds if swine were purchased on a live basis, otherwise leave blank.
(iv) Purchased swine class code (14). Enter the code that best describes the type of swine in the lot.
(v) Purchased swine head count (15). Enter the quantity of swine in the lot in number of head.
(vi) Purchased swine base price (16). Enter the base price established on that day for the lot of swine in dollars per one hundred pounds.
(vii) Purchased swine origin (17). Enter the 2-letter postal abbreviation for the State in which the swine were fed to slaughter weight.
(viii) Packer-sold swine purchases (18-25). Enter the best estimate of the total number of packer-sold swine expected to be purchased throughout the reporting day for each purchase type and the total number of packer-sold swine purchased up to that time of the reporting day for each purchase type.
(ix) All other swine purchases (26-33). Enter the best estimate of the total number of all other swine expected to be purchased throughout the reporting day for each purchase type and the total number of all other swine purchased up to that time of the reporting day for each purchase type.
(3) LS-120—Swine Noncarcass Merit Premium Weekly Report.
Enter the standard noncarcass merit premiums used during the prior slaughter week (11-15) in dollars per hundredweight. If a range of standard noncarcass merit premiums was used, enter the low side of the range (a) and the high side of the range (b). If only one value was used, enter the same number in (a) and (b). If no value for the specified merit was used, leave blank. For ‘other’ categories (16-20), provide a brief description of the basis for the premium along with the value of the premium.
(c)
(1) LS-121—Live Lamb Daily Report (current established prices).
(i) Lot identification (11). Enter code used to identify the lot to the packer.
(ii) Source (12). Enter ‘1’, domestic, if lambs were purchased inside of the 50 States, or ‘2’, imported, if lambs were purchased outside of the 50 States.
(iii) Purchase type code (13). Enter the code that describes the type of purchase.
(iv) Class code (14). Enter the code that best describes the type of lambs.
(v) Selling basis (15a-b). For 15a, enter ‘1’ if lambs were purchased on a live basis or ‘2’ if lambs were purchased on a dressed basis. For 15b, enter ‘1’ if lambs are shipped on an FOB feedlot basis or ‘2’ if lambs are delivered at the plant.
(vi) Head count (16). Enter the quantity of lambs in the lot in number of head.
(vii) Weight range (17a & 17b). Enter the lowest (17a) and highest (17b) weights for lambs in the lot in pounds.
(viii) Estimated average weight (18). Enter the estimated average weight of the lot in pounds.
(ix) Average price (19). Enter the price established on that day for the lot in dollars per hundredweight.
(I) For negotiated purchases, enter the final (net) price paid.
(II) For formula purchases, enter the net price.
(III) For forward contract purchases, enter the final (net) price paid.
(x) Percent Choice or better (20). Enter the percentage of the number of lambs in the lot of a quality grade of Choice or better.
(xi) Classification code (21). Enter the code which best describes the quality of the majority of the lambs in the lot.
(xii) Dressing percentage (22). Enter an average dressing percentage for the lambs in the lot. For negotiated purchases, enter an estimate. For all other purchase types, enter the actual average dressing percentage.
(xiii) Origin (23). Enter the 2-letter postal abbreviation for the State in which the lambs were fed to slaughter weight. Enter ‘CN’ if lambs originate from Canada.
(xiv) Pelt Code (24). Enter the code that best describes the type of pelt for the majority of lambs in the lot.
(xv)Premiums and discounts paid (25a-f). Enter the total net value of the adjustment for the lot (in dollars per hundredweight) for any premiums associated with weight, quality, or yield expressed as a positive value and for any discounts associated with weight, quality, or yield expressed as a negative value in parenthesis.
(2) LS-123—Live Lamb Weekly Report.
(i) Packer-Owned lot identification (11). Enter code used to identify the lot of packer-owned lambs to the packer.
(ii) Packer-Owned source (12). Enter ‘1’, domestic, if packer-owned lambs are from within the 50 States or ‘2’, imported, if lambs are from outside of the 50 States.
(iii) Packer-Owned head count (13). Enter the quantity of packer-owned lambs in the lot in number of head.
(iv) Packer-Owned actual carcass weight range (14a & 14b). Enter the lowest (14a) and highest (14b) actual carcass weights for lambs in the lot in pounds.
(v) Packer-Owned actual average carcass weight (15). Enter the actual average carcass weight of the lot of packer-owned lambs in pounds.
(vi) Packer-Owned average dressing percentage (16). Enter the average dressing percentage of the lot of packer-owned lambs.
(vii) Percentage yield grade 3 or better (17). Enter the percentage of packer-owned lambs in the lot of a yield grade of 3 or better.
(viii) Quality grade percentage (18-). Enter the percentage of packer-owned lambs in the lot of a quality grade of Choice or better.
(ix) Prior week slaughtered lambs head counts ( ) (19-24). Enter the total number of head of lambs slaughtered for the prior week that were purchased through forward contracts, the total number of head for lambs purchased through formula arrangements, and the total number of head of lambs purchased through negotiated cash, categorized by domestic or imported sources. Enter this information once per each week's submission.
(x) Forward contract purchases lot identification (25). Enter code used to identify forward contracted lambs to the packer.
(xi) Forward contract purchases head count (26). Enter quantity of forward contracted lambs in the lot in number of head.
(xii) Forward contract purchases basis level (27). Enter the agreed upon adjustment to a future price to establish the final price of the forward contracted lambs in dollars per one hundred pounds.
(xiii) Forward contract purchases delivery month (28). Enter the delivery month of the lambs purchased through forward contracts as a 3-letter abbreviation.
(3) LS-124—Live Lamb Weekly Report (formula purchases).
(i) Lot identification (11). Enter code used to identify the lot to the packer.
(ii) Source (12). Enter ‘1’, domestic, if lambs are purchased within the 50 States or ‘2’, imported, if lambs are purchased outside of the 50 States.
(iii) Head count (13). Enter the quantity of lambs in the lot in number of head.
(iv) Total pounds (14). Enter the total quantity of lambs in the lot in pounds.
(v) Weighted average carcass price (15). Enter the average weighted average carcass price for the lambs in the lot in dollars per hundredweight.
(vi) Range of prices paid (16a-b). Enter the lowest (16a) and the highest (16b) prices paid for the lambs in the lot in dollars per hundredweight.
(vii) Range of premiums and discounts paid (17a-b). Enter the lowest (17a) and the highest (17b) premium and discount paid for the lot of lambs in dollars per hundredweight. Enter negative values in parenthesis.
(viii) Weighted average of premiums and discounts paid (18). Enter the weighted average of the premiums and discounts paid for the lot of lambs in dollars per hundredweight. Enter negative values in parenthesis.
(4) LS-125—Lamb Premiums and Discounts Weekly Report.
Enter the premiums and discounts (in dollars per hundredweight) expected to be in effect for the current slaughter week for each applicable category of premium and discount (11-32). For ‘other’ categories (33-37), provide a brief description of the basis for the premium/discount along with the value of the premium/discount. Enter negative values in parenthesis.
(5) LS-128—Boxed Lamb Daily Report. For lots comprising multiple items, provide information for each item in a separate record identified with the same lot identification or purchase order number.
(i) Lot identification or purchase order number (11). Enter code used to identify the lot to the packer.
(ii) Destination/Source (12). Enter ‘1’, domestic, for product originating within the 50 States or ‘2’, imported, for product originating from outside of the 50 States.
(iii) Sale type code (13). Enter the code corresponding to the sale type of the lot of boxed lamb.
(iv) Delivery period code (14). Enter the code corresponding to the delivery time period of the lot of boxed lamb.
(v) Refrigeration (15). Enter ‘1’ if the product is sold in a fresh condition or ‘2’ if the product is sold in a frozen condition.
(vi) Classification code (16). Enter the code corresponding to the grade of the boxed lamb, if applicable.
(vii) Lamb cut (17a-b). Enter the numerical code corresponding to the Institutional Meat Purchase Specifications (IMPS) (3 to 4 characters)(17a) or the internal corporate descriptor used to identify the product (17b). Descriptors must be entered consistently for all submissions.
(viii) Weight (18). Enter the code corresponding to the relative weight of the product. Where weight is a factor, enter `1' to signify the lighter weight range, `2' to signify the middle weight range, or `3' to signify the heavier weight range. Where weight is not a factor, enter `4' to signify all weights or mixed.
(ix) Total product weight (19). Enter the total weight of the boxed lamb cut in the lot in pounds.
(x) Price (20). Enter the price received for each boxed lamb cut in the lot in dollars per one hundred pounds, FOB Plant basis.
(xi) USDA Certified schedule code (21). Enter the code for the USDA Certified Program schedule, if applicable (e.g. CL, etc.); otherwise leave blank.
(xii) Branded product code (22a-b). Enter the quality grade code (22a) and the yield grade code (22b) that best describes the brand. Leave blank if not applicable.
(6) LS-129—Lamb Carcass Report. For lots comprised of distinct carcass weight range categories with different prices, provide information for each weight range in a separate record identified with the same lot identification or purchase order number.
(i) Lot identification or purchase order number (11). Enter code used to identify the lot to the packer.
(ii) Transaction type code (12). Enter the code corresponding to the transaction type of the lot of carcass lamb.
(iii) FOB Plant Price (13). Enter the price received for the lamb carcasses in dollars per one hundred pounds, FOB Plant basis.
(iv) Number of carcasses (14). Enter the total number of lamb carcasses in the lot.
(v) Classification code (15) Enter the corresponding USDA quality grade code.
(vi) Yield grade code (16). Enter the corresponding USDA yield grade code.
(vii) Estimated carcass weight range (17a-b). Enter the lowest (17a) and highest (17b) weights (in pounds) that best describes the majority of the lamb carcasses in the lot.
(viii) Delivery period code (18). Enter the code corresponding to the time period the lamb carcasses will deliver.
(ix) Transaction basis (19). Enter `1' for purchased carcasses or `2' for sold carcasses.
The cattle, swine, and lamb mandatory reporting forms follow: