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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.
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Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Deformations of cross sections of the rear exhaust pipes were stated on several serial numbers having logged varying operating hours. One strongly deformed exhaust pipe showed additional cracks near the welding.
This AD requires actions that are intended to address the unsafe condition described in the MCAI.
This AD becomes effective September 25, 2007.
As of September 25, 2007 the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD.
We must receive comments on this AD by September 20, 2007.
You may send comments by any of the following methods:
•
•
•
•
•
You may examine the AD docket on the Internet at
Karl Schletzbaum, Aerospace Engineer, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; fax: (816) 329-4090.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2006-0151, dated May 30, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Deformations of cross sections of the rear exhaust pipes were stated on several serial numbers having logged varying operating hours. One strongly deformed exhaust pipe showed additional cracks near the welding.
You may obtain further information by examining the MCAI in the AD docket.
Aquila Technische Entwicklungen GmbH has issued Aquila GmbH Service Bulletin SB-AT01-008, Issue 2, dated April 28, 2006. 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future.
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 required 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 AD.
Since there are currently no domestic operators of this product, notice and opportunity for public comment before issuing this AD are unnecessary.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
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 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 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 AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 25, 2007.
(b) None.
(c) This AD applies to Model AQUILA AT01 airplanes, all serial numbers, certificated in any category.
(d) Air Transport Association of America (ATA) Code 05: Maintenance Checks.
(e) The mandatory continuing airworthiness information (MCAI) states:
Deformations of cross sections of the rear exhaust pipes were stated on several serial numbers having logged varying operating hours. One strongly deformed exhaust pipe showed additional cracks near the welding.
(f) Unless already done, within the next 10 hours time-in-service (TIS) after the effective date of this AD and thereafter at intervals not to exceed 50 hours TIS inspect the exhaust system for cracks and deformations and, if necessary, replace the defective parts following Aquila GmbH Service Bulletin and supplement SB-AT01-008, Issue 2, dated April 28, 2006.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2006-0151, dated May 30, 2006; and Aquila GmbH Service Bulletin and supplement SB-AT01-008, Issue 2, dated April 28, 2006, for related information.
(i) You must use Aquila GmbH Service Bulletin and supplement SB-AT01-008, Issue 2, dated April 28, 2006, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact AQUILA GmbH, Flugplatz, D-14959 Schoenhagen, Germany; telephone: ++49 (0) 33731-707-0; fax: ++49 (0) 33731-707-11.
(3) You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued 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:
To prevent damage to the rear spar due to working and failing rivets between the rear spar and the inboard rib * * *
We are issuing this AD to require actions to correct the unsafe condition on these products.
This AD becomes effective September 25, 2007.
On September 25, 2007, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD.
You may examine the AD docket on the Internet at
Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; fax: (816) 329-4090.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
To prevent damage to the rear spar due to working and failing rivets between the rear spar and the inboard rib * * *
The MCAI requires inspecting the inboard end of the rear spar for security of the blind rivets, inspecting the radii of the rear spar upper and lower flanges for cracking, inspecting the aft flange of the inboard rib for cracking, replacing the rear spar if cracks are found in any of the inspections, and replacing rear spar blind rivets with bolts or rivets.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
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 required 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 AD.
We estimate that this AD will affect 7 products of U.S. registry. We also estimate that it will take about 40 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $200 per product.
Based on these figures, we estimate the cost of this AD to the U.S. operators to be $23,800 or $3,400 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 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 this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 25, 2007.
(b) None.
(c) This AD applies to Model 750XL airplanes, serial numbers 101, 102, and 104 through 128, certificated in any category.
(d) Air Transport Association of America (ATA) Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
To prevent damage to the rear spar due to working and failing rivets between the rear spar and the inboard rib * * *
The MCAI requires inspecting the inboard end of the rear spar for security of the blind rivets, inspecting the radii of the rear spar upper and lower flanges for cracking, inspecting the aft flange of the inboard rib for cracking, replacing the rear spar if cracks are found in any of the inspections, and replacing the rear spar blind rivets with bolts or rivets.
(f) Unless already done, do the following actions in accordance with Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022, dated February 14, 2007:
(1) Within 50 hours time-in-service (TIS) after September 25, 2007 (the effective date of this AD), and thereafter at intervals not to exceed 150 hours TIS until the blind rivets have been replaced by bolts or rivets as required in paragraph (f)(3) of this AD, inspect the inboard end of the rear spar for security of the blind rivets, which attach the fuselage attach fitting to the rear spar and inboard rib; inspect the radii of the rear spar upper and lower flanges for cracking; and inspect the aft flange of the inboard rib for cracking.
(2) Before further flight, after any inspection where cracking is found, repair the aft flange of the inboard rib and/or replace the rear spar.
(3) Within the next 12 months after September 25, 2007 (the effective date of this AD) or within the next 300 hours TIS after September 25, 2007 (the effective date of this AD), whichever occurs first, replace the blind rivets (part number NAS1738E-6-6) that join the rear spar and the aft end of the inboard rib with bolts or rivets.
(4) After the modification required in paragraph (f)(3) of this AD, repetitively inspect the main wing aft attachment area at intervals not to exceed 12 months or 300 hours TIS, whichever occurs first. If any cracks are found, prior to further flight, repair the main wing aft attachment area.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to the Civil Aviation Authority (CAA), which is the airworthiness authority for New Zealand AD DCA/750XL/9, dated March 29, 2007; and Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022, dated February 14, 2007, for related information.
You must use Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022, dated February 14, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Pacific Aerospace Limited, Hamilton Airport, Private Bag, 3027 Hamilton, New Zealand; telephone: +64 7-843-6144; facsimile: +64 7-843-6134.
(3) You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) to supersede 93-07-11 and AD 94-04-16, which apply to certain Mitsubishi Heavy Industries MU-2B series airplanes. AD 93-07-11 and AD 94-04-16 currently require you to reduce the maximum deflection of the elevator nose-down trim to a 1-degree to 3-degree range. When the above AD actions were issued, there was no associated elevator trim indicator change. Without such change, the trim reaches the maximum nose-down limit and the indicator still shows additional nose-down trim available. In attempting to force additional nose-down trim, pilots have manually jammed the trim system preventing subsequent electric trim changes until the pilot manually freed the trim wheel. Consequently, this AD retains the actions from AD 93-07-11 and AD 94-04-16 and adds the action of modifying the elevator trim indicator scale dial to be consistent with the reduced elevator trim capability. We are issuing this AD to prevent the above scenarios from occurring with consequent loss of control.
This AD becomes effective on September 25, 2007.
On September 25, 2007, the Director of the Federal Register approved the incorporation by reference of Mitsubishi
As of June 1, 1993, the Director of the Federal Register approved the incorporation by reference of Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 079/27-010, dated August 28, 1992, listed in this AD.
As of April 11, 1994, the Director of the Federal Register approved the incorporation by reference of Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 216, dated September 11, 1992, listed in this AD.
For service information identified in this AD, contact Mitsubishi Heavy Industries America, Inc., 4951 Airport Parkway, Suite 800, Addison, Texas 75001; telephone: 972-934-5480; fax: 972-934-5488.
To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at
Werner G. Koch, Aerospace Engineer, Fort Worth Airplane Certification Office, ASW-150, Rotorcraft Directorate, FAA, 2601 Meacham Boulevard, Fort Worth, Texas 76137-4298; telephone: (817) 222-5133; fax: (817) 222-5960.
On March 27, 2007, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Mitsubishi Heavy Industries MU-2B series airplanes. This proposal was published in the
We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment:
Salomon R. Dionicio suggests increasing the trim down limit, because under certain conditions some pilots may need more down trim. The commenter is also concerned about the needle bending or jumping and the cable stretching every time the wheel is forced against the stop.
MU-2B series airplanes, both the long and short body, for all affected weights and center-of-gravity conditions, require very little nose-down trim. A review of FAA data revealed incidents that occurred before issuance of AD 93-07-11 and AD 94-04-16 where pilots attempted to override the autopilot and inadvertently ran the nose-down trim to the down stop. This resulted in excessive control wheel force that could only be removed by either manually or electrically trimming the nose-down trim back into a normal (or positive) range. AD 93-07-11 and AD 94-04-16 reduced the nose-down trim from a range of −10 degrees to a −1 degree to −3 degree range. Since the issuance of those ADs, FAA data shows no incident involving excessive nose-down trim forces; therefore, the FAA disagrees with increasing the trim limit in the nose-down direction.
A stopper limits the travel nut in the trim system preventing any cable from stretching. The FAA has not received any reports of any needles bending or cables failing.
We are not changing the AD as a result of this comment.
Mitsubishi Heavy Industries America, Inc. suggests revising the compliance time in paragraph (e)(1)(i) of the AD to add a 6-month calendar date limitation in addition to the 100-hour flight time limitation since some airplanes fly infrequently. The addition of a 6-month compliance time would more closely match the compliance time of the Japan Civil Aviation Bureau (JCAB) technical circular directive No. TCD-3740A-98 and avoid possible confusion for operators.
We disagree with the commenter. The 100-hour compliance time in paragraph (e)(1)(i) is the compliance time for the actions we are retaining from AD 94-04-16 and refers to within 100 hours from April 11, 1994, the effective date of that AD.
We are not changing this final rule AD action as a result of this comment.
We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. In the NPRM we inadvertently omitted Model MU-2B-36 from the Applicability section for TCDS A10SW. Since that model appears on TCDS A10SW, we are adding it to the applicability in case the manufacturer produces serial numbers for this model in the future. However, since no serial numbers currently exist for this model on TCDS A10SW, adding the model to the applicability does not add to the burden of this AD. We have determined that these minor corrections:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We estimate that this AD affects 400 airplanes in the U.S. registry.
We estimate the following costs to do the modification of the elevator nose-down trim:
We estimate the following costs to do the modification of the elevator trim indicator scale dial:
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 AD.
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 other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective on September 25, 2007.
(b) This AD supersedes AD 93-07-11, Amendment 39-8543; and AD 94-04-16, Amendment 39-8836.
(c) This AD applies to the following airplane models and serial numbers that are certificated in any category:
(1) Category 1 Airplanes (TCDS A2PC):
(2) Category 2 Airplanes (TCDS A10SW):
(d) This AD results from several incidents caused by excessive control wheel force. We are issuing this AD to retain the actions of reducing the maximum deflection of the elevator nose-down trim to a 1-degree to 3-degree range from AD 93-07-11 and AD 94-04-16 to prevent excessive control wheel force caused by extreme elevator nose-down trim deflection. We are also issuing this AD to modify the elevator trim indicator scale dial to be consistent with the reduced elevator trim capability. Inconsistencies between the elevator indicator scale dial and the elevator trim mechanical stop may result in the pilot thinking that more nose-down trim is available beyond the mechanical stop. Attempting to force additional nose-down trim beyond the mechanical stop may jam the trim system, preventing subsequent electric trim changes until the pilot manually frees the trim wheel. These conditions may result in loss of control.
(e) To address this problem, you must do the following, unless already done:
(f) The Manager, Fort Worth Airplane Certification Office (ACO), FAA, ATTN: Werner G. Koch, Aerospace Engineer, Fort Worth ACO, ASW-150, Rotorcraft Directorate, FAA, 2601 Meacham Boulevard, Fort Worth, Texas 76137-4298; telephone: (817) 222-5133; fax: (817) 222-5960, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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.
(g) AMOCs approved for AD 93-07-11, Amendment 39-8543 and AD 94-04-16, Amendment 39-8836 are approved for this AD.
(h) You must use Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 216, dated September 11, 1992; Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 079/27-010, dated August 28, 1992; Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 228, dated July 13, 1998; and Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 091/27-011, dated August 6, 1998; to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 228, dated July 13, 1998; and Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 091/27-011, dated August 6, 1998; under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) On June 1, 1993, the Director of the Federal Register approved the incorporation by reference of Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 079/27-010, dated August 28, 1992, listed in this AD.
(3) On April 11, 1994, the Director of the Federal Register approved the incorporation by reference of Mitsubishi Heavy Industries, Ltd., Service Bulletin No. 216, dated September 11, 1992, listed in this AD.
(4) For service information identified in this AD, contact Mitsubishi Heavy Industries America, Inc., 4951 Airport Parkway, Suite 800, Addison, Texas 75001; telephone: 972-934-5480; facsimile: 972-934-5488.
(5) You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Boeing Model 767 airplanes. This AD requires repetitive detailed inspections of the wire bundles, power drive unit (PDU) wiring, and wire attaching hardware, supports, and sleeving located in the forward and aft lower lobe cargo compartments, and corrective actions as necessary. This AD results from a fire in the forward lower lobe cargo compartment found shortly after airplane arrival. We are issuing this AD to detect and correct damage to wires in the forward and aft lower lobe cargo compartments, which could result in a potential short circuit and consequent fire in the forward and aft lower lobe cargo compartments.
This AD becomes effective September 25, 2007.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of September 25, 2007.
You may examine the AD docket on the Internet at
Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this AD.
Elias Natsiopoulos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6478; fax (425) 917-6590.
You may examine the airworthiness directive (AD) docket on the Internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all Boeing Model 767 airplanes.
Since we issued the NPRM, Boeing has published Service Bulletin 767-25-0376, Revision 1, dated February 9, 2007, for Model 767-200, -300, and -300F series airplanes; and Service Bulletin 767-25-0377, Revision 1, dated February 9, 2007, for Model 767-400ER series airplanes. In the NPRM, we referred to the original issue of Boeing Service Bulletin 767-25-0376 and Boeing Service Bulletin 767-25-0377, both dated November 17, 2005, as appropriate sources of service information for accomplishing the repetitive inspections and corrective actions. The procedures in Revision 1 of the service bulletins are essentially the same as the procedures in the original issue of the service bulletins, except that the revised service bulletins replace all references to Task 25-52-00, “Cargo Compartment—Cleaning/Painting,” of the Boeing 767 Airplane Maintenance Manual (AMM) with references to Task 20-60-02, “Cleaning to Remove Combustible Material Around Wiring.” Therefore, we have revised paragraph (f) of this AD to refer to Revision 1 of the service bulletins as appropriate sources of service information for accomplishing the actions required by this AD. We have also added a new paragraph (g) to this AD allowing credit for actions accomplished before the effective date of this AD in accordance with the original issue of the service bulletins.
We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.
Air Transport Association (ATA), American Airlines, and United Airlines agree with the intent of the NPRM.
ATA, on behalf of its member United Airlines, states that Boeing Service Bulletin 767-25-0376, dated November 17, 2005, specifies cleaning the cargo compartments using Task 25-52-00-701 of the Boeing 767 AMM. United Airlines further states that Task 25-52-00-701 specifies cleaning the entire compartment using solvents while removing insulation. United Airlines, therefore, requests the AMM task be clarified, since it believes that this task does not address the intent of the NPRM.
We agree, since the intent of the NPRM was to propose cleaning only wiring, wiring components, and the small area contacting the wiring in order to detect and correct damage that could be concealed by debris. As we mentioned previously, Boeing has issued Revision 1 to Service Bulletin 767-25-0376, which refers instead to Task 20-60-02, “Cleaning to Remove Combustible Material Around Wiring,” of the Boeing 767 AMM. Paragraph (f) of this AD refers to Revision 1 of the service bulletin as the appropriate source of service information for Model 767-200, -300, and -300F series airplanes. No additional change to this AD is necessary in this regard.
Boeing requests that we revise the Summary section of the NPRM to specify that PDU stands for “power drive unit.” Boeing states that PDU was incorrectly defined as “power display unit” in the NPRM. We agree and have revised this AD as requested.
Boeing requests that we increase the estimated work hours from 6 hours to 20 hours for an airplane with a partial cargo compartment floor and to 22 hours for an airplane with a full cargo compartment floor. Boeing states that these numbers were provided in Boeing Service Bulletins 767-25-0376 and 767-25-0377, both dated November 17, 2005.
Although we agree with revising the estimated work hours found in the Costs of Compliance section of this AD, we disagree with using the estimate provided by the commenter. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up. The original issue and Revision 1 of Boeing Service Bulletins 767-25-0376 and 767-25-0377 state that the examination of the forward lower lobe cargo compartment takes 3 hours and the examination of the aft lower lobe cargo compartment takes 3 hours. The service bulletins also state that cleaning the forward and aft lobe cargo compartments takes 2 hours each. However, the NPRM did not include time to accomplish the cleaning. Therefore, we have updated the estimated work hours to 10 hours per airplane in this AD and have updated the estimated costs accordingly.
Boeing requests we revise the Discussion section of the NPRM to clarify that crushed and chafed PDU power supply cables “along with other wire and wire support damage,” if not corrected, could result in a potential short circuit and consequent fire in the forward and aft lower lobe cargo compartments. Boeing states that the statements in the Discussion section of the NPRM could lead a reader to believe that the fire occurred at the location of the crushed and chafed PDU power supply cables. Boeing further states that the fire occurred in the bilge approximately two feet below the PDUs, at a location where the airplane wiring is installed in close proximity to the insulation blankets.
We agree that the statement as written in the NPRM could lead a reader to believe that inspection and corrective actions should only be limited to the PDU power supply cables. The intent of the NPRM was to propose inspecting all wiring in the forward and aft lower lobe cargo compartment, not just the wiring associated with the PDU. Any wire or wiring components found to be damaged must be repaired to adequately address the unsafe condition of this AD. However, we have not revised this AD since the Discussion section of the NPRM is not carried over into a final rule.
ATA, on behalf of its member United Airlines, requests that the FAA and Boeing pursue a more conclusive method of resolving the damage to wires in the cargo compartments. United Airlines states that the actions proposed in the NPRM are of limited value and do not address the root cause of the problem; the service bulletins provide procedures for cleaning and routinely inspecting the subject wire bundles, but do not provide any preventive or terminating action. United Airlines further states that even though it implemented the requirements of this AD into its maintenance program two years ago, it has found three additional occurrences on airplanes that have been cleaned and inspected. United Airlines states that the industry would benefit if the airplane manufacturer could lead a collaborative effort to (1) implement a
We appreciate the commenter's concern to have the inspection and cleaning done more frequently. In developing an appropriate compliance time for this action, we considered the urgency associated with the subject unsafe condition, the practical aspect of accomplishing the required inspections within a period of time that corresponds to the normal scheduled maintenance for most affected operators, and the recommendations of the manufacturer. In light of these items, we have determined that the compliance time proposed in the NPRM is appropriate. Operators are always permitted to accomplish the requirements of an AD earlier than the specified compliance time. We have not changed this AD in this regard.
We agree with United Airline's suggestion for a collaborative effort to investigate the feasibility and implementation of preventive actions because preventive actions will more effectively address the root cause of the wiring damage. The FAA and Boeing have considered the following actions, and their feasibility, in preventing debris from falling onto wiring:
• Installing the full complement of floor panels.
• Installing conduit or sleeving over wire bundles.
• Rerouting the wire bundles to locations that are less exposed to debris.
• Performing good maintenance practices.
The full complement of floor panels is currently available as an option to operators, if they choose to have them installed. However, even if the full complement of floor panels is installed, the wiring is still susceptible to damage when the panels are removed for maintenance or other actions.
Conduit or sleeving over wire bundles is not a viable option, since the conduit/sleeving would be exposed to step-ons and dropped tools, which may crush the conduit/sleeving and damage the wires inside. Further, the conduit/sleeving would conceal any damage, making it less likely for the maintenance crew to detect the damage.
Rerouting the wire bundles to locations that are less exposed to debris is not feasible or recommended because it would be a major change. The modification would require structural changes to provide bundle supports, as well as require lengthening the wire bundles.
Good maintenance practices would substantially reduce the exposure of wiring to falling debris and minimize the occurrence of wire damage.
At this time, we have determined that repetitive inspections and cleaning will adequately address the unsafe condition. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and that inspections must be conducted to ensure continued safety. We might consider additional rulemaking, however, if a preventive modification is developed by the airplane manufacturer. Operators may also request, under the provisions of paragraph (h) of this AD, an alternative method of compliance (AMOC) if sufficient data are submitted to substantiate that such a design change would provide an acceptable level of safety. Therefore, we have not revised this AD in this regard.
We also agree that the cable clamps should be inspected, since history has shown that the wires under the cable clamps can be damaged not only by falling debris but also by other conditions. The commenter's statement regarding clamp failures implies that the NPRM and service bulletins only address wiring damage caused by falling debris. However, the procedures in the service bulletins, which are mandated by this AD, specify to inspect all wiring components to detect and correct damage caused by any environmental condition, not just falling debris. The inspection applies to all wire cable clamps, regardless of location. Further, experience has shown that wiring damage is often caused by poor maintenance practices. The corrective actions for the cable clamps are part of routine maintenance per the Boeing 767 Standard Wiring Practices Manual, which is referenced in the applicable service bulletin. We have not revised this AD in this regard.
Boeing requests that we revise the Discussion section of the NPRM to state that the source of the fire was near the bottom of the bilge below the 13L and 14L PDUs. As justification, Boeing states that this is the location where the airplane wiring for the suspect PDUs is installed. Boeing also requests that we revise the Discussion section of the NPRM to state that investigation revealed that the flammable debris had accumulated “(in the bilge)” below the 13L and 14L PDUs.
Although we agree that a portion of the suspect PDU wiring is routed near the bottom of the bilge, none of the reports specified the exact point of initiation of the fires. Further, the Boeing service bulletins state that: “It was found that flammable debris collected below the 13L and 14L PDUs; but the source of ignition was not positively identified.” The NPRM correctly identified the location of the accumulated debris as being in the area below the 13L and 14L PDUs, which includes the bilge. Therefore, no change to this AD is necessary in this regard.
ABX Air states that the PDUs and associated wiring have been removed on 24 of its airplanes in accordance with a supplemental type certificate. ABX Air asserts these airplanes are not susceptible to the unsafe condition identified in the NPRM. Therefore, ABX Air requests that we revise the applicability to as follows:
This AD applies to all Boeing Model 767-200, -300, -300F, and -400ER series airplanes equipped with a powered cargo handling system in the forward or aft lower lobe compartment, certificated in any category.
We disagree with limiting the applicability of the AD as proposed by the commenter. To adequately address the unsafe condition, this AD requires an inspection of all wires and wiring components in the forward and aft lower cargo compartments, not just the PDU and associated wiring. If the PDU, associated wiring, and all other wires and wiring components have also been removed on the commenter's airplanes, then no further action is required by this AD. However, the operator must still apply for an AMOC for relief from the requirements of this AD. Under the provisions of paragraph (h) of this AD, we may consider requests for approval of an AMOC if sufficient data are submitted to substantiate that such a design change would provide an acceptable level of safety. We have not changed this AD in this regard.
ATA, on behalf of its member American Airlines, requests that we extend the compliance time for the repetitive inspection to 74 months or 30,000 flight hours, whichever occurs first. In the NPRM, we proposed a repetitive interval of 72 months or 24,000 flight hours, whichever occurs first. American Airlines states that it schedules main base visits (MBVs) every 18 months for Model 767 airplanes. It
We disagree with extending the compliance time. In developing an appropriate compliance time for this action, we considered the urgency associated with the subject unsafe condition, the practical aspect of accomplishing the required inspections within a period of time that corresponds to the normal scheduled maintenance for most affected operators, and the recommendations of the manufacturer. In light of these items, we have determined that the compliance time proposed in the NPRM is appropriate. However, according to the provisions of paragraph (h) of this AD, we might approve requests to adjust the compliance time if the request includes data that prove that the new compliance time would provide an acceptable level of safety. We have not changed this AD in this regard.
American Airlines estimates that the cost of complying with the NPRM will require approximately 6 work hours per airplane at a cost of $563, every six years. We infer the commenter would like us to revise the estimated costs in this AD.
We disagree with revising the estimated costs for this AD. In determining those costs we used the estimated work hours provided in the Boeing service bulletins. As stated previously, we have updated the estimated work hours in this AD to reflect a higher cost for accomplishing the cleaning and inspections required by this AD. Therefore, we have not changed this AD in this regard.
We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.
We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
There are about 857 airplanes of the affected design in the worldwide fleet. This AD affects about 374 airplanes of U.S. registry. The required inspections take about 10 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $299,200, or $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 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 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 AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective September 25, 2007.
(b) None.
(c) This AD applies to all Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category.
(d) This AD results from a fire in the forward lower lobe cargo compartment found shortly after airplane arrival. We are issuing this AD to detect and correct damage to wires in the forward and aft lower lobe cargo compartments, which could result in a potential short circuit and consequent fire in the forward and aft lower lobe cargo compartments.
(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) Within 36 months after the effective date of this AD, do detailed inspections for damage to the wire bundles, power drive unit wiring, and wire attaching hardware, supports, and sleeving located in the forward and aft lower lobe cargo compartments; and do all applicable corrective actions before
(g) Actions accomplished before the effective date of this AD in accordance with Boeing Service Bulletin 767-25-0376, dated November 17, 2005 (for Model 767-200, -300, and -300F series airplanes); or Boeing Service Bulletin 767-25-0377, dated November 17, 2005 (for Model 767-400ER series airplanes); are considered acceptable for compliance with the corresponding actions specified in paragraph (f) of this AD.
(h)(1) The Manager, Seattle Aircraft Certification Office, 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 for this AD, follow the procedures in 14 CFR 39.19. 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.
(i) You must use Boeing Service Bulletin 767-25-0376, Revision 1, dated February 9, 2007; or Boeing Service Bulletin 767-25-0377, Revision 1, dated February 9, 2007; as applicable; to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final Rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued 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:
A nose landing gear leg failed in area of the nose gear leg pivot axle. This airplane was mostly operated on grass runways and training operations. This failure was based on a fatigue crack developed in the pivot axle. Material inspections figured out that this cracks may also develop on other serial No. pending the type of operation.
We are issuing this AD to require actions to correct the unsafe condition on these products.
This AD becomes effective September 25, 2007.
On September 25, 2007, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD.
You may examine the AD docket on the Internet at
Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4145; fax: (816) 329-4090.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
A nose landing gear leg failed in area of the nose gear leg pivot axle. This airplane was mostly operated on grass runways and training operations. This failure was based on a fatigue crack developed in the pivot axle. Material inspections figured out that this cracks may also develop on other serial No. pending the type of operation.
The MCAI requires repetitively inspecting the nose landing gear leg for cracks and replacing the nose landing gear leg if cracks are found.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
Colin Summers, Dan Montgomery, Michael A. Rigg, and Van A. Lupo state that the NPRM is based on a single incident where the airplane was used for training on a grass strip, and Diamond Aircraft issued a mandatory service bulletin requiring inspection of the nosewheel pivot pin for airplanes flying out of grass runways.
Two of the commenters state that they operate their airplane out of paved runways and fly less than 500 hours a year. Requiring inspections every 200 hours seems more than what the situation warrants.
We infer the commenters feel the proposed initial inspection compliance time of “within the next 100 hours time-in-service (TIS) after the effective date of this AD” and the repetitive inspection requirement of “every 200 hours TIS thereafter” is unwarranted and too burdensome.
The commenters request the compliance time for the initial and repetitive inspections be changed to the next annual inspection.
We partially agree with the commenters. We cannot enforce a compliance time of “at the next annual inspection after the effective date of this AD.” Such a compliance time could cause an increased burden on the owner/operator if their annual inspection came due the day after this AD becomes effective, which would ground the airplane. Unless it is determined to be an urgent safety of flight condition, we are required to give owner/operators a grace period after the AD becomes effective to schedule the airplane for maintenance. We can provide a compliance time of 12 months to coincide with annual inspections.
We will change the compliance times for the initial and repetitive inspections in this final rule AD action to add 12 months and change to 200 hours TIS (whichever occurs later) to allow more time for scheduling purposes and to lessen the burden from the compliance time proposed in the NPRM.
Daniel P. Ferry, Jr. of Ferry Aviation LLC states the need for an AD requiring an inspection is unwarranted. He states that the existing service bulletin is adequate to ensure safety, and the problem does not seem widespread or a severe safety risk.
We infer the commenter wants the NPRM withdrawn.
We do not agree with the commenter. We have examined the information provided by the MCAI and determined that an unsafe condition does exist that warrants AD action. Issuing an AD is the only way we can mandate that the instructions and procedures in a service bulletin are followed.
We are not changing the final rule AD action based on this comment.
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
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 required 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 AD.
We estimate that this AD will affect 476 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour.
Based on these figures, we estimate the cost of this AD to the U.S. operators to be $38,080 or $80 per product.
In addition, we estimate that any necessary follow-on actions will take about 8 work-hours and require parts costing $1,715, for a cost of $2,355 per product. We have no way of determining the number of products that may need these actions.
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 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 this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 25, 2007.
(b) None.
(c) This AD applies to the following airplanes certificated in any category:
(d) Air Transport Association of America (ATA) Code 32: Landing Gear.
(e) The mandatory continuing airworthiness information (MCAI) states:
A nose landing gear leg failed in area of the nose gear leg pivot axle. This airplane was mostly operated on grass runways and training operations. This failure was based on a fatigue crack developed in the pivot axle. Material inspections figured out that this cracks may also develop on other serial No. pending the type of operation.
(f) Unless already done, do the following actions:
(1) Inspect the nose landing gear leg for cracks as follows.
(i) Initially within the next 12 months after September 25, 2007 (the effective date of this AD) or within the next 200 hours time-in-service (TIS) after September 25, 2007 (the effective date of this AD), whichever occurs later.
(ii) Repetitively inspect thereafter at intervals not to exceed 12 months or 200 hours TIS, whichever occurs later.
(2) Replace the nose landing gear leg before further flight after any inspection required by paragraph (f)(1) of this AD in which cracks are found.
(3) After doing the replacement required in paragraph (f)(2) of this AD, repetitively inspect at intervals not to exceed 12 months or 200 hours TIS, whichever occurs later.
(4) Do the actions required in paragraphs (f)(1), (f)(2), and (f)(3) of this AD following Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB40-046/1, No. MSBD4-046/1, dated April 25, 2007, and the applicable maintenance manual.
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, Standards Staff, 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: Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4145; fax: (816) 329-4090. 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 (44 U.S.C. 3501 et seq.), 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 Austro Control AD No. A-2005-005, dated November 15, 2005; and Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB40-046/1, No. MSBD4-046/1, dated April 25, 2007, for related information.
(i) You must use Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB40-046/1, No. MSBD4-046/1, dated April 25, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Diamond Aircraft Industries GmbH, N.A. Otto-Strabe 5, A-2700 Wiener Neustadt; Fax: **43-2622-26620; or e-mail:
(3) You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Instead of the hub normally used which carries the starter ring gear and the hub for the tooth belt a slip-clutch can be mounted. The unit contains the hub for the tooth belt and the starter ring gear. Occurrences during service have shown that under bad conditions excessive wear on several parts of the clutch can occur.
This AD requires actions that are intended to address the unsafe condition described in the MCAI.
This AD becomes effective September 10, 2007.
On September 10, 2007, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD.
We must receive comments on this AD by September 20, 2007.
You may send comments by any of the following methods:
•
•
•
•
•
You may examine the AD docket on the Internet at
Gregory Davison, Aerospace Engineer, FAA, Small Airplanes Directorate, 901 Locust St., Room 301, Kansas City, Missouri 64016; telephone: (816) 329-4130; fax: (816) 329-4090.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Emergency AD No. 2007-0001R1-E, dated January 10, 2007, (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Instead of the hub normally used which carries the starter ring gear and the hub for
The original Emergency AD has now been revised to indicate that the initial inspection of the installed slip-clutch is required when 12.5 hours in operation have been accumulated.
You may obtain further information by examining the MCAI in the AD docket.
SOLO Kleinmotoren GmbH has issued Service Bulletin Nr. 4600-2-2, dated December 27, 2006. 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the 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 have also required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over those copied from the MCAI.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because occurrences during service have shown that under certain conditions, excessive wear on several parts of the clutch can occur. Excessive wear could cause the slip clutch to disengage at an undesired torque, which could result in reduced power during critical phases of flight. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
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 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 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 AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 10, 2007.
(b) None.
(c) This AD applies to Models DG-500MB and DG-800B gliders, all serial numbers, that:
(1) Have SOLO engine 2 625 01 equipped with optional slip-clutch sets, SOLO part number (P/N) 29 00 202, installed; or
(2) Have SOLO engine 2 625 02 equipped with optional slip-clutch sets, SOLO P/N 29 00 202, installed; and
(3) Are certificated in any category.
(d) Air Transport Association of America (ATA) Code 61: Propellers.
(e) The mandatory continuing airworthiness information (MCAI) states:
Instead of the hub normally used which carries the starter ring gear and the hub for the tooth belt a slip-clutch can be mounted. The unit contains the hub for the tooth belt and the starter ring gear. Occurrences during service have shown that under bad conditions excessive wear on several parts of the clutch can occur. In order to avoid further damages the affected parts of the slip clutch on the engines SOLO 2 625 01 and SOLO 2 652 02 have to be inspected and replaced, if necessary. In order to check the condition of the clutch on all engines SOLO 2 625 in future, additional procedures are installed and additional inspection terms are introduced. The cover place in front of the slip clutch has to be replaced by a stronger plate with the No. 2042888.
The original Emergency AD has now been revised to indicate that the initial inspection of the installed slip-clutch is required when 12.5 hours in operation have been accumulated.
(f) Unless already done, do the following actions.
(1) Before further flight after September 10, 2007 (the effective date of this AD):
(i) Remove the cover plate of the slip-clutch;
(ii) Inspect the friction pads for wear. Dimension in new condition is .335 inches (8.5 mm), the wear limit is .256 inches (6.5 mm);
(iii) Inspect the slip-clutch shoes on the contact surface to the hub for wear. The wear limit is .039 inches (1 mm);
(iv) Replace any parts found to be outside the wear limit; and
(v) Assemble the slip-clutch with a new cover plate, P/N 2042888.
(2) Every 12.5 hours time-in-service (TIS) after doing the actions required by paragraph (f)(1) of this AD, repetitively inspect the slip-clutch and replace any parts found to be outside the wear limit before further flight after the inspection in which the part(s) exceeds the specified limit.
(3) Every 25 hours TIS after September 10, 2007 (the effective date of this AD), inspect the tiltplay of the clutch drum on the hub for excessive play.
(i) With the tooth belt released, measure the play in the axial direction on the starter gear. The play limit is .024 inches (0.6 mm); and
(ii) Before further flight after any inspection in which excessive play is found, replace with an FAA-approved part that is new or overhauled by the manufacturer.
(4) Every 50 hours TIS after September 10, 2007 (the effective date of this AD), replace the slip-clutch with an FAA-approved part that is new or overhauled by the manufacturer.
(5) As of September 10, 2007 (the effective date of this AD), only install slip-clutch cover plate P/N 2042888.
(6) Each time before the slip-clutch is mounted, degrease the taper of the crankshaft and the hub of the clutch with thinner following the instructions in the service bulletin specified in paragraph (f)(7) of this AD. The pound inches equivalent to 120 Nm is 1062.1.
(7) Do all actions required by this AD following SOLO Kleinmotoren GmbH Service Bulletin Nr. 4600-2-2, dated December 27, 2006.
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, Standards Staff, FAA, ATTN: Gregory Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4130; fax: (816) 329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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 (44 U.S.C. 3501
(h) Refer to MCAI European Aviation Safety Agency (EASA) Emergency AD No. 2007-0001R1-E, dated January 10, 2007, and SOLO Kleinmotoren GmbH Service Bulletin Nr. 4600-2-2, dated December 27, 2006, for related information.
(i) You must use SOLO Kleinmotoren GmbH Service Bulletin Nr. 4600-2-2, dated December 27, 2006, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact SOLO Kleinmotoren GmbH, Customer Support, 71050 Sindelfingen, Germany; telephone: +49-(0) 7031-301-210; fax: +49-(0) 7031-301-136; e-mail:
(3) You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust St., Room 506, Kansas City, Missouri 64016; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD) for Sikorsky Aircraft Corporation (Sikorsky) Model S92-A helicopters. This action requires, within a specified time, borescope inspecting a certain part-numbered tail rotor pitch change shaft and bearing assembly (shaft and bearing assembly) and also inspecting after any installation. This amendment is prompted by an incident involving failure of a shaft and bearing assembly and servo clevis shaft resulting in loss of tail rotor control. The actions specified in this AD are intended to prevent failure of a shaft and bearing assembly, loss of tail rotor pitch and yaw control, and subsequent loss of control of a helicopter.
Effective August 21, 2007.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 21, 2007.
Comments for inclusion in the Rules Docket must be received on or before October 22, 2007.
Use one of the following addresses to submit comments on this AD:
•
•
•
•
•
You may get the service information identified in this AD from Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, phone (203) 383-4866, e-mail address
Wayne Gaulzetti, Aviation Safety Engineer, Boston Aircraft Certification Office, 12 New England Executive Park, Burlington, MA 01803, telephone (781) 238-7156, fax (781) 238-7170.
This amendment adopts a new AD for Sikorsky Model S92-A helicopters. This action requires, within a specified time, borescope inspecting a certain part-numbered shaft and bearing assembly and also inspecting after any installation. This amendment is prompted by an incident involving failure of a shaft and bearing assembly and servo clevis shaft resulting in loss of tail rotor control. This condition, if not detected, could result in loss of tail rotor pitch and yaw control and subsequent loss of control of a helicopter.
We have reviewed Sikorsky Alert Service Bulletin No. 92-64-002, dated August 3, 2007 (ASB), which describes procedures for doing a one-time borescope inspection of the shaft and bearing assembly.
The ASB requires inspecting the shaft and bearing assembly within 50 hours time-in-service (TIS). This AD requires the inspection within 20 hours TIS based on the ease of the inspection, the availability of borescopes, the flight hours per day for the high time helicopters (about 8 hours), and the potential for a helicopter to ditch while servicing the oil rig industry. Also, this AD requires this inspection between 10 and 15 hours TIS following any installation of a shaft and bearing assembly.
The inspections required by this AD are interim actions; the manufacturer continues to investigate failure of the shaft and bearing assembly and we may either develop follow-on actions or a terminating action for the requirements of this AD.
This unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, this AD is being issued to prevent failure of a shaft and bearing assembly, loss of tail rotor pitch and yaw control, and subsequent loss of control of a helicopter. This AD requires, within 20 hours TIS, inspecting each affected shaft and bearing assembly at the tail rotor side and on the servo side through the oil filler cap. This AD also requires borescope inspecting each shaft and bearing assembly that is installed as a replacement. This inspection must be done between 10 and 15 hours TIS after installation. Replacing any unairworthy shaft and bearing assembly is required before further flight.
The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability or structural integrity of the helicopter. Therefore, borescope inspecting the affected shaft and bearing assembly within 20 hours TIS and before further flight following any installation of an affected shaft and bearing assembly are required, and this AD must be issued immediately.
Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
We estimate that this AD will affect 34 helicopters, and the borescope inspection of the shaft and bearing assembly will take about 2 work hours to do at an average labor rate of $80 per work hour. Required parts will cost about $30,864 per helicopter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $1,054,816.
This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written 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
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 the 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 an economic evaluation of the estimated costs to comply with this AD. See the DMS to examine the economic evaluation.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
Model S-92A helicopter, with a tail rotor pitch change shaft and bearing assembly (shaft and bearing assembly) part number 92358-06303-041, installed, certificated in any category.
Required as indicated, unless accomplished previously.
To prevent failure of a shaft and bearing assembly, loss of tail rotor pitch and yaw control, and subsequent loss of control of a helicopter, do the following:
(a) Within 20 hours time-in-service (TIS), borescope inspect as follows:
(1) Inspect each affected shaft and bearing assembly at tail rotor side by following the Accomplishment Instructions, paragraphs 3.A.(1) through (7) and Figure 4 of Sikorsky Aircraft Corporation Alert Service Bulletin No. 92-64-002, dated August 3, 2007 (ASB). If the shaft bearing fails the inspection, replace the shaft and bearing assembly before further flight.
(2) Inspect each shaft and bearing assembly on the servo side through the oil filler cap by following the Accomplishment Instructions, paragraphs B.(1) through (9) and Figures 2 and 3, of the ASB. If the shaft bearing fails the inspection, replace the shaft and bearing assembly before further flight.
Maintenance Manual SA S92A-ANM-000 pertains to the subject of this AD.
(b) Between 10 and 15 hours TIS after installing a shaft and bearing assembly, borescope inspect it by following paragraph (a) of this AD.
(c) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Manager, Boston Aircraft Certification Office, FAA, ATTN: Wayne Gaulzetti, Aviation Safety Engineer, 12 New England Executive Park, Burlington, MA 01803, telephone (781) 238-7156, fax (781) 238-7170, for information about previously approved alternative methods of compliance.
(d) The inspections of the shaft and bearing assembly shall be done by following Sikorsky Alert Service Bulletin No. 92-64-002, dated August 3, 2007. The Director of the Federal Register approved this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, Connecticut, phone (203) 383-4866, e-mail address
(e) This amendment becomes effective on August 21, 2007.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for the products listed above. This 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:
The Bombardier CL-600-2B19 airplanes have had a history of flap failures at various positions for several years. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion.
This AD requires actions that are intended to address the unsafe condition described in the MCAI.
This AD becomes effective September 5, 2007.
The Director of the Federal Register approved the incorporation by reference of certain publications, listed in the AD as of September 5, 2007.
We must receive comments on this AD by September 20, 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 Parrillo, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7305; fax (516) 794-5531.
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2007-10, dated July 18, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
On November 22, 2006, due to weather conditions a CRJ 100 executed a missed approach. At the same time, a flaps malfunction resulted in the flaps becoming unresponsive while in the fully deployed position (45 degree). The pilot declared an emergency and diverted to the alternate airport. Due to high fuel consumption when flying in this configuration, the aircraft landed at a diversion airport with 512 pounds of fuel remaining.
The Bombardier CL-600-2B19 airplanes have had a history of flap failures at various positions for several years. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion. The nature of the malfunction is related to the design and reliability of some of the components of the flap system.
To lower the risk of exposure until a permanent solution becomes available, Transport Canada is implementing the following four mandatory actions:
Part I: AFM Change. This action is mandated to provide the crew with additional guidance information for the FLAPS FAIL abnormal procedure, to address the possibility of fuel exhaustion resulting from a flaps failure at other than 0 degrees, in combination with a diversion to an alternate airport.
Part II: Operational Procedures: The operational procedures mandated herein are aimed at reducing or eliminating the risk caused by flaps failures. These Operational Procedures cover the three most critical flaps failure modes.
Part III: Training Procedures: This action is mandated to provide personnel with training on the operational procedures of Part II of this directive and instruction on reduced or zero flap landing.
Part IV: Maintenance Actions: The maintenance actions are mandated to improve overall Flaps System reliability and bring the failure rate to an acceptable level, until permanent solutions are implemented.
The corrective “maintenance actions” include the cleaning and lubrication of the flexible shafts, and applicable related investigative and corrective actions (which include a detailed inspection of the actuator connector sealant bead for signs of damage or delamination, repair of damaged sealant, and if necessary, a low temperature torque check on the actuator and if torque test results are not satisfactory, an installation of a serviceable actuator or, if no serviceable actuators are available, contacting the FAA for corrective action). The corrective “maintenance actions” also include installation of metallic seals in the flexible drive-shafts, and applicable related investigative and corrective actions (which include a detailed inspection of the mating surfaces on the flexible drive-shaft for damage (scratches or dents), and if mating surfaces have damage, cleaning the sealing washer and mating surfaces and applying sealant). You may obtain further information by examining the MCAI in the AD docket.
Bombardier has issued Service Bulletin 601R-27-150, including Appendix A, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012. 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 issuing this AD because we evaluated all pertinent information and determined the 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 required 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 AD.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes have a history of flap failure during cold weather operations. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion; therefore, corrective actions are necessary prior to the onset of cold weather operations. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
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 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 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 regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 5, 2007.
(b) None.
(c) This AD applies to Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial numbers 7003 through 7990 and 8000 and subsequent.
(d) Air Transport Association (ATA) of America Code 27: Flight Controls.
(e) The mandatory continued airworthiness information (MCAI) states:
On November 22, 2006, due to weather conditions a CRJ 100 executed a missed approach. At the same time, a flaps malfunction resulted in the flaps becoming unresponsive while in the fully deployed position (45 degree). The pilot declared an emergency and diverted to the alternate airport. Due to high fuel consumption when flying in this configuration, the aircraft landed at a diversion airport with 512 pounds of fuel remaining.
The Bombardier CL-600-2B19 airplanes have had a history of flap failures at various positions for several years. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion. The nature of the malfunction is related to the design and reliability of some of the components of the flap system.
To lower the risk of exposure until a permanent solution becomes available, Transport Canada is implementing the following four mandatory actions:
Part I: AFM Change. This action is mandated to provide the crew with additional guidance information for the FLAPS FAIL abnormal procedure, to address the possibility of fuel exhaustion resulting from a flaps failure at other than 0 degrees, in combination with a diversion to an alternate airport.
Part II: Operational Procedures: The operational procedures mandated herein are aimed at reducing or eliminating the risk caused by flaps failures. These Operational Procedures cover the three most critical flaps failure modes.
Part III: Training Procedures: This action is mandated to provide personnel with training on the operational procedures of Part II of this directive and instruction on reduced or zero flap landing.
Part IV: Maintenance Actions: The maintenance actions are mandated to improve overall Flaps System reliability and bring the failure rate to an acceptable level, until permanent solutions are implemented.
The corrective “maintenance actions” include the cleaning and lubrication of the flexible shafts, and applicable related investigative and corrective actions (which include a detailed inspection of the actuator connector sealant bead for signs of damage or delamination, repair of damaged sealant, and if necessary, a low temperature torque check on the actuator and if torque test results are not satisfactory, an installation of a serviceable actuator or, if no serviceable actuators are available, contacting the FAA for corrective action). The corrective “maintenance actions” also include installation of metallic seals in the flexible drive-shafts, and applicable related investigative and corrective actions (which include a detailed inspection of the mating surfaces on the flexible drive-shaft for damage (scratches or dents), and if mating surfaces have damage, cleaning the sealing washer and mating surfaces and applying sealant).
(f) Unless already done, do the following actions.
(1) Part I. Airplane Flight Manual (AFM) Change: Within 30 days after the effective date of this AD, revise the Canadair Regional Jet Airplane Flight Manual CSP A-012, by incorporating the information in Canadair Regional Jet Temporary Revision (TR) RJ/165, dated July 6, 2007, into the AFM.
The actions required by paragraph (f)(1) of this AD may be done by inserting a copy of Canadair Regional Jet TR RJ/165, dated July 6, 2007, into the Canadair Regional Jet Airplane Flight Manual CSP A-012. When this TR has been included in general revisions of the AFM, the general revisions may be inserted in the AFM.
(2) Part II. Operational Procedures: Within 30 days after the effective date of this AD, revise the Limitations Section of the Canadair Regional Jet Airplane Flight Manual CSP A-012, to include the following statement. This may be done by inserting a copy of paragraph (f)(2) of this AD in the AFM.
Upon arrival at the destination airport, an approach shall not be commenced, nor shall the flaps be extended beyond the 0 degree position, unless one of the following conditions exists:
a. When conducting a precision approach, the reported visibility (or RVR) is confirmed to be at or above the visibility associated with the landing minima for the approach in use, and can be reasonably expected to remain at or above this visibility until after landing; or
b. When conducting a non-precision approach, the reported ceiling and visibility (or RVR) are confirmed to be at or above the ceiling and visibility associated with the landing minima for the approach in use, and can be reasonably expected to remain at or above this ceiling and visibility until after landing; or
c. An emergency or abnormal situation occurs that requires landing at the nearest suitable airport; or
d. The fuel remaining is sufficient to conduct the approach, execute a missed approach, divert to a suitable airport with the flaps extended to the landing position, conduct an approach at the airport and land with 1000 lb (454 kg) of fuel remaining.
The fuel burn factor (as per AFM TR/165) shall be applied to the normal fuel consumption for calculation of the flaps extended missed approach, climb, diversion and approach fuel consumption.
Terrain and weather must allow a minimum flight altitude not exceeding 15,000 feet along the diversion route.
For the purpose of this AD, a “suitable airport” is an airport that has at least one usable runway, served by an instrument approach if operating under Instrument Flight Rules (IFR), and the airport is equipped as per the applicable regulations and standards for marking and lighting. The existing and forecast weather for this airport shall be at or above landing minima for the approach in use.
When a takeoff alternate is filed, terrain and weather must allow a minimum flight altitude not exceeding 15,000 feet along the diversion route to that alternate, or other suitable airport. The fuel at departure shall be sufficient to divert to the takeoff alternate or other suitable airport with the flaps extended to the takeoff position, conduct and approach and land with 1000 lb (454 kg) of fuel remaining.
The fuel burn factor (as per AFM TR/165) shall be applied to the normal fuel consumption for calculation of the flaps extended, climb, diversion and approach fuel consumption.
Operations where all useable runways at the destination and alternate airports are forecast to be wet or contaminated (as defined in the AFM) are prohibited during the cold weather season (December to March inclusive in the northern hemisphere) unless one of the following conditions exists:
a. The flap actuators have been verified serviceable in accordance with Part C (Low Temperature Torque Test of the Flap Actuators) of SB 601R-27-150, July 12, 2007, or
b. The flight is conducted at a cruise altitude where the SAT is -60 deg C or warmer. If the SAT in flight is colder than -60 deg C, descent to warmer air shall be initiated within 10 minutes, or
c. The Landing Distance Available on a useable runway at the destination airport is at least equal to the actual landing distance required for flaps zero. This distance shall be based on Bombardier performance data, and shall take into account forecast weather and anticipated runway conditions, or
d. The Landing Distance Available on a useable runway at the filed alternate airport, or other suitable airport is at least equal to the actual landing distance for flaps zero. This distance shall be based on Bombardier performance data, and shall take into account forecast weather and anticipated runway conditions.
If the forecast destination weather is less than 200 feet above DH or MDA, or less than 1 mile (1500 meters) above the authorized landing visibility (or equivalent RVR), as applied to the usable runway at the destination airport, condition 3.a., 3.b., or 3.d. above must be satisfied.
When conducting No Alternate IFR (NAIFR) operations, condition 3.a., 3.b., or 3.c. above must be satisfied.”
(3) Part III. Training: As of 30 days after the effective date of this AD, no affected airplane may be operated unless the flight crewmembers of that airplane and the operational control/dispatch personnel for that airplane have received training that is acceptable to the Principal Operations Inspector (POI) on the operational procedures required by paragraph (f)(2) of this AD.
(4) Part IV. Maintenance Actions: Within 120 days after the effective date of this AD, do the cleaning and lubrication of the flexible shafts, installation of metallic seals in the flexible drive-shafts, and all applicable related investigative and corrective actions by doing all the applicable actions specified in “PART A” of the Accomplishment Instructions of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007; except if torque test results are not satisfactory, before further flight, install a serviceable actuator in accordance with the service bulletin or, if no serviceable actuators are available, contact the Manager, New York Aircraft Certification Office, FAA, for corrective action. Do all applicable related investigative and corrective actions before further flight.
This AD differs from the MCAI and/or service information as follows:
(1) This AD does not require the following actions specified in the MCAI: the training specified in Paragraph 2. of “Part III. Training;” and the maintenance tasks specified in the second and third rows of the table in “Part IV. Maintenance Actions.” The planned compliance times for those actions would allow enough time to provide notice and opportunity for prior public comment on the merits of those actions. Therefore, we are considering further rulemaking to address this issue.
(2) The MCAI does not specify a corrective action if an actuator is not serviceable (i.e. torque test results are not satisfactory). This AD requires contacting the FAA or installing a serviceable actuator before further flight if torque test results are not satisfactory (corrective actions are specified in paragraph (f)(4) of this AD).
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Canadian Airworthiness Directive CF-2007-10, dated July 18, 2007; Bombardier Service Bulletin 601R-27-150, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012; for related information.
(i) You must use Bombardier Service Bulletin 601R-27-150, including Appendix A, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012; as applicable, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada.
(3) You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; correction.
The FAA is correcting a typographical error in an existing airworthiness directive (AD) that was published in the
Effective June 6, 2007.
The AD docket contains the proposed AD, comments, and any final disposition. You may examine the AD docket on the Internet at
Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6438; fax (425) 917-6590.
On May 2, 2007, the FAA issued AD 2007-11-07, amendment 39-15064 (72 FR 28597, May 22, 2007), for all Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The AD requires repetitive detailed inspections for damage of the electrical wire and sleeve that run to the fuel boost pump through a conduit in the fuel tank, and arcing damage of the conduit and signs of fuel leakage into the conduit; replacement of the sleeve with a new, smaller-diameter sleeve; and related investigative and corrective actions, as applicable.
As published, paragraph (k) of AD 2007-11-07 reads “* * * Thereafter, repeat the detailed inspection at intervals not to exceed 15,000 flight cycles. * * *” The correct term, “flight hours” (not flight cycles), appears in all other compliance times cited in the AD, as intended.
No other part of the regulatory information has been changed; therefore, the final rule is not republished in the
The effective date of this AD remains June 6, 2007.
(k) At the applicable time specified by paragraph (k)(1) or (k)(2) of this AD: Do a detailed inspection for damage of the sleeve and electrical wire of the fuel boost pump; and, before further flight, install a new, smaller-diameter sleeve, and do related investigative and corrective actions, as applicable; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-28A1263, Revision 1, dated March 19, 2007. Thereafter, repeat the detailed inspection at intervals not to exceed 15,000 flight hours. Accomplishment of the initial inspection, applicable corrective actions, and sleeve installation required by this paragraph terminates the requirements of paragraphs (f), (g), (h), and (i) of this AD.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (the Commission) is adopting revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual to reflect updates to the EDGAR system. Revisions are being made primarily to support the expansion of the current interactive data voluntary reporting program to enable mutual funds voluntarily to submit supplemental tagged information contained in the risk/return summary section of their prospectuses on Form N-1A. The EDGAR system is being upgraded to support this functionality on August 20, 2007.
The filer manual is also being revised to incorporate changes in support of several final rules previously adopted by the Commission and implemented in EDGAR. Those rules include the termination of a foreign private issuer's registration of a class of securities under Section 12(g) and duty to file reports under Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (“Exchange Act”); the electronic filing of Transfer Agent (“TA”) forms TA-1, TA-2 and TA-W; and revisions to the accelerated filer definition under the Exchange Act. Other revisions were made to allow an issuer to indicate whether it is subject to reporting obligations after terminating registration of a class of equity securities under the Exchange Act and to remove references to submission types N-14AE and N-14AE/A for the filing of Form N-14 from “Table 3-5: Investment Company Submission Types Accepted by EDGAR” of the Filer Manual.
Revisions to the Filer Manual reflect changes within Volumes I and II, entitled EDGAR Filer Manual, Volume I: “General Information,” Version 4 (August 2007) and EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 5 (August 2007) respectively. The updated manual will be incorporated by reference into the Code of Federal Regulations.
In the Office of Information Technology, Rick Heroux, at (202) 551-8800; in the Division of Investment Management, for questions concerning the expansion of the current interactive data voluntary reporting program, Alberto H. Zapata, Senior Counsel, or Brent J. Fields, Assistant Director, Office of Disclosure Regulation, at (202) 551-6784, and for
Today we are adopting an updated EDGAR Filer Manual, Volumes I and II. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.
The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.
Revisions are being made primarily to support the final rule
The filer manual is also being revised to incorporate changes made to support final rules previously adopted by the Commission and implemented in EDGAR. Those rules and EDGAR changes are described below.
• The termination of a foreign private issuer's 12(g) reporting obligations
This revision included the addition of new submission types 15F-12B, 15F-12B/A, 15F-12G, 15F-12G/A, 15F-15D, 15F-15D/A which can be submitted using the EDGARLink software and Submission Template #3.
• The electronic filing of forms
This revision included the addition of electronic forms for the filing of the registration, annual report, and withdrawal from registration of transfer agents. The EDGARLite application was introduced as the tool for filers to use in the creation of their EDGAR submissions. Filers download the EDGARLite package from the EDGAR OnlineForms/XML Web site and install it on their desktop. EDGARLite consists of a Commercial off the Shelf (COTS) software package, Microsoft InfoPath
• Revisions to the accelerated filer definition
The addition of a required “Accelerated Filer Status” indicator to EDGARLink submission headers for 10-K, 10-K/A, 10-KT, 10-KT/A, 20-F, and 20-F/A forms allows filers of these form types to select one of the following accelerated filer classification values: Large Accelerated Filer, Accelerated Filer, Non-accelerated Filer, and Not Applicable (should be used if a filer is filing an amendment to a Form 10-K or Form 20-F submission for a period that occurred before the accelerated filer
Additional revisions were made to permit a domestic issuer to indicate whether reporting obligations still exist after terminating registration of a class of equity securities under the Exchange Act. The addition of a required “Duty to File Reports Remains” indicator in EDGARLink submission headers for submission types 15-12B, 15-12B/A, 15-12G, 15-12G/A, 15-15D and 15-15D/A allows filers of these form types to indicate whether it is still subject to reporting obligations under the Exchange Act.
Finally, we removed from “Table 3-5: Investment Company Submission Types Accepted by EDGAR” of the Filer Manual the reference to submission types N-14AE and N-14AE/A for the filing of Form N-14. All open-end investment companies, including those filed with automatic effectiveness under Rule 488 (business combinations), are to use submission types N-14 and N-14/A for these filings.
For the extension of the current interactive data voluntary reporting program to enable mutual funds voluntarily to submit supplemental tagged information contained in the risk/return summary section of their prospectuses being implemented in EDGAR Release 9.7, the EDGARLink software and submission templates will not be updated. Notice of the new release has previously been provided on the EDGAR Filing Web site and on the Commission's public Web site. The discrete updates are reflected in the updated Filer Manual Volumes.
Along with adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
You may obtain paper copies of the updated Filer Manual at the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street, NE., Room 1580, Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. We will post electronic format copies on the Commission's Web site; the address for the Filer Manual is
Since the Filer Manual relates solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).
The effective date for the updated Filer Manual and the rule amendments is August 20, 2007. In accordance with the APA,
We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,
Incorporation by reference, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a), 78c(b), 78
Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets out the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 4 (August 2007). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 5 (August 2007). Additional provisions applicable to Form N-SAR filers are set forth in the EDGAR Filer Manual, Volume III: “N-SAR Supplement,” Version 1 (September 2005). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the
By the Commission.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the food additive regulations to provide for the safe use of polydextrose as a bulking agent, formulation aid, humectant, and texturizer in all foods, except meat and poultry, baby foods, and infant formula. This action is in response to a petition filed by Danisco USA, Inc.
This rule is effective August 21, 2007. Submit written or electronic objections and requests for a hearing by September 20, 2007. See section VII of the
You may submit written or electronic objections and requests for a hearing, identified by Docket No. 2006F-0059, by any of the following methods:
Submit electronic objections in the following ways:
• Federal eRulemaking Portal:
• Agency Web site:
Submit written objections in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
To ensure more timely processing of objections, FDA is no longer accepting objections submitted to the agency by e-mail. FDA encourages you to continue to submit electronic objections by using the Federal eRulemaking Portal or the agency Web site, as described in the
Andrew J. Zajac, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 301-436-1267.
In a notice published in the
The petition also proposed to incorporate by reference the specifications for polydextrose in the 5th edition of the Food Chemicals Codex (FCC V), effective January 1, 2004. After the petition was filed, Danisco amended the petition to exclude the proposed uses of polydextrose in baby food and infant formula.
Under the general safety standard in section 409 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 348), a food additive cannot be approved for a particular use unless a fair evaluation of the data available to FDA establishes that the additive is safe for that use. FDA's food additive regulations (21 CFR 170.3(i)) define safe as “a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use.”
To establish with reasonable certainty that a food additive is not harmful under its intended conditions of use, FDA considers the projected human dietary intake of the additive, existing toxicological data, and other relevant information (such as published literature) available to the agency. FDA compares an individual's estimated daily intake (EDI) of the additive from all sources to an acceptable intake level established by toxicological data. The EDI is determined by projections based on the amount of the additive proposed for use in particular foods and on data regarding the amount consumed from all sources of the additive. The agency commonly uses the EDI for the 90th percentile consumer of a food additive as a measure of high chronic dietary intake.
The petitioner estimates that the cumulative intake of polydextrose from all currently-regulated and proposed uses of the additive will result in an exposure to the additive of 16 grams per person per day (g/p/d) (mean) and 31 g/p/d (90th percentile) for all ages (Ref. 1). The previous FDA intake estimate for polydextrose from currently-regulated uses was 18 g/p/d and 30 g/p/d at the mean and 90th percentile, respectively, for persons aged 2 years and above. Despite the additional proposed uses, the petitioner's intake estimate for polydextrose did not differ significantly from the previous FDA intake estimate because it is based on revised use levels and current uses of polydextrose that are more representative of actual uses of polydextrose in food than those used in FDA's previous intake estimate. FDA agrees with the petitioner's intake estimate for polydextrose and concludes that it is sufficiently conservative (Ref. 1). Because consumer exposure to polydextrose has not changed significantly as a result of the petitioned uses, no new toxicological testing is necessary to ensure that the additional uses proposed in the petition, as amended, will be safe. Therefore, FDA concludes that there is a reasonable certainty that no harm from exposure to polydextrose would result from the additional petitioned uses.
The agency also considered the potential for laxation effect due to excessive consumption of polydextrose in sensitive individuals. Currently, the regulation setting out approved food additive uses for polydextrose requires that consumers be informed of this potential effect through special labeling of products containing more than 15 g of polydextrose per serving (21 CFR 172.841(e)). The agency has considered the cumulative effect of the additional petitioned uses and has concluded that because there will be effectively no increase in dietary exposure to polydextrose the current labeling requirement is adequate to protect the public. Accordingly, the agency is amending § 172.841 of the food additive regulations to provide for the use of polydextrose in all foods, except meat, poultry, baby food, and infant formula.
As stated previously, the petition proposes that § 172.841 be amended by adopting the specifications for polydextrose in FCC V. Currently, § 172.841 incorporates by reference the specifications of the 4th edition of the Food Chemicals Codex (FCC IV), 1996. The differences between the specifications in the monograph for polydextrose in FCC IV and FCC V are discussed in the amended filing notice published in the
FDA has reviewed the specifications in FCC V and agrees that § 172.841 should be amended by adopting the specifications in FCC V.
FDA reviewed data and information in the petition and other relevant material to evaluate the safety of the proposed use of polydextrose in all foods, except meat and poultry, baby food, and infant formula. Based on its evaluation, FDA concludes that the uses proposed in the petition are safe, and therefore, § 172.841 should be amended as set forth in this document. In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition will be made available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person (see
The agency has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. The agency's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Division of Dockets Management (see
This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
Any person who will be adversely affected by this regulation may file with the Division of Dockets Management (see
The following reference has been placed on display in the Division of Dockets Management (see
1. Memorandum from Folmer, Chemistry Review Team, Division of Petition Review, to DeLeo, Regulatory Group I, Division of Petition Review, June 20, 2006.
Food additives, Incorporation by reference, Reporting and recordkeeping requirements.
21 U.S.C. 321, 341, 342, 348, 371, 379e.
(b) The additive meets the specifications of the “Food Chemicals Codex,” 5th ed. (January 1, 2004), pp. 336-339, and the First Supplement to the 5th Edition of the Food Chemicals Codex (March 1, 2006), p. 37, which are incorporated by reference. The Director of the Office of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from The National Academies Press, 500 Fifth St. NW., Washington, DC 20001 (Internet address
(c) When standards of identity established under section 401 of the act do not preclude such use, polydextrose may be used in accordance with current good manufacturing practices as a bulking agent, formulation aid, humectant, and texturizer in all foods, except meat and poultry, baby food, and infant formula.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing approval under the Clean Air Act (CAA) of provisions of the Revised PM-10 State Implementation Plan (SIP) for the Salt River Area submitted by the State of Arizona to EPA in October and November 2005. These submittals include adopted rules, resolutions and measures that address particulate matter (PM-10) emissions from fugitive dust sources.
EPA has established docket number EPA-R09-OAR-2006-0526 for this action. The index to the docket is available electronically at
Mae Wang, EPA Region IX, (415) 947-4124,
Throughout this document, “we,” “us” and “our” refer to EPA.
On July 12, 2006 (71 FR 39251), EPA proposed to approve the rules, resolutions and measures listed below into the Arizona PM-10 SIP pursuant to the cited CAA sections. We also proposed on July 12, 2006, to approve Maricopa County Air Quality Department (MCAQD) Rule 316, “Nonmetallic Mineral Processing,” adopted on June 8, 2005. In this final rule we are approving all the items listed below. EPA is not, however, including Rule 316 in this final action because we are re-evaluating the rule and expect to address it in a separate rulemaking.
These provisions were submitted as part of the Revised PM-10 State Implementation Plan for the Salt River Area, Arizona Department of Environmental Quality (ADEQ), September 2005 (Salt River plan) submitted to EPA on October 7, 2005, and the Revised PM-10 State Implementation Plan for the Salt River Area, Additional Submittals (Maricopa County Rule 310.01, Maricopa Dust Control Permit and Guidance for Application for Dust Control Permit), ADEQ, September 2005, Additional Submittal in November 2005, (Salt River supplement), submitted on November 29, 2005.
Located in metropolitan Phoenix, the Salt River area is a 32-square mile subarea of the metropolitan Phoenix (Maricopa County) serious PM-10 nonattainment area. For additional background on the Salt River portion of the Phoenix PM-10 nonattainment area, see 67 FR 19148 (April 18, 2002) and 67 FR 44369 (July 2, 2002).
We proposed to approve the specified rules, resolutions and measures in the Salt River plan and supplement because we determined that they complied with the referenced CAA requirements. CAA section 189(b)(1)(B) requires serious area PM-10 plans to provide for the implementation of Best Available Control Measures (BACM). CAA section 188(e) requires a state seeking an extension of a serious PM-10 area's attainment deadline to demonstrate to our satisfaction that its serious area plan includes the most stringent measures (MSM) that are included in the implementation plan of any state or are achieved in practice in any state and can be feasibly implemented in the area. Our proposed action contains more information on the rules, resolutions and measures and our evaluation of them.
EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Joy Herr-Cardillo, Arizona Center for Law in the Public Interest (ACLPI). ACLPI's comment letter and our response are summarized below. We also received a comment letter from the Arizona Rock Products Association (ARPA) on our proposed action as it relates to MCAQD Rule 316. Because, as explained above, our final action does not include Rule 316, we are not responding to ARPA's letter here.
As discussed above, this action does not address MCAQD Rule 316. With respect to the other submitted rules, resolutions and measures that we proposed for approval on July 12, 2006 (71 FR 39251), and that are listed in Table I above, we received no comments that change our assessment that they comply with the applicable CAA requirements. Therefore, as authorized in CAA section 110(k)(3), EPA is fully approving the rules, resolutions and measures in Table I as meeting the CAA requirements indicated therein.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255,
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 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. 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
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 22, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(137) The Administrator is approving the following elements of the
(i)
(A) Maricopa County Air Quality Department.
(
(
(
(
(
(B) City of Apache Junction.
(
(C) City of Avondale.
(
(D) Town of Buckeye.
(
(E) City of Chandler.
(
(F) City of El Mirage.
(
(G) Town of Fountain Hills.
(
(H) Town of Gilbert.
(
(I) City of Glendale.
(
(J) City of Goodyear.
(
(K) City of Mesa.
(
(L) Town of Paradise Valley.
(
(M) City of Peoria.
(
(N) City of Phoenix.
(
(O) City of Scottsdale.
(
(P) City of Surprise.
(
(Q) City of Tempe.
(
(R) City of Tolleson.
(
(S) Town of Youngtown.
(
(T) Arizona Department of Transportation.
(
(138) The Administrator is approving the following elements of the
(i)
(A) Maricopa County Air Quality Department.
(
(
(
Office of Federal Contract Compliance Programs, Labor.
Final rule; correction.
The Office of Federal Contract Compliance Programs (OFCCP) is correcting a final rule that appeared in the
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).
In FR Doc. E7-15385, beginning on page 44393 in the issue of Wednesday, August 8, 2007, make the following correction. On page 44401, in the first column, correct the words of issuance to read:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces that the 2007 summer flounder commercial quota allocated to the Commonwealth of Massachusetts has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in Massachusetts for the remainder of calendar year 2007, unless additional quota becomes available through a transfer from another state. Regulations governing the summer flounder fishery require publication of this notification to advise Massachusetts that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no commercial quota is available for landing summer flounder in Massachusetts.
Effective 0001 hours, August 16, 2007 through 2400 hours, December 31, 2007.
Emily Bryant, Fishery Management Specialist, (978) 281-9244.
Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100.
The initial total commercial quota for summer flounder for the 2007 calendar year was set equal to 7,789,800 lb (3,533 mt) (71 FR 75134, December 14, 2006). This quota was increased through an emergency action to 10,267,098 lb (4,658 mt) (72 FR 2458, January 19, 2007). The percent allocated to vessels landing summer flounder in Massachusetts is 6.82046 percent, resulting in a commercial quota of 700,270 lb (318 mt). The 2007 allocation was reduced to 684,331 lb (310 mt) when research set-aside was deducted and then reduced to 654,285 (297 mt) after the 2006 overages had been applied.
Section 648.101(b) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor state commercial quotas and to determine when a state's commercial quota has been harvested. NMFS then publishes a notification in the
The regulations at § 648.4(b) provide that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, August 16, 2007, further landings of summer flounder in Massachusetts by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2007 calendar year, unless additional quota becomes available through a transfer and is announced in the
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Nuclear Regulatory Commission.
Petition for rulemaking; notice of receipt.
The Nuclear Regulatory Commission (NRC) has received and requests public comment on a petition for rulemaking, dated May 29, 2007, filed by Thomas E. Magette of Energy
Submit comments by November 5, 2007. Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date.
You may submit comments by any one of the following methods. Please include PRM-50-88 in the subject line of your comments. Comments on petitions submitted in writing or in electronic form will be made available to the public in their entirety on the NRC rulemaking Web site. Personal information, such as your name, address, telephone number, e-mail address, etc., will not be removed from your submission.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to:
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays (telephone (301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.
Publicly available documents related to this petition may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), Room O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at
Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at
Michael T. Lesar, Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Telephone: 301-415-7163 or Toll Free: 800-368-5642.
The petitioner is Energy
The petitioner states that 10 CFR 50.2 defines decommissioning as not beginning until the site or facility ceases operations, and asserts that the definition implies that an entire facility must be removed from service before an activity can be considered as part of decommissioning. The petitioner also states that 10 CFR 50.82(a)(8) allows withdrawals from decommissioning trust funds for decommissioning expenses only, and further limits withdrawals for planning activities prior to the submittal of the post-shutdown decommissioning activities report (PSDAR) following cessation of operations. According to the petitioner, the disposal costs for MRCs that have been removed from service but are awaiting disposal while the facility is still in service are not covered by decommissioning trust funds. The petitioner states that most licensees, rather than use limited operating funds, defer the disposal of MRCs until the time of decommissioning, when they can use their trust funds to remove and dispose of the MRCs in order to achieve the radiation dose limits specified in Subpart E to 10 CFR Part 20. The petitioner asserts that this disposal may not take place for decades, giving rise to adverse environmental impacts if not properly managed.
The petitioner requests that NRC amend its regulations at 10 CFR 50.82, “Termination of License,” to provide a process that would permit a licensee, in advance of permanently ceasing operation at a site, to facilitate the decommissioning process by allowing decommissioning trust funds to be used for disposal of removed MRCs. (Note: The petitioner is not requesting that
(iii) Notwithstanding the limitations of §§ 50.82(a)(8)(i)(A) and 8(ii), a licensee may use decommissioning trust funds to dispose of major radioactive components that have been removed from the reactor provided:
A. The licensee has submitted to the NRC with a copy to the Federal or State government agency (e.g., Federal Energy Regulatory Commission and State Public Utility Commissions), if any, which has rate regulation oversight responsibility for the licensee's decommissioning trust fund:
(1) A request to allow it to withdraw a specified amount from its decommissioning trust fund for the purpose of disposing of specific major radioactive component(s);
(2) A site-specific decommissioning cost estimate that includes the disposal costs for major components stored on site; and
(3) An analysis demonstrating that if the licensee withdraws funds for the costs of disposing of the particular component(s) from the decommissioning trust fund, the remaining funds in the licensee's decommissioning trust fund are sufficient to meet the provisions of §§ 50.82(a)(8)(i)(B) and (C); and
B. The NRC has concluded that there is reasonable assurance that the provisions of §§ 50.82(a)(8)(B) and (C) will be met if the licensee withdraws the funds requested under § 50.82(a)(8)(iii)(A)(1).
The petitioner's asserted justifications for this amendment include:
(1) Reducing the radioactive source term associated with the contaminated components at reactor sites;
(2) Exposing site workers to less radiation;
(3) Eliminating unnecessary regulatory burdens by avoiding the costs associated with both maintaining the components on-site and providing protection to workers as a result of maintaining those components;
(4) Reducing the overall costs to decommission sites; and
(5) Ensuring that more funds are available to decommission reactors at the time the reactors cease operation.
The petitioner concludes that it is in the public interest to provide a regulatory framework to allow funds from licensees' decommissioning trust funds to be used for the cost of disposal of MRCs that have been removed from reactors prior to the permanent cessation of operations. Accordingly, the petitioner requests that the NRC amend its regulations as described previously in the section titled, “The Proposed Amendments.”
For the Nuclear Regulatory Commission.
Western Area Power Administration, Department of Energy (DOE).
Notice of proposed rulemaking.
The Western Area Power Administration (Western) is proposing changes to current regulations that require customers to prepare integrated resource plans (IRP). Western is proposing to facilitate public review of customer IRPs by making them more readily available, such as by posting customer IRPs on Western's external Web site. Western is also proposing language to encourage participation in regional IRPs by customers who may not be members of a member-based association (MBA). Finally, Western proposes to modify the requirement that each member of an MBA approve the IRP. Publication of this
The comment period begins today and will end November 19, 2007. Western will present a detailed explanation of the proposed revisions to its current regulations and accept oral and written comments at a joint public information and public comment forum. The public forum will be held on the following date: September 6, 2007, 1 p.m. MDT, Denver, CO. Western will accept written comments any time during the comment period.
Send written comments to Ron Horstman, Energy Services Specialist, Western Area Power Administration, P.O. Box 281213, Lakewood, CO 80228-8213. Comments may be sent by fax to (720) 962-7427 or by electronic mail to
The public forum location will be the Radisson Hotel Denver Stapleton Plaza, 3333 Quebec Street, Denver, Colorado 80207.
Project manager-Ron Horstman, (720) 962-7419, e-mail
Section 114 of the Energy Policy Act of 1992 (EPAct), Public Law 102-486, amended the Hoover Power Plant Act of 1984 (42 U.S.C. 7275-7276) to require integrated resource planning by Western's customers. Western implemented section 114 of EPAct through completion of the Energy Planning and Management Program (Program) in October 1995. 60 FR 54151 (October 20, 1995). The Program was revised in March of 2000 to allow customers more alternatives in meeting the IRP requirements. 65 FR 16789 (March 30, 2000). Western's current regulations are published in the Code of Federal Regulations at 10 CFR part 905.
Western is proposing to revise its IRP rule pursuant to 10 CFR 905.24, which allows Western at appropriate intervals to initiate a public process to review and revise its regulations. Specifically, Western is proposing to change its IRP regulations in three respects. The first proposed change is to the public participation requirement under 10 CFR 905.11 (b)(4). Given the large number of members of some MBAs and the diversity of the member's interests, Western proposes to eliminate the requirement that members of an MBA unanimously approve the IRP (10 CFR 905.11(b)(4)(i) ). Instead, Western proposes to require approval only by the governing body of an MBA, which serves the interests of each MBA member through the member's representation on the MBA board. Western is proposing no other changes to the full public participation requirement in section 905.11(b)(4).
Secondly, Western is proposing to add a paragraph to section 905.12(b) to encourage cooperation among customers in the preparation of regional IRPs by clarifying that such a regional approach is acceptable, with advance approval by Western, even if the participating
Finally, consistent with the requirement for full public participation in the preparation, development, revision or amendment of an IRP, Western proposes to make current customer IRPs more readily available to the public, such as by posting such documents on Western's external Web site. Customers may continue to request confidential treatment of sensitive information covered by an exemption in the Freedom of Information Act when the IRP is filed with Western. If Western agrees, the sensitive information will be redacted and not released. This proposal is in response to feedback from interested parties that IRPs prepared by Western's customers are more difficult to obtain than investor-owned utility IRPs. Western is proposing to clarify its ability to release customer IRPs in section 905.23.
Western has an exemption from centralized regulatory review under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this notice of proposed rulemaking was not reviewed by OMB under the Executive Order.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601,
No new information or record keeping requirements are imposed by this rulemaking. Accordingly, no OMB clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501
In compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
Executive Order 13132, “Federalism” (64 FR 43255, August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). Western has examined today's proposed rule and has determined that it does not preempt State law and does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Federal agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Federal agencies to determine whether the regulations meet the applicable standards in section 3(a) and section 3(b), or it is unreasonable to meet one or more of them. Western has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector. Western has determined that today's regulatory action does not impose a Federal mandate on State, local or tribal governments or on the private sector.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, Western has concluded
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by the Office of Management and Budget (OMB). OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). Western has reviewed today's notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as: (1) Any action by an agency that promulgated or is expected to lead to promulgation of a final rule; (2) is a significant regulatory action under Executive Order 12866, or any successor order; and (3) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action is not a significant energy action. Accordingly, Western has not prepared a Statement of Energy Effects.
Interested persons are invited to participate by submitting data, views, or arguments with respect to the proposed amendments to part 905 set forth in this notice. Written comments should be submitted to the address indicated in the
Any information that a commenter considers to be confidential must be so identified and submitted in writing, one copy only. Western reserves the right to determine the appropriateness of confidential status for the information and to treat it in accordance with its determination.
The Secretary of Energy has approved the publication of today's proposed rule.
Electric power, Electric utilities, Energy, Energy conservation, Hydroelectric power and utilities, Reporting and recordkeeping requirements.
For the reasons set forth in the supplementary information section, 10 CFR part 905 is proposed to be amended as set forth below.
1. The authority citation is revised to read as follows:
42 U.S.C. 7152, 7191; 42 U.S.C. 7275-7276c.
2. Section 905.11(b)(4)(i) is amended by removing “and each MBA member (such as a board of directors or city council)”; and by removing “included or referred to in the IRP”.
3. Section 905.12 is amended by adding paragraph (b)(4) to read as follows:
(b) * * *
(4) Customers may work together to develop and submit regional IRPs. Customers who wish to submit regional IRPs must first obtain approval by Western to do so. Regional IRPs must be approved individually by each participating customer prior to submittal of the IRP to Western.
4. Section 905.23 is revised to read as follows:
IRPs, small customer plans, minimum investment reports, public benefits reports, and EE/RE reports and associated data submitted to Western are subject to the Freedom of Information Act (FOIA) and may be made available to the public upon request. Customers may request confidential treatment of all or part of a submitted document under applicable FOIA exemptions. Western's FOIA Officer will make his/her own determination whether particular information is exempt from public access. Western will not disclose to the public information it has determined to be exempt from disclosure under FOIA. Western will make customer IRPs available to the public, such as through posting them on Western's external Web site, subject to the same confidentiality determinations made in response to FOIA requests.
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:
Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, * * * Special Federal Aviation Regulation 88 (SFAR88) * * * required a safety review of the aircraft Fuel Tank System * * *.
Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s)
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by September 20, 2007.
You may send comments by any of the following methods:
•
•
•
•
•
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2006-0206, dated June 11, 2006, and EASA Airworthiness Directive 2006-0208, dated July 12, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b).
A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309.
In August 2005 EASA published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO,
Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an “unsafe condition” as defined in FAA's memo 2003-112-15 “SFAR 88—Mandatory Action Decision Criteria”. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements.
This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations, comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above.
The corrective action includes revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness for certain airplanes, and the FAA-approved maintenance program for certain other airplanes, to incorporate new limitations for fuel tank systems. You may obtain further information by examining the MCAI in the AD docket.
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
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), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.
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.
Fokker Services B.V. has issued Fokker Service Bulletin F28/28-050, dated June 30, 2006; and Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCL) Report SE-672, Issue 1, dated January 31, 2006. 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 18 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,440, or $80 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 20, 2007.
(b) None.
(c) This AD applies to Fokker Model F.28 Mark 0070 and 0100 airplanes, all serial numbers, certificated in any category; and Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes, serial numbers 11003 through
This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (g) of this AD. The request should include a description of changes to the required inspections that will ensure the continued damage tolerance of the affected structure. The FAA has provided guidance for this determination in Advisory Circular (AC) 25.1529-1.
(d) Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on ground, the FAA published Special Federal Aviation Regulation 88 (SFAR 88) in June 2001. SFAR 88 required a safety review of the aircraft Fuel Tank System to determine that the design meets the requirements of FAR (Federal Aviation Regulation) § 25.901 and § 25.981(a) and (b).
A similar regulation has been recommended by the JAA (Joint Aviation Authorities) to the European National Aviation Authorities in JAA letter 04/00/02/07/03-L024 of 3 February 2003. The review was requested to be mandated by NAA's (National Aviation Authorities) using JAR (Joint Aviation Regulation) § 25.901(c), § 25.1309.
In August 2005 EASA published a policy statement on the process for developing instructions for maintenance and inspection of Fuel Tank System ignition source prevention (EASA D 2005/CPRO,
Fuel Airworthiness Limitations are items arising from a systems safety analysis that have been shown to have failure mode(s) associated with an ‘unsafe condition' as defined in FAA's memo 2003-112-15 ‘SFAR 88—Mandatory Action Decision Criteria'. These are identified in Failure Conditions for which an unacceptable probability of ignition risk could exist if specific tasks and/or practices are not performed in accordance with the manufacturers' requirements.
This EASA Airworthiness Directive mandates the Fuel System Airworthiness Limitations, comprising maintenance/inspection tasks and Critical Design Configuration Control Limitations (CDCCL) for the type of aircraft, that resulted from the design reviews and the JAA recommendation and EASA policy statement mentioned above.
The corrective action includes revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness for certain airplanes, and the FAA-approved maintenance program for certain other airplanes, to incorporate new limitations for fuel tank systems.
(f) Unless already done, do the following actions.
(1) Within 3 months after the effective date of this AD, do the action in paragraph (f)(1)(i) or (f)(1)(ii) of this AD, as applicable. For all identified tasks, the initial compliance time starts from the effective date of this AD. The repetitive inspections must be accomplished thereafter at the intervals not to exceed those specified in Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCL) Report SE-672, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F28/28-050, dated June 30, 2006; as applicable; except as provided by paragraph (f)(3) of this AD.
(i) For Model F.28 Mark 0070 and 0100 airplanes, revise the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to incorporate the limits specified in Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCL) Report SE-672, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F28/28-050, dated June 30, 2006; as applicable.
(ii) For Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes, incorporate into the FAA-approved maintenance inspection program the limits specified in Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCL) Report SE-672, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F28/28-050, dated June 30, 2006.
(2) Within 3 months after the effective date of this AD, do the action in paragraph (f)(2)(i) or (f)(2)(ii) of this AD, as applicable.
(i) For Model F.28 Mark 0070 and 0100 airplanes, revise the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to incorporate the CDCCLs as defined in Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCLs) Report SE-672, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F28/28-050, dated June 30, 2006.
(ii) For Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes, incorporate into the FAA-approved maintenance inspection program the CDCCLs as defined in Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCLs) Report SE-672, Issue 1, dated January 31, 2006; or Fokker Service Bulletin F28/28-050, dated June 30, 2006.
(3) Where Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCLs) Report SE-672, Issue 1, dated January 31, 2006; and Fokker Service Bulletin F28/28-050, dated June 30, 2006; allow for exceptional short-term extensions, an exception is acceptable to the FAA if it is approved by the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(4) Except as provided by paragraph (g)(1) of this AD: After accomplishing the actions specified in paragraphs (f)(1) and (f)(2) of this AD, no alternative inspection, inspection intervals, or CDCCLs may be used.
For Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes, after an operator complies with the requirements of paragraphs (f)(1)(ii) and (f)(2)(ii) of this AD, those paragraphs do not require that operators subsequently record accomplishment of those requirements each time an applicable action is accomplished according to that operator's FAA-approved maintenance inspection program.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency (EASA) Airworthiness Directive 2006-0206, dated June 11, 2006; EASA Airworthiness Directive 2006-0208,
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
The FAA is revising an earlier proposed airworthiness directive (AD) for all Boeing Model 767 airplanes. The original NPRM would have required the following actions for the drive mechanism of the horizontal stabilizer: Repetitive detailed inspections for discrepancies and loose ball bearings; repetitive lubrication of the ballnut and ballscrew; repetitive measurements of the freeplay between the ballnut and the ballscrew; and corrective action if necessary. The original NPRM resulted from a report of extensive corrosion of a ballscrew in the drive mechanism of the horizontal stabilizer on a similar airplane model. This action revises the original NPRM by including additional initial and repetitive inspections of the ballscrew-to-ballnut freeplay for certain airplanes, and adding a new compliance time for those inspections. We are proposing this supplemental NPRM to prevent an undetected failure of the primary load path for the ballscrew in the drive mechanism of the horizontal stabilizer and subsequent wear and failure of the secondary load path, which could lead to loss of control of the horizontal stabilizer and consequent loss of control of the airplane.
We must receive comments on this supplemental NPRM by September 17, 2007.
Use one of the following addresses to submit comments on this supplemental NPRM.
•
•
•
•
•
Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this proposed AD.
Kelly McGuckin, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Airplane Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6490; fax (425) 917-6590.
We invite you to submit any relevant written data, views, or arguments regarding this supplemental NPRM. Send your comments to an address listed in the
We will post all comments submitted, without change, to
You may examine the AD docket on the Internet at
We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking (NPRM) for an AD (the “original NPRM”) for all Boeing Model 767 airplanes. The original NPRM was published in the
Since we issued the original NPRM, Boeing has revised certain service information to add initial and repetitive inspections of the ballscrew-to-ballnut freeplay for certain airplanes, and to add a new compliance time for those inspections.
We have reviewed the following service bulletins:
• Boeing Service Bulletin 767-27A0194, Revision 2, dated July 13, 2006 (for Model 767-200, -300, and -300F series airplanes); and
• Boeing Service Bulletin 767-27A0195, Revision 2, dated July 13, 2006 (for Model 767-400ER series airplanes).
The procedures in Revision 2 of the service bulletins are essentially the same as those in Revision 1 of the service bulletins, both dated July 21, 2005 (which were referenced in the NPRM as the appropriate sources of service information for accomplishing the specified actions); except Revision 2 includes additional requirements for
We have considered the following comments on the original NPRM.
Boeing asks that we change the second paragraph of the Relevant Service Information section in the original NPRM to read “For airplanes on which an FAA-approved low utilization maintenance program is in effect * * *” We agree with Boeing that the second paragraph could be changed for clarification; however, that paragraph is not included in this supplemental NPRM. We have made no change to the supplemental NPRM in this regard.
Boeing asks that we change the table in Note 1 of the original NPRM titled “Additional Sources of Service Information” to reflect that the airplane maintenance manual is applicable to all Model 767 airplanes, not just Model 767-200 airplanes. Boeing states that the original NPRM is applicable to all Model 767 airplanes. We agree with Boeing for the reason provided, and we have changed Note 1 of this supplemental NPRM accordingly.
Boeing asks that the compliance time specified in paragraph (g) of the original NPRM (paragraph (h) of the supplemental NPRM) be reduced from 4,000 to 3,500 flight hours. Boeing states that this compliance time is specified in section 1.D. “Description” of Service Bulletin 767-27A0194, Revision 1. We agree with Boeing for the reason provided. The compliance time specified in Service Bulletin 767-27A0195, Revision 1, is also 3,500 flight hours. The compliance time specified in the original NPRM was incorrect; therefore, we have changed the compliance time in paragraph (h) of this supplemental NPRM accordingly.
Air Transport Association (ATA) on behalf of its member Delta Airlines, states that operators are already accomplishing the intent of the original NPRM and there are no instances of the underlying airworthiness concerns occurring on Model 767 airplanes.
Delta Airlines disagrees with the requirements in the original NPRM that would mandate what it considers routine maintenance program tasks. Delta states that it already performs all of these tasks and does not agree that the tasks should be mandated. Delta adds that the tasks and compliance intervals specified in the referenced service bulletins are similar to the tasks and intervals already defined in the Maintenance Planning Document (MPD). Delta notes that bundling these tasks allows efficiency, but mandating arbitrary limits through an AD significantly reduces operator scheduling flexibility and is not merited in this case.
We infer that the commenters are asking that the original NPRM be withdrawn; we do not agree. We have determined that a degraded stabilizer trim actuator can be a safety concern because each airplane has only one stabilizer trim actuator, which is both a critical system component and a critical structural component of the airplane. As we stated in the original NPRM, the unsafe condition is undetected failure of the primary load path for the ballscrew in the horizontal stabilizer and subsequent wear and failure of the secondary load path, which could lead to loss of control of the horizontal stabilizer and consequent loss of control of the airplane. The proposed maintenance tasks and intervals must be mandated because of the criticality of the horizontal stabilizer system, the consequences of not performing the maintenance tasks, and the adverse service history attributed to problems with the horizontal stabilizer system on other airplanes. These tasks and intervals were not chosen arbitrarily, but instead were based on the minimum maintenance requirements needed to maintain the integrity of the stabilizer trim system. Although the lubrication and inspection procedures are normally handled by the procedures in the maintenance program, these maintenance actions can affect the safety of the airplane if they are not performed in a timely manner. We do not mandate the implementation of MPD revisions, and we cannot control escalation of MPD intervals related to maintenance. We consider it unacceptable that maintenance intervals can be escalated for economic reasons when these maintenance actions directly affect the safety of the airplane. Failure to perform these maintenance tasks at the proper intervals can lead to an unsafe condition. Therefore, we consider that mandating the actions in this supplemental NPRM appropriate and necessary.
Delta states that there are no data provided in the original NPRM to support the proposed compliance time limits. Delta notes that both of these limits fall short of its C-check visit, and would impose significant down time and costs to accomplish tasks with such arbitrary limits. Delta recommends that, if the FAA decides to mandate these tasks, the limits be written in a manner that allows flexibility in scheduling, such as “the later of either (a) or (b), where (a) is 2,000 flight hours or 12 months, whichever occurs first; or (b) every C-check.”
United Parcel Service (UPS) asks that we consider revising the NPRM to specify accomplishment of the referenced time-controlled tasks within paragraph (g) of the original NPRM as follows: “For airplanes on which Boeing Maintenance Program Changes are in place to perform repetitive Inspections/Lubrications/Freeplay checks of the horizontal stabilizer, within 15,000 flight hours after the last Ballscrew-to-Ballnut Freeplay Inspection, or 24 months after the effective date, accomplish applicable actions required by paragraph (f) of this AD.” UPS states that the continuation of the referenced time-controlled tasks would provide an equivalent level of safety and relieve scheduling burdens that might be encountered during the accomplishment of proposed requirements.
We do not agree with allowing operators to perform the actions at later compliance times. We cannot specify a letter check for mandatory inspection intervals because letter checks vary among different operators and can be escalated. The inspection intervals were determined from the results of a safety review by means of testing, failure mode analysis, and fault tree analysis. In developing an appropriate compliance time for this action, we also considered
UPS states that no overhaul instructions are provided in the referenced service bulletins that are specified in paragraph (i) of the original NPRM, and adds that sufficient inspection requirements are given in the Component Maintenance Manual (CMM). Therefore, UPS recommends that paragraph (i) of the original NPRM (Parts Installation) specify that “* * * no person may install on any airplane a horizontal stabilizer trim actuator unless it is new or has been overhauled in accordance with the CMM; or has been inspected, lubricated, and measured in accordance with paragraph (f) of this AD.” UPS states that the referenced service bulletins do not provide any direction over and above the requirements of the associated CMM.
We disagree that the referenced service bulletins do not contain the overhaul instructions for the horizontal stabilizer trim actuator. Although the service bulletins do not list the detailed steps required to overhaul the stabilizer trim actuator, the bulletins do reference the appropriate CMM for accomplishing this task. We have made no change to the supplemental NPRM in this regard.
The Air Line Pilots Association (ALPA) recommends that there be a clear indication to the operator when the primary load path has been compromised to the point of loading the secondary load path, so that corrective action can be taken immediately. The ALPA did not provide a specific reason for, or data to support, its recommendation.
We acknowledge ALPA's request; however, we do not agree with the need for this specific indication. The maintenance tasks and intervals identified in the service bulletins, and proposed by this supplemental NPRM, are intended to ensure proper operation and detect any degradation of the stabilizer trim actuator ballscrew and ballnut, without the need to provide a separate indication. Detection of any degradation of the primary load path, as detailed in the service bulletins, requires corrective action before further flight. The proposed maintenance interval limits are intended to detect any degradation of the primary load path in advance of loading the secondary load path. We have made no change to the supplemental NPRM in this regard.
Royal Brunei Airlines asks that Boeing be notified of the status of the original NPRM if the FAA's intent is to mandate Service Bulletin 767-27A0194, Revision 2 (the original NPRM is identified in Revision 2 as related information); then operators can eliminate unnecessary duplication of tasks. Royal Brunei Airlines states that the inspection and lubrication of the horizontal trim actuator are already called out in the relevant Boeing maintenance schedule. Royal Brunei Airlines adds that the Boeing maintenance schedule is approved and mandated by its local regulatory authority.
We acknowledge the commenter's request. However, it is not necessary that Boeing be notified of the status of the original NPRM. Boeing is aware that this supplemental NPRM to the original NPRM will be issued to include the procedures specified in Revision 2 of the referenced service bulletins. Boeing is also aware of the duplication of tasks between the MPD and Service Bulletin 767-27A0194, Revision 2. Although we agree that the inspection and lubrication tasks are duplicated, the requirements in this AD take precedence over the maintenance actions in the MPD. Boeing may, in a future revision to the MPD, align the MPD with the requirements of the service bulletin. We have made no change to the supplemental NPRM in this regard.
Certain changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.
After the original NPRM was issued, we reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $65 per work hour to $80 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.
We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.
There are about 941 airplanes of the affected design in the worldwide fleet. This supplemental NPRM would affect about 411 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD, per cycle.
The additional ballscrew-to-ballnut freeplay inspection would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the new inspection on U.S. operators is $32,880, or $80 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 supplemental NPRM 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 17, 2007.
(b) None.
(c) This AD applies to all Boeing Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category.
(d) This AD was prompted by a report of extensive corrosion of a ballscrew in the horizontal stabilizer of a similar airplane model. We are issuing this AD to prevent an undetected failure of the primary load path for the ballscrew in the drive mechanism of the horizontal stabilizer and subsequent wear and failure of the secondary load path, which could lead to loss of control of the horizontal stabilizer and consequent loss of control 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) Do all the applicable actions, including any applicable corrective action, specified in Work Packages 1, 2, and 3 of the Accomplishment Instructions of Boeing Service Bulletin 767-27A0194 (for Model 767-200, -300, and -300F series airplanes) or Boeing Service Bulletin 767-27A0195 (for Model 767-400ER series airplanes), both Revision 1, both dated July 21, 2005, or Revision 2, both dated July 13, 2006, as applicable. Do the actions at the applicable compliance time specified in Table 1 of paragraph 1.E. “Compliance” of the service bulletins; except, where the service bulletins specify a compliance time relative to the original issue date of the service bulletin, this AD requires compliance relative to the effective date of this AD. Where the service bulletins specify a compliance time relative to the delivery date of the airplane, this AD requires compliance relative to the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness. Do all applicable corrective actions before further flight. Repeat the actions at the applicable repeat interval specified in Table 1 of paragraph 1.E “Compliance” of the service bulletins. As of the effective date of this AD only Revision 2 of the service bulletin may be used.
(g) For airplanes on which the A55001-22 lock equipment was used to do the ballscrew-to-ballnut freeplay inspection, and the maintenance records do not show that the tool was correctly adjusted in accordance with Appendix A, step 1.E.3, of Boeing Service Bulletin 767-27A0194 or 767-27A0195, both Revision 1, both dated July 21, 2005: Do the ballscrew-to-ballnut freeplay inspection specified in Work Package 3, including any applicable corrective action, at the time specified in Table 1 of paragraph 1.E. “Compliance” of Boeing Service Bulletin 767-27A0194 or 767-27A0195, both Revision 2, both dated July 13, 2006, as applicable. Do all applicable corrective actions before further flight. Repeat the inspection thereafter at the intervals specified in Table 1 of paragraph 1.E “Compliance” of the service bulletins.
(h) For airplanes on which the drive mechanism of the horizontal stabilizer was replaced before the effective date of this AD with a drive mechanism that was not new or overhauled, and the detailed and freeplay inspections were not accomplished in accordance with Boeing Alert Service Bulletin 767-27A0194 or 767-27A0195, both dated August 21, 2003: Within 3,500 flight hours or 24 months after the effective date of this AD, whichever is first, accomplish the inspections and perform all applicable corrective actions before further flight in accordance with Work Package 3 of the Accomplishment Instructions of Boeing Service Bulletin 767-27A0194 or Boeing Service Bulletin 767-27A0195, both Revision 1, both dated July 21, 2005; or Revision 2, both dated July 13, 2006; as applicable. As of the effective date of this AD only Revision 2 of the service bulletin may be used.
(i) For Model 767 airplanes that have line numbers 002 through 175 inclusive: Accomplishing the initial inspection, applicable corrective action, and lubrication before the effective date of this AD in accordance with Boeing Alert Service Bulletin 767-27A0185, dated July 10, 2003; is considered acceptable for compliance with the applicable actions required by paragraph (f) of this AD.
Boeing Service Bulletins 767-27A0194 and 767-27A0195, both Revision 2, both dated July 13, 2006, refer to the applicable Boeing 767 Airplane Maintenance Manuals as additional sources of service information for accomplishing the detailed inspections, lubrications, freeplay measurements, and corrective action.
(j) As of the effective date of this AD, no person may install on any airplane a horizontal stabilizer trim actuator unless it is new or has been overhauled as specified in Boeing Service Bulletins 767-27A0194 and 767-27A0195, both Revision 2, both dated July 13, 2006; or has been inspected, lubricated, and measured in accordance with paragraph (f) of this AD.
(k)(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 for this AD, follow the procedures in 14 CFR 39.19. 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.
Federal Aviation Administration (FAA), Department of Transportation (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 the occurrence of incorrect use of the self-locking nuts in bolts subject to rotational loads in bolted fittings of some assemblies of metallic components. Such event may result in disconnection of those fittings, which jeopardizes the structural integrity of the aircraft or its flight controls.
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by September 20, 2007.
You may send comments by any of the following methods:
•
•
•
•
•
You may examine the AD docket on the Internet at
Greg Davison, Glider Program Manager, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4130; fax: (816) 329-4090.
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 Departamento de Aviacao Civil (DAC), which is the aviation authority for Brazil, has issued AD No. 2005-12-01, dated January 17, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
It has been found the occurrence of incorrect use of the self-locking nuts in bolts subject to rotational loads in bolted fittings of some assemblies of metallic components. Such even may result in disconnection of those fittings, which jeopardizes the structural integrity of the aircraft or its flight controls.
Since this condition may occur in other airplanes of the same type and affects flight safety, a corrective action is required. Thus, sufficient reason exists to request compliance with this AD in the indicated time limit.
You may obtain further information by examining the MCAI in the AD docket.
Aeromot has issued Service Bulletin (SB) No. 200-20-102, revision B, dated January 23, 2006. 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the 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
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 56 products of U.S. registry. We also estimate that it would take about 8 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 $430 per product.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $59,920 or $1,070 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 20, 2007.
(b) None.
(c) This AD applies to the following gliders in the table below that:
(1) are certificated in any category and
(2) have not incorporated the actions in their entirety of Aeromot SB No. 200-20-102, revision A, dated April 19, 2005.
(d) Air Transport Association of America (ATA) Code 51: Structures.
(e) The mandatory continuing airworthiness information (MCAI) states:
It has been found the occurrence of incorrect use of the self-locking nuts in bolts subject to rotational loads in bolted fittings of some assemblies of metallic components. Such even may result in disconnection of those fittings, which jeopardizes the structural integrity of the aircraft or its flight controls.
Since this condition may occur in other airplanes of the same type and affects flight safety, a corrective action is required. Thus, sufficient reason exists to request compliance with this AD in the indicated time limit.
(f) Unless already done, within the next 50 hours time-in-service (TIS) after the effective date of this AD, following Aeromot Service Bulletin No. 200-20-102 Rev. B, dated January 23, 2006, install new bolts, washers, and castellated nuts with cotter pins in the following areas:
(1) both main landing gear legs,
(2) swivel tail wheel,
(3) eye-bolt fittings located at firewall inside cabin,
(4) left and right rudder pedal assembly,
(5) bellcranks of the rudder cables assembly,
(6) bellcranks of the propeller pitch control assembly, and
(7) left and right wing hinge point.
No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Departamento de Aviacao Civil (DAC), which is the aviation authority for Brazil, AD No. 2005-12-01; and Aeromot SB No. 200-20-102, revision B, dated January 23, 2006, for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain GARMIN International (GARMIN) GSM 85 servo gearbox units that are installed on airplanes. This proposed AD would require you to inspect the GSM 85 servo gearbox for foreign object debris and return the unit to the manufacturer for replacement if you find debris. This proposed AD results from reports of certain GARMIN GSM 85 servo gearbox units that have foreign object debris inside the assembly. We are proposing this AD to detect and correct defective GARMIN GSM 85 servo gearbox units, which could result in jamming of the gearbox. Jamming of the gearbox could lead to the pilot having to apply excessive manual force to control the airplane.
We must receive comments on this proposed AD by October 22, 2007.
Use one of the following addresses to comment on this proposed AD:
•
•
•
•
•
For service information identified in this proposed AD, contact GARMIN International Inc., 1200 East 151st Street, Olathe, KS 66062; telephone: 913-397-8200; fax: 913-397-8282.
Roger A. Souter, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: 316-946-4134; fax: 316-946-4107; e-mail address:
We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of certain GARMIN GSM 85 servo gearbox units having foreign object debris inside the assembly. The debris was found during installation and removal.
The GSM 85 servo gearbox extrusion (housing) is composed primarily of aluminum. The manufacturer selectively uses a tumbling process to deburr the housing, which resulted in foreign object debris collecting in the housing cavities.
We have determined that foreign object debris inside the gear-assembly housing may come loose causing the GSM 85 servo gearbox to jam.
This condition, if not corrected, could result in the GSM 85 servo gearbox unit becoming jammed. Jamming of the servo gearbox could lead to the pilot having to apply excessive manual force to control the airplane.
We have reviewed GARMIN International, Inc. Service Bulletin No. 0713, Revision A, dated May 7, 2007; GARMIN International, Inc. Service Bulletin No. 0713, Revision B, dated May 18, 2007; GARMIN International, Inc. Service Bulletin No. 0713, Revision C, dated May 29, 2007; and GARMIN International, Inc. Service Bulletin No. 0713, Revision D, dated June 13, 2007. These service bulletins describe procedures for inspecting the GSM 85 servo gearbox for foreign object debris and returning the unit to the manufacturer for replacement if debris is found.
We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require you to inspect the GSM 85 servo gearbox for foreign object debris and return the unit to the manufacturer for replacement if you find debris.
We estimate that this proposed AD would affect 900 airplanes in the U.S. registry.
We estimate the following costs to do the proposed inspection:
For airplanes that would need to replace the GSM 85 servo gearbox based on the results of the proposed inspection, we estimate the following costs to set the torque value of the slip-clutch breakaway required for installation. We have no way of determining the number of airplanes that may need this replacement:
Warranty credit will be given to the extent specified in the service information.
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.
You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at
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 on this airworthiness directive (AD) action by October 22, 2007.
(b) None.
(c) This AD applies to the GSM 85 servo gearbox units that are specified in paragraph (c)(1) of this AD and are installed on airplanes. These GSM 85 servo gearbox units are installed in, but not limited to, airplanes that are certificated in any category and presented in paragraph (c)(2) of this AD:
(1)
(2)
(d) This AD results from reports of certain GARMIN GSM 85 servo gearbox units that have foreign object debris inside the assembly. We are issuing this AD to detect and correct defective GARMIN GSM 85 servo gearbox units, which could result in jamming of the servo gearbox. This jamming could
(e) To address this problem, you must do the following, unless already done:
(f) The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Roger A. Souter, Aerospace Engineer, FAA, Wichita ACO, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946-4134; fax: (316) 946-4107; e-mail address:
(g) To get copies of the service information referenced in this AD, contact GARMIN International Inc., 1200 East 151st Street, Olathe, KS 66062; telephone: (913) 397-8200; fax: (913) 397-8282. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace at Helena, MT. Additional controlled airspace is necessary to accommodate aircraft using a new Localizer (LOC) Back Course (BC)-C Standard Instrument Approach Procedures (SIAP) at Helena Regional Airport. The FAA is proposing this action to enhance the safety and management of aircraft operations at Helena Regional Airport, Helena, MT.
Comments must be received on or before October 5, 2007.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room at 12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone (202) 366-9826. You must identify FAA Docket No. FAA-2007-28400; Airspace Docket No. 07-ANM-11, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Western Service Area Office, System Support Group, 1601 Lind Avenue, SW., Renton, WA 98057; telephone (425) 917-6726.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2007-28400 and Airspace Docket No. 07-ANM-11) and be submitted in triplicate to Docket Operations (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2007-28400 and Airspace Docket No. 07-ANM-11”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace at Helena, MT. Additional controlled airspace is necessary to accommodate aircraft using the new LOC/BC-C SIAP at Helena Regional Airport. This action would enhance the safety and management of aircraft operations at Helena Regional Airport, Helena, MT.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the FAA Order 7400.9P, Airspace Designations and Reporting Points, dated September 1, 2006, and effective September 15, 2006 is amended as follows:
That airspace extending upward from 700 feet above the surface within a 10.5-mile radius of the Helena VORTAC, and within 5.3 miles northwest and 3.5 miles southeast of the Helena VORTAC 104° radial extending from the 10.5-mile radius to 18.3 miles southeast of the Helena VORTAC, and within 4.0 miles either side of Helena VORTAC 282° (267°M) radial extending from the 10.5-mile radius to 25 miles west of the Helena VORTAC; that airspace extending upward from 1,200 feet above the surface within a 20.9-mile radius of the Helena VORTAC, and within 5.3 miles south and 7.9 miles north of the Helena VORTAC 272° radial extending from the 20.9-mile radius to 39.2 miles west of the VORTAC, and within 13.5 miles west and parallel to the Helena VORTAC 352° radial extending from the 20.9-mile radius to 27 miles north of the VORTAC, and within 4.3 miles east and 7.9 miles west of the Helena VORTAC 023° radial extending from the 20.9-mile radius to 31.4 miles northeast of the VORTAC, and within 5.3 miles south and 8.3 miles north of the Helena VORTAC 102° radial extending from the 20.9-mile radius to 24.8 miles east of the VORTAC.
Internal Revenue Service (IRS), Treasury.
Change of location for public hearing.
This document provides a change of location for a public hearing on proposed regulations providing guidance on the portion of a trust properly includible in a grantor's gross estate under Internal Revenue Code sections 2036 and 2039 if the grantor has retained the use of property in a trust or the right to annuity, unitrust, or other income payment from such trust for life, for any period not ascertainable without reference to the grantor's death, or for a period that does not in fact end before the grantor's death.
The public hearing is being held on Wednesday, September 26, 2007, at 10 a.m.
The public hearing was originally being held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. The hearing location has changed. The public hearing will be held in room 2116, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC.
LaNita Van Dyke, (202) 622-3215 or Richard Hurst at
The subject of the public hearing is a notice of proposed rulemaking (REG-119097-05) that was published in the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who submit written comments and outlines by September 5, 2007, may present oral comments at the hearing.
A period of 10 minutes is allotted to each person for presenting oral comments. The IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to temporarily change the drawbridge operating regulations governing the operation of the Ferry Street Bridge, across the Quinnipiac River, mile 0.7, at New Haven, Connecticut. This notice of proposed rulemaking allows the bridge owner to keep one of the two moveable bascule spans in the closed position at all times from September 28, 2007 through April 30, 2008. This temporary rule is necessary to facilitate scheduled bridge maintenance.
Comments and related material must reach the Coast Guard on or before September 20, 2007.
You may mail comments and related material to Commander (dpb), First Coast Guard District Bridge Branch, One South Street, Battery Park Building, New York, New York, 10004, or deliver them to the same address between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is (212) 668-7165. The First Coast Guard District, Bridge Branch, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the First Coast Guard District, Bridge Branch, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, (212) 668-7195.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-07-091), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting; however, you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under
The Ferry Street Bridge, across the Quinnipiac River, mile 0.7, at New Haven, Connecticut, has a vertical clearance in the closed position of 25 feet at mean high water and 31 feet at mean low water. The existing regulations are listed at 33 CFR 117.213.
In early 2007, the Connecticut Department of Transportation requested a temporary deviation to facilitate scheduled structural repairs and bridge painting at the Ferry Street Bridge at New Haven, Connecticut. In order to perform the structural repairs, one bascule bridge span had to remain in the closed position while the other span could remain in the full open position at all times for the passage of vessel traffic.
As a result of the above request, the Coast Guard published a temporary deviation from the drawbridge operation regulations in the
On June 22, 2007, the Coast Guard was notified that the scheduled repairs authorized under the temporary deviation listed above would not be completed by the end of the effective period, scheduled to end on September 27, 2007.
As a result of the above information, Connecticut Department of Transportation requested a temporary regulation to allow the repair work to continue at the bridge through April 30, 2008, in order to complete the remaining work.
Under this notice of proposed rulemaking, from September 28, 2007 through April 30, 2008, the Ferry Street Bridge across the Quinnipiac River, mile 0.7, at New Haven, Connecticut, would keep one of the two bascule bridge spans in the closed position at all times while keeping the second bascule span in the fully open position for the passage of vessel traffic at all times.
Note that due to the need to have a temporary final rule in place when the current deviation expires on September 27, 2007, we plan on issuing a temporary final rule with an effective date less than 30 days from the date of publication in the
This proposed change would amend 33 CFR 117.213 by suspending paragraph (a) and adding a new temporary paragraph (g) that would list the temporary bridge opening schedule for the Ferry Street Bridge, as well as restating the existing operating schedules for the remaining bridges listed in paragraph (a).
This temporary rule is necessary to facilitate the rehabilitation construction at the bridge.
This proposed change would allow the Ferry Street Bridge to keep one of the two bascule spans in the open position at all times while keeping the second span in the closed position at all times from September 28, 2007 through April 30, 2008.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.
This conclusion is based on the fact that existing vessel traffic will be able to transit through the single open span at the bridge at all times.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under section 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This conclusion is based on the fact that the existing vessel traffic will be able to transit through an open bridge span at all times.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact, Commander (dpb), First Coast Guard District, Bridge Branch, One South Street, New York, NY 10004. The telephone number is (212) 668-7165. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Commandant Instruction M16475.1D, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation as this action relates to the promulgation of operating regulations or procedures for drawbridges. Under figure 2-1, paragraph (32)(e) of the Instruction, an “Environmental Analysis Checklist” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
1. The authority citation for part 117 continues to read as follows:
33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1.
2. From September 28, 2007 through April 30, 2008, § 117.213 is amended by suspending paragraph (a) and adding a temporary paragraph (g) to read as follows:
(g) The draws shall open on signal; except as follows:
(1) From 7:30 a.m. to 8:30 a.m., noon to 12:15 p.m., 12:45 p.m. to 1 p.m., and 4:45 p.m. to 5:45 p.m., the draws need not be opened.
(2) The draw of the Ferry Street Bridge, mile 0.7, at New Haven, shall maintain one of the two moveable bascule bridge spans in the full open position at all times for the passage of vessel traffic. The second moveable bascule bridge span may remain in the closed position at all times.
(3) From 11 p.m. to 7 a.m., the draw of the Grand Avenue bridge, Quinnipiac River, shall open on signal if at least one hour notice is given to the drawtender at the Ferry Street bridge. In the event that the drawtender is at the Chapel Street bridge, a delay of up to an additional hour may be expected.
(4) From 9 p.m. to 5 a.m., the draw of the Chapel Street bridge, Mill River, shall open on signal if at least one hour notice is given to the drawtender at Ferry Street bridge. In the event that the drawtender is at the Grand Avenue bridge, a delay of up to an additional hour may be expected.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement the Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment (SBRM Amendment) to the Fishery Management Plans (FMPs) of the Northeast Region, developed by the Mid-Atlantic and New England Fishery Management Councils (Councils). The SBRM Amendment would establish an SBRM for all 13 Northeast Region FMPs, as required under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The proposed measures include: Bycatch reporting and monitoring mechanisms; analytical techniques and allocation of at-sea fisheries observers; an SBRM performance standard; a review and reporting process; framework adjustment and annual specifications provisions; a prioritization process; and provisions for industry-funded observers and observer set-aside programs.
Comments must be received on or before September 20, 2007.
You may submit comments by any of the following methods:
• E-mail:
• Federal e-rulemaking portal:
• Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on the Proposed Rule to implement the SBRM Omnibus Amendment.”
• Fax: (978) 281-9135
Copies of the SBRM Amendment, and of the draft Environmental Assessment and preliminary Regulatory Impact Review (EA/RIR), are available from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-6790; and from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The EA/RIR is also accessible via the Internet at
Michael Pentony, Senior Fishery Policy Analyst, 978-281-9283.
Section 303(a)(11) of the Magnuson-Stevens Act requires that all FMPs “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” In 2004, several conservation organizations challenged the approval of two major amendments to Northeast Region FMPs. In ruling on these suits, the U.S. District Court for the District of Columbia found that the FMPs did not clearly establish an SBRM as required under the relevant section of the Magnuson-Stevens Act and remanded the amendments back to the agency to fully develop and establish the required SBRM. In particular, the Court found that the amendments (1) failed to fully evaluate reporting methodologies to assess bycatch, (2) did not mandate an SBRM, and (3) failed to respond to potentially important scientific evidence.
In response, the Councils, working closely with NMFS, undertook development of a remedy that would address all Northeast Region FMPs. In January 2006, development began on the Northeast Region Omnibus SBRM Amendment. This amendment covers 13 FMPs, 39 managed species, and 14 types of fishing gear. The purpose of the amendment is to: Explain the methods and processes by which bycatch is currently monitored and assessed for Northeast Region fisheries; determine whether these methods and processes need to be modified and/or supplemented; establish standards of precision for bycatch estimation for all Northeast Region fisheries; and, thereby, document the SBRM established for all fisheries managed through the FMPs of the Northeast Region. The amendment also responds to the “potentially important scientific evidence” cited by the Court in the two decisions referenced above.
The Northeast Region SBRM Amendment would establish an SBRM comprised of seven elements: (1) The methods by which data and information on discards are collected and obtained; (2) the methods by which the data obtained through the mechanisms identified in element 1 are analyzed and utilized to determine the appropriate allocation of at-sea observers; (3) a performance measure by which the effectiveness of the Northeast Region SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days; (4) a process to provide the Councils with periodic reports on discards occurring in Northeast Region fisheries and on the effectiveness of the SBRM; (5) a measure to enable the Councils to make changes to the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments; (6) a process to provide the Councils and the public with an opportunity to consider, and provide input into, the decisions regarding prioritization of at-sea observer coverage allocations; and (7) to implement consistent, cross-cutting observer service provider approval and certification procedures and to enable the Councils to implement either a requirement for industry-funded observers or an observer set-aside program through a framework adjustment rather than an FMP amendment.
This element addresses the methods by which data and information on discards occurring in Northeast Region fisheries would be collected and obtained. The amendment proposes to maintain the status quo. The Northeast Region SBRM would employ sampling designs developed to minimize bias to the maximum extent practicable. The Northeast Fisheries Observer Program (NEFOP) would serve as the primary mechanism to obtain data on discards in all Northeast Region commercial fisheries managed under one or more of the subject FMPs. All subject FMPs would continue to require vessels permitted to participate in said fisheries to carry an at-sea observer upon request, and all data obtained by the NEFOP under this SBRM would be collected according to the techniques and protocols established and detailed in the Fisheries Observer Program Manual and the Biological Sampling Manual. Data collected by the NEFOP would include, but not be limited to, the following items: Vessel name; date/time sailed; date/time landed; steam time; crew size; home port; port landed; dealer name; fishing vessel trip report (FVTR) serial number; gear type(s) used; number/amount of gear; number of hauls; weather; location of each haul (beginning and ending latitude and longitude); species caught; disposition (kept/discarded); reason for discards; and weight of catch. These data would be collected on all species of biological organisms caught by the fishing vessel and brought on board, including species managed under the subject FMPs, but also including species of non-managed fish, invertebrates, and marine plants. To obtain information on discards occurring in recreational fisheries subject to a Northeast Region FMP, the Northeast Region SBRM would fully incorporate, to the extent practicable and appropriate for the Region, all surveys and data collection mechanisms implemented by NMFS and affected states as a result of the agency-wide redesign of the Marine Recreational Fisheries Statistics Survey (MRFSS) Program.
This element addresses the methods by which the data obtained through the mechanisms included above would be analyzed and utilized to determine the appropriate allocation of at-sea observers across the subject fishing modes. The amendment proposes to substantially expand and refine the status quo methods to fully incorporate all managed species and all relevant fishing gear types in the Northeast Region. At-sea fisheries observers would, to the maximum extent possible and subject to available resources, be allocated and assigned to fishing vessels according to the procedures established through the amendment. All appropriate filters identified in the amendment would be applied to the results of the analysis to determine the observer coverage levels needed to achieve the objectives of the SBRM.
The amendment proposes to ensure that the data collected under the Northeast Region SBRM are sufficient to produce a coefficient of variation (CV) of the discard estimate of no more than 30 percent, in order to ensure that the effectiveness of the Northeast Region SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days. Each year, the Regional Administrator and the Science and Research Director would, subject to any
The amendment proposes to require an annual report on discards occurring in Northeast Region fisheries to be prepared by NMFS and provided to the Councils, and also to require a report every 3 years that evaluates the effectiveness of the Northeast Region SBRM. Every 3 years, the Regional Administrator and the Science and Research Director would appoint appropriate staff to work with staff appointed by the Executive Directors of the Councils to obtain and review available data on discards and to prepare a report assessing the effectiveness of the Northeast Region SBRM. This report would include, at a minimum: (1) A review of the recent levels of observer coverage in each applicable fishery; (2) a review of recent observed encounters with each species in each fishery, and a summary of observed discards by weight; a review of the CV of the discard information collected for each fishery; (4) an estimate of the total discards associated with each fishery; (5) an evaluation of the effectiveness of the SBRM at meeting the performance standard for each fishery; (6) a description of the methods used to calculate the reported CVs and to determine observer coverage levels, if those methods are different from those described and evaluated in the SBRM Amendment; (7) an updated assessment of potential sources of bias in the sampling program and analyses of accuracy; and (8) an evaluation of the implications for management of the discard information collected under the SBRM, for any cases in which the evaluation performed for item 5 indicates that the performance standard is not met. Once each year, the Science and Research Director would present to the Councils a report on catch and discards occurring in Northeast Region fisheries, as reported to the NEFOP by at-sea fisheries observers. This annual discard report would include: (1) The number of observer sea days scheduled for each fishery, by area and gear type, in each quarter; (2) the percent of total trips observed, by gear type, in each quarter; (3) the distribution of sea sampling trips by gear type and statistical area in each fishery; (4) the observed catch and discards of each species, by gear type and fishery, in each quarter; and (5) the observed catch and discards of each species, by gear type and fishery, in each statistical area.
The amendment proposes a measure to enable the Councils to make changes to certain elements of the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments. All subject FMPs would provide for an efficient process to modify aspects of the Northeast Region SBRM, as relates to each specific FMP, should the need arise and the appropriate Council determine that a change to the SBRM is warranted and needed to address a contemporary management or scientific issue. Depending on the provisions of each FMP, changes to the SBRM may be effected either through a framework adjustment to the FMP or through annual or periodic specifications. Such changes to the SBRM may include modifications to the CV-based performance standard, the means by which discard data are collected/obtained in the fishery, reporting on discards or the SBRM, or the stratification (modes) used as the basis for SBRM-related analyses. Such changes may also include the establishment of a requirement for industry-funded observers and/or observer set-aside provisions.
The amendment proposes a process to provide the Councils and the public with an opportunity to consider, and provide input into, the decisions regarding prioritization of at-sea observer coverage allocations, if the expected resources necessary may not be available. In any year in which external operational constraints would prevent NMFS from fully implementing the required at-sea observer coverage levels, the Regional Administrator and Science and Research Director would consult with the Councils to determine the most appropriate prioritization for how the available resources should be allocated. In order to facilitate this consultation, in these years, the Regional Administrator and the Science and Research Director would provide the Councils, at the earliest practicable opportunity: (1) The at-sea observer coverage levels required to attain the SBRM performance standard in each applicable fishery; (2) the coverage levels that would be available if the resource shortfall were allocated proportionately across all applicable fisheries; (3) the coverage levels that incorporate the recommended prioritization; and (4) the rationale for the recommended prioritization. The recommended prioritization should be based on: Meeting the data needs of upcoming stock assessments; legal mandates of the agency under other applicable laws, such as the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA); meeting the data needs of upcoming fishery management actions, taking into account the status of each fishery resource; improving the quality of discard data across all fishing modes; and/or any other criteria identified by NMFS and/or the Councils. The Councils may choose to accept the proposed observer coverage allocation or to recommend revisions or additional considerations for the prioritized observer allocations ultimately adopted and implemented by the Regional Administrator and the Science and Research Director.
The amendment proposes to implement consistent, cross-cutting observer service provider approval and certification procedures and to enable the Councils to implement either a requirement for industry-funded observers and/or an observer set-aside program through a framework adjustment, rather than an FMP amendment.
At this time, NMFS has not determined that the FMP amendment that this proposed rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.
A notice of availability of the Draft EA/RIR, which analyzed the impacts of all the measures under consideration in the SBRM Amendment, was published at 72 FR 41047, July 26, 2007.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.The proposed rule would modify the regulations at 50 CFR part 648 to require additional information be prepared by NMFS and provided to the
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
1. The authority citation for part 648 continues to read as follows:
16 U.S.C. 1801
2. In § 648.11, paragraphs (h) and (i) are revised to read as follows:
(h)
(2)
(3)
(i) Identification of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company, including but not limited to owners, board members, officers, authorized agents, and staff. If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.
(ii) The permanent mailing address, phone and fax numbers where the owner(s) can be contacted for official correspondence, and the current physical location, business mailing address, business telephone and fax numbers, and business e-mail address for each office.
(iii) A statement, signed under penalty of perjury, from each owner or owners, board members, and officers, if a corporation, that they are free from a conflict of interest as described under paragraph (h)(6) of this section.
(iv) A statement, signed under penalty of perjury, from each owner or owners, board members, and officers, if a corporation, describing any criminal convictions, Federal contracts they have had, and the performance rating they received on the contract, and previous decertification action while working as an observer or observer service provider.
(v) A description of any prior experience the applicant may have in placing individuals in remote field and/or marine work environments. This includes, but is not limited to, recruiting, hiring, deployment, and personnel administration.
(vi) A description of the applicant's ability to carry out the responsibilities and duties of a fishery observer services provider as set out under paragraph (h)(2) of this section, and the arrangements to be used.
(vii) Evidence of holding adequate insurance to cover injury, liability, and accidental death for observers during their period of employment (including during training). Workers' Compensation and Maritime Employer's Liability insurance must be provided to cover the observer, vessel owner, and observer provider. The minimum coverage required is $5 million. Observer service providers shall provide copies of the insurance policies to observers to display to the vessel owner, operator, or vessel manager, when requested.
(viii) Proof that its observers, either contracted or employed by the service provider, are compensated with salaries that meet or exceed the U.S. Department of Labor (DOL) guidelines for observers. Observers shall be compensated as a Fair Labor Standards Act (FLSA) non-exempt employees. Observer providers shall provide any other benefits and personnel services in accordance with the terms of each observer's contract or employment status.
(ix) The names of its fully equipped, NMFS/NEFOP certified observers on staff or a list of its training candidates (with resumes) and a request for an appropriate NMFS/NEFOP Observer Training class. The NEFOP training has a minimum class size of eight individuals, which may be split among multiple vendors requesting training. Requests for training classes with less than eight individuals will be delayed until further requests make up the full training class size. Requests for training classes must be made 30 days in advance of the requested date and must have a complete roster of trainees at that time.
(x) An Emergency Action Plan (EAP) describing its response to an “at sea” emergency with an observer, including, but not limited to, personal injury, death, harassment, or intimidation.
(4)
(ii) If NMFS approves the application, the observer service provider's name will be added to the list of approved observer service providers found on the NMFS/NEFOP website specified in paragraph (h)(1) of this section, and in any outreach information to the industry. Approved observer service providers shall be notified in writing and provided with any information
(iii) An application shall be denied if NMFS determines that the information provided in the application is not complete or the evaluation criteria are not met. NMFS shall notify the applicant in writing of any deficiencies in the application or information submitted in support of the application. An applicant who receives a denial of his or her application may present additional information to rectify the deficiencies specified in the written denial, provided such information is submitted to NMFS within 30 days of the applicant's receipt of the denial notification from NMFS. In the absence of additional information, and after 30 days from an applicant's receipt of a denial, an observer provider is required to resubmit an application containing all of the information required under the application process specified in paragraph (h)(3) of this section to be re-considered for being added to the list of approved observer service providers.
(5)
(ii) An observer service provider must provide to each of its observers:
(A) All necessary transportation, including arrangements and logistics, of observers to the initial location of deployment, to all subsequent vessel assignments, and to any debriefing locations, if necessary;
(B) Lodging, per diem, and any other services necessary for observers assigned to a fishing vessel or to attend an appropriate NMFS/NEFOP Observer Training class;
(C) The required observer equipment, in accordance with equipment requirements listed on the NMFS/NEFOP website specified in paragraph (h)(1) of this section, prior to any deployment and/or prior to NMFS observer certification training; and
(D) Individually assigned communication equipment, in working order, such as a cell phone or pager, for all necessary communication. An observer service provider may alternatively compensate observers for the use of the observer's personal cell phone or pager for communications made in support of, or necessary for, the observer's duties.
(iii)
(iv)
(v)
(vi)
(vii)
(B)
(C)
(D)
(E)
(F)
(viii)
(B) An observer service provider may refuse to deploy an observer on a requesting fishing vessel if the observer service provider has determined that the requesting vessel is inadequate or unsafe pursuant to the reasons described at § 600.746.
(C) The observer service provider may refuse to deploy an observer on a fishing vessel that is otherwise eligible to carry an observer for any other reason, including failure to pay for previous observer deployments, provided the observer service provider has received prior written confirmation from NMFS authorizing such refusal.
(6)
(i) Must not have a direct or indirect interest in a fishery managed under Federal regulations, including, but not limited to, a fishing vessel, fish dealer, fishery advocacy group, and/or fishery research;
(ii) Must assign observers without regard to any preference by representatives of vessels other than when an observer will be deployed; and
(iii) Must not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who conducts fishing or fishing related activities that are regulated by NMFS, or who has interests that may be substantially affected by the performance or nonperformance of the official duties of observer providers.
(7)
(i) Failure to meet the requirements, conditions, and responsibilities of observer service providers specified in paragraphs (h)(5) and (h)(6) of this section;
(ii) Evidence of conflict of interest as defined under paragraph (h)(3) of this section;
(iii) Evidence of criminal convictions related to:
(A) Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; or
(B) The commission of any other crimes of dishonesty, as defined by state law or Federal law that would seriously and directly affect the fitness of an applicant in providing observer services under this section;
(iv) Unsatisfactory performance ratings on any Federal contracts held by the applicant; and
(v) Evidence of any history of decertification as either an observer or observer provider.
(i)
(2)
(3)
(i) Have a valid NMFS/NEFOP fisheries observer certification pursuant to paragraph (i)(1) of this section;
(ii) Be physically and mentally capable of carrying out the responsibilities of an observer on board fishing vessels, pursuant to standards established by NMFS. Such standards are available from NMFS/NEFOP website specified in paragraph (h)(1) of this section and shall be provided to each approved observer service provider;
(iii) Have successfully completed all NMFS-required training and briefings for observers before deployment, pursuant to paragraph (i)(2) of this section; and
(iv) Hold a current Red Cross (or equivalence) CPR/first aid certification.
(4)
(5)
3. Add § 648.18 to subpart A to read as follows:
NMFS shall comply with the Standardized Bycatch Reporting Methodology (SBRM) provisions established in the following fishery management plans: Atlantic Bluefish; Atlantic Herring; Atlantic Salmon; Deep-Sea Red Crab; Mackerel, Squid, and Butterfish; Monkfish; Northeast Multispecies; Northeast Skate Complex; Sea Scallop; Spiny Dogfish; Summer Flounder, Scup, and Black Sea Bass; Surfclam and Ocean Quahog; and Tilefish.
4. In § 648.21, paragraph (c)(13) is added to read as follows:
(c) * * *
(13) Changes, as appropriate, to the Northeast Region SBRM, including the coefficient of variation (CV) based performance standard, fishery stratification, and/or reports.
5. In § 648.24, paragraph (a)(1) is revised to read as follows:
(a) * * *
(1)
6. In § 648.55, paragraph (e)(32) is revised and paragraph (e)(33) is added to read as follows:
(e) * * *
(32) Changes to the Northeast Region SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs.
(33) Any other management measures currently included in the FMP.
7. In § 648.77, paragraph (a)(1) is revised to read as follows:
(a) * * *
(1)
8. In § 648.90, paragraphs (a)(2)(i), (a)(2)(iii), (b)(1)(ii), and (c)(1)(i) are revised to read as follows:
(a) * * *
(2)
(iii) Based on this review, the PDT shall recommend target TACs and develop options necessary to achieve
(b) * * *
(1) * * *
(ii) The WMC shall recommend management options necessary to achieve FMP goals and objectives pertaining to small-mesh multispecies, which may include a preferred option. The WMC must demonstrate through analyses and documentation that the options it develops are expected to meet the FMP goals and objectives. The WMC may review the performance of different user groups or fleet Sectors in developing options. The range of options developed by the WMC may include any of the management measures in the FMP, including, but not limited to: Annual target TACs, which must be based on the projected fishing mortality levels required to meet the goals and objectives outlined in the FMP for the small-mesh multispecies; possession limits; gear restrictions; closed areas; permitting restrictions; minimum fish sizes; recreational fishing measures; description and identification of EFH; fishing gear management measures to protect EFH; designation of habitat areas of particular concern within EFH; changes to the Northeast Region SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs; and any other management measures currently included in the FMP.
(c) * * *
(1) * * *
(i) After a management action has been initiated, the Council shall develop and analyze appropriate management actions over the span of at least two Council meetings. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses and opportunity to comment on them prior to and at the second Council meeting. The Council's recommendation on adjustments or additions to management measures, other than to address gear conflicts, must come from one or more of the following categories: DAS changes, effort monitoring, data reporting, possession limits, gear restrictions, closed areas, permitting restrictions, crew limits, minimum fish sizes, onboard observers, minimum hook size and hook style, the use of crucifer in the hook-gear fishery, fleet Sector shares, recreational fishing measures, area closures and other appropriate measures to mitigate marine mammal entanglements and interactions, description and identification of EFH, fishing gear management measures to protect EFH, designation of habitat areas of particular concern within EFH, changes to the Northeast Region SBRM, and any other management measures currently included in the FMP. In addition, the Council's recommendation on adjustments or additions to management measures pertaining to small-mesh NE multispecies, other than to address gear conflicts, must come from one or more of the following categories: Quotas and appropriate seasonal adjustments for vessels fishing in experimental or exempted fisheries that use small mesh in combination with a separator trawl/grate (if applicable), modifications to separator grate (if applicable) and mesh configurations for fishing for small-mesh NE multispecies, adjustments to whiting stock boundaries for management purposes, adjustments for fisheries exempted from minimum mesh requirements to fish for small-mesh NE multispecies (if applicable), season adjustments, declarations, participation requirements for the Cultivator Shoal Whiting Fishery Exemption Area, and changes to the Northeast Region SBRM (including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs).
9. In § 648.96, paragraphs (a), (b)(5), and (c)(1)(i) are revised to read as follows:
(a)
(b) * * *
(5)
(c) * * *
(1) * * *
(i) Based on their annual review, the MFMC may develop and recommend, in addition to the target TACs and management measures established under paragraph (b) of this section, other options necessary to achieve the Monkfish FMP's goals and objectives, which may include a preferred option. The MFMC must demonstrate through analysis and documentation that the options it develops are expected to meet the Monkfish FMP goals and objectives. The MFMC may review the performance of different user groups or fleet sectors in developing options. The range of options developed by the MFMC may include any of the management measures in the Monkfish FMP, including, but not limited to: Closed seasons or closed areas; minimum size limits; mesh size limits; net limits; liver-to-monkfish landings ratios; annual monkfish DAS allocations and monitoring; trip or possession limits; blocks of time out of the fishery; gear restrictions; transferability of permits and permit rights or administration of vessel upgrades, vessel replacement, or permit assignment; measures to minimize the impact of the monkfish fishery on protected species; gear requirements or restrictions that minimize bycatch or bycatch mortality; transferable DAS programs; changes to the Northeast Region SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs; and other frameworkable measures included in §§ 648.55 and 648.90.
10. In § 648.100, paragraph (a) is revised and paragraph (b)(12) is added to read as follows:
(a)
(b) * * *
(12) Changes, as appropriate, to the Northeast Region SBRM, including the CV-based performance standard, fishery stratification, and/or reports.
11. In § 648.108, paragraph (a)(1) is revised to read as follows:
(a) * * *
(1)
12. In § 648.120, paragraph (a) is revised and paragraph (b)(13) is added to read as follows:
(a)
(b) * * *
(13) Changes, as appropriate, to the Northeast Region SBRM, including the CV-based performance standard, fishery stratification, and/or reports.
13. In § 648.140, paragraph (a) is revised and paragraph (b)(12) is added to read as follows:
(a)
(b) * * *
(12) Changes, as appropriate, to the Northeast Region SBRM, including the CV-based performance standard, fishery stratification, and/or reports.
14. In § 648.160, paragraph (a) is revised and paragraph (b)(9) is added to read as follows:
(a)
(b) * * *
(9) Changes, as appropriate, to the Northeast Region SBRM, including the CV-based performance standard, fishery stratification, and/or reports.
15. In § 648.165, paragraph (a)(1) is revised to read as follows:
(a) * * *
(1)
16. In § 648.200, paragraph (b) introductory text is revised to read as follows:
(b)
17. In § 648.206, paragraphs (b)(28) and (b)(29) are revised and paragraph (b)(30) is added to read as follows:
(b) * * *
(28) TAC set-aside amounts, provisions, adjustments;
(29) Changes, as appropriate, to the Northeast Region SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs; and
(30) Any other measure currently included in the FMP.
18. In § 648.230, paragraphs (a), (b)(4), and (b)(5) are revised and paragraph (b)(6) is added to read as follows:
(a)
(b) * * *
(4) Trip limits;
(5) Changes to the Northeast Region SBRM, including the CV-based
(6) Other gear restrictions.
19. In § 648.237, paragraph (a)(1) is revised to read as follows:
(a) * * *
(1)
20. In § 648.260, paragraph (b) introductory text is revised to read as follows:
(b)
21. In § 648.293, paragraphs (a)(1)(xiv) and (xv) are revised and paragraph (a)(1)(xvi) is added to read as follows:
(a) * * *
(1) * * *
(xiv) Habitat areas of particular concern,
(xv) Set-aside quotas for scientific research, and
(xvi) Changes to the Northeast Region SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs.
22. In § 648.321, paragraphs (b)(19) and (b)(20) are revised and paragraph (b)(21) is added to read as follows:
(b) * * *
(19) OY and/or MSY specifications;
(20) Changes to the Northeast Region SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs; and
(21) Any other measures contained in the FMP.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Research, Education, and Economics, USDA.
Notice of Workshop.
In accordance with the section 3124a of Title 7 of the United States Code, the United States Department of Agriculture (USDA) announces an energy science and education workshop to be conducted by the Research, Education, and Economics Mission Area (REE).
The workshop will be held on September 5 and 6, 2007.
The workshop will take place at the Sheraton Crystal City Hotel, 1800 Jefferson Davis Highway, Arlington, VA 22202.
Joseph A. Dunn, PhD; telephone: (202) 720-3075; fax: (202) 690-2842; or e-mail:
On Wednesday, September 5, 2007, and Thursday, September 6, 2007, from 8 a.m. to 5 p.m. the REE mission area of the USDA will hold a workshop, including breakout sessions, to discuss and plan the scope and effectiveness of REE's research, extension, and economics programs as they relate to energy science and education. The purpose of this workshop is to obtain input from experts of the four REE Agencies, the Agricultural Research Service, the Cooperative State Research, Education and Economics Service, the National Agriculture Statistics Service and the Economics Research Service, along with experts from the mission area's Land-Grant partners, on energy science and education issues of high priority to the USDA and to the Nation. Particular emphasis will be placed on results from breakout sessions conducted within the workshop which
On Wednesday, September 5 at 8 a.m. the workshop will begin with introductory remarks provided by the Under Secretary for Research, Education and Economics, Dr. Gale Buchanan. The workshop will conclude on Thursday, September 6 at 5 p.m. There will be an opportunity for public comment during the workshop. The findings of this workshop will be consolidated into a document containing the Mission Area's energy science and education vision and goals along with a roadmap for achieving this vision and goals. This document will be posted on the mission area Web site (
Forest Service, USDA.
Notice of meeting.
The National Urban and Community Forestry Advisory Council will meet in Boston, Massachusetts, October 16-18, 2007. The purpose of the meeting is to discuss emerging issues in urban and community forestry.
The meeting will be held on October 16-18, 2007.
The meeting will be held at the Double Tree Hotel Downtown, 821 Washington Street, Boston, Massachusetts. Written comments concerning this meeting should be addressed to Nancy Stremple, Executive Staff to National Urban and Community Forestry Advisory Council, 201 14th St., SW., Yates Building (1 Central) MS-1151, Washington, DC 20250-1151. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at 201 14th St., SW., Yates Building (1 Central) MS-1151, Washington, DC 20250-1151. Visitors are encouraged to call ahead to 202-205-1054 to facilitate entry into the building.
Nancy Stremple, Executive Staff or Robert Prather Staff Assistant to National Urban and Community Forestry Advisory Council, 201 14th St., SW., Yates Building (1 Central) MS-1151, Washington, DC 20250-1151, phone 202-205-1054.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. Council discussion is limited to Forest Service staff and Council members; however, persons who wish to bring urban and community forestry matters to the attention of the Council may file written statements with the Council staff (201 14th St., SW., Yates Building (1 Central) MS-1151, Washington, DC 20250-1151, e-mail
Natural Resources Conservation Service, USDA.
Notice of availability of a Finding of No Significant Impact for a project on McDonald Creek for review and comment.
The NRCS has issued a Finding of No Significant Impact (FONSI) for a stream restoration project on a private landowner's land on McDonald Creek. A copy of the FONSI and the final Environmental Assessment (EA) is available for public review at the following locations:
• NRCS Office, 10507 N. McAlister Road, OR 97850.
• Grande Ronde Model Watershed, 1114 J Avenue, La Grande, OR 97850.
• La Grande Public Library, 2006 Fourth Street, La Grande, OR 97850.
• Additional copies may be obtained by contacting Greg Kuehl, NRCS, 541-963-4178, ext. 107.
Comments will be received for a 30-day period commencing with this date of publication.
Address all requests and comments to Greg Kuehl, Basin Team Leader, Natural Resources Conservation Service (NRCS), 10507 N. McAlister Road, OR 97850; (541)-963-1022 (fax).
Alan Bahn, NRCS, 541-523-7121, ext. 115.
Natural Resources Conservation Service.
Notice of Availability of a Record of Decision.
Kevin Wickey, responsible Federal official for projects administered under the provisions of the Watershed Protection and Flood Prevention Act, Public Law 83-566, 16 U.S.C. 1001-1008, in the State of West Virginia, is hereby providing notification that a Record of Decision to proceed with the installation of the Dunloup Creek Watershed Project is available. Single copies of this Record of Decision may be obtained from Kevin Wickey at the address shown below.
Kevin Wickey, State Conservationist, Natural Resources Conservation Service, 75 High Street, Room 301, Morgantown, West Virginia 26505, telephone (304) 284-7545.
Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture.
Notice of availability of proposed changes in the Iowa NRCS State Technical Guide for review and comment.
It has been determined by the NRCS State Conservationist for Iowa that changes must be made in the NRCS State Technical Guide, specifically in Section IV Practice Standards and Specifications, Stripcropping (585) to account for improved technology. This practice standard can be used in systems that treat highly erodible land.
Comments will be received for a 30-day period commencing with this date of publication.
Richard Van Klaveren, State Conservationist, Natural Resources Conservation Service, 210 Walnut Street, Room 693, Des Moines, Iowa 50309; telephone 515-284-6655; fax 515-284-4394.
Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 states that revisions made after enactment of the law to NRCS State technical guides used to carry out highly erodible land and wetland provisions of the law shall be made available for public review and comment. For the next 30 days the NRCS will receive comments relative to the proposed changes. Following that period, a determination will be made by the NRCS regarding disposition of those comments and a final determination of change will be made.
Bureau of the Census, Department of Commerce.
Notice of Suspension of Program.
This document serves notice to state and local governments and to other federal agencies that beginning on January 1, 2008, the Bureau of the Census will suspend the Geographically Updated Population Certification Program for five years—the two years preceding the decennial census, the decennial census year, and the two years following it—to accommodate the taking of the 2010 Census. During this time, the Bureau of the Census will not provide the operations necessary to determine the updated April 1, 2000, census population and housing unit counts for entities that annex territory or that incorporate or organize as counties, boroughs, cities, towns, villages, townships, or other general purpose governments. However, all requests for population and housing count updates received in writing before January 1, 2008 will be considered.
As of January 1, 2008, the Geographically Updated Population Certification Program will be suspended.
Mr. Darryl Cohen, Population Division, Bureau of the Census, Washington, DC 20233, telephone (301) 763-2419, e-mail at
The Census Bureau first began to make updated decennial census count determinations to reflect geographic boundary changes in 1972 in response to the requests of local governments to establish eligibility for participation in the General Revenue Sharing Program, authorized under Pub. L. 92-512. At that time, the Census Bureau established a fee-paid program enabling entities with annexations to obtain updated decennial census population counts that reflected the population living in the boundary change areas. The Census Bureau also received funding from the U.S. Department of the Treasury to make those determinations for larger annexations that met prescribed criteria and for the new incorporations. The General Revenue Sharing Program ended on September 30, 1986, but the certification program continued into 1988 with support from the Census Bureau. The program was suspended to accommodate the taking of the 1990 decennial census and resumed in 1992. The Bureau of the Census supported the program through fiscal year 1995 for cities with large annexations and through fiscal year 1996 for newly incorporated places. The program was continued on a fee-paid basis only until June 1, 1998, at which time it was suspended for the 2000 decennial census (see the
As with previous censuses, the Census Bureau is suspending the program for the two years immediately preceding and following the 2010 census to permit allocation of necessary resources to the decennial census. However, all requests for population and housing count updates received before January 1, 2008 will be considered. The Census Bureau will announce in the
Authority to continue this program on a fee-for-service basis is contained in Title 13, United States Code, Section 8.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the City of Mesa, Arizona, grantee of FTZ 221, requesting authority to reorganize and expand its existing zone site to include additional acreage in or adjacent to the Williams
FTZ 221 was approved on April 25, 1997 (Board Order 883, 62 FR 25164, 5/8/97). The general-purpose zone currently consists of one site (3,020 acres) at the Williams Gateway Airport located at 6001 South Power Road in Mesa (Maricopa County).
The applicant is now requesting authority for a reorganization and expansion of the zone site: 1) Modify the existing site by deleting 1,609 acres at the airport; and, 2) Expand the existing site to include an additional 607 acres (3 parcels) at the Logistics Park Mesa (LPM) located adjacent to the airport. The proposal will result in an overall net decrease in total zone space. LPM is owned by Pecos Capital Group LLC, North Valley Corporate Center LLC and Crismon Capital Group LLC. The site will provide warehousing and distribution services to area businesses. No specific manufacturing authority is being requested at this time. Such requests would be made to the Board on a case-by-case basis.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 22, 2007. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 5, 2007.
A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: City of Mesa Economic Development/Mesa City Plaza, 20 East Main Street, Mesa, AZ 85201; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230.
For further information, contact Camille Evans at Camille_Evans@ita.doc.gov or at (202) 482-2350.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the City of Phoenix, Arizona, grantee of FTZ 75, requesting authority to expand its existing zone to include two additional sites within the Phoenix Customs and Border Protection port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on August 14, 2007.
FTZ 75 was approved on March 25, 1982 (Board Order 185, 47 FR 14931, 4/7/82), and was expanded on July 2, 1993 (Board Order 647, 58 FR 37907, 7/14/93). The general-purpose zone currently consists of two sites (356 acres total) in Phoenix:
The applicant is now requesting authority to expand its zone to include two additional sites in Phoenix:
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 22, 2007. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 5, 2007.
A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: Phoenix Export Assistance Center, 1700 West Washington Street, Suite 220, Phoenix, AZ 85007; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230.
For further information, contact Camille Evans at Camille_Evans@ita.doc.gov or at (202) 482-2350.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Dallas/Fort Worth International Airport Board, grantee of FTZ 39, requesting authority to reorganize and expand its existing zone in the Dallas area within the Dallas Customs and Border Protection port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on August 8, 2007.
FTZ 39 was approved on August 17, 1978 (Board Order 133, 43 FR 37478, 8/23/78), and expanded on: December 11, 1992 (Board Order 613, 57 FR 61046, 12/23/92); December 27, 1994 (Board Order 723, 60 FR 2377, 1/9/95); December 27, 1994 (Board Order 724, 60 FR 2376, 1/9/95); March 12, 1999 (Board Order 1028, 64 FR 14212, 3/24/99); and, March 29, 2002 (Board Order 1213, 67 FR 17049, 4/9/02).
The zone project currently consists of the following six sites (5,182 acres total): Site 1 (2,400 acres)—within the
The applicant is now requesting authority to reorganize and expand existing Site 2 and to expand the zone to include six additional sites in the Dallas area: Site 2—modify the site by deleting 108 acres due to changed circumstances and expand the site to include an additional 1,303 acres within the larger 6,000-acre Dallas Logistics Hub (in which Site 2 will be renamed) located in the Cities of Hutchins, Wilmer, Lancaster and Dallas (new total acreage—1,949 acres); Proposed Site 7 (39 acres)—Duke Intermodal Park located at Interstate 45 and E. Wintergreen Road, Hutchins; Proposed Site 8 (434 acres)—within the 650-acre Sunridge Business Park, located at Interstate 45 and East Pleasant Road, Wilmer; Proposed Site 9 (356 acres)—Dalport Business Park, located at the southwest corner of Interstate 45 and Beltline Road, Wilmer; Proposed Site 10 (50 acres)—within the 307-acre Lancaster Municipal Airport Complex, Lancaster; Proposed Site 11 (175 acres)—ProLogis 20/35 Industrial Park, located near the intersection of Interstate 20 and N. Houston School Road, Lancaster; and, Proposed Site 12 (112 acres)—Crossroads Trade Center, located at Interstate 35E and Danieldale Road, DeSoto. The sites are owned by The Allen Group, Duke Realty LLP, Wilmer Pleasant Run L.P., Argent Property Co., City of Lancaster, ProLogis, and Hillwood LIT II LP, respectively. The sites will provide warehousing and distribution space for area businesses. No specific manufacturing authority is being requested at this time. Such requests would be made to the Board on a case-by-case basis.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 22, 2007. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 5, 2007.
A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: Fort Worth U.S. Export Assistance Center, 808 Throckmorton Street, Fort Worth, TX 76102; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230.
For further information, contact Camille Evans at
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) has received information sufficient to warrant initiation of a changed circumstances review of the antidumping duty order on certain frozen fish fillets from Vietnam. Based on a request filed by Vinh Hoan Co., Ltd. (“Vinh Hoan”), the Department is initiating a changed circumstances review and preliminarily determining that Vinh Hoan Corporation (“Vinh Hoan Corp.”) is the successor-in-interest to Vinh Hoan, a respondent in the original investigation and three recent administrative reviews.
August 21, 2007.
Javier Barrientos, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230; telephone: 202-482-2243.
The antidumping duty order for certain frozen fish fillets from Vietnam was published on August 12, 2003.
On June 26, 2007, Vinh Hoan filed a submission requesting that the Department conduct a changed circumstances review of the antidumping duty order on certain frozen fish fillets from Vietnam to confirm that Vinh Hoan Corp. is the successor-in-interest to Vinh Hoan.
The product covered by this order is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species
The subject merchandise will be hereinafter referred to as frozen “basa” and “tra” fillets, which are the Vietnamese common names for these species of fish. These products are classifiable under tariff article codes 1604.19.4000
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (“Act”), the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. Additionally, section 751(b)(4) of the Act states that the Department shall not conduct a review less than 24 months after the date of publication of the less-than-fair-value determination, in the absence of good cause. As noted above, Vinh Hoan and Vinh Hoan Corp. filed their request for a changed circumstances review on June 26, 2007, well over 24 months after the publication of the order.
Pursuant to section 751(b) of the Act, and 19 CFR 351.216, we will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty finding or order that shows changed circumstances sufficient to warrant a review of the order. The information submitted by Vinh Hoan stating the change in the entity's legal status, from an LLC to a corporation, demonstrates changed circumstances sufficient to warrant a review.
As noted above in the “Background” section of this notice, in its request for a changed circumstances review, Vinh Hoan stated that it underwent a change in legal status. Vinh Hoan was converted from an LLC to a joint stock company and renamed Vinh Hoan Corp. Subsequent to the name change, the majority owner of Vinh Hoan and the controlling stock holder of Vinh Hoan Corp. remained the same (Ms. Trung Thi Le Khanh). In addition, Ms. Trung still controls Vinh Hoan Corp. as its general director.
In determining whether one company is the successor-in-interest to another for purposes of applying the antidumping duty law, the Department examines several factors including, but not limited to, changes in: (1) management; (2) production facilities; (3) supplier relationships; and (4) customer base.
In our analysis, we first reviewed the management structure of Vinh Hoan Corp. Vinh Hoan reported that there has been no change in the company's management or management structure after becoming Vinh Hoan Corp.
Second, we looked at the operational structure of Vinh Hoan Corp. Vinh Hoan explained that there have been no material changes to its operations or the way it sells subject merchandise. Additionally, Vinh Hoan provided a sales process flowchart, which demonstrates how products are ordered and sold, and stated that these processes are identical between Vinh Hoan and Vinh Hoan Corp.
Third, we reviewed the supplier relationships of Vinh Hoan and Vinh Hoan Corp. Vinh Hoan stated that it has not had any significant or material changes to its supplier base (including its food-sized fish input).
Fourth, we reviewed the customer base of both Vinh Hoan and Vinh Hoan
In summary, Vinh Hoan reported that its conversion from Vinh Hoan to Vinh Hoan Corp. did not meaningfully affect the supplier relationships, customer base, management, marketing or sale of products and services. Moreover, there have been no material changes to Vinh Hoan's operations or the way it produces and sells subject merchandise resulting in the conversion from Vinh Hoan to Vinh Hoan Corp.
Based on evidence provided by Vinh Hoan regarding its change from an LLC to a joint stock company, and absent any other record evidence that would contradict Vinh Hoan's statements, we preliminarily determine, pursuant to section 351.221(c)(3)(ii) of the Department's regulations, that Vinh Hoan Corp. is the succesor-in-interest to Vinh Hoan. If the above preliminary results are affirmed in the Department's final results, the cash deposit rate most recently calculated for Vinh Hoan will apply to all entries of subject merchandise by Vinh Hoan Corp. entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this changed circumstances review.
Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Interested parties may submit case briefs no later than 30 days after the date of publication of this notice, in accordance with 19 CFR 351.309(c)(1)(ii). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed no later than 5 days after the case briefs, in accordance with 19 CFR 351.309(d)(1). Any hearing, if requested, will normally be held two days after rebuttal briefs are due, in accordance with 19 CFR 351.310(d)(1).
The Department will issue its final results of review within 270 days after the date on which the changed circumstances review is initiated, or within 45 days if all parties to the proceeding agree to the outcome of the review, in accordance with 19 CFR 351.216(e), and will publish these results in the
The current requirement for a cash deposit of estimated antidumping duties on all subject merchandise will continue unless and until it is modified pursuant to the final results of this changed circumstances review.
This notice is published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216 of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
August 21, 2007.
Irene Gorelik or Julia Hancock, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-6905 or (202) 482-1394, respectively.
On July 31, 2007, the Department of Commerce (“the Department”) received an antidumping duty petition (“petition”) filed by M&B Metal Products Company, Inc. (“Petitioner”) on behalf of the domestic industry producing steel wire garment hangers.
Determination of Industry Support for the Petition
Section 732(b)(1) of the Tariff Act of 1930, as amended (“Act”), requires that a petition be filed by or on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that the Department's industry support determination be based on whether a minimum percentage of the relevant industry supports the petition. A petition meets this requirement if the domestic producers or workers who support the petition account for: (i) at least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or (ii) if there is a large number of producers, determine industry support using a statistically valid sampling method to poll the industry.
Section 732(c)(1)(A)(ii) of the Act provides that within 20 days of the filing of an antidumping duty petition, the Department will determine,
The Department will need additional time to analyze the domestic producers' responses to this request for information. Therefore, it is necessary to extend the deadline in order to determine the adequacy of the petition for a period not to exceed 40 days from the filing of the petition. As a result, the initiation determination will now be due no later than September 10, 2007.
The Department will contact the International Trade Commission (“ITC”) and will make this extension notice available to the ITC.
International Trade Administration, U.S. Department of Commerce.
Notice of a time change for an open meeting via teleconference.
The President's Export Council will hold a meeting via teleconference to deliberate a draft letter of recommendation to the President. This meeting was announced in a
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; intent to prepare a draft environmental impact statement (DEIS); scoping meetings; request for comments.
NMFS, Southeast Region, in collaboration with the Gulf of Mexico Fishery Management Council (Council) intends to prepare a DEIS to describe and analyze management alternatives to be included in an amendment to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. These alternatives will consider measures to rationalize effort and reduce overcapacity in the commercial grouper fishery to achieve and maintain optimum yield in the multi-species grouper fishery. The purpose of this notice of intent is to solicit public comments on the scope of issues to be addressed in the DEIS.
Written comments on the scope of issues to be addressed in the DEIS must be received by NMFS by September 20, 2007. Nine scoping meetings will be held in September 2007. See
Written comments on the scope of the DEIS, suggested alternatives and potential impacts, and requests for additional information on the amendment should be sent to Sarah DeVido, National Marine Fisheries Service, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701-5511; telephone (727) 824-5305; fax (727) 824-5308. Comments may also be sent by email to
Requests for information packets and for sign language interpretation or other auxiliary aids should be directed to the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: 813-348-1630; fax: 813-348-1711. Requests may also be sent by email to steven.atran@gulfcouncil.org.
Sarah DeVido; phone: (727) 824-5305; fax: (727) 824-5308; email:
Current regulatory measures used in the management of the grouper complex include a license limitation system, quotas, trip limits, minimum size limits, area/gear restrictions, and season closures. Nonetheless, the commercial grouper fishery has become overcapitalized which means the collective harvest capacity of participants is in excess of that required to efficiently harvest the commercial share of the total allowable catch. The overcapitalization observed in the fishery has caused commercial grouper regulations to become increasingly restrictive over time, intensifying derby conditions under which fishermen race to harvest as many fish as possible before the quota is reached. The intensification of derby conditions has, in some years, led to premature closures of the fishery.
Incentives for overcapitalization and derby fishery conditions are expected to be maintained as long as the current management structure persists. Under this management structure, the commercial grouper fishery is expected to continue to be characterized by higher than necessary levels of capital investment, increased operating costs, increased likelihood of shortened seasons, reduced safety at-sea, wide fluctuations in grouper supply and depressed ex vessel prices. These conditions lead to deteriorating working conditions and profitability for participants.
Therefore, NMFS, in collaboration with the Council will develop a DEIS to describe and analyze management alternatives to rationalize effort and reduce overcapacity in the commercial grouper fishery in order to achieve and maintain optimum yield in this multi-species fishery. These alternatives include, but are not limited to: elimination of latent permits, a buyback or buyout program, permit endorsements, an individual fishing quota program, or an individual transferable effort quota program.
In accordance with NOAA's Administrative Order 216-6, Section 5.02(c), Scoping Process, NMFS in collaboration with the Council has identified preliminary environmental issues as a means to initiate discussion for scoping purposes only. These preliminary issues may not represent the full range of issues that eventually will be evaluated in the EIS.
NMFS, in collaboration with the Council, has scheduled the following nine scoping meetings to provide the
Copies of an information packet will be available at the meetings and are available prior to the meetings from the Council (see
All scoping meetings will begin at 7 p.m. The meetings will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council (see
Once the DEIS associated with Amendment 29 is completed, it will be filed with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in the
NMFS will consider public comments received on the DEIS in developing the final environmental impact statement (FEIS) and before adopting final management measures for the amendment. NMFS will submit both the final amendment and the supporting FEIS to the Secretary of Commerce (Secretary) for review as per the Magnuson-Stevens Fishery Conservation and Management Act.
NMFS will announce, through a notice published in the
NMFS will announce, through a notice published in the
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare a supplemental environmental impact statement and notice of initiation of scoping process; request for comments.
The Western Pacific Fishery Management Council (WPFMC) and NMFS announce their intent to prepare a Supplemental Environmental Impact Statement (SEIS) in accordance with the National Environmental Policy Act of 1969 (NEPA) on the federal management of the Hawaii-based shallow-set pelagic longline fishery in the western Pacific. The SEIS will supplement the March 30, 2001, Final EIS on the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region as well as the March 5, 2004, Final SEIS on Management Measures to Implement New Technologies for the Western Pacific Longline Fisheries.
The WPFMC and NMFS will discuss alternatives and take scoping comments at a public meeting on August 30, 2007, from 6-9 p.m.
Written scoping comments must be received by September 20, 2007.
The public meeting will be held at the Ala Moana Hotel, 410 Atkinson Dr., Honolulu, HI 96815.
Written comments may be submitted by any of the following methods:
• Mail: William L. Robinson, Regional Administrator, Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814. Please write on the envelope: “Scoping Comments on HI Swordfish SEIS”; or
• E-mail:
Kitty Simonds, Executive Director, WPFMC, (808) 522-8220, or William L. Robinson, Regional Administrator, NMFS, (808) 944-2200.
The SEIS will consider alternatives for modifying the current regulatory structure for the Hawaii-based shallow-set pelagic longline fishery (“the fishery”) to provide increased opportunities to harvest swordfish while continuing to avoid, to the extent practicable, the incidental catch of seabirds, marine mammals, and threatened and endangered sea turtles. Potential regulatory changes to be analyzed in the SEIS include: modifying or eliminating the existing limit on fishing effort; maintaining or eliminating longline “set certificates” that limit the amount of fishing effort in the fishery; retaining or eliminating hard “caps” (limits) on the incidental take of sea turtles which, if reached, close the fishery for the remainder of the year; the use of time and/or area restrictions in combination with caps on interactions with loggerhead and leatherback sea turtles; modifications to assessment methodologies; changes in observer coverage; and other management alternatives designed to increase incentives to avoid interactions with sea turtles and other protected resources. The SEIS will analyze the impacts of the range of reasonable alternatives on the affected human environment, including the No Action alternative, and the potential impacts on affected populations of sea turtles. The SEIS will include an update on the status of the biological and economic factors affecting the fishery, analysis of the impacts of regulatory measures currently in effect in the shallow-set fishery since 2004, summary of information on international conservation efforts, and a discussion of the potential transferred effects on both target- and incidentally-caught species to other national fishing fleets from regulatory restrictions in the domestic fishery.
Under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Pelagic fisheries in the EEZ and on the high seas of the western Pacific have been managed under the Fishery Management Plan for the Pelagics Fisheries of the Western Pacific Region (FMP) and its amendments since 1986. Managed resources include both marketable (primarily billfishes and tunas), and non-marketable (primarily sharks) species. Fisheries managed under the FMP include pelagic longline, troll, handline, pole-and-line (bait boat), and charter-boat fisheries. Management measures include gear restrictions, vessel size limitations, time and area closures, access limitations, and other measures.
Longline fisheries of the western Pacific are further regulated under two classifications: (1) The “shallow-set” component that targets swordfish, and (2) the “deep-set” component that targets that targets tuna. The shallow-set component of the Hawaii-based longline fishery currently operates under the following regulations: an annual set limit of 2,120 shallow-sets (half of the 1994-99 historical average); mandatory night setting; the required use of 18/0 circle hooks or larger (with a 10 degree offset) and blue-dyed mackerel-type bait; closure of the fishery if sea turtle interaction limits are reached for loggerhead (17) or leatherback (16) sea turtles; and other measures. The sea turtle interaction limits were established based on a biological opinion issued by NMFS on February 23, 2004, associated with management measures to implement new technologies for the western Pacific longline fisheries. The biological opinion also requires 100 percent federal observer coverage in the shallow-set fishery.
In February 2007, the WPFMC and NMFS received a proposal from the Hawaii Longline Association (HLA) requesting an amendment to the Pelagics FMP and related MSA regulations concerning the Hawaii-based shallow-set longline fishery. The proposal requests that the WPFMC consider amending the Pelagics FMP to eliminate the existing annual fishing effort limit of 2,120 sets. The HLA proposal is premised on new information obtained since the implementation of the existing shallow-set fishery regime in early 2004 (Gilman and Kobayashi
The WPFMC and NMFS will consider a range of alternatives that may modify the current regulatory structure for the Hawaii-based pelagic longline shallow-set fishery. Preliminary alternatives that may be analyzed in the SEIS and considered by the WPFMC and NMFS include the following:
Public scoping is an early and open process for determining the scope of issues to be addressed. A principal objective of the scoping and public involvement process is to identify a reasonable range of management alternatives that, with adequate analysis, will delineate critical issues and provide a clear basis for distinguishing between those alternatives and selecting a preferred alternative.
In addition to the public meeting (see
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Eduardo Mercado III, Ph.D, Department of Psychology, 350 Park Hall, University at Buffalo, SUNY, Buffalo, New York, 14260, has applied in due form for a permit to conduct research on humpback whales (
Written, telefaxed, or e-mail comments must be received on or before September 20, 2007.
The application and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 427-2521; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, Florida 33701; phone (727) 824-5301; fax (727) 824-5320.
Written comments or requests for a public hearing on this application should be mailed to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular request would be appropriate.
Comments may also be submitted by facsimile at (301) 427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period.
Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is
Amy Hapeman or Carrie Hubard, (301) 713-2289.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
Dr. Mercado is requesting a five-year scientific research permit to expose humpback whales to playback sessions in the coastal waters of Puerto Rico. The purpose of this research is to develop methods for testing the hearing and auditory perceptual capabilities of humpback whales in order to better predict when anthropogenic sounds may interfere with social behaviors, particularly mating and group feeding. Up to 200 humpback whales would be harassed by playback experiments (active acoustics) and up to 30 additional humpbacks would be harassed by close approach during vessel surveys for passive acoustic recordings annually. In addition, up to 45 Stenellid dolphins (
Concurrent with the publication of this notice in the
National Oceanic and Atmospheric Administration (NOAA),Department of Commerce.
Notice of availability and request for public comments.
The National Oceanic and Atmospheric Administration publishes this notice to announce the availability for public comments for the draft document titled, U.S. Climate Change Science Program Synthesis and Assessment Product 4.4: “Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources.” This Synthesis and Assessment Product (SAP) analyzes information on the state of knowledge of adaptation options for key, representative ecosystems and resources that may be sensitive to climate variability and change.
This draft document is being released solely for the purpose of pre-dissemination peer review under applicable information quality guidelines. This document has not been formally disseminated by NOAA. It does not represent and should not be construed to represent any Agency policy or determination. Any public comments submitted in accordance with this notice will be considered when revising the document.
Comments must be received by October 5, 2007.
The draft of Synthesis and Assessment Product 4.4: “Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources” is posted on the CCSP Web site at:
Dr. Fabien Laurier, Climate Change Science Program Office, 1717 Pennsylvania Avenue NW, Suite 250, Washington, DC 20006, Telephone: (202) 419 3481.
The Climate Change Science Program (CCSP)
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of availability and request for public comments.
The National Oceanic and Atmospheric Administration publishes this notice to announce the availability for public comments for the draft report titled, U.S. Climate Change Science Program Synthesis and Assessment Product 3.3: “Weather and Climate Extremes in a Changing Climate. Regions of Focus: North America, Hawaii, Caribbean, and U.S. Pacific islands.”
This draft document is being released solely for the purpose of pre-dissemination peer review under applicable information quality guidelines. This document has not been formally disseminated by NOAA. It does not represent and should not be construed to represent any Agency policy or determination. After consideration of comments received on the draft Prospectus, the final Prospectus along with the comments received will be published on the CCSP web site.
Comments must be received by October 5, 2007.
The draft Synthesis and Assessment Product 3.3: “Weather and Climate Extremes in a Changing Climate. Regions of Focus: North America, Hawaii, Caribbean, and U.S. Pacific island” is posted on the CCSP Web site at:
Dr. Fabien Laurier, Climate Change Science Program Office, 1717 Pennsylvania Avenue NW, Suite 250, Washington, DC 20006, Telephone: (202) 419 3481.
The CCSP was established by the President in 2002 to coordinate and integrate scientific research on global change and climate change sponsored by 13 participating departments and agencies of the U.S. Government. The CCSP is charged with preparing information resources that promote climate-related discussions and decisions, including scientific synthesis and assessment analyses that support evaluation of important policy issues.
The Committee for the Implementation of Textile Agreements (the Committee)
Solicitation of public comments regarding possible safeguard action on imports from Honduras of cotton, wool, and man-made fiber socks (merged Category 332/432 and 632 part).
The Committee has decided, on its own initiative, to consider whether imports of Honduran cotton, wool, and man-made fiber socks (merged Category 332/432 and 632 part) are being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for such socks, and under such conditions as to cause serious damage, or actual threat thereof, to the U.S. industry producing such socks. The Committee is soliciting public comments to assist it in considering this issue and in determining whether safeguard action is appropriate. Comments must be submitted by
Sergio Botero, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4058.
Authority: Title III, Subtitle B, Section 321 through Section 328 of the Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA-DR” or the “Agreement”) Implementation Act; Article 3.23 of the Dominican Republic-Central America-United States Free Trade Agreement.
The CAFTA-DR textile and apparel safeguard applies when, as a result of the elimination of a customs duty under the Agreement, a textile or apparel article of the Dominican Republic, El Salvador, Guatemala, Honduras, or Nicaragua (“CAFTA-DR country”), is being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for that article, and under such conditions as to cause serious damage,
If the Committee makes a determination to apply a safeguard measure, the Committee may provide import tariff relief to the domestic industry to the extent necessary to remedy or prevent the serious damage or actual threat thereof and to facilitate adjustment by the domestic industry to import competition. Such relief would consist of an increase in the rate of duty on the article to a level that does not exceed the lesser of the applied U.S. normal trade relations (NTR)/most- favored-nation (MFN) duty rate for the article or the applied U.S. NTR (MFN) duty rate in effect on the day before the Agreement entered into force. The import tariff relief is effective beginning on the date that the Committee's affirmative determination is published in the Federal Register. The maximum period of import tariff relief shall be three years. However, if the initial period for import relief is less than three years, the Committee may extend the period of import tariff relief to the maximum three-year period if the Committee determines that the continuation is necessary to remedy or prevent serious damage or actual threat thereof by the domestic industry to import competition, and that the domestic industry is, in fact, making a positive adjustment to import competition. Import tariff relief may not be imposed for an aggregate period greater than three years.
Under Article 3.23.6 of the Agreement, if the United States provides relief to a domestic industry under the textile and apparel safeguard, it must provide the country whose good is subject to the measure “mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional customs duties expected to result from the textile safeguard measure.” Such concessions shall be limited to textile and apparel articles, unless the United States and the specified CAFTA-DR country agree otherwise. If the United States and the CAFTA-DR country are unable to agree on trade liberalizing compensation, that country may increase customs duties on any U.S. articles to achieve substantially equivalent trade effects. The obligation to provide compensation terminates upon termination of the safeguard relief.
In accordance with section 4 of its procedures for considering action under the CAFTA-DR textile and apparel safeguard, (71 FR 25157, April 28, 2006), the Committee has decided, on its own initiative, to consider whether imports of Honduran cotton, wool, and man-made fiber socks are being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for cotton, wool, and man-made fiber socks, and under such conditions as to cause serious damage, or actual threat thereof, to the U.S. industry producing these products.
The Committee is soliciting public comments on this matter, in particular with regard to whether imports of Honduran cotton, wool, and man-made fiber socks are causing serious damage, or actual threat thereof, to a domestic industry. It invites the public to provide information and analysis to assist the Committee in considering whether serious damage, or actual threat thereof, exists, and, if so, the role of imports of Honduran articles in causing that serious damage, or actual threat thereof. Such information may include the following: recent and historical data regarding the U.S. market for cotton, wool, and man-made fiber socks (including imports and U.S. production data); and a description of how, if at all, imports of Honduran cotton, wool, and man-made fiber socks will affect the domestic industry, as reflected in such relevant economic factors as changes in productivity, utilization of capacity, inventories, exports, wages, employment, domestic prices, profits, and investment, and any other information, relating to the existence of actual threat of serious damage. Any member of the public who provides information to the Committee should also indicate the sources from which information provided was obtained.
In providing comments, the public may wish to consider the following data:
If a comment alleges that there is no serious damage, or actual threat thereof, or that the reduction or elimination of the duty did not result in an increase in imports so as to cause serious damage, or actual threat thereof, the Committee will closely review any supporting information and documentation, such as information about domestic production or prices of like or directly competitive products. While we are taking comments from the public, particular consideration will be given to comments representing the views of actual producers in the United States of a like or directly competitive product.
Any interested party may submit information to rebut, clarify, or correct public comments submitted by any other interested party at any time prior to the close of the public comment period. If public comments are submitted less than 10 days before, or on, the applicable deadline for submission of such public comments, an interested party may submit information to rebut, clarify, or correct the public comments no later than 10 days after the applicable deadline for submission of public comments. Rebuttal comments must meet the requirements outlined in (1) through (2) of this Notice.
The Committee will make a determination within 60 calendar days of the close of the comment period as to whether the United States will request consultations with Honduras. If the Committee is unable to make a determination within 60 calendar days, it will cause to be published a notice in the Federal Register, including the date by which it will make a determination. If the Committee makes a negative determination, it will cause this determination and the reasons therefore to be published in the Federal Register. If the Committee makes an affirmative determination that, as a result of the reduction or elimination of a duty, Honduran cotton, wool, and man-made fiber socks, merged Category 332/432 and 632 part are being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for that article, and under such conditions as to cause serious damage, or actual threat thereof, to the U.S. industry producing cotton, wool, and man-made fiber socks, the United States will promptly notify Honduras in accordance with CAFTA-DR and will enter into consultations upon request.
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before October 22, 2007.
Comments may be mailed to David Van Wagner, Chief Counsel, Division of Market Oversight, U.S. Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581.
David Van Wagner (202) 418-5481; Fax: (202) 418-5277; e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the CFTC's regulations were published on December 30, 1981. See 46 FR 63035 (Dec. 30, 1981). The OMB control number for the CFTC's rules relating to security futures products was published on August 23, 2001. See 66 FR 44490 (Aug. 23, 2001).
The Commission would like to solicit comments to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• Evaluate the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, usefulness, and clarity of the information to be collected; and
• Minimize the burden of 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;
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of colleting, validating, and verifying information, processing and maintaining information and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; and transmit or otherwise disclose the information.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding a request for a new OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Office of Federal Procurement Policy's (OFPP) and the General Services Administration's (GSA) intention to initiate a new information collection to conduct two surveys on Online Procurement Services. The results from these surveys will be incorporated into a report to Congress. A request for public comments was published in the
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before September 20, 2007.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (VIR), 1800 F. Street, NW., Room 4035, Washington, DC 20405.
Ms. Julie Basile, Procurement Policy Analyst, Office of Management and Budget, Office of Federal Procurement Policy, 725 17th Street, NW., Room 9013, Washington, DC 20503 or via e-mail to
The National Defense Authorization Act for Fiscal Year 2006 (P. L. 109-360) requires OFPP, in consultation with the Federal Acquisition Regulatory Council, to review the use of online procurement services, such as reverse auction services, and identify types of commercial item procurements that are suitable for the use of such services; and features that should be provided by online procurement services that are used by Federal agencies. To conduct this review, a survey will be issued to the Government and industry buying activities and to reverse auction service
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 Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collection described below to the Office of Management and Budget (OMB) for review and reinstatement of this information collection requirement. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission received comments from two commenters in response to an earlier
Comments on the collection of information are due by September 21, 2007.
Address comments on the collection of information to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Web site at
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the “eLibrary” link. Enter the docket number excluding the last three digits in
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collection submitted for OMB review contains the following:
1.
2.
3. Control No. 1902-0106.
The Commission is now requesting that OMB approve and reinstate the information collection for an additional three years.
The FERC Form 80 has been revised to facilitate greater ease to respondents in providing the information. As initially proposed, FERC Form 80 was updated to eliminate data concerning the nearest city and population, since FERC staff can access the information from other sources. Second, FERC staff has clarified the definitions so respondents have a better understanding of the information to be provided. Third, resource data has been updated to include FERC approved recreational sites. Fourth, a new field has been added so that respondents can identify the method used for collecting the data.
In response to the 60-Day Notice of April 16, 2007, commenters proposed additional changes to the FERC Form 80. Specifically, commenters requested the following changes to the collection:
(a) To exclude recreational facilities that are not owned by the licensee even if they are within the project boundary;
(b) To change the report cycle from every six years to seven to 12 years;
(c) To add a trail count as a means to gauge recreation facility occupancy;
(d) To add attendance records as a means to estimate use and facility occupancy;
(e) To clarify in the instructions the types of recreation visits to include both public and private facilities;
(f) To clarify wildlife and hunting areas so that it's clear whether acres or areas are to be reported;
(g) To define the terms “commercial” and “private” use facilities;
(h) To report picnic sites and commercial boat mooring areas as two separate recreational resources; and
(i) To eliminate recreational resources that occurs infrequently, such as golf courses and playground facilities.
Additionally, commentors have questioned the need for the following data elements in the information collection:
(a) Whether FERC approved facilities should include third party resources within the project boundary that must be approved under the standard land use article;
(b) Whether total miles/acres of recreation areas are necessary;
(c) Whether informal/dispersed camp sites should be included; and
(d) Whether organizational camping areas within the project boundary should be included.
Both commentors questioned the Commission's estimate of 3 hours to complete the information collection.
The Commission proposes to adopt the following recommendations: A trail count as a means to gauge recreation facility occupancy and the addition of attendance records as a means to estimate use and facility occupancy.
With regard to the other recommendations, the Commission will not adopt them for the following reasons:
(a) The exclusion of recreational facilities that are not owned by the licensee even though they may be within the project boundary.
The goal of the Commission's policy on recreation is to develop the project area in a comprehensive manner. Therefore the data collection is designed to include information on all recreational facilities located within the project boundary, including those provided by other federal, state, and local agencies. Title 18 CFR Part 2.7 encourages licensees to cooperate with other entities to provide recreation opportunities. This cooperation and comprehensive approach to providing recreational access at licensed projects not only provides a better recreation experience, but also addresses impacts to environmental resources in the area by not overlapping an area. The proposed revision to the Form 80 includes a column that identifies which facilities are parts of an approved recreation plan for the project as opposed to those controlled by another entity.
(b) Change the reporting cycle from every six years to seven to twelve years. The FERC Form 80s are collected every 6 years to ensure that recreation facilities are meeting the needs of the public. The Form 80's are used on a regular basis as a tool to evaluate recreation at the projects and the Commission believes 6 years is an appropriate period of time to monitor use.
(c) To clarify in the instructions the types of recreation visits to include both public and private facilities.
The recreation visits should include all recreation days at projects at approved facilities, facilities provided by other entities, and general access areas. It does not include visits to private or residential docks or to facilities outside the project boundary.
(d) To clarify wildlife and hunting areas so that it's clear whether acres or areas are to be reported.
These are areas within the FERC project boundary that can be used for wildlife viewing and hunting.
(e) To define the terms “commercial” and “private” use facilities. The Commission does not distinguish between private and commercial recreation facilities.
(f) To report picnic sites and commercial boat mooring areas as two separate recreational resources.
We do not believe these types of resources need to be reported separately. If necessary during a project specific review, we will request these types of details from the licensee.
(g) To eliminate recreational resources that occurs infrequently, such as golf courses and playground facilities.
We have eliminated or combined some facilities over previous Form 80s. We believe the facilities currently reported on the Form 80 are representative of all recreational opportunities currently available at hydropower projects. For example, golf courses are an important recreational feature at projects throughout the southeast.
In response to commenters' concerns of whether the following information was necessary on the FERC Form 80, we provide the following:
(a) Whether FERC approved facilities should include third party resources within the project boundary that must be approved under the standard land use article.
FERC Approved Resources means those facilities that are required in an approved recreation plan or subsequent amendments or those identified in an Exhibit E filed with the license and approved. It does not include facilities approved as non-project uses of project lands and water.
(b) Whether total miles/acres of recreation areas are necessary.
We use total miles/acres to determine the need for additional facilities.
(c) Whether informal/dispersed camp sites should be included.
Informal/dispersed camping can be included in access areas.
(d) Whether organizational camping areas within the project boundary should be included.
All recreation areas should be reported, not just public recreation.
(e) Underestimation of the reporting burden. Both commenters believe the Commission has underestimated the amount of time it takes to complete the Form 80 (3 hours).
The Commission's estimate of the time to complete the Form 80s is an average of its licensees ranging from large complicated projects with extensive recreation to smaller less developed projects. In an effort to minimize the burden to licensees, we have eliminated some data fields where the information may be readily available from other sources. Data collection can take place in conjunction with other required monitoring or with other activities at the project such as water quality or dissolved oxygen sampling or general maintenance of the facilities.
4. Necessity of the Collection of Information: Submission of the information is necessary for the Commission to carry out its responsibilities in implementing the statutory provisions of the sections 4(a), 10(a), 301(a), 304 and 309 of the Federal Power Act (FPA). The authority for the Commission to collect this information comes from Section 10(a) of the FPA which requires the Commission to be responsible for ensuring those hydro projects subjects to its jurisdiction are consistent with the comprehensive development of the nation's waterway for recreation and other beneficial public uses.
In the interest of fulfilling these objectives, the Commission expects licensees subject to its jurisdiction, to recognize the resources that are affected by their activities and to play a role in protecting such resources. The information filed with the Commission is mandatory.
5.
6.
7.
Statutory provisions of sections 4(a), 10(a), 301(a), 304 and 309 of the Federal Power Act, 16 U.S.C. 797, 803, 825c and 825h.
Take notice that on August 6, 2007, Kinder Morgan Interstate Gas Transmission LLC (Kinder Morgan) whose mailing address is P.O. Box 281304, Lakewood, Colorado 80228-8304, filed an application, pursuant to section 7(c) of the Natural Gas Act (NGA), and Part 157 of the Federal Energy Regulatory Commission's Regulations, requesting a certificate of public convenience and necessity authorizing the construction and operation of certain facilities referred to as the Colorado Lateral Expansion Project located in Weld County, Colorado (Project). The facilities for the Project are designed to deliver up to 55,000 Dth per day. The application is on file with the Commission and open for public inspection. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The Project will comprise delivery meter stations and approximately 41.4 miles of 12-inch pipeline facilities extending from the Cheyenne to Greeley in Weld County, Colorado. The facilities are proposed in order to provide incremental firm transportation service to Atmos Energy Corporation (Atmos). Kinder Morgan has entered into a Precedent Agreement with Atmos for a primary term of ten years an initial volume of 47,000 Dth/day stepping-up to 55,000 Dth/day for years five through ten. The total estimated cost for the proposed facilities is $23,549,557.
Any questions regarding the application are to be directed to Skip George, Manager of Regulatory, Kinder Morgan Interstate Gas Transmission LLC, P.O. Box 281304, Lakewood, Colorado 80228-8304, phone (303) 914-4969.
Any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the below listed comment date, 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.
Motions to intervene, protests and comments 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. The Commission strongly encourages electronic filings.
On August 13, 2007, the Commission issued an order that instituted a proceeding in the above-referenced docket, pursuant to section 206 of the Federal Power Act (FPA) 16 U.S.C. 824e, to determine whether Pinnacle West Capital Corporation's, Arizona Public Service Company's, Pinnacle West Energy Corporation's and APS Energy Services Company, Inc.'s (collectively, Pinnacle) market-based
The refund effective date in the above-docketed proceeding, established pursuant to section 2069(b) of the FPA, will be the date of publication in the
Take notice that on August 10, 2007, pursuant to Rule 206 of the Rules of Practice and Procedure and section 206 of the Federal Power Act, Ameren Services Company, on behalf of its affiliates, and Northern Indiana Public Service Company (Complainants) filed a formal complaint against Midwest Independent Transmission System Operator, Inc. (Respondent) alleging that the Revenue Sufficiency Guarantee charge allocation provisions of the Respondent's tariff are unjust, unreasonable and unduly discriminatory, and therefore must be revised. The Complainants request that the Federal Energy Regulatory Commission (Commission) establish the earliest possible refund effective date with respect to the necessary revisions.
The Complainants state that copies of the Complaint were served on the contacts for the Respondent as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff 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
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission (Commission or FERC) regulations contained in the Code of Federal Regulations (CFR) (18 CFR Part 380), the Office of Energy Projects has prepared a Final Environmental Assessment (FEA) regarding AmerenUE's request to rebuild the upper reservoir of the Taum Sauk Pumped Storage Project (FERC No. 2277), located on the East Fork Black River, in Reynolds County, Missouri. The FEA analyzes the environmental effects of the reconstruction of the upper reservoir and contains measures to minimize those effects. The FEA concludes that the proposed reconstruction, with recommended mitigation measures, would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the FEA is available for review at the Commission in the Public Reference Room, or it may be viewed on the Commission's Web site at
For further information regarding this notice, please contact Thomas LoVullo at (202) 502-8900.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will identify and address the environmental impacts that could result from the construction and operation of the Midcontinent Express Pipeline Project (Project) proposed by Midcontinent Express Pipeline, LLC (MEP). On June 25, 2007, MEP filed draft Resource Reports that identified a modification to the Project in Richland and Madison Parishes, Louisiana, consisting of an approximately 4.2-mile-long lateral pipeline (CenterPoint Lateral). MEP subsequently filed additional information clarifying the location of the Project facilities associated with the CenterPoint Lateral on August 3, 2007.
On April 27, 2007, the FERC issued a “Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Midcontinent Express Pipeline Project, Request for Comments on Environmental Issues and Notice of Public Scoping Meetings” (NOI). The NOI was published in the
In order to assist staff with the identification of environmental issues associated with the modified facilities and to comply with the requirements of the National Environmental Policy Act of 1969 (NEPA), a 30-day scoping period has been opened to receive comments on the proposed Project, as modified by the addition of the CenterPoint Lateral. Please note that the scoping period for this project will close on September 10, 2007.
Comments on the Project and the issues that should be addressed in the EIS may be submitted in written form. Further details on how to submit written comments are provided in the Public Participation section of this notice. Additionally, as part of the scoping process, we will sponsor a public site visit of the proposed CenterPoint Lateral, as described below. Please note that attendees at the site visit must obtain their own transportation for the site visit.
This notice is being sent to landowners affected by the CenterPoint Lateral, as well as those that previously requested to remain on the Project environmental mailing list; federal, state, and local government agencies; elected officials; environmental and public interest groups; Native American tribes; other interested parties; and local libraries and newspapers; all of which are encouraged to submit comments on the proposed Project. Details on how to submit comments are provided in the Public Participation section of this notice.
If you are a landowner receiving this notice, you may be contacted by an MEP representative about the acquisition of an easement to construct, operate, and maintain the proposed project facilities. The pipeline company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the FERC, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility on My Land? What Do I Need To Know?” is available for viewing on
MEP proposes to construct, own and operate approximately 495 miles of new 30-, 36-, and 42-inch-diameter interstate natural gas transmission pipeline, a total of approximately 111,720 horsepower (hp) of compression at one booster and four new mainline compressor stations, and related appurtenant facilities located in portions of Oklahoma, northeast Texas, northern Louisiana, central Mississippi, and Alabama. The proposed pipeline route identified by MEP would extend from a receipt point with existing pipeline infrastructure near Bennington in Bryan County, Oklahoma, to an interconnect with the existing Transcontinental Gas Pipe Line Corporation system near Butler in Choctaw County, Alabama. The general location of the proposed pipeline is shown in the figure included as Appendix 1.
In addition, as part of the Midcontinent Express Pipeline Project, MEP proposes to construct, own, and operate the approximately 4.2-mile-long, 16-inch-diameter CenterPoint Lateral in Richland and Madison Parishes, Louisiana.
Specifically, the MEP Project facilities under FERC jurisdiction would include the following:
• Approximately 40 miles of 30-inch-diameter pipeline in Bryan County, Oklahoma, and Lamar County, Texas;
• Approximately 262 miles of 42-inch-diameter pipeline in Lamar, Red River, Franklin, Titus, Morris, and Cass Counties, Texas, and Caddo, Bossier, Webster, Claiborne, Lincoln, Union, Ouachita, Morehouse, Richland, and Madison Parishes, Louisiana;
• Approximately 193 miles of 36-inch-diameter pipeline in Madison Parish, Louisiana, and Warren, Hinds, Rankin, Simpson, Smith, Jasper, and Clarke Counties, Mississippi, and Choctaw County, Alabama;
• The newly proposed, approximately 4.2-mile-long, 16-inch-diameter lateral pipeline, which would extend from an interconnect with the Project mainline pipeline in Madison Parish, Louisiana, to the Delhi Booster Station and an interconnect with a CenterPoint Energy Gas Transmission Company pipeline in Richland Parish, Louisiana;
• Four new mainline and one booster, natural gas-fired compressor stations, including:
• Various pig
• 29 mainline valves.
MEP indicates that the proposed Project facilities would provide long-haul takeaway capacity to facilitate the transport of natural gas from production areas in Texas, Oklahoma, and Arkansas to markets in the Southeast, Northeast and Midwest regions of the United States that can be accessed through interconnects with existing pipeline infrastructure. The Project would consist of two capacity zones. The initial transport capacity of Zone 1, which would include the 30- and 42-inch-diameter portions of the pipeline facilities, would be 1.4 billion cubic feet of natural gas per day (Bcf/d). However, additional supporting contracts could provide for expansion of the Zone 1 transport capacity to 1.5 Bcf/d. Zone 2, which would include the balance of the pipeline facilities, would have an initial transport capacity of 1.0 Bcf/d, with the potential for expansion to 1.2 Bcf/d.
MEP proposes to place the first 40 miles of 30-inch-diameter pipeline in service by October 31, 2008, with the remainder of the pipeline constructed and operational by February 2009.
As proposed, the typical construction right-of-way width for the 30-, 36-, and 42-inch-diameter sections of Project pipeline would be 100, 110, and 125 feet, respectively. The typical construction right-of-way width for the CenterPoint Lateral would be 75 feet. Following construction, MEP would generally retain a 50-foot-wide permanent right-of-way for operation of the Project, though MEP proposes to expand the maintained permanent right-of-way width to 60 feet in limited areas based on site-specific conditions. Additionally, temporary extra workspaces beyond the typical construction right-of-way limits would also be required at certain feature crossings (e.g., roads, railroads, wetlands, or waterbodies), in areas with steep side slopes, in association with special construction techniques, or at pipe storage and contractor yards. In residential areas, wetlands, and other sensitive areas, the construction right-of-way width would be reduced as necessary to protect homeowners and environmental resources. Following construction, all temporary workspaces (including the temporary construction rights-of-way and extra workspaces) would be restored and allowed to revert to its former use.
NEPA requires the Commission to take into account the environmental impacts that could result from the approval of an interstate natural gas pipeline. The FERC will use the EIS to consider the environmental impact that could result if the Midcontinent Express Pipeline Project is authorized under Section 7 of the Natural Gas Act.
NEPA also requires us to discover and address concerns the public may have about proposals to be considered by the Commission. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EIS on the important environmental issues. With this NOI, the Commission staff is requesting public comments on the scope of the issues to be addressed in the EIS. All comments received will be considered during preparation of the EIS.
In the EIS we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• Water resources;
• Wetlands and vegetation;
• Fish and wildlife;
• Threatened and endangered species;
• Land use, recreation, and visual resources;
• Air quality and noise;
• Cultural resources;
• Socioeconomics;
• Reliability and safety; and
• Cumulative environmental impacts.
In the EIS, we will also evaluate possible alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on affected resources.
Our independent analysis of the issues will be included in a draft EIS. The draft EIS will be mailed to federal, state, and local government agencies; elected officials; environmental and public interest groups; Native American tribes; affected landowners; commentors; other interested parties; local libraries and newspapers; and the FERC's official service list for this proceeding. A 45-day comment period will be allotted for review of the draft EIS. We will consider all comments on the draft EIS and revise the document, as necessary, before issuing a final EIS. We will consider all comments on the final EIS before we make our recommendations to the Commission. To ensure that your comments are considered, please follow the instructions in the Public Participation section of this notice.
With this notice, we are asking federal, state, and local governmental agencies with jurisdiction and/or special expertise with respect to environmental issues, to express their interest in becoming cooperating agencies for the preparation of the EIS. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities.
The EIS will discuss impacts that could occur as a result of the construction and operation of the proposed project. We have already identified several issues that we think deserve attention based on a preliminary review of the project site, comments filed in response to the April 27, 2007 NOI, and the facility information provided by MEP. This preliminary list of issues may be changed based on your comments and our analysis.
• Potential impacts to water resources, including groundwater and ephemeral, intermittent, and perennial waterbodies.
• Evaluation of temporary and permanent impacts on wetlands and development of appropriate mitigation.
• Potential impacts to fish and wildlife habitat, including potential impacts to federal and state-listed threatened and endangered species.
• Potential impacts to natural vegetative communities, including native prairie and forestland.
• Potential effects on prime farmland soils and soils with a high potential for compaction or erosion.
• Potential impacts to existing land uses, including agricultural and managed forested lands.
• Potential impacts to recreation and special interest areas, including Wetland Reserve Program lands and the Natchez Trace Parkway.
• Potential impacts to residential areas, planned developments, and property values.
• Potential disruption to area businesses associated with construction.
• Potential visual effects of the pipeline easement and aboveground facilities on surrounding areas.
• Potential impacts to local air and noise quality associated with construction and operation.
• Potential impacts to cultural resources and Native American lands.
• Public safety and hazards associated with the transport of natural gas.
• Alternative alignments for the pipeline route and alternative sites for the compressor stations.
• Assessment of the effect of the proposed Project when combined with other past, present, or reasonably foreseeable future actions in the Project area, including the potential cumulative effect of collocating multiple utility rights-of-way.
• Use of the existing and proposed rights-of-way to minimize the need for additional temporary construction workspace and/or reduce the width of the permanent easement.
You can make a difference by providing us with your specific comments or concerns about the proposed project. By becoming a commenter, your concerns will be addressed in the EIS and considered by the Commission. Your comments should focus on the potential environmental effects, reasonable alternatives (including alternative facility sites and pipeline routes), and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please carefully follow these instructions:
• Send an original and two copies of your letter to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of your comments for the attention of Gas Branch 3, DG2E.
• Reference Docket No. PF07-4-000 on the original and both copies.
• Mail your comments so that they will be received in Washington, DC on or before September 10, 2007.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. The Commission strongly encourages electronic filing of any comments in response to this Notice of Intent. For information on electronically filing comments, please see the instructions on the Commission's Web site at
Once MEP formally files its application with the Commission, you may want to become an official party to the proceeding known as an “intervenor.” Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in a Commission proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site. Please note that you may not request intervenor status at this time. You must wait until a formal application is filed with the Commission.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed Project. This includes all landowners along the CenterPoint Lateral who are potential right-of-way grantors, whose property may be used temporarily for Project purposes, or who own property within distances defined in the Commission's regulations of certain aboveground facilities. In addition, this notice is also being sent to potentially affected landowners along other portions of the Project that previously requested to remain on the Project environmental mailing list.
If you received this notice, you are on the environmental mailing list for this project. If you do not want to send comments at this time, but still want to remain on our mailing list, please return the Information Request (Appendix 2). If you do not return the Information Request, you will be removed from the
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC (3372). Additional information can also be found on the Internet at
Public meetings or site visits will be posted on the Commission's calendar located at
Finally, MEP has established an Internet Web site for this Project at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted and is now ready for environmental analysis at this time.
l.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
All filings must: (1) Bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS”, “TERMS AND CONDITIONS”, or “PRESCRIPTIONS”; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
You may also register online at
n.
o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, protests, and motions to intervene: 60 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please include the project number (P-12804-000) on any comments, protests, or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
r.
s.
t.
u. 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 at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before September 20, 2007.
Submit your comments, referencing Docket ID No. EPA-HQ-OPP-2006-0861, to (1) EPA online using
Joseph Hogue, Field and External Affairs Division (7506-P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-9072; fax number: (703) 305-5884; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On March 21, 2007 (72 FR 13274), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received one comment during the comment period, which is addressed in the ICR. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OPP-2006-0861, which is available for online viewing at
Use EPA's electronic docket and comment system at
Responses to this collection of information are mandatory under authority of 40 CFR 157.34. Although submission of confidential information is not required as a part of this information collection, there has been at least one instance where confidential data have been submitted voluntarily as supporting material for an exemption request from CRP compliance requirements. When any trade secret or Confidential Business Information (CBI) is provided to EPA, such information is protected from disclosure under section 10 of FIFRA. Data submitted to EPA is handled strictly in accordance with the provisions of the FIFRA Confidential Business Information Manual.
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget's (OMB) responses to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Susan Auby (202) 566-1672, or e-mail at
EPA ICR No. 1604.08; NSPS for Secondary Brass/Bronze Production, Primary Copper/Zinc/Lead Smelters, Primary Aluminum Reduction Plants and Ferroalloy Production Facilities (Renewal); in 40 CFR part 60, subparts M, P, Q, R, S, Z; was approved 07/23/2007; OMB number 2060-0110; expires 07/31/2010.
EPA ICR No. 2080.03; Motor Vehicle and Engine Compliance Program Fees; in 40 CFR 85.2405-85.2408; was approved 07/26/2007; OMB Number 2060-0545; expires 07/31/2010.
EPA ICR No. 2079.03; NESHAP for Metal Can Manufacturing Surface Coating (Renewal); in 40 CFR part 63, subpart KKKK; was approved 07/30/2007; OMB Number 2060-0541; expires 07/31/2010.
EPA ICR No. 1058.09; NSPS for Incinerators (Renewal); in 40 CFR part 60, subpart E; was approved 07/30/2007; OMB Number 2060-0040; expires 07/31/2010.
EPA ICR No. 0657.09; New Source Performance Standards for Graphic Arts Industry (Renewal); in 40 CFR part 60, subpart QQ; was approved 07/30/2007; OMB Number 2060-0105; expires 07/31/2010.
EPA ICR No. 1717.05; NESHAP for Off-Site Waste and Recovery Operations (Renewal); in 40 CFR part 63, subpart DD; was approved 07/30/2007; OMB Number 2060-0313; expires 07/31/2010.
EPA ICR No. 1907.04; Recordkeeping and Reporting Requirements Regarding the Sulfur Content of Motor Vehicle Gasoline under the Tier 2 Rule (Renewal); in 40 CFR part 80, subpart H; was approved 07/30/2007; OMB Number 2060-0437; expires 07/31/2010.
EPA ICR No. 0282.14; Emission Defect Information Reports and Voluntary Emission Recall Reports (Renewal); was approved 07/30/2007; OMB Number 2060-0048; expires 07/30/2010.
EPA ICR No. 1663.05; Compliance Assurance Monitoring Program (Renewal); in 40 CFR part 64; was approved 07/31/2007; OMB Number 2060-0376; expires 07/31/2010.
EPA ICR No. 0309.12; Registration of Fuels and Fuel Additives; Requirements for Manufacturers (Renewal); was approved 07/23/2007; OMB Number 2060-0150; expires 07/31/2010.
EPA ICR No. 0010.11; Importation Requirements for Importation of Nonconforming Vehicles (Renewal); was approved 07/23/2007; OMB Number 2060-0095; expires 07/31/2010.
EPA ICR No. 1781.04; NESHAP for Pharmaceutical Production (Renewal); in 40 CFR part 63, subpart GGG; was approved 07/19/2007; OMB Number 2060-0358; expires 07/31/2010.
EPA ICR No. 1774.04; Mobile Air Conditioner Retrofitting Program (Renewal); was approved 07/19/2007; OMB Number 2060-0350; expires 07/31/2010.
EPA ICR No. 1135.09; NSPS for Magnetic Tape Coating Facilities (Renewal); in 40 CFR part 60, subpart SSS; was approved 07/19/2007; OMB number 2060-0171; expires 07/31/2010.
EPA ICR No. 1659.06; NESHAP for Gasoline Distribution Facilities (Renewal); in 40 CFR part 63, subpart R; was approved 08/07/2007; OMB Number 2060-0325; expires 08/31/2010.
EPA ICR No. 2242.02; Renewable Fuels Standards (RFS) Program (Final Rule); in 40 CFR 80.1150; was approved 08/08/2007; OMB Number 2060-0600; expires 08/31/2010.
EPA ICR No. 1664.06; The National Oil and Hazardous Substances Pollution Contingency Plan (Renewal); in 40 CFR 300.900, subpart J; was approved 08/09/2007; expires 08/31/2010.
EPA ICR No. 2060.03; Cooling Water Intake Structures Phase II Exiting Facility (Renewal); was approved 8/13/2007; OMB Number 2040-0257; expires 08/31/2010.
EPA ICR No. 1800.04; Information Requirements for Locomotives and Locomotive Engines (Proposed Rule); OMB Number 2060-0392; OMB filed comment on 07/31/2007.
EPA ICR No. 1361.11; Expanding the Comparable Fuels Exclusion under RCRA (Proposed Rule); OMB Number 2050-0073; OMB filed a comment on 07/30/2007.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before October 22, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0595 by one of the following methods:
•
• E-mail:
• Fax: (202) 566-9744.
• Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket, Docket ID No. EPA-HQ-OAR-2007-0595, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
• Hand Delivery: EPA Docket Center, Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Jaimee Dong, Office of Transportation and Air Quality, Mailcode: 6406J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9672; fax number: (202) 343-2802; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2007-0595, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) 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;
(ii) 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;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA estimates that the average burden for detergent certification is 60 hours and $4,104, and that there will be approximately 10 applications for detergent certification each year for the next three years. Thus, the annual certification burden is estimated at 600 hours and $41,040. Most of the burden is incurred by the blenders of detergent into gasoline or PRC. The regulations require that they generate and maintain records of the amount of detergent blended and the amount of gasoline into which it is blended. These records are known as volumetric additive reconciliation (VAR) records and must demonstrate that the proper amount of a certified detergent has been used. For blenders with automated equipment, the annual burden is estimated at 150 hours and $10,344. There are approximately 1300 blenders that use automated equipment. Thus, the annual burden is 195,000 hours and $13.5 million. For blenders with non-automated equipment, the annual burden is estimated at 500 hours and $34,480. There are about 50 blenders in this category, for an annual burden of 25,000 hours and $1,724,000.
There are no capital or start-up costs beyond those incurred by industry at the program's inception in 1995. Operating and maintenance (O&M) costs are in three categories. First, the on-road engine testing to demonstrate that the detergent meets the deposit-control standards is performed at contractor facilities. However, just about all detergent certifications are able to rely on previous testing, so new testing is only performed about once a year at a cost of $200,000. The second O&M cost is for copying and postage for the estimated 10 submissions annually for detergent certification and 8 submissions annually for research notification. At an estimated $10 per submission, the annual cost is $180. The third O&M cost is for the storage of the VAR records at the 1300 automated detergent blending facilities and 50 non-automated detergent blending facilities. The estimated annual cost per facility is $100, for a total of $135,000. The total annual estimated burden for industry is 220,608 hours and $15.5 million. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and
The previous clearance consisted of 221,808 hours and $13,277,604 in total costs. The small changes are due to a decrease in annual certification applications, from 30 to 10, and an update in labor costs.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice.
Under Section 10(a)(2) of the Federal Advisory Committee Act, the United States Environmental Protection Agency (EPA) is giving notice of a meeting of the Total Coliform Rule Distribution System Advisory Committee (TCRDSAC). The purpose of this meeting is to discuss the purpose, efficacy, applicability, and implementation of the Total Coliform Rule (TCR), a range of information that can be used to characterize and potentially revise the Rule, what distribution system issues affect water quality, and criteria for prioritizing distribution system issues.
The TCRDSAC advises and makes recommendations to the Agency on revisions to the Total Coliform Rule (TCR), and on what information about distribution systems is needed to better understand the public health impact from the degradation of drinking water quality in distribution systems. The Committee's activities include efforts to utilize available information for revisions to the TCR and to determine what further information is needed to characterize and address potential public health risks in the distribution systems.
Topics to be discussed in the meeting include: The framework for the existing TCR, which may include rule objectives, indicators used, and other related topics; summary of TCR issues; how utilities and States implement the TCR; a preview of information to be discussed in future Advisory Committee meetings; and distribution system elements that impact water quality and criteria for prioritization.
The public meeting will be held on Tuesday, September 18, 2007 (8:30 a.m. to 6 p.m., Eastern Daylight Time (EDT)) and Wednesday, September 19, 2007 (8 a.m. to 3 p.m. EDT). Attendees should register for the meeting by calling Jason Peller at (202) 965-6387 or by e-mail to
The meeting will be held at RESOLVE, 1255 Twenty-Third St., NW., Suite 275, Washington, DC 20037.
For general information, contact Jason Peller of RESOLVE at (202) 965-6387. For technical inquiries, contact Tom Grubbs (
The meeting is open to the public. The Committee encourages the public's input and will take public comment at 5:15 p.m. on September 18, 2007, for this purpose. It is preferred that only one person present the statement on behalf of a group or organization. To ensure adequate time for public involvement, individuals interested in presenting an oral statement may notify Jini Mohanty by telephone at 202-564-5269 no later than September 14, 2007. Any person who wishes to file a written statement can do so before or after a Committee meeting. Written statements received by September 14, 2007 will be distributed to all members before any final discussion or vote is completed. Any statements received September 17, 2007 or after the meeting will become part of the permanent meeting file and will be forwarded to the members for their information.
For information on access or services for individuals with disabilities, please contact Jini Mohanty at 202-564-5269 or by e-mail at
Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science.
Notice.
42 U.S.C. 217a, section 222 of the Public Health Service Act, as amended. The Committee is governed by the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory committees.
The U.S. Department of Health and Human Services (HHS) announces the establishment of the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 and invites nominations for membership for the Committee.
Nominations for membership on the Committee must be submitted by close of business on September 20, 2007.
Nominations may be submitted by electronic mail to
Emmeline Ochiai, Designated Federal Official, Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020, HHS, Office of Disease Prevention and Health Promotion, Office of Public Health and Science, Room LL-100, 1101 Wootton Parkway, Rockville, MD 20852, 240/453-8259 (telephone), 240/453-8281 (fax). Additional information is available on the Internet at
Each decade since 1979, the U.S. Department of Health and Human Services (HHS) has published a comprehensive set of national public health objectives. Known as
The Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 is established to provide advice and assistance to the Secretary and HHS in the development of health promotion and disease prevention objectives to improve the health of Americans by 2020. The Committee shall advise the Secretary regarding national health promotion and disease prevention initiatives, in particular the work to develop goals and objectives to improve the health status and reduce health risks for Americans. The Committee shall be charged to: Provide to the Secretary advice and consultation to facilitate the process of developing and implementing national health promotion and disease prevention goals and objectives; and provide advice to the Secretary about the initiatives to occur during the initial implementation phase of the goals and objectives.
The Committee will convene to meet, at a minimum, one time per year. It is expected to begin meeting by December 2007. Pursuant to the requirements of the Federal Advisory Committee Act, the meetings will be open to the public except as determined otherwise by the Secretary or designee, in keeping with the guidelines under Government in the Sunshine Act, 5 U.S.C. 552b(c).
Individuals selected for appointment to the Committee shall be appointed to serve for the duration of the Committee. Unless renewed, the Committee will terminate two years from the date the Committee charter is filed. Committee members will be paid travel and per diem expenses in accordance with standard travel regulations, but will not receive compensation for their service.
Prospective members of the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 should be knowledgeable of current scientific research in health promotion, disease prevention, and public health benchmarking and be respected experts in their fields. They should be familiar with the purpose and use of Healthy People or similar indicator sets and have demonstrated interest in the public's health and well-being through their work, research, and/or educational endeavors. Expertise is sought in specific specialty areas related to health promotion or disease prevention, including but not limited to: Health policy, state and local public health, business, outcomes research, health economics, health communications, special populations, biostatistics, international health, and epidemiology from a variety of public, private, foundation, and academic settings.
Individuals can nominate themselves for consideration of appointment to the Committee. All nominations must include the required information. Incomplete nominations will not be processed for consideration.
Equal opportunity practices, in line with HHS policies, will be followed in all membership appointments to the Committee. To ensure that recommendations of the Committee take into account the needs of the diverse groups served by HHS, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
The Standards of Ethical Conduct for Employees of the Executive Branch are applicable to individuals who are appointed as members of Federal advisory committees. Individuals appointed to serve as members of Federal advisory committees are classified as special Government employees (SGEs). SGEs are Government employees for the purposes of the conflict of interest laws. Therefore, individuals appointed to serve as members of the Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 are subject to an ethics review. The ethics review is conducted to determine if the individual has any interest and/or activities in the private sector that may conflict with performance of their official duties as a member of the Committee. Individuals appointed to serve as members of the Committee will be required to disclose information regarding financial holdings, consultancies and research grants and/or contracts.
Announcement of meeting.
This notice announces the 16th meeting of the American Health Information Community in accordance with the Federal Advisory Committee Act (Pub. L. No. 92-463, 5 U.S.C., App.) The American Health Information Community will advise the Secretary and recommend specific actions to achieve a common interoperability framework for health information technology (IT).
September 18, 2007, from 8:30 a.m. to 2 p.m. (EDT).
Hubert H. Humphrey Building (200 Independence Avenue, SW., Washington, DC 20201), Conference Room 800.
Visit
The meeting will include a presentation by the Population Health/Clinical Care Connections Workgroup on Recommendations; an update on the Nationwide Health Information Network Trial Implementation; a presentation from the State Alliance/National Governors Association; and a report from the AHIC Standing Committee of the Whole on the AHIC Successor.
A Web cast of the Community meeting will be available on the NIH Web site at:
If you have special needs for the meeting, please contact (202) 690-7151.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announce the following meeting for the aforementioned committee:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities for both the CDC and the Agency for Toxic Substance and Disease Registry.
The HtE project is a multi-year, multi-site evaluation that employs and experimental longitudinal research design to test four strategies aimed at promoting employment among hard-to-employ populations. The four include: (1) Intensive care management and job services program for Rhode Island Medicaid recipients with serious depression; (2) job readiness training, worksite placements, job coaching, job development and other training opportunities for recent parolees in New York City; (3) pre-employment services and transitional employment for long-term participants receiving Temporary Assistance for Needy Families (TANF); and (4) two-generational Early Head Start (EHS) services providing enhanced self-sufficiency services for parents, parent skills training, and high-quality child care for children in low-income families in Kansas and Missouri.
The purpose of this document is to request public comment on the proposed 36-month participant survey in Rhode Island for participating parents and their children.
The follow-up survey and direct child assessments at the 36-month follow-up in Rhode Island will be used for the following purposes: Detecting the long-term effects of a telephonic care management intervention on parents' depression and general health, as well as their employment, income, and earnings; detecting effects of a telephonic care management intervention for parents' depression on parents' parenting and on children's health, behavior, and development over time, and determining the extent to which long-term intervention effects on children's development can be attributed to changes in their parents' depressive symptomatology that result from the intervention.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. E-mail address:
The HtE project is a multi-year, multi-site evaluation that employs an experimental longitudinal research design to test four strategies aimed at promoting employment among hard-to-employ populations. The four include: (1) Intensive care management and job services program for Rhode Island Medicaid recipients with serious depression; (2) job readiness training, worksite placements, job coaching, job development and other training opportunities for recent parolees in New York City; (3) pre-employment services and transitional employment for long-term participants receiving Temporary Assistance for Needy Families (TANF); and (4) two-generational Early Head Start (EHS) services providing enhanced self-sufficiency services for parents, parent skills training, and high-quality child care for children in low-income families in Kansas and Missouri.
The purpose of the current document is to request public comment on the 36-month participant survey in Philadelphia. The research team plans to collect participant-reported surveys assessing participants' employment, education and economic outcomes, participation in employment and training services, receipt of benefits and services such as food stamps and mental health services, housing and household information, health and health care coverage, child care, and child outcomes.
The follow-up survey at the 36-month follow-up in Philadelphia will be used for the following purposes: To study the extent to which pre-employment services and transitional employment affect employment, earnings, income, and welfare dependence of low-income TANF recipients; to examine the impacts of these services on participants' health, receipt of benefits such as food stamps, Medicaid, and child-care subsidies, and participation in services such as substance abuse treatment and mental health services; and to collect data on a wider range of outcomes measures than is available through welfare, Medicaid, Food Stamps, Social Security, and Unemployment Insurance records.
The 36-month data collection effort draws heavily from the 15-month survey conducted in this site. Materials for the 15-month data collection effort were previously submitted to OMB and were approved (OMB Control No. 0970-0276).
The fielded sample of the 36-month data collection effort will be all 1,944 participants in the two program groups and the control group of the HtE project in Philadelphia. The burden estimates below assume an 80 percent response rate of the fielded sample.
The annual burden estimates are detailed below, and the substantive content of each component will be detailed in the supporting statement attached to this 30-day notice.
Copies of the proposed collection of information may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. E-mail address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
The need for the above information is to provide the Administration and Congress with fiscal estimates in time for hearings about LIHEAP appropriations and program performance. The information also is included in the Department's annual LIHEAP Report to Congress. Survey information also will be posted on the Office of Community Services' LIHEAP website for access by grantees and other interested parties.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. E-mail address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the
Submit written or electronic comments on the collection of information by October 22, 2007.
Submit electronic comments on the collection of information to:
Elizabeth Berbakos, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (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. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The guidance provides recommendations to sponsors submitting or holding INDs, NDAs, or BLAs on what pharmacogenomic data should be submitted to the agency during the drug development process. Sponsors holding and applicants submitting INDs, NDAs, or BLAs are subject to FDA requirements for submitting to the agency data relevant to drug safety and efficacy (§§ 312.22, 312.23, 312.31, 312.33, 314.50, 314.81, 601.2, and 601.12).
The guidance distinguishes between pharmacogenomic tests that may be considered valid biomarkers appropriate for regulatory decisionmaking, and other, less well developed exploratory tests. The submission of exploratory pharmacogenomic data is not required under the regulations, although the agency encourages the voluntary submission of such data.
The guidance describes the voluntary genomic data submission (VGDS) that can be used for such a voluntary submission. The guidance does not recommend a specific format for the VGDS, except that such a voluntary submission be designated as a VGDS. The data submitted in a VGDS and the level of detail should be sufficient for FDA to be able to interpret the information and independently analyze the data, verify results, and explore possible genotype-phenotype correlations across studies. FDA does not want the VGDS to be overly burdensome and time-consuming for the sponsor.
FDA has estimated the burden of preparing a voluntary submission described in the guidance that should be designated as a VGDS. Based on FDA's experience with this guidance over the past few years, and on FDA's familiarity with sponsors' interest in submitting pharmacogenomic data during the drug development process, FDA estimates that approximately 8 sponsors will submit approximately 10 VGDSs and that, on average, each VGDS will take approximately 50 hours to prepare and submit to FDA.
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA), Office of Regulatory Affairs (ORA), Southwest Regional Office (SWRO), in cosponsorship with the FDA Medical Device Industry Coalition (FMDIC), is announcing a public workshop entitled “Medical Devices 101: An Educational Forum.” This public workshop, presented previously on February 9, 2007, is intended to provide an overview on FDA's medical device requirements to entrepreneurs, startup companies, and small businesses.
If you require special accommodations due to a disability, please contact David Arvelo (see
The workshop, previously presented on February 9, 2007 (72 FR 968, January 9, 2007), is being held in response to the interest in the topics discussed from small medical device entrepreneurs and startup manufacturers in the Dallas District area. FDA presents this workshop in cosponsorship with FMDIC to help achieve objectives set forth in section 406 of the Food and Drug Administration Modernization Act of 1997 (21 U.S.C. 393), which include working closely with stakeholders and maximizing the availability and clarity of information to stakeholders and the public. This is also consistent with the purposes of FDA's Regional Small Business Program, which are in part to respond to industry inquiries, develop educational materials, and sponsor workshops and conferences to provide firms, particularly small businesses, with firsthand working knowledge of FDA's requirements and compliance policies. This workshop is also consistent with the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), as an outreach activity by Government agencies to small businesses.
The goal of the workshop is to present information that will enable manufacturers and regulated industry to better comply with the Medical Device Quality System Regulation. The following topics will be broadly covered at the workshop: (1) Medical device classification; (2) establishment registration; (3) device listing; (4) premarket notification; (5) premarket approval; (6) quality system regulation; (7) labeling; (8) recalls, removals, and corrections; (9) medical device reporting; (10) tracking; and (11) postmarket surveillance.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The Office of Rural Health Policy (ORHP), Health Resources and Services Administration, conducts an annual data collection of user information for the Black Lung Clinics Program. The purpose of the Black Lung Clinics Program is to improve the health status of coal workers by providing services to minimize the effects of respiratory and pulmonary impairments of coal miners. Grantees provide specific diagnostic and treatment procedures required in the management of problems associated with black lung disease which improves the quality of life of the miner and reduces economic costs associated with morbidity and mortality arising from pulmonary diseases. The purpose of collecting this data is to provide HRSA with information on how well each grantee is meeting the needs of active and retired miners in the funded communities.
Data from the annual report will provide quantitative information about
The estimated burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by e-mail to
Health Resources and Services Administration, HHS.
Correction of total burden hours.
The Health Resources and Services Administration published an Agency Information Collection document in the
In the
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301) 443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The purpose of these surveys is to conduct a follow-up study to the National Practitioner Data Bank (NPDB) User and Non-User Surveys of 2001. In addition, Healthcare Integrity and Protection Data Bank (HIPDB) users and non-sers will be included in this study. The study will evaluate the effectiveness of the NPDB and the HIPDB as flagging systems, sources of information, and decisionmaking tools. It will also determine user satisfaction with the process, use, and information provided by the NPDB and HIPDB.
Surveys will be administered to entities that report to and/or query the NPDB and HIPDB, including users who query either the NPDB and/or HIPDB and who receive a “match”, i.e. copies of adverse actions concerning a queried practitioner. A sample of Queriers who received a matched response will be surveyed about the information received. NPDB and HIPDB non-users will also be surveyed. Eligible NPDB and HIPDB users will be asked to complete a Web-based Internet survey or a computer-assisted telephone interview (CATI). NPDB and HIPDB non-users will complete either a Web or CATI, or will be transferred to an interactive voice response (IVR) system during the CATI to complete the survey.
Data gathered from the survey will be compared with similar information from previous surveys of users and non-users and will provide HRSA with the information necessary to improve the usability of the NPDB and HIPDB.
The estimate of burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by e-mail to
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), notice is hereby given of the following meeting:
On September 19, there will be a presentation on a George Washington University physician workforce planning initiative. There will be a panel presentation of activities of three advisory committees staffed within the Bureau of Health Professions; the Advisory Committee on Primary Care Medicine and Dentistry, the Advisory Committee on Interdisciplinary, Community Based Linkages, and the National Advisory Council on Nurse Education and Practice. Following will be an overview presentation on State Physician Workforce/GME Planning. The Council will conclude with a discussion of new issues/identification for future reports.
Agenda items are subject to change as priorities dictate.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Heart, Lung, and Blood Institute (NHLBI), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
There are no capital, operating, or maintenance costs to report.
To request more information on the proposed project or to obtain a copy of data collection plans and instruments, contact Dr. Jean Olson, Division of Prevention and Population Sciences, NHLBI, NIH, II Rockledge Centre, 6701 Rockledge Drive, Suite 10018, MSC # 7936, Bethesda, MD 20892-7936, or call non-toll-free number 301-435-0397, or e-mail your request, including your address to:
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
U.S. Patent Application No. 60/860,301 filed 20 Nov 2006 (HHS Reference No. E-306-2006/1-US-01).
U.S. Patent Application No. 60/920,874 filed 30 Mar 2007 (HHS Reference No. E-306-2006/2-US-01).
U.S. Patent Application No. 60/921,669 filed 02 Apr 2007 (HHS Reference No. E-306-2006/3-US-01).
1. Use as diagnostic tool.
2. Use as drug delivery composition to treat various diseases or conditions.
3. Use in screening or identifying potential chemotherapeutic agents.
4. Use in riboswitch aptamers, ribozymes or beacons.
5. Use in nanocircuits, medical implants, gene therapy, scaffolds and medical testing.
U.S. Provisional Application No. 60/918,181 filed 14 Mar 2007 (HHS Reference No. E-233-2006/1-US-01).
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
The invention provides
Mammalian cells are widely used expression systems for the production of biopharmaceuticals. Human embryo kidney (including HEK-293) and Chinese hamster ovary (CHO) are host cell of choice. The genes identified in this technology (e.g., cdkl3, sia7e, or lama4) can be used to modify these important cell based systems.
This technology is ready for use in drug/vaccine discovery, production and development. The technology provides methods for identification of specific gene targets useful for altering the production properties of either existing cell lines to improve yields or with new cell lines for the production of therapeutic and or diagnostic compounds from mammalian cells.
Companies that are actively seeking production platforms based on mammalian cell lines that offer high efficiency, high throughput systems for protein production or analysis at lower cost and ease of scale-up would be potential licensors of this technology.
The inventors have carried out the reaction under mild conditions and in a short time resulting in binding 3-deoxy-D-manno-octulosonic acid (KDO) on the saccharide to the protein. These conjugates preserve the external non-reducing end of the saccharide, are recognized by antisera, and induce immune responses in mice to both conjugate components (i.e., the OS and the associated carrier protein).
A full length HCV construct, CG1b of genotype 1b which is known to be infectious, was placed between two ribozymes designed to generate the exact 5′ and 3′ ends of HCV when cleaved. Using this system, HCV proteins and positive and negative RNA strands have been shown to reproduce intracellularly, and viral particles that resemble authentic HCV virions are produced and secreted into the culture medium.
The patent application includes claims directed toward the following: A construct comprising specific nucleic acid sequences including HCV genotype 1b, genotype 1a, genotype 2a or potentially other genotypes; a method for identifying a cell line that is permissive for infection with HCV; a method for propagating HCV in vitro; a method for screening agents capable of modulating HCV replication or activity; a method for testing the level of HCV replication or activity; a HCV vaccine comprising HCV virus particles.
1. Z. Hu
2. T. Heller
Chimpanzee Fabs against the B5 and A33 outer extracellular membrane proteins of vaccinia virus were isolated and converted into complete mAbs with human gamma1 heavy chain constant regions. The two mAbs displayed high binding affinities to B5 and A33. The mAbs inhibited the spread of vaccinia virus as well as variola virus (the causative agent of smallpox)
1. Z. Chen
2. Z. Chen
The present invention utilizes the characteristic chemical property of hydrazide groups on one reactant to react with aldehyde groups or cyanate esters on the other reactant with an improved conjugate yield of at least sixty percent. With this conjugation efficiency the leftover unconjugated protein and polysaccharide would not need to be removed and thus the purification process of the conjugate product can be limited to diafiltration to remove the by-products of small molecules. The new conjugation reaction can be carried out within one or two days with reactant concentrations between 1 and 25 mg/mL at PS/protein ratios from 1:2 to 3:1, at temperatures between 4 and 40 degrees Centigrade, and in a pH range of 5.5 to 7.4, optimal conditions varying from PS to PS.
This invention is a human monoclonal antibody fragment (Fab) discovered utilizing phage display technology. The neutralizing monoclonal antibody was isolated and its binding site was identified. Fab F2-5 is a broadly reactive fusion (F) protein-specific recombinant Fab generated by antigen selection from a random combinatorial library displayed on the surface of filamentous phage. In an in vitro plaque-reduction test, the Fab RSVF2-5 neutralized the infectivity of a variety of field isolates representing viruses of both RSV subgroups A and B. The Fab recognized an antigenic determinant that differed from the only other human anti-F monoclonal antibody (RSV Fab 19) described thus far. A single dose of 4.0 mg of Fab RSVF2-5/kg of body weight administered by inhalation was sufficient to achieve a 2000-fold reduction in pulmonary virus titer in RSV-infected mice. The antigen-binding domain of Fab RSVF2-5 offers promise as part of a prophylactic regimen for RSV infection in humans.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, September 26, 2007, 8 a.m. to September 27, 2007, 5 p.m., Bethesda Marriott, 5151 Pooks Hill Road, Bethesda, MD, 20814 which was published in the
The meeting notice is amended to reflect the change in the name of the committee from “SPORE in Lymphoma, Prostate, Breast & Skin Cancers” to “SPORE in Lymphoma, Prostate, Breast, Skin, Leukemia & GI Cancers”. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. Citizenship and Immigration Services, DHS.
Notice of extension of temporary protected status designation of El Salvador.
This Notice announces that the designation of El Salvador for Temporary Protected Status (TPS) has been extended for 18 months to March 9, 2009, from its current expiration date of September 9, 2007. This Notice also sets forth procedures necessary for nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) with TPS to re-register and to apply for an extension of their Employment Authorization Documents (EADs) for the additional 18-month period. Re-registration is limited to persons who have previously registered for TPS under the designation of El Salvador and whose application has been granted or remains pending. Certain nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.
Given the timeframes involved with processing TPS re-registrants, the Department of Homeland Security (DHS) recognizes that re-registrants may not receive a new EAD until after their current EAD expires on September 9, 2007. Accordingly, this Notice automatically extends the validity of EADs issued under the TPS designation of El Salvador for 6 months, through March 9, 2008, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended. New EADs with the March 9, 2009 expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for an EAD.
The extension of the TPS designation of El Salvador is effective September 10, 2007, and will remain in effect until 11:59 p.m. on March 9, 2009. The 60-day re-registration period begins August 21, 2007, and will remain in effect until October 22, 2007. To facilitate processing of applications, applicants are strongly encouraged to file as soon as possible after the start of the 60-day re-registration period beginning on August 21, 2007.
Shelly Hock, Status and Family Branch, Office of Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, telephone (202) 272-1533. This is not a toll-free call. Further information will also be available at local USCIS offices upon publication of this Notice and on the USCIS Web site at
Section 244(b)(1) of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a(b)(1), authorizes the Secretary of Homeland Security (Secretary), after consultation with appropriate agencies of the Government, to designate a foreign state (or part thereof) for TPS. The Secretary may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state). 8 U.S.C. 1254a(a)(1)(A).
At least 60 days before the expiration of the TPS designation, or any extension thereof, the Secretary, after consultations with appropriate agencies of the Government, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met and, if so, the length of an extension. 8 U.S.C. 1254a(b)(3)(A), (C). If the Secretary determines that the foreign state no longer meets the conditions for the TPS designation, he must terminate the designation. 8 U.S.C. 1254a(b)(3)(B).
On March 19, 2001, the Attorney General published a Notice in the
On February 1, 2007, the Government of El Salvador requested an extension of the TPS designation of El Salvador. Over the past year, DHS and the Department of State (DOS) have continued to review conditions in El Salvador. Based on this review, the Secretary has concluded that an 18-month extension is warranted because there continues to be a substantial, but temporary, disruption in living conditions in El Salvador resulting from
There has been a great deal of reconstruction, and significant recovery has been realized in repairing the more than 2,300 kilometers of major roads and highways that were severely damaged by the earthquakes. By the end of July 2004, it was reported that all major roads appeared to have been reconstructed and were functioning. However, despite this progress, current conditions in El Salvador still reflect much of the destruction caused by the earthquakes, and other critical infrastructure remains damaged or destroyed, particularly in the area of health care.
In 2006, the Salvadoran government released its final assessment that 276,594 houses were affected by the 2001 earthquakes (166,529 destroyed and 110,065 damaged). At the end of 2004, USAID completed its earthquake reconstruction program, including the construction of 26,872 houses, and in February 2005, it was reported that in San Vicente and Cuscatlán, two of the most affected departments, 80 percent and 85 percent, respectively, of the damaged housing had been reconstructed. As of February 2007, the Salvadoran government stated that nearly 50 percent of the total number of houses destroyed or damaged by the earthquakes (136,988 houses), had been reconstructed or repaired. A housing program funded by the European Union, which was started in 2004 (5,500 houses), was almost complete, and a housing program funded by the Inter-American Development Bank (3,500 houses) was still underway, with a target date for completion set later in 2007.
Eight hospitals and 113 of the 361 health facilities, representing 55 percent of the country's capacity to deliver health services, were severely damaged by the earthquakes. Although the Ministry of Health reported that 95 percent of community health centers damaged or destroyed by the earthquakes had been rebuilt, reconstruction of damaged hospitals has faced repeated delays. As of February 2007, reconstruction of two of the country's seven main hospitals had begun, with reconstruction of the other five still in either the design or bidding stages. Completion of the reconstruction of these seven facilities is targeted for 2009.
Based upon this review, the Secretary finds, after consultation with the appropriate Government agencies, that the conditions that prompted the designation of El Salvador for TPS continue to be met.
By the authority vested in me as Secretary of Homeland Security under section 244 of the Act, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that the conditions that prompted designation of El Salvador for TPS in March 2001 continue to be met.
Yes. If you already have received TPS benefits through the TPS designation of El Salvador, your benefits will expire at 11:59 p.m. on September 9, 2007. All TPS beneficiaries must comply with the re-registration requirements described in this Notice in order to maintain TPS benefits through March 9, 2009. TPS benefits include temporary protection against removal from the United States and employment authorization during the TPS designation period. 8 U.S.C. 1254a(a)(1). Failure to re-register without good cause will result in the withdrawal of your temporary protected status and possibly your removal from the United States. 8 U.S.C. 1254a(c)(3)(C).
Please submit the proper forms and fees according to Table 1 below. All applicants are strongly encouraged to pay close and careful attention when filling out the required forms to help ensure that their dates of birth, alien registration numbers, spelling of their names, and other required information is correctly entered to the forms. Aliens who have previously registered for TPS, but whose applications remain pending, should follow these instructions if they wish to renew their TPS benefits. All TPS re-registration applications submitted without the required fees will be returned to the applicant. All fee waiver requests should be filed in accordance with 8 CFR 244.20. If you received an EAD during the most recent registration period, please submit a photocopy of the front and back of your EAD.
Certain applicants must also submit a Biometric Service Fee (See Table 2).
Only the edition of Form I-821 dated November 5, 2004, or later will be accepted. The revision date can be found in the bottom right corner of the form. The proper form can be found on the Internet at
Please reference Table 3 below to see where to mail your specific application.
See Table 4 below to determine if you need to submit supporting documentation.
If you are filing for re-registration and
Some persons may be eligible for late initial registration under 8 CFR 244.2. In order to be eligible for late initial registration, an applicant must:
(1) Be a national of El Salvador (or an alien who has no nationality and who last habitually resided in El Salvador);
(2) Have continuously resided in the United States since February 13, 2001;
(3) Have been continuously physically present in the United States since March 9, 2001; and
(4) Be both admissible as an immigrant, except as provided under section 244(c)(2)(A) of the Immigration and Nationality Act (Act), and not ineligible under section 244(c)(2)(B) of the Act.
Additionally, the applicant must be able to demonstrate that, during the initial registration period (from March 9, 2001 to September 9, 2002), he or she:
(1) Was a nonimmigrant or had been granted voluntary departure status or any relief from removal;
(2) Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal or change of status pending or subject to further review or appeal;
(3) Was a parolee or had a pending request for reparole; or
(4) Is the spouse or child of an alien currently eligible to be a TPS registrant.
An applicant for late initial registration must file an application for late registration no later than 60 days after the expiration or termination of the conditions described above. 8 CFR 244.2(g). All late initial registration applications for TPS, pursuant to the designation of El Salvador, should be submitted to the appropriate address in Chicago, Illinois as defined in Table 3.
Yes. There are certain criminal and terrorism-related inadmissibility grounds that render an alien ineligible for TPS.
An individual granted TPS will have his or her TPS withdrawn if the alien is not in fact eligible for TPS, if the alien fails to timely re-register for TPS without good cause, or if the alien fails to maintain continuous physical presence in the United States.
No. TPS is a temporary benefit that does not lead to lawful permanent residence or confer any other immigration status. 8 U.S.C. 1254a, (f)(1), and (h). When a country's TPS designation is terminated, TPS beneficiaries will maintain the same immigration status that they held prior to TPS (unless that status has since expired or been terminated), or any other status they may have acquired while registered for TPS. Accordingly, if an alien held no lawful immigration status prior to being granted TPS and did not obtain any other status during the TPS period, he or she will revert to unlawful status upon the termination of the TPS designation. Once the Secretary determines that a TPS designation should be terminated, aliens who had TPS under that designation are expected to plan for their departure from the United States.
Yes. Registration for TPS does not prevent you from applying for non-immigrant status, filing for adjustment of status based on an immigrant petition, or applying for any other immigration benefit or protection. 8 U.S.C. 1254a(a)(5). For the purposes of change of status and adjustment of status, an alien is considered as being in, and maintaining, lawful status as a nonimmigrant during the period in which the alien is granted TPS.
An application for TPS does not affect an application for asylum or any other immigration benefit. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS.
No. An extension of a TPS designation does not change the required dates of continuous residence and continuous physical presence in the United States. This extension does not expand TPS eligibility to those that are not eligible currently. To be eligible for benefits under this extension, nationals
To receive an automatic extension of an EAD, an individual must be a national of El Salvador (or an alien having no nationality who last habitually resided in El Salvador) who has applied for and received an EAD under the designation of El Salvador for TPS and who has not had TPS withdrawn or denied. This automatic extension is limited to: (1) EADs issued on Form I-766, Employment Authorization Document, bearing an expiration date of either July 5, 2006, or September 9, 2006, on the face AND that have a September 2007 DHS-issued extension sticker on the back of the card; and (2) EADs issued on Form I-766, Employment Authorization Document, bearing an expiration date of September 30, 2007. These EADs must also bear the notation “A-12” or “C-19” on the face card under “Category.”
TPS re-registrants will receive a notice in the mail with instructions as to whether or not they will be required to appear at a USCIS Application Support Center (ASC) for biometrics collection. To increase efficiency and improve customer service, whenever possible USCIS will reuse previously-captured biometrics and conduct the security checks using those biometrics, such that you may not be required to appear at an ASC.
Regardless of whether you are required to appear at an ASC, you are required to pay the biometrics fee during this re-registration. The fee will cover the USCIS costs associated with the use of the collected biometrics for FBI and other background checks. USCIS fees fund the cost of processing applications and petitions for immigration benefits and services, and USCIS' associated operating costs. A detailed description of how USCIS developed its current fee schedule is contained in the proposed rule Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, at 72 FR 4888 (Feb. 1, 2007). The fee schedule was established in a final rule on May 30, 2007. 72 FR 29851.
If you are required to report to an ASC, you must bring the following documents: (1) Your receipt notice for your re-registration application; (2) your ASC appointment notice; and (3) your current EAD. If no further action is required for your case, you will receive a new EAD by mail valid through March 9, 2009. If your case requires further resolution, USCIS will contact you in writing to explain what additional information, if any, is necessary to resolve your case. Once your case is resolved and if your application is approved, you will receive a new EAD in the mail with an expiration date of March 9, 2009.
No. USCIS will not be issuing interim EADs to TPS applicants and re-registrants at District Offices.
An EAD that has been automatically extended for six months by this Notice through March 9, 2008, will be a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” and either: (1) Have an expiration date of July 5, 2006, or September 9, 2006 on the face of the card, and a September 2007 DHS-issued extension sticker on the back; or (2) have an expiration date of September 30, 2007 on the face of the card. New EADs or extension stickers showing the March 9, 2008, expiration date of the six-month automatic extension will not be issued. Employers should not request proof of Salvadoran citizenship.
Employers should accept an EAD as a valid “List A” document and not ask for additional Form I-9, Employment Eligibility Verification documentation if presented with an EAD that has been extended pursuant to this
Employers are reminded that the laws requiring employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those setting forth re-verification requirements.
Eligible TPS aliens will possess an EAD with an expiration date of March 9, 2009. The EAD will be a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” and should be accepted for the purposes of verifying identity and employment authorization.
During the first six months of this extension, qualified individuals who have received a six-month automatic extension of their EADs by virtue of this
After the first six months of this extension, and continuing until the end of the extension period, March 9, 2009, a qualified individual may present a new EAD valid through March 9, 2009.
In the alternative, any legally acceptable document or combination of documents listed in List A, List B, or List C of the Form I-9 may be presented as proof of identity and employment eligibility.
Customs and Border Protection, DHS.
General notice.
This document announces a modification of U.S. Customs and Border Protection's (CBP) Post-Entry Amendment Processing test. The test allows the amendment of entry summaries prior to liquidation. The modification to the test requires the filer of a post-entry amendment to submit an individual amendment letter no later than 20 days prior to the scheduled liquidation date for the subject entry summary. This document also sets forth that CBP is terminating the supplemental information letter policy so that the post-entry amendment procedure will be the only procedure for submitting post summary adjustments on entry summaries prior to liquidation. Except for the modification set forth in this document, the test procedure is the same as that set forth in previously published
The Post-Entry Amendment Processing test modification set forth in this document is effective on September 20, 2007. The test is extended for a one-year period commencing on August 21, 2007. CBP will discontinue accepting Supplementary Information Letters on September 20, 2007.
Written comments regarding this notice, should be addressed to U.S. Customs and Border Protection, Entry and Drawback Management Branch, Office of International Trade, ATTN: Post-Entry Amendment, 1300 Pennsylvania Avenue, NW., Washington, DC 20229.
Questions pertaining to any aspect of this notice should be directed to Jennifer Dolan, U.S. Customs and Border Protection, Entry and Drawback Management Branch, Office of International Trade, at (202) 344-2568 or via e-mail at
The U.S. Customs Service (Customs; now U.S. Customs and Border Protection or CBP) announced and described the Post-Entry Amendment Processing test (the test or PEA test) in a general notice document published in the
The PEA test procedure, authorized under section 101.9(a) of the CBP regulations (19 CFR 101.9(a)), allows importers to amend entry summaries (not informal entries) prior to liquidation by filing with CBP either an individual amendment letter upon discovery of certain kinds of errors or a quarterly tracking report covering certain other errors that occurred during the quarter. The November 28, 2000, and the February 6, 2004,
Under the PEA test, an individual amendment letter (also known as a single PEA) must be filed by the importer (or its broker) upon discovery of: (1) A revenue related error in an entry summary where the error results in either an overpayment or underpayment of duties, taxes, and/or fees in the amount of $20 or more; (2) any error in an entry summary relating to antidumping or countervailing duties; and (3) any non-revenue related statistical information errors in an entry summary that must be reported to the U.S. Census Bureau. Prior to publication of this document, individual amendment letters were required to be filed promptly after discovery of the error(s) and prior to liquidation of the one or more entry summaries covered in the letter.
Effective upon publication of this document in the
Other than this modification, the test procedure remains as set forth in previously published notices.
This notice announces a further extension of the PEA test for a period of one year, such period to commence on the date this document is published in the
Finally, as of the effective date of this notice, the PEA test will be the only procedure in place for post summary adjustments prior to liquidation, and the SIL procedure (see Administrative Message 97-0727, August 3, 1997) will be discontinued. CBP will issue an administrative message regarding this change soon after publication of this notice.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be 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.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Aneita L. Waites, Reports Liaison Officer, Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4116, Washington, DC 20410-5000.
Aneita L. Waites, (202) 708-0614, for copies of the proposed forms and other available documents. (This is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected 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 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:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes to offer for sale by public auction 31 parcels of Federal public land totaling approximately 167.5 acres in the Las Vegas Valley, Nevada. The sale will be conducted under the authority of the Southern Nevada Public Land Management Act of 1998 (SNPLMA), 112 Stat. 2343, as amended. The SNPLMA sale will be subject to the applicable provisions of Sections 203 and 209 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1713 and 1719, respectively, and BLM land sale and mineral conveyance regulations at 43 CFR Parts 2710 and 2720.
Comments regarding the proposed SNPLMA sale and Environmental Assessment (EA) (NV-2007-201 must be received by BLM on or before October 5, 2007. Sealed bids must be received no later than 4:30 p.m. PDT, October 26, 2007, at the address of the Las Vegas Field Office (LVFO) listed below. The sale by public auction will begin at 10 a.m., PDT, November 1, 2007.
Written comments regarding the proposed sale may be submitted to BLM at the following address: Manager, Las Vegas Field Office, Bureau of Land Management, 4701 N. Torrey Pines Drive, Las Vegas, Nevada 89130.
The address for oral bidding registration and the location of the public auction is: Clark County Commission Chambers, 500 S. Grand Central Parkway, Las Vegas, Nevada.
You may contact the LVFO at (702) 515-5000 and ask to have your call directed to a member of the sales team. For general information on BLM's public land sale procedures, refer to the following Web address:
This public sale is in conformance with the Las Vegas Resource Management Plan, approved on October 5, 1998. BLM has determined that the proposed action conforms to land use plan decision LD-1 under the authority of FLPMA.
The public lands would be offered for sale competitively on November 1, 2007, at an oral auction for not less than the appraised fair market value (FMV) for each parcel. The parcels described below would be auctioned under the terms and conditions of this Notice of Realty Action (NORA).
Consisting of 31 parcels containing approximately 167.5 acres in Clark County.
Maps delineating the individual proposed sale parcels and current appraisals for each parcel are available for public review at the LVFO, and online at:
In addition to the lands described herein, other parcels that have been previously noticed for sale, but did not sell, may be offered at this sale.
Minerals for each parcel would be reserved in accordance with BLM's approved Mineral Potential Report dated January 22, 1999. Information pertaining to the reservation of minerals is specific to each parcel. That is, some will be reserved and some will be conveyed. This information is located in the case file and available for public review by visiting the BLM LVFO.
For those parcels for which the minerals will be conveyed, an offer to purchase these listed parcels would constitute an application for mineral conveyance. In conjunction with the final payment, an applicant for “no known value” mineral parcels would be required to pay a $50 non-refundable filing fee for processing the conveyance of the “no known value” mineral interests which will be sold simultaneously with the surface interests.
Registration for oral bidding for those who have not pre-registered would begin at 8 a.m., PDT, November 1, 2007, and end at 10 a.m., PDT. Other deadline dates for the receipt of payments, and arranging for certain payments to be made by electronic transfer, are specified in the proposed terms and conditions of sale.
The following numbered terms and conditions would appear on the conveyance documents for these parcels, as follows:
1. All parcels described above will have discretionary leasable and saleable mineral deposits on the lands in Clark County, if any, reserved to the United States, in accordance with BLM's approved Mineral Potential Report, dated January 22, 1999. Permittees, licensees, and lessees of the United States retain the right to prospect for, mine, and remove such leasable and saleable minerals owned by the United States under applicable law and any regulations that the Secretary of the Interior may prescribe, together with all necessary access and exit rights.
2. A right-of-way is reserved for ditches and canals constructed by authority of the United States under the Act of August 30, 1890 (43 U.S.C. 945).
3. All parcels are subject to valid existing rights.
4. All purchasers/patentees, by accepting a patent, covenant and agree to indemnify, defend, and hold the United States harmless from any costs, damages, claims, causes of action, penalties, fines, liabilities, and judgments of any kind or nature arising from the past, present, and future acts or omissions of the patentees or their employees, agents, contractors, or lessees, or any third party, arising out of or in connection with the patentees' use, occupancy, or operations on the patented real property. This indemnification and hold harmless agreement includes, but is not limited to, acts and omissions of the patentees and their employees, agents, contractors, or lessees, or any third party, arising out of or in connection with the use and/or occupancy of the patented real property which has already resulted or does hereafter result in: (1) Violations of Federal, State, and local laws and regulations that are now or may in the future become, applicable to the real property; (2) Judgments, claims or demands of any kind assessed against the United States; (3) Costs, expenses, or damages of any kind incurred by the United States; (4) Releases or threatened releases of solid or hazardous waste(s) and/or hazardous substances(s), as defined by Federal or State environmental laws, off, on, into or under land, property and other interests of the United States; (5) Activities by which solid waste or hazardous substances or waste, as defined by Federal and State environmental laws are generated, released, stored, used or otherwise disposed of on the patented real property, and any cleanup response, remedial action or other actions related in any manner to said solid or hazardous substances or wastes; or (6) Natural resource damages as defined by Federal and State law. This covenant shall be construed as running with the parcels of land patented or otherwise conveyed by the United States, and may be enforced by the United States in a court of competent jurisdiction.
5. Pursuant to the requirements established by section 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9620(h) (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1988, 100 Stat. 1670, notice is hereby given that the above-described lands have been examined and no evidence was found to indicate that any hazardous substances have been stored for one year or more, nor had any hazardous substances been disposed of or released on the subject property.
Parcels may also be subject to applications received prior to publication of this NORA if processing the application would have no adverse affect on the marketability or the federally approved FMV of a parcel. Encumbrances that may appear on the BLM public files for the parcels proposed for sale are available for review during business hours, 7:30 a.m. PDT to 4:30 p.m. PDT, Monday through Friday, at the BLM LVFO.
Pursuant to 43 CFR 2800, BLM will notify valid existing rights-of-way holders of their ability to convert their compliant rights-of-way to perpetual rights-of-way or easements. Each valid holder will be notified in writing of their rights and then must apply for the conversion of their current authorization.
All parcels are subject to reservations for roads, public utilities and flood control purposes in accordance with the local governing entities' transportation plans.
No representation, warranty, or covenant of any kind, express or implied, is given or made by the United States as to title, whether or to what extent the land may be developed, its physical condition, future uses, or any other circumstance or condition. The conveyance of any parcel will not be on a contingency basis. However, to the extent required by law, all parcels are subject to the requirements of section 120(h) of the CERCLA.
Sealed bids under 43 CFR 2711.3-1(c) may be submitted for any parcel. Sealed bids must be received at the BLM LVFO no later than 4:30 p.m., PDT, October 26, 2007. Sealed bid envelopes must be marked on the lower front left corner with the BLM Serial Number for the parcel and the sale date. Bids must be for not less than the federally approved FMV, and a separate bid must be submitted for each parcel.
As required by 43 CFR 2711.3-1(c), each sealed bid shall be accompanied by a certified check, postal money order, bank draft, or cashier's check made payable in U.S. dollars to the order of the Bureau of Land Management, for not less than 10 percent or more than 30 percent of the amount bid. The highest qualifying sealed bid for each parcel
Interested parties who will not be bidding at the public auction are not required to register and may proceed directly to the Clark County Commission Chambers. If seating becomes limited, bidders will have seating preference.
All oral bidders are required to register. Registration for oral bidding will begin at 8 a.m. PDT on the day of the sale and end at 10 a.m. PDT that day. Bidders are encouraged to pre-register by mail or fax by completing the form located in the sale packet. The form is also available at the BLM LVFO and online at:
Prior to receiving a bidder number on the day of the sale, all registered bidders must submit a certified check, bank draft, postal money order, or cashier's check in the amount of $10,000. This is a bid guarantee. The check must be made payable in U.S. dollars to the order of the Bureau of Land Management. On the day of the sale, pre-registered bidders may go to the express registration desk, present their photo identification and proof of citizenship, the required $10,000 bid guarantee and receive a bidder number. Bidders that have not pre-registered must go to the standard registration line where additional information will be requested including photo identification, proof of citizenship, and the required $10,000 bid guarantee. On completion of registration a bidder number will be assigned.
At auction, the highest qualifying bid for any parcel will be declared the apparent high bid. Under 43 CFR 2711.3-1(d), the apparent high bidder must submit a deposit of not less than 20 percent of the successful bid by 3 p.m. PDT on the day of the sale either in the form of cash (U.S. dollars), a personal check, bank draft, cashier's check, postal money order or any combination thereof, made payable in U.S. dollars to the order of the Bureau of Land Management. The deposit must be delivered no later than 3 p.m. PDT the day of the sale to the BLM collection officers at the Clark County Commission Chambers. Deposits will not be accepted at the BLM LVFO.
Following the auction, all monies submitted with sealed bids and bid guarantees will be returned to the unsuccessful bidders upon presentation of photo identification at the designated area. If the apparent high bidder so chooses, the bid guarantee may be applied to the required deposit. Failure to submit the deposit following the sale under 43 CFR 2711.3-1(d) will result in forfeiture of the bid guarantee. If a bidder offers to purchase more than one parcel and fails to submit the bid deposit following the sale on any single parcel, BLM will retain the bid guarantee and may cancel the sale of all of the parcels for which a bidder is declared the apparent high bidder.
The remainder of the full bid price for each parcel must be paid within 180 calendar days of the competitive sale date, April 30, 2008, in the form of a certified check, postal money order, bank draft, or cashier's check made payable in U.S. dollars to the order of the Bureau of Land Management. Personal checks will not be accepted. Arrangements for electronic fund transfer to BLM for the balance due on or before April 30, 2008, shall be made a minimum of 2 weeks prior to the date you wish to make payment. Failure to pay the full price within the 180 days will disqualify the apparent high bidder and cause the entire 20 percent deposit to be forfeited to the BLM. Forfeiture of the 20 percent deposit is by operation of 43 CFR 2711.3-1(d). No exceptions will be made. BLM cannot accept the full price at any time following the 180th day after the sale.
Within 30 days of the sale, BLM will either accept or reject all bids received. Under 43 CFR 2711.3-1, a bid is the bidder's offer to BLM to purchase the parcel. No contractual or other rights against the United States may accrue until BLM officially accepts the offer to purchase, and the full bid price is submitted by the 180th day following the sale. BLM will mail “High Bidder Declared” letters the day after the sale informing bidders whether their offer to purchase has been accepted or rejected by BLM. All name changes and supporting documentation must be received at BLM by 4:30 p.m. PST, December 3, 2007. Otherwise, the patent will be issued to the name on the bidder statement completed at the sale on November 1, 2007. No name changes will be accepted after 4:30 p.m. PST, December 3, 2007. To change the name, high bidders must notify the BLM LVFO in writing and re-submit a new bidder statement (available at BLM) completed by the intended patentee.
BLM will not sign any documents related to 1031 Exchange transactions. The timing for completion of the exchange is the bidder's responsibility in accordance with Internal Revenue Service regulations. BLM is not a party to any 1031 Exchange.
Requests for BLM escrow instructions must be received by BLM prior to 30 days before the bidder's scheduled closing date. There are no exceptions.
All sales are made in accordance with and subject to the governing provisions of law and applicable regulations. In accordance with 43 CFR 2711.3-1(f), the BLM may accept or reject any or all offers to purchase, or withdraw any parcel of land or interest therein from sale, if, in the opinion of the BLM authorized officer, consummation of the sale would be inconsistent with any law, or for other reasons.
Federal law requires bidders to be U.S. citizens 18 years of age or older; a corporation subject to the laws of any State or of the United States; a State, State Instrumentality or political subdivision authorized to hold property or an entity legally capable of conveying lands or interests therein under the laws of the State of Nevada. Registered bidders must provide to BLM, on the day of the sale, proof of citizenship, or proof of current corporate or partnership status in good standing filed within the United States. Citizenship is evidenced by presenting a birth certificate, passport, or immigration/naturalization papers. Failure to submit the above requested documents will result in denial of registration.
If not sold, any parcel described above in this NORA may be identified for sale at a later date without further legal notice. Unsold parcels may be offered for sale in a future online Internet auction. Internet auction procedures will be available at
Upon publication of this NORA and until the completion of the sale, the BLM is no longer accepting land use applications affecting any parcel identified for sale, including parcels that have been published in a previous NORA. However, land use applications may be considered after completion of the sale for parcels that are not sold through oral or online Internet auction procedures provided the authorization will not adversely affect the marketability or value of the parcel.
In order to determine the value, through appraisal, of the parcels of land proposed to be sold, certain assumptions may have been made of the attributes and limitations of the lands and potential effects of local regulations and policies on potential future land uses. Through publication of this NORA, the Bureau of Land Management
The SNPLMA parcels proposed for sale were analyzed in the “Las Vegas Land Disposal Boundary Environmental Impact Statement,” approved December 23, 2004, which is available for public review at the BLM LVFO. Twenty-six parcels being offered were previously analyzed through EAs and approved for sale. Copies of the applicable EAs for N-78190, N-79698, N-79699, N-80681 through N-80684SB, N-80690, N-80692, N-80719, N-80730 through N-80736, N-80739, N-81906 through N-81909, N-81951, N-81969, N-81970 and N-81978 are available for review upon request at the BLM LVFO. The BLM LVFO sales team will assist with identifying the legal description corresponding to each sale parcel serial number. The remaining five parcels are analyzed in an EA (NV-2007-201) for this sale, which tiers to the EIS approved December 23, 2004. Upon publication of this NORA, this EA is available for public review and comment at the BLM LVFO. BLM will be accepting public comment on EA (NV-2007-201) for the 5 parcels for 45 days after publication of this Notice of Realty Action in the
Other information concerning the sale, including the appraisals, reservations, sale procedures and conditions, CERCLA and other environmental documents will be available for review at the BLM LVFO, or by calling (702) 515-5000 and asking to speak to a member of the sales team. Most of this information will also be available on the Internet at:
The general public and interested parties may submit written comments regarding the proposed sale or the specified EA (NV-2007-201) to the Field Manager, BLM LVFO, up to October 5, 2007. Only written comments submitted by postal service or overnight mail to the Field Manager, BLM LVFO will be considered properly filed. E-mail, facsimile or telephone comments will not be considered as properly filed.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
(Authority: 43 CFR 2711.1-2)
Bureau of Land Management, Interior.
Notice of R&PP lease and or patent of public land in San Juan County; New Mexico.
The following described public land is determined suitable for classification for leasing and subsequent conveyance to the Aztec Municipal School District #2, Aztec, New Mexico under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended (43 U.S.C. 869
The area described contains 32.5 aacres more or less, in San Juan County.
Contact Mary Jo Albin, Realty Specialist, at the Bureau of Land Management, Farmington Field Office, at (505) 599-6332. Information related to this action, including the environmental assessment, is available for review at the 1235 La Plata Highway, Farmington, NM 87401.
Publication of this notice segregates the public land described above from all other forms of appropriation under the public land laws, including the general mining laws, except for leasing and conveyance under the Recreation and Public Purposes Act and leasing under the mineral leasing laws.
The lease, when issued, will be subject to the following terms:
1. The Recreation and Public Purposes Act and to all applicable regulations of the Secretary of the Interior.
2. The Resource Conservation and Recovery Act of 1976 (RCRA) as amended, 42 U.S.C. 6901-6987 and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) as amended, 42 U.S.C. 9601 and all applicable regulations.
3. Provisions of Title VI of the Civil Rights Act of 1964.
4. Provisions that the lease be operated in compliance with the approved Development Plan.
The patent document, when issued, will be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior and will contain the following terms, conditions, and reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
2. All minerals, together with the right to prospect for, mine, and remove such deposits from the lands under applicable law and such regulations as the Secretary of the Interior may prescribe.
3. All valid existing rights, e.g. rights-of-way and leases of record.
Provisions that if the patentee or its successor attempts to transfer title to or control over the land to another or the land is devoted to a use other than that for which the land was conveyed, without the consent of the Secretary of the Interior or his delegate, or prohibits or restricts, directly or indirectly, or permits it agents, employees, contractors, or subcontractors, including without limitation, lessees, sublessees and permittees, to prohibit or restrict, directly or indirectly, the use of any part of the patented lands or any of the facilities whereon by any person because of such person's race, creed, sex, color, or national origin, title shall revert to the United States.
The lands are not needed for Federal purposes. Leasing and later patenting is consistent with current Bureau of Land Management policies and land use planning. The proposal serves the public interest since it would provide the recreation facilities and related buildings that would meet the needs of the school system and the surrounding population.
Upon publication of this notice in the
Any adverse comments will be reviewed by the Dillon Field Manager, who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, the classification of the land described in this notice will become effective on October 22, 2007. The land will not be offered for patent until after the classification becomes effective.
Bureau of Land Management, Interior.
Notice.
On behalf of the U.S. Department of Air Force, the Bureau of Land Management proposes to extend the duration of Public Land Order (PLO) No. 6677 for an additional 20-year term. This order withdrew 2.5 acres of public land from settlement, sale, location, or entry under the general land laws, including the United States mining laws [30 U.S.C. Ch. 2] and from leasing under the mineral leasing laws, to protect a United States Air Force radio relay site. This notice also gives an opportunity to comment on the proposed action and to request a public meeting.
Comments and requests for a public meeting must be received by November 19, 2007.
Comments and meeting requests should be sent to the Alaska State Director, BLM Alaska State Office, 222 West 7th Avenue, No. 13, Anchorage, Alaska 99513-7504.
Renee Fencl, BLM Alaska State Office, (907) 271-5067, or at the above address.
The withdrawal created by PLO No. 6677 (53 FR 18283) will expire May 22, 2008, unless extended. The U.S. Department of the Air Force has filed an application to extend the withdrawal for an additional 20-year period to protect the Beaver Creek Radio Relay Site.
This withdrawal comprises 2.50 acres of public land described in PLO No. 6677 (53 FR 18283) and located in:
A complete description can be provided by the BLM Alaska State Office at the address shown above.
For a period of 90 days from the date of publication of this notice, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal extension may present their views in writing to the BLM State Director at the address indicated above. Comments, including names and street addresses of respondents, will be available for public review at the BLM Alaska Office at the address noted above during regular business hours 7:30 a.m. to 4:30 p.m., Monday through Friday, except holidays. Before including your address, phone number, e-mail address, or other personal identifying information in your comments, 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.
Notice is hereby given that an opportunity for a public meeting is afforded in connection with the proposed withdrawal extension. All interested parties who desire a public meeting for the purpose of being heard on the proposed withdrawal must submit a written request to the BLM State Director at the address indicated above within 90 days from the publication of this notice. Upon determination by the authorized officer
Notice is hereby given in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770, 5 U.S.C. App. 1, Section 10), that a meeting of the Cape Cod National Seashore Advisory Commission will be held on September 24, 2007.
The Commission was reestablished pursuant to Public Law 87-126 as amended by Public Law 105-280. The purpose of the Commission is to consult with the Secretary of the Interior, or her designee, with respect to matters relating to the development of Cape Cod National Seashore, and with respect to carrying out the provisions of sections 4 and 5 of the Act establishing the Seashore.
The Commission members will meet at 1 p.m. in the meeting room at Headquarters, Marconi Station, Wellfleet, Massachusetts for the regular business meeting to discuss the following:
The meeting is open to the public. It is expected that 15 persons will be able to attend the meeting in addition to Commission members.
Interested persons may make oral/written presentations to the Commission during the business meeting or file written statements. Such requests should be made to the park superintendent at least seven days prior to the meeting. Further information concerning the meeting may be obtained from the Superintendent, Cape Cod National Seashore, 99 Marconi Site Road, Wellfleet, MA 02667.
National Park Service, Interior.
Notice is hereby given in accordance with the Federal Advisory Committee Act that meetings of the Cedar Creek and Belle Grove National Historical Park Advisory Commission will be held to discuss the development of the Park's general management plan.
All meetings will convene at 9 a.m. and are open to the public.
Diann Jacox, Superintendent, Cedar Creek and Belle Grove National Historical Park, (540) 868-9176.
Topics to be discussed at the meetings include: Review of draft plan, general management plan public comments, planning process and schedule, land protection planning, environmental impact analysis, election of a commission chair, and commission sub-committees.
Department of the Interior, National Park Service, Chesapeake and Ohio Canal National Historical Park.
Notice of meeting.
Notice is hereby given that a meeting of the Chesapeake and Ohio National Historical Park Advisory Commission will be held at 9:30 a.m., on Friday, October 19, 2007, at the Chesapeake and Ohio Canal National Historical Park Headquarters, 1850 Dual Highway, Hagerstown, MD 21740.
Friday, October 19, 2007.
Chesapeake and Ohio Canal National Historical Park Headquarters, 1850 Dual Highway, Hagerstown, MD 21740.
Kevin Brandt, Superintendent, Chesapeake and Ohio Canal National Historical Park, 1850 Dual Highway, Suite 100, Hagerstown, MD 21740, telephone: (301) 714-2201.
The Commission was established by Public Law 91-664 to meet and consult with the Secretary of the Interior on general policies and specific matters related to the administration and development of the Chesapeake and Ohio Canal National Historical Park.
The Members of the Commission are as follows:
Mrs. Sheila Rabb Weidenfeld, Chairperson.
Mr. Charles J. Weir.
Mr. James G. McCleaf, II.
Mr. Barry A. Passet.
Mr. John A. Ziegler.
Mrs. Mary E. Woodward.
Mrs. Donna Printz.
Mrs. Ferial S. Bishop.
Ms. Nancy C. Long.
Mrs. Jo Reynolds.
Dr. James H. Gilford.
Brother James Kirkpatrick.
Ms. Mary Ann D. Moen.
Dr. George E. Lewis, Jr.
Mr. Charles D. McElrath.
Ms. Patricia Schooley.
Mr. Jack Reeder.
Ms. Merrily Pierce.
Topics that will be presented during the meeting include:
1. Update on park operations.
2. Update on major construction/development projects.
3. Update on partnership projects.
4. Subcommittee Reports.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning the matters to be discussed. Persons wishing further information concerning this meeting, or who wish to submit written statements, may contact Kevin Brandt, Superintendent, Chesapeake and Ohio Canal National Historical Park. Minutes of the meeting will be available for public inspection six weeks after the meeting at Chesapeake and Ohio Canal National Historical Park Headquarters, 1850 Dual Highway, Suite 100, Hagerstown, MD 21740.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 19) of the presiding administrative law judge (“ALJ”) granting complainant's motion for leave to amend the complaint and notice of investigation.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3152. Copies of the ID and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (
On March 13, 2007, the Commission instituted an investigation under section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, based on a complaint filed by SiRF Technology, Inc. of San Jose, California (“SiRF”), alleging a violation of section 337 in the importation, sale for importation, and sale within the United States after importation of certain GPS chips, associated software and systems, and products containing same by reason of infringement of certain claims of U.S. Patent Nos. 6,304,216; 7,043,363; 7,091,904 (“the '904 patent”); and 7,132,980. 72 FR 11378 (Mar. 13, 2007). The complainant named Global Locate, Inc. of San Jose, California (“Global Locate”) as respondent.
On July 11, 2007, complainant SiRF moved to add dependent claim 2 of the '904 patent to the list of claims of the '904 patent in paragraph 6.8 of the complaint, and to amend the notice of investigation dated March 8, 2007, to include claim 2 in the list of claims of the '904 patent. The Commission investigative attorney stated on July 17, 2007, that he did not oppose complainant's motion. On July 19, 2007, respondent Global Locate opposed complainant's motion.
On July 24, 2007, the ALJ issued Order No. 19 granting complainant's motion. No party petitioned for review of Order No. 19. The Commission has determined not to review the ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in § 210.42(h) of the Commission's Rules of Practice and Procedure (19 CFR 210.42(h)).
By order of the Commission.
Notice is hereby given that on August 10, 2007, a proposed Consent Decree was filed in
The United States filed a civil action on August 9, 2007, seeking injunctive relief and a civil penalty against Jupiter Aluminum Corporation (“Jupiter”) for alleged violations of the National Emission Standards for Hazardous Air Pollutants applicable to secondary aluminum production facilities, under the Clean Air Act. The Jupiter aluminum recycling facility that is the subject of the lawsuit is located in Hammond, Indiana. The State of Indiana and the City of Hammond intervened as co-plaintiffs in the federal lawsuit, and filed complaints in intervention. All claims alleged in the United States', the State's and the City's complaints would be resolved by a settlement reflected in the Consent Decree, if approved by the court.
Under the proposed Consent Decree, Jupiter will perform tests to determine whether recent modifications to the pollution control equipment on its melting furnaces adequately captures fugitive emissions and whether the equipment adequately removes dioxin/furans, hydrochloric acid and particulate matter. If the tests demonstrate that Jupiter is not adequately capturing fugitive emissions or not adequately removing pollutants, Jupiter will be required to make further modifications, or alter its production processes to ensure compliance. The decree also requires Jupiter to properly weigh scrap aluminum before melting it in the furnaces, and to keep records of the type and amount of scrap used, to fund an independent monitoring consultant to assist the regulatory agencies in monitoring compliance, to allow Hammond to video record its furnace operations for compliance purposes, to resubmit an Operation, Maintenance and Monitoring Plan, and to improve maintenance and recordkeeping practices. Under the Consent Decree, Jupiter also will pay a civil penalty of $2.0 million, to be divided between the United States and Hammond.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments
The Consent Decree may be examined at the Office of the United States Attorney, Northern District of Indiana, 5400 Federal Plaza, Suite 1500, Hammond, Indiana 46320, and at U.S. EPA Region 5, Regional Counsel's Office, 77 West Jackson Blvd., Chicago, Illinois 60604. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
In accordance with Departmental Policy, 28 C.F.R. 50.7, notice is hereby given that a proposed consent decree in
Under the proposed Consent Decree, Defendants are jointly and severally liable to perform injunctive relief on the impacted pipelines and pay a civil penalty. Specifically, Defendants will (a) conduct a close interval survey of a segment of the pipeline system from Beaumont, Texas to Many, Louisiana, and take corrective action to bring the cathodic protection into compliance with standards, (b) install remote surveillance cameras at specified points on the pipeline to ensure constant monitoring of pipeline systems and provide surveillance of the pipeline system equipment, and (c) update the Supervisory Control and Data Acquisition (‘SCADA”) system on the pipeline system to enable Defendants to monitor and balance the volume of product in the pipeline and pipeline pressure and temperature deviations which can be indicators of leaks or spills from the pipeline. Additionally, Defendants will pay a civil penalty of $2,865,000 for the four spills.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
30-Day Notice of Information Collection Under Review: Implementation of Public Law 103-322, the Violent Crime Control and Law Enforcement Act of 1994.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until September 20, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of
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If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Policy and Planning Staff, Justice Management Division, Suite 1600, Patrick Henry Building, 601 D Street, NW., Washington, DC 20530.
30-Day Notice of Information Collection Under Review: Application for an Amended Federal Firearms License.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until September 20, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202)-395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: There will be an estimated 18,000 respondents, who will complete the form within approximately 1 hour and 15 minutes.
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The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until September 20, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until September 20, 2007. This process is conducted in accordance with 5 CFR 1320.10. Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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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 each ICR announced herein with applicable supporting documentation including among other things 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 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.
To ensure the continued accuracy of these data, the information supplied by employers must be periodically verified and updated. For this purpose, the Annual Refiling Survey (ARS) is used in conjunction with the UI tax reporting system in each State. The information collected on the ARS is used to review the existing industry code assigned to each establishment as well as the physical location of the business establishment. As a result, changes in the industrial and geographical compositions of our economy are captured in a timely manner and reflected in the BLS statistical programs.
The ARS also asks employers to identify new locations in the State. If these employers meet QCEW program reporting criteria, then a Multiple Worksite Report (MWR) is mailed to the employer requesting employment and wages for each worksite each quarter. Thus, the ARS is also used to identify new potential MWR-eligible employers.
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 this ICRs, with applicable supporting documentation; including among other things 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: John Kraemer, OMB Desk Officer for the Occupational Safety and Health Administration (OSHA), 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.
National Science Foundation.
Emergency Clearance: Public Information Collection Requirements Submitted to the Office of Management and Budget (OMB).
The National Science Foundation (NSF) is announcing plans to request approval of this collection. In accordance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we are providing an opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting that OMB approve clearance of this collection for no longer than 3 years.
Interested persons are invited to send comments regarding the burden or any other aspect of these collections of information requirements by September 20, 2007.
Written comments regarding the information collection and requests for copies of the proposed information collection request should be addressed to Suzanne Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 295, Arlington, VA 22230, or by e-mail to
NSF has determined that it cannot reasonably comply with the normal clearance procedures under 5 CFR 1320 because normal clearance procedures are reasonably likely to prevent or disrupt the collection of information. NSF is requesting emergency review from OMB of this information collection to enable the Emergency review and approval of this ICR will assure continuation of the PFF evaluation that is also funded by the Atlantic Philanthropies. OMB approval has been requested for September 24, 2007. If granted, the emergency approval is only valid for 90 days.
During this same period, a regular review of this information collection will be undertaken. During the regular review period, the NSF requests written comments and suggestions from the public and affected agencies concerning this information collection. Comments
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 295, Arlington, Virginia 22230; telephone (703) 292-7556; or send e-mail to
NSF is committed to providing citizens accurate, complete, and timely information regarding the expenditure of taxpayer funds. The policy change for which NSF is seeking approval will enable the Foundation to accomplish this goal. If NSF must follow the normal OIRA clearance review process, the result will be incomplete and inaccurate award data on OMB's single searchable Web site.
The policy change identified is consistent with a previously established Government-wide standard imposed by Grants.gov as part of its registration process. (Reference OMB Clearance Number: 4040-0001, Expiration Date: 04/30/2008). Grants.gov currently has 103,000 Authorized Organizational Representatives registered in the system. As reiterated below, 93.1% of organizations that submitted proposals to NSF in FY06 are already registered in CCR. Implementing this policy change, will make NSF's registration requirement consistent with that currently in use by all other Federal granting agencies.
NSF also plans to announce this proposed change at an upcoming Federal Demonstration Partnership meeting in September to gauge community response to this policy change. Finally, NSF plans to communicate with its small business community to obtain feedback as well as post a notice on the NSF Web site regarding the Foundation's plans in this area. The estimated impact of this change is described more fully below.
FFATA specifies requisite information (14 data elements) that must be included for each award, one of which is the unique identifier for the entity. OMB Memorandum, “Reporting of Data Elements Required by the Federal Funding Accountability and Transparency Act,” (dated March 30, 2007) defines the unique identifier for the entity as the Data Universal Numbering System (DUNS) number.
In accordance with the OMB policy “Use of a Universal Identifier by Grant Applicants,” (June 27, 2003) [68 FR 38402], NSF collects DUNS numbers for all awardees. While NSF collects this information, NSF currently does not have a mechanism to validate the accuracy of the DUNS number provided by the organization during the FastLane proposal submission process.
In order to meet the legislative mandate and Congressional intent of FFATA, NSF needs a reliable source of data to validate the accuracy of the DUNS number provided by the organization. NSF has identified the Central Contractor Registration (CCR) database as the most complete and accurate data source. The CCR system is managed under the Integrated Acquisition Environment (IAE) Presidential Management Agenda (PMA) E-Gov initiative. IAE is sponsored by OMB and managed by the General Services Administration. CCR is the primary registrant database for the U.S. Government. CCR collects, validates, stores, and disseminates data in support of agency acquisition missions, including Federal agency contract and assistance awards.
All contractors that do business with the Federal government and all grantees that use Grants.gov are required to register in CCR prior to conducting any transactions (e.g. submitting a grant application). Any organization that registers with the CCR must have a valid DUNS number. To ensure each organization receiving an NSF award and/or subaward has a valid DUNS number, NSF will require potential proposers to register in the CCR prior to proposal submission. This approach aligns with the government-wide efforts described above. The proposed effective date for this policy change is October 1, 2007. Requiring CCR registration effective October 1, 2007 will provide NSF with sufficient time to change NSF proposal preparation requirements to mandate this requirement, as well as validate DUNS numbers in preparation for meeting the FFATA January 1, 2008 milestone to make award data publicly available.
NSF has analyzed the impact of this proposed policy change and the additional burden associated with it on the Foundation's proposer community. The results of this assessment are as follows:
• CCR states it takes approximately one hour for an organization to complete the online registration, depending upon the size and complexity of the organization. The one hour to complete registration includes the time to read the instructions and to complete the form online. CCR does have handbook users may refer during the registration process. CCR recommends factoring in an additional 15 minutes in the instance the user references the handbook.
• NSF retrieved a list of organizations that submitted proposals to the Foundation in FY 2006 and used a sample (5% error) to determine the percentage of these organizations registered in the CCR.
• A total of 2,677 organizations submitted proposals to NSF in FY 2006.
• Out of the 2,677 organizations that submitted proposals to NSF in FY06, a random sample of 247 organizations was used to verify CCR registration.
• Of the 247 sample organizations, 230 were registered in CCR (93.1%).
• Based on the sample analysis of FY06 data (the 247 sample organizations), it can be concluded that:
• 93.1% of organizations that submitted proposals to NSF in FY06 are already registered in CCR.
• 6.9% of organizations that submitted proposals to NSF in FY06 are not registered in CCR.
• Of the 2,677 organizations that submitted proposals to NSF in FY06, 184 organizations (6.9%) would be impacted by this policy change.
The amount of additional burden associated with this policy change is 230 hours (184 organizations * 1.25 hour to register = 230 hours). On average, it takes CCR three days to process a registration submission.
FirstEnergy Nuclear Operating Company (FENOC or licensee) is the holder of four NRC Facility Operating Licenses issued by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 50, which authorizes the operation of the specifically-named facilities in accordance with the conditions specified in each license. License No. NPF-3 was issued on April 22, 1977, to operate the Davis-Besse Nuclear Power Station, Unit No. 1. License No. NPF-58 was issued on November 13, 1986, to operate the Perry Nuclear Power Plant, Unit No. 1. License Nos. DPR-66 and NPF-73 to operate the Beaver Valley Power Station, Units 1 and 2, were issued on July 2, 1976, and August 14, 1987, respectively. Davis-Besse is located near Toledo, Ohio; Perry is located near Painesville, Ohio; and Beaver Valley is located near McCandless, Pennsylvania.
The events leading up to this Confirmatory Order date back several years. In 2005, the NRC took enforcement action against FENOC, imposing a $5,450,000 civil penalty for regulatory violations associated with the 2002 reactor pressure vessel head degradation event at the Davis-Besse Plant. In response to that event, FENOC performed root cause evaluations. Among other things, FENOC's root cause reports determined that the reactor pressure vessel head degradation was the result of ongoing and undetected Control Rod Drive Mechanism nozzle leakage that had lasted more than four years.
In February 2007, the licensee informed the NRC that Davis-Besse was initiating a condition report based on information contained in a letter received from Nuclear Electric Insurance Limited (NEIL). The NEIL letter referenced a new analysis that FENOC had commissioned of the Davis-Besse reactor pressure vessel head degradation event. The new analysis, submitted to NEIL as expert testimony in an insurance arbitration on December 18, 2006, was performed by Exponent Failure Analysis Associates and Altran Solutions Corporation (Exponent) and concluded that the time period between the beginning of substantial leakage from the reactor pressure vessel head nozzle and the development of the large cavity next to the nozzle may have been as short as four months.
On April 2, 2007, after several conference calls with the licensee and Exponent to assess whether the Exponent Report raised any immediate safety concerns (it did not), the NRC requested FENOC to respond in writing to four questions regarding information and conclusions presented in the Exponent Report. Among other things, the NRC's request for information asked FENOC to “discuss any differences between the Exponent Report information and conclusions drawn therein, and information previously provided in the Root Cause Analysis Report and Licensee Event Report for the Davis-Besse reactor pressure vessel head wastage event.”
In its May 2, 2007, response to the NRC's request for information, FENOC stated that it “ha[d] not specifically evaluated all of the assumptions used by Exponent” but nevertheless concluded that the Exponent Report “more accurately characterizes the time line of the reactor head degradation event based on [Exponent's] use of more recently available test data in conjunction with detailed analytical modeling.” FENOC's response did not include a detailed discussion of the differences between the operational experience data and the Exponent Report assumptions.
Consequently, on May 14, 2007, the NRC issued FENOC a Demand for Information (DFI) pursuant to 10 CFR 2.204 to determine whether further enforcement action was necessary to provide reasonable assurance that FENOC would continue to operate its licensed facilities in accordance with the terms of its licenses and the Commission's regulations. The DFI required FENOC to provide a detailed discussion of the process used to determine if the Exponent Report assumptions, analyses, conclusions, or other related information should have been reported to the NRC in a more prompt manner; a detailed discussion of the differences in assumptions, analyses, conclusions, and other related information of the Exponent Report and technical and programmatic root cause reports developed in 2002; and a position on whether FENOC endorsed the conclusions of a second contractor report prepared in connection with the NEIL insurance arbitration.
FENOC responded to the DFI in writing on June 13, 2007. In that response, FENOC stated that its May 2, 2007, response “was primarily focused on the detailed analytical studies that form the basis for the Exponent Report's time line for the crack growth and wastage phenomenon * * * and was not a comprehensive review of the differences between our root cause reports and the Exponent Report.” According to the June 13 response, FENOC “continues to believe” that its earlier root cause reports “provide a comprehensive explanation of the progression and causal factors of the Davis-Besse reactor pressure vessel head degradation event and, hence, contain the most appropriate information to have used in development and implementation of corrective actions to prevent recurrence.” FENOC's June 13, 2007, response further acknowledged that it “should have communicated more effectively internally and more promptly with the NRC” about the Exponent Report, and included commitments to implement corrective actions in those areas.
On June 27, 2007, the NRC held a public meeting with FENOC to discuss the DFI response. During the meeting, the NRC questioned the corporate safety culture at FirstEnergy and whether FENOC had changed its position
On July 16, 2007, FENOC provided the NRC its supplemental response to the DFI, which elaborated on the commitments and corrective actions discussed at the public meeting. In general, FENOC's commitments and corrective actions are designed to prevent recurrence of the events that culminated in the issuance of the NRC's Demand for Information. Specifically, FENOC's commitments are designed to ensure that information of potential regulatory significance is recognized by FENOC and FirstEnergy employees and communicated to the NRC in a timely and effective manner.
In the short term, FENOC has implemented interim corrective actions to prevent recurrence of the events that culminated in the issuance of the NRC's Demand for Information. Specifically, FENOC has developed criteria to be used in determining whether documents developed in support of commercial matters, including the pending insurance arbitration with NEIL, contain information of potential regulatory interest to the NRC. FENOC's interim actions will remain in place until the procedural changes required by this Confirmatory Order are implemented.
On August 14, 2007, the Licensee consented to the issuance of this Order to confirm the commitments described in section IV below. The Licensee further agreed that this Order is effective upon issuance and has waived its right to a hearing.
I find that the commitments set forth in Section IV are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health, safety, and interest require that the Licensee's commitments be confirmed by this Order. Based on the above and the Licensee's consent, this Order is immediately effective upon issuance.
Accordingly, pursuant to sections 103, 104b, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202, it is hereby ordered, effective immediately, that the licensee shall implement the following:
1. The Licensee shall conduct regulatory sensitivity training for selected FENOC and non-FENOC FirstEnergy employees to ensure those employees identify and communicate information that has the potential for regulatory impact either at FENOC sites or within the nuclear industry to the NRC. At least 30 days prior to conducting the training, the Licensee shall submit by letter to the Director, NRC Office of Enforcement, a description of (1) the population to be trained, (2) the planned training methodology and materials, and (3) the training objectives. The Licensee shall complete its regulatory sensitivity training no later than November 30, 2007, and within 60 days following completion shall inform the Director, NRC Office of Enforcement, by letter.
2. The Licensee shall conduct effectiveness reviews to determine if an appropriate level of regulatory sensitivity is evident among FirstEnergy employees including those who received regulatory sensitivity training. The first effectiveness review shall be conducted in January 2008 by an external consultant. A follow-up effectiveness review shall be conducted in January 2009. At least 45 days prior to starting each external effectiveness review, the Licensee shall inform, by letter, the Director, NRC Office of Enforcement, of the identity of its external consultant, the qualifications of its external consultant, and the scope and depth of its plan for assessing effectiveness. Within 60 days following completion of each external effectiveness review, the Licensee shall inform, by letter, the Director, NRC Office of Enforcement, of a summary of the results of the review and a description of any actions taken or planned in response to those results.
3. The Licensee shall develop a formal process to review technical reports prepared as part of a commercial matter. The process shall provide criteria for the Licensee to use in determining whether a report has the potential for regulatory implications, or impact on nuclear safety either at FENOC sites or within the nuclear industry. The Licensee shall implement the process no later than December 14, 2007, and within 30 days following implementation shall submit a description of the process by letter to the Director, NRC Office of Enforcement.
4. The Licensee shall assess its Regulatory Communications policy and make process changes to its NRC Correspondence procedure to ensure specific questions are asked during the process relative to the experience gained from efforts to respond to the NRC's May 14, 2007, Demand for Information. The Licensee shall complete any revisions to its NRC Correspondence procedure or Regulatory Communications policy no later than December 14, 2007, and within 30 days following completion shall submit a description of the policy and procedure changes, if any, or the basis for the determination that such revisions were not necessary, by letter to the Director, NRC Office of Enforcement.
5. The Licensee shall provide an Operating Experience (OE) document to the nuclear industry through the industry's established OE process. The document shall discuss the issues surrounding the NRC's May 14, 2007, Demand for Information, including the review of technical reports prepared as part of a commercial matter. The OE document shall be provided to the nuclear industry, and to the Director, NRC Office of Enforcement, within 30 days of the date of this Order.
6. The Licensee shall complete a root cause evaluation of the events that culminated in the issuance of the NRC's May 14, 2007, Demand for Information. The licensee shall make the root cause evaluation available for review by NRC inspectors and summarize the results of the evaluation in a letter to the Director, NRC Office of Enforcement, no later than December 14, 2007. The Licensee's letter to the NRC shall document the results of an assessment as to whether the results of the root cause evaluation reflect a need for any corrective actions different from or in addition to the requirements of this Confirmatory Order.
7. The Licensee shall maintain the interim corrective actions, discussed, in part, in Section II of this Order and implemented as a result of the events leading up to the issuance of the NRC's May 14, 2007, DFI, until the procedural changes described in paragraphs 3 and 4 of Section IV of this Confirmatory Order are implemented.
The Director, Office of Enforcement, may, in writing, relax or rescind any of the above conditions upon demonstration by the Licensee of good cause.
Any person adversely affected by this Confirmatory Order, other than the Licensee, may request a hearing within 20 days of its issuance. Where good cause is shown, consideration will be given to extending the time to request a
If a hearing is requested by 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 Confirmatory Order should be sustained. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in section IV above shall be final 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 specified in section IV shall be final when the extension expires if a hearing request has not been received. A request for hearing shall not stay the immediate effectiveness of this order.
For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission (NRC).
Notice of Opportunity for Public Comment.
The NRC has prepared a Draft Environmental Assessment as its evaluation of a request by PPL Susquehanna, LLC for a license amendment to increase the maximum thermal power at Susquehanna Steam Electric Station, Units 1 and 2 (SSES 1 and 2), from 3,489 megawatts-thermal (MWt) to 3,952 MWt at each unit. This represents a power increase of approximately 13 percent thermal power. As stated in the NRC staff's position paper dated February 8, 1996, on the Boiling-Water Reactor Extended Power Uprate (EPU) Program, the NRC staff (the staff) will prepare an environmental impact statement if it believes a power uprate would have a significant impact on the human environment. The staff did not identify any significant impact from the information provided in the licensee's EPU application for Susquehanna Steam Electric Station, Units 1 and 2, or the staff's independent review; therefore, the staff is documenting its environmental review in an Environmental Assessment. Also, in accordance with the position paper, the Draft Environmental Assessment and Finding of No Significant Impact is being published in the
SSES is located just west of the Susquehanna River approximately 5 miles northeast of Berwick, in Luzerne County, Pennsylvania. In total, SSES majority owner and licensed operator, PPL Susquehanna, LLC (PPL, the licensee), owns 2,355 acres of land on both sides of the Susquehanna River. Generally, this land is characterized by open deciduous woodlands interspersed with grasslands and orchards. Approximately 487 acres are used for generation facilities and associated maintenance facilities, laydown areas, parking lots, and roads. Approximately 130 acres are leased to local farmers. PPL maintains a 401-acre nature preserve, referred to as the Susquehanna Riverlands, which is located between SSES and the river; U.S. Route 11 separates the Susquehanna Riverlands from the plant site. West of the Susquehanna River, PPL and Allegheny Electric Cooperative jointly own 717 acres of mostly undeveloped land, which includes natural, recreational, and wildlife areas. Additionally, PPL and Allegheny Electric Cooperative own Gould Island, a 65-acre island just north of SSES on the Susquehanna River (Reference 10).
SSES is a two-unit plant with General Electric boiling-water reactors and generators. NRC approved the Unit 1 operating license on July 17, 1982, and commercial operation began June 8, 1983. The Unit 2 operating license was issued on March 3, 1984, and commercial operation began February 12, 1985. Units 1 and 2 both currently operate at 3,489 MWt (Reference 8). The units share a common control room, refueling floor, turbine operating deck, radwaste system, and other auxiliary systems (Reference 9).
SSES uses a closed-cycle heat dissipation system (two natural-draft cooling towers) to transfer waste heat from the circulating water system to the atmosphere. The circulating water and the service water systems draw water from, and discharge to, the Susquehanna River. The river intake structure is located on the western bank of the river and consists of two water entrance chambers with 1-inch, on-center vertical trash bars and 3/8-inch-mesh traveling screens. A low-pressure screen-wash system periodically operates to release aquatic organisms and debris impinged on the traveling screens to a pit with debris removal equipment that collects material into a dumpster for offsite disposal. Cooling tower blowdown, spray pond overflow, and other permitted effluents are discharged to the Susquehanna River through a buried pipe leading to a submerged discharge diffuser structure, approximately 600 feet downstream of the river intake structure. The diffuser pipe is 200 feet long, with the last 120 feet containing 72 four-inch portals that direct the discharge at a 45-degree angle upwards and downstream. Warm circulating water from the cooling towers can be diverted to the river intake structure to prevent icing; this usually occurs from November through March on an as-needed basis (Reference 10).
For the specific purpose of connecting SSES to the regional transmission system, there are approximately 150
By letter dated October 11, 2006, PPL proposed amendments to the operating licenses for SSES Units 1 and 2 to increase the maximum thermal power level of both units by approximately 13 percent thermal power, from 3,489 MWt to 3,952 MWt (Reference 8). The change is considered an EPU because it would raise the reactor core power level more than 7 percent above the original licensed maximum power level. This amendment would allow the heat output of the reactor to increase, which would increase the flow of steam to the turbine. This would result in the increase in production of electricity and the amount of waste heat delivered to the condenser, and an increase in the temperature of the water being discharged to the Susquehanna River.
PPL plans to implement the proposed EPU in two phases to obtain optimal fuel utilization and to ensure that manageable core thermal limits are maintained. The core thermal power level of Unit 2 would be increased by approximately 7 percent during the spring 2007 refueling outage and the remaining 7 percent during the spring 2009 refueling outage. Unit 1's core thermal power level would also be increased in two stages of about 7 percent each during the spring 2008 and spring 2010 refueling outages (Reference 8).
The original operating licenses for Units 1 and 2 authorized operation up to a maximum power level of 3,293 MWt per unit. Since the units went online, SSES has implemented two power uprates. Stretch uprates (4.5 percent each) were implemented in 1994 (Unit 2) and 1995 (Unit 1), increasing the licensed thermal power levels of SSES Units 1 and 2 from 3,293 MWt to 3,441 MWt. Two separate NRC environmental assessments each resulted in a finding of no significant impact and determined that these actions “ * * * would have no significant impact on the quality of the human environment.” These decisions were published in the
SSES is within the transmission area controlled by PJM Interconnection, L.L.C. (PJM). PJM operates the largest regional transmission territory in the U.S., currently serving a 164,260-square-mile area in all or parts of 13 states and the District of Columbia, representing approximately 163,806 megawatts electrical (MWe) of generating capacity. PJM has forecasted that the summer unrestricted peak load in the Mid-Atlantic geographic zone where SSES is located would grow at an annual average rate of 1.8 percent for the next 10 years. This represents an increase in peak load of almost 6,000 MWe from 2005 to 2010, when the proposed SSES EPU is scheduled to be completed. The proposed EPU would add an average of 205 MWe of base load generation to the grid from both Units 1 and 2. This added electricity is projected to be enough to meet the power needs of approximately 195,000 homes and is forecasted to be produced for the PJM grid at a cost lower than the projected market price (Reference 9).
PJM uses a queue system to manage requests to add or remove generation from the regional transmission system. SSES submitted an application to PJM for the EPU additional generation on May 19, 2004. The PJM Interconnection Service Agreements and Construction Service Agreements were signed for Unit 2 on July 7, 2005, and for Unit 1 on January 20, 2006 (Reference 9).
At the time of issuance of the operating licenses for SSES, the staff noted that any activity authorized by the licenses would be encompassed by the overall action evaluated in the Final Environmental Statement (FES) for the operation of SSES, which was issued by the NRC in June 1981. This Environmental Assessment summarizes the radiological and non-radiological impacts in the environment that may result from the proposed action.
Potential land use impacts due to the proposed EPU include impacts from construction and plant modifications at SSES. While some plant components would be modified, most plant changes related to the proposed EPU would occur within existing structures, buildings, and fenced equipment yards housing major components within the developed part of the site. No new construction would occur outside of existing facilities, and no expansion of buildings, roads, parking lots, equipment storage areas, or transmission facilities would be required to support the proposed EPU with the following exceptions.
The 230-kV switchyard located on PPL property across the river from the station, and the 500-kV switchyard located on the plant site would both be expanded to house additional capacitor banks. The site road adjacent to the 500-kV switchyard would be moved to accommodate this expansion. Both switchyard modifications would require no land disturbance outside the power block area. Relocation of the road adjacent to the 500-kV switchyard would occur in a previously developed area of the plant site, resulting in no or little impact to land use. In addition, the turbine building may be expanded to allow for the installation of condensate filters, and additional aboveground storage tanks may be required to support cooling tower basin acid injection. If required, storage tank installation and turbine building expansion would be located in the developed part of the site (Reference 8, 9).
Existing parking lots, road access, lay-down areas, offices, workshops, warehouses, and restrooms would be
The impacts of continued operation of SSES Units 1 and 2 combined with the proposed EPU would be bounded by the scope of the original FES for operation, “Final Environmental Statement Related to the Operation of Susquehanna Steam Electric Station, Units 1 and 2,” dated 1981, and therefore, the staff concludes that there would be no significant impacts to land use, aesthetics, and historic and archaeological resources from the proposed EPU.
SSES generates both hazardous and non-hazardous waste. Under the Resource Conservation and Recovery Act (RCRA) Subtitle C, SSES is classified as a Large Quantity Generator of hazardous waste, including spent batteries, solvents, corrosives, and paint thinners. According to the Environmental Protection Agency's
SSES operates two natural draft cooling towers to transfer waste heat from the circulating water system (which cools the main condensers) to the atmosphere. No additional cooling tower capacity is planned to accommodate the proposed EPU. However, additional aboveground storage tanks could be required to support cooling tower basin acid injection. If built, these tanks would be located in the developed part of the plant site (Reference 9).
Aesthetic impacts associated with cooling tower operation following implementation of the proposed action would be similar to those associated with current operating conditions and include noise and visual impacts from the plume such as fogging and icing.
No significant increase in noise is anticipated for cooling tower operation following the proposed EPU. The FES for operation evaluated the potential noise impacts of operation of SSES and determined that pump and motor noise from the cooling water system would not exceed ambient (baseline) levels in offsite areas and that cooling tower noise would be audible for no more than a mile offsite to the west, southwest, and southeast of the station. PPL conducted an initial noise survey in 1985 after commercial operation of both units began, and again in 1995 following the stretch uprate. The 1995 noise measurements were similar to those recorded in 1985, and PPL received no noise complaints following implementation of the stretch uprate. The staff concludes that the proposed EPU, like the stretch uprate, would not produce measurable changes in the character, sources, or intensity of noises generated by the station's cooling water system or cooling towers (Reference 9).
Conclusions reached in NUREG-1437, “Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS),” Volumes 1 and 2, dated 1996, apply to the proposed action regarding cooling tower impacts on crops, ornamental vegetation, and native plants. The GEIS concluded that natural-draft cooling towers release drift and moisture high into the atmosphere where they are dispersed over long distances, and increased fogging, cloud cover, salt drift, and relative humidity have little potential to affect crops, ornamental vegetation, and native plants.
Impacts associated with continued cooling tower operation at SSES following the proposed EPU, including noise, fogging, cloud cover, salt drift, and icing would not change significantly from current impacts. Therefore, the staff concludes there would be no significant impacts associated with cooling tower operation for the proposed action.
The potential impacts associated with transmission facilities for the proposed action include changes in transmission line corridor maintenance and electric shock hazards due to increased current. The proposed EPU would not require any new transmission lines and would not require changes in the maintenance and operation of existing transmission lines or substations. Corridor maintenance practices (including vegetative management) would not be affected by the proposed EPU.
The proposed EPU would require the installation of additional capacitor banks in the 500- and 230-kV switchyards, and PPL plans to conduct a power delivery environmental risk identification evaluation prior to these installations. The capacitor bank installations are the only modification of transmission facilities that would accompany the proposed EPU. The only operational change to transmission lines resulting from the proposed EPU would be increased current; voltage would remain unchanged. As PPL states in its October 11, 2006, application, page 7-2, “increased current may cause transmission lines to sag more, but there would still be adequate clearance between energized conductors and the ground to prevent electrical shock.” Additionally, PPL has evaluated all related transmission facilities and found these facilities to be within acceptable design parameters (Reference 9).
The National Electric Safety Code (NESC) provides design criteria that limit hazards from steady-state currents. The NESC limits the short-circuit current to ground to less than 5 milliamps. As stated above, there would be an increase in current passing through the transmission lines associated with the increased power level of the proposed EPU. The higher electrical current passing through the transmission lines would cause an increase in electromagnetic field strength. However, with the proposed increase in power level, the impact of exposure to electromagnetic fields from the offsite transmission lines would not be expected to increase significantly over the current impact. The transmission lines meet the applicable shock prevention provisions of the NESC. Therefore, even with the small increase in current attributable to the proposed EPU, adequate protection is provided against hazards from electric shock.
The impacts associated with transmission facilities for the proposed action would not change significantly from the impacts associated with
Potential water use impacts from the proposed action include hydrological alterations to the Susquehanna River and changes to plant water supply. SSES uses cooling water from the Susquehanna River and discharges water back to the river at a point approximately 600 feet downstream of the intake structure. River water enters the plant cooling system via cooling tower basins and provides water to the circulating water and service water systems. SSES uses a closed-cycle, natural-draft cooling tower heat dissipation system to remove waste heat from the main condensers; cooling tower blowdown is discharged back to the Susquehanna River (Reference 9).
No changes to the cooling water intake system are expected during the proposed action. While the volume of intake embayments would not change, the intake flow rate would increase from an average of 58.3 million gallons per day (gpd) to an average of 60.9 million gpd, as the amount of time all four river intake pumps operate would increase. This represents a 4.5-percent increase in intake water withdrawn from the Susquehanna River and is not expected to alter the hydrology of the river significantly (Reference 9). The maximum withdrawal rate possible as a result of the proposed EPU is 65.4 million gpd, which was calculated using worst-case meteorological conditions (NRC 2006). This represents a 12.2-percent increase in intake water withdrawn from the river and is not expected to alter the hydrology of the river significantly.
The amount of consumptive water usage due to evaporation and drift of cooling water through the cooling towers is expected to increase from a monthly average of 38 million gpd to 44 million gpd. This represents a 15.7-percent increase over current usage. Based on the Susquehanna River's average annual flow rate of 9,427 million gpd, the proposed EPU would result in an average annual loss of 0.5 percent of river water at that location. During low-flow conditions, which usually occur in late August, the average evaporative loss at SSES may approach 1 percent of the low-flow river value (Reference 9). The staff concludes that the amount of water consumed by SSES under the proposed EPU conditions would not result in significant alterations to Susquehanna River flow patterns at this location.
Consumptive water usage at SSES is regulated by the Susquehanna River Basin Commission (SRBC), an independent agency that manages water usage along the entire length of the Susquehanna River. The current permit granted for SSES operation by SRBC is for average monthly consumptive water usage up to 40 million gpd (permit #19950301 EPUL-0578). In December 2006, PPL submitted an application to SRBC to eliminate the 40 million gpd average monthly limit and to approve a maximum daily river water withdrawal of 66 million gpd (Reference 15). SRBC is currently reviewing PPL's application and will make a decision independent of the NRC whether to allow the increased consumptive water usage required to implement the proposed EPU. The SRBC permit is required for plant operation, and PPL must adhere to the prescribed water usage limits and any applicable mitigative measures.
No changes to the cooling water intake system and the volume of intake embayment are expected for the proposed EPU, but the average intake flow would increase by 4.5 percent. The staff concludes this increase would not alter significantly the hydrology of the Susquehanna River. The proposed EPU would result in a small increase in the amount of Susquehanna River consumptive water usage due to evaporative losses. However, the increased loss would be insignificant relative to the flow of the Susquehanna River, and SRBC would continue to regulate SSES's consumptive water usage. With respect to the proposed action, the staff concludes there would be no significant impact to the hydrological pattern on the Susquehanna River, and there would be no significant impact to the plant's consumptive water supply.
Potential impacts to the Susquehanna River from the SSES discharge include increased turbidity, scouring, erosion, and sedimentation. These discharge-related impacts apply to the region near the discharge structure due to the large volume of cooling water released to the river. However, since the proposed EPU would result in no significant changes in discharge volume or velocity, there would be no expected changes in turbidity, scouring, erosion or sedimentation related to the proposed EPU.
Surface and wastewater discharges at SSES are regulated through the National Pollutant Discharge Elimination System (NPDES) permit (No. PA0047325), which is issued and enforced by the Pennsylvania Department of Environmental Protection (DEP) Bureau of Water Supply and Wastewater Management. The DEP periodically reviews and renews the NPDES permit; SSES's current NPDES permit was effective beginning September 1, 2005, and is valid through August 31, 2010. The NPDES permit sets water quality standards for all plant discharges to the Susquehanna River, including limits on free available chlorine, total zinc, and total chromium in cooling tower blowdown. According to Pennsylvania's Environmental Facility Application Compliance Tracking System (eFACTS), there are no past or current NPDES violations listed for SSES (Reference 4).
While the proposed EPU would increase the amount of cooling tower blowdown to the Susquehanna River, there is no expected increase in associated biocides, solvents, or dissolved solids entering the river, and SSES would continue to adhere to the water quality standards set within the NPDES permit. The NPDES permit does not contain thermal discharge temperature limits, but SSES must adhere to Susquehanna River temperature limits prescribed by Pennsylvania Code water quality standards (Reference 1). Thermal discharge effects and applicable Pennsylvania Code water quality standards will be discussed further in the Impacts on Aquatic Biota section.
No expected changes in turbidity, scouring, erosion or sedimentation are expected as a result of the proposed EPU. Surface and wastewater discharges to the Susquehanna River would continue to be regulated by the Pennsylvania DEP. Any discharge-related impacts for the proposed action would be similar to current impacts from plant operation, and therefore, the staff concludes the proposed action would not result in significant impacts on the Susquehanna River from cooling water discharge.
The potential impacts to aquatic biota from the proposed EPU include impingement, entrainment, thermal discharge effects, and impacts due to transmission line right-of-way maintenance. The aquatic species
The licensee has conducted aquatic biota studies of the Susquehanna River upstream and downstream of SSES since 1971. The studies assessed water quality, algae (periphyton and photoplankton), macroinvertebrates, and fish from 1971 to 1994, with annual fish studies beginning in 1976. The Susquehanna River in the vicinity of SSES has both coolwater and warmwater fishes, primarily consisting of minnows (
No sensitive aquatic species are known to occur at or near SSES (Reference 9); however, the 1981 FES for operation indicated that two endangered and two rare fish listed by the Pennsylvania Fish Commission (now the Pennsylvania Fish & Boat Commission) have ranges that fall within SSES transmission line corridors (NRC 1981). PPL has provided the staff with a vegetative management program for its transmission line corridors that states no herbicides shall be applied within 50 feet of any water body, except stump treatments and herbicides approved for watershed/aquatic use. Additionally, the transmission line corridor maintenance activities in the vicinity of stream and river crossings employ procedures to minimize erosion and shoreline disturbance while encouraging vegetative cover (Reference 7).
In addition to setting water quality parameters for surface and wastewater discharges, the SSES NPDES permit (PA-0047325) also regulates entrainment and impingement of aquatic species at SSES. Because SSES uses a closed-cycle, recirculating cooling water system, entrainment and impingement impacts on aquatic biota resulting from the proposed EPU are not expected to be significant.
The proposed EPU would require additional water withdrawal from the Susquehanna River for increased cooling tower evaporative losses and other plant needs. The average increase in daily water withdrawal from the Susquehanna River would be approximately 4.4 percent, from 58.3 million gpd to 60.9 million gpd. PPL also reported a maximum daily water withdrawal estimate of 65.4 million gpd (an 11.2 percent increase), which would only occur during worst-case meteorological conditions (Reference 15). Under the proposed EPU conditions, the average increase in water withdrawal would result in the impingement of approximately one additional fish per day (from 21 to 22) and entrainment of approximately 15,972 additional larvae per day (from 363,000 to 378,000) during spawning season. These small increases in entrainment and impingement related to the proposed EPU would result in no significant impact to the Susquehanna River aquatic community (Reference 9).
Effective July 9, 2007, the EPA suspended the Phase II rule (NRC 2007b). As a result, all permits for Phase II facilities should include conditions under Section 316(b) of the Clean Water Act that are developed on a Best Professional Judgment basis, rather than best technology available. Best Professional Judgment is used by National Pollutant Discharge Elimination System (NPDES) permit writers to develop technology-based permit conditions on a case-by-case basis using all reasonably available and relevant data. Any site-specific mitigation required under the NPDES permitting process would result in a reduction in the impacts of continued plant operations.
The NPDES permit issued by the Pennsylvania DEP does not specify thermal discharge limits; however, the amount and temperature of heated effluent discharged to the Susquehanna River is governed by Section 93.7 of Pennsylvania Code, which places restrictions on waters designated “Warm Water Fisheries.” During the July 1-August 31 time frame, the highest river water temperature allowable is 87 degrees Fahrenheit (°F), with lower temperature limits during other parts of the year (Reference 1). In the 1981 FES for operation, the NRC performed an analysis of SSES blowdown plume characteristics. The analysis concluded that blowdown temperatures during all four seasons were lower than the maximum river temperatures set by section 93.7. The location and design of the SSES cooling water discharge structure and the high flow rate of the Susquehanna River allow for sufficient mixing and cooling of heated effluent. Using conservative assumptions similar to those used in the original FES thermal plume analysis, PPL calculated that after implementation of the proposed EPU, blowdown temperatures would increase by 2 °F. This would result in a 0.6 °F increase in the maximum expected temperature at the edge of the thermal plume mixing zone (maximum temperature 86.5 °F). The staff concludes that the increase in thermal discharge temperature and volume resulting from the proposed EPU would still fall within the guidelines prescribed by the original FES for operation (NRC 1981).
Liquid effluents discharged to the Susquehanna River include cooling tower blowdown, spray pond overflow, liquid rad waste treatment effluents, and surface and wastewater discharges. The Commonwealth of Pennsylvania regulates these discharges through SSES's NPDES permit, which sets water quality standards for all plant discharges to the Susquehanna River. Ecological studies of the Susquehanna River conducted for the licensee indicate that river water quality in the vicinity of SSES continues to improve. From 1973 through 2002, there was a significant decreasing trend in turbidity, sulfate, total iron, and total suspended solids; and a significant increasing trend in river temperature, pH, total alkalinity, and dissolved oxygen. A reduction in acid-mine drainage pollutants and improvements in upstream waste-water treatment have likely contributed to the overall-improved river ecosystem health (Ecology III 2003).
SSES operates a closed-cycle cooling water system, and as such, the staff concludes that impacts to aquatic biota in the Susquehanna River from entrainment, impingement, and thermal discharge resulting from the proposed EPU would not be significant. The Pennsylvania DEP will continue to regulate the performance of the SSES cooling water system and surface and wastewater discharges through the NPDES permit and Pennsylvania Code designed to protect warm water fisheries. Furthermore, SSES transmission line corridor maintenance practices would not change upon implementation of the proposed EPU; thus, the staff concludes there would be no significant impacts to aquatic species
Potential impacts to terrestrial biota from the proposed EPU include impacts due to transmission line corridor maintenance and any planned new construction. The natural communities at SSES and in the surrounding areas consist of river floodplain forest, upland forest, marshes, and wetlands. The river floodplain forest at SSES is dominated by silver maple (
As stated in the Cooling Tower Impacts section, no significant increase in noise is anticipated for cooling tower operation following the proposed EPU, and as such, biota would not be impacted. The staff agrees with the conclusions reached in the GEIS regarding bird collisions with cooling towers: avian mortality due to collisions with cooling towers is considered to be of small significance if the losses do not destabilize local populations of any species and there is no noticeable impairment of its function with the local ecosystem (NRC 1996).
The proposed action would not involve new land disturbance outside of the existing power block or developed areas, and as discussed in the Transmission Facilities Impacts section, there would be no changes to transmission line corridor maintenance practices. Thus, the staff concludes that there would be no significant impacts to terrestrial species or their habitat associated with the proposed action, including transmission line right-of-way maintenance.
Potential impacts to threatened and endangered species from the proposed action include the impacts assessed in the aquatic and terrestrial biota sections of this Environmental Assessment. These impacts include impingement, entrainment, thermal discharge effects, and impacts from transmission line right-of-way maintenance for aquatic and terrestrial species. A review of databases maintained by the U.S. Fish and Wildlife Service (FWS) and the Pennsylvania Natural Heritage Program indicate that several animal and plant species that are Federally or Commonwealth-listed as threatened or endangered occur in the vicinity of SSES and its associated transmission line corridors. Informal consultation with the FWS Pennsylvania Field Office regarding the proposed EPU's potential impact on threatened or endangered species is ongoing.
Four species listed as threatened or endangered under the Endangered Species Act and 24 species that are listed by the Commonwealth of Pennsylvania as threatened or endangered occur within the counties where SSES and its associated transmission line corridors are located. These species are listed below in Table 1.
The proposed EPU would involve no new land disturbance, and any construction necessary would be minimal and would only occur in previously developed areas of SSES. Additionally, no changes would be made to the transmission line corridor maintenance program, including
Potential socioeconomic impacts due to the proposed EPU include changes in the payments in lieu of taxes for Luzerne County and changes in the size of the workforce at SSES. Currently SSES employs approximately 1,200 full-time staff, 89 percent of whom live in Luzerne or Columbia Counties, and approximately 260 contract employees. During outages, approximately 1,400 personnel provide additional support (Reference 9).
The proposed EPU is not expected to increase the size of the permanent SSES workforce, since proposed plant modifications would be phased in during planned outages when SSES has the support of 1,400 additional workers. In addition, the proposed EPU would not require an increase in the size of the SSES workforce during future refueling outages. Accordingly, the proposed EPU would not have any measurable effect on annual earnings and income in Luzerne and Columbia Counties or on community services (Reference 9).
According to the 2000 Census, Luzerne and Columbia County populations were about 2.9 and 2.0 percent minority, respectively, which is well below the Commonwealth minority population of 13.2 percent. The poverty rates in 1999 for individuals living in Luzerne and Columbia Counties are 11.1 percent and 13.1 percent, respectively, which are slightly higher than the Commonwealth's average of 11.0 percent. Due to the lack of significant environmental impacts resulting from the proposed action, the proposed EPU would not have any disproportionately high and adverse impacts to minority or low-income populations (Reference 9).
In the past, PPL paid real estate taxes to the Commonwealth of Pennsylvania for power generation, transmission, and distribution facilities. Under authority of the Pennsylvania Utility Realty Tax Act (PURTA), real estate taxes collected from all utilities (water, telephone, electric, and railroads) were redistributed to the taxing jurisdictions within the Commonwealth. In Pennsylvania, these jurisdictions include counties, cities, townships, boroughs, and school districts. The distribution of PURTA funds was determined by formula and was not necessarily based on the individual utility's effect on a particular government entity (Reference 9).
In 1996, Electricity Generation Customer Choice and Competition Act became law, which allows consumers to choose among competitive suppliers of electrical power. As a result of utility restructuring, Act 4 of 1999 revised the tax base assessment methodology for utilities from the depreciated book value to the market value of utility property. Additionally, as of January 1, 2000, PPL was required to begin paying real estate taxes directly to local jurisdictions, ceasing payments to the Commonwealth's PURTA fund. PPL currently pays annual real estate taxes to the Berwick Area School District, Luzerne County, and Salem Township (Reference 9).
The proposed EPU could affect the in-lieu-of-tax payments because the total amount of tax money to be distributed would increase as power generation increases and because the proposed EPU would increase SSES's value, thus resulting in a larger allocation of the payment to the Berwick Area School District, Luzerne County, and Salem Township. Because the proposed EPU would increase the economic viability of SSES, the probability of early plant retirement would be reduced. Early plant retirement would be expected to have negative impacts on the local economy and the community by reducing in-lieu-of-tax payments and limiting local employment opportunities for the long term (Reference 9).
Since the proposed EPU would not have any measurable effect on the annual earnings and income in Luzerne and Columbia Counties or on community services and due to the lack of significant environmental impacts on minority or low-income populations, there would be no significant socioeconomic or environmental justice impacts associated with the proposed EPU. Conversely, the proposed EPU could have a positive effect on the regional economy because of the potential increase in the in-lieu-of-tax payments received by the Berwick Area School District, Luzerne County, and Salem Township, due to the potential increase in the book value of SSES, and the increased long-term viability of SSES.
The proposed EPU would not result in a significant change in non-radiological impacts in the areas of land use, water use, cooling tower operation, terrestrial and aquatic biota, transmission facility operation, or social and economic factors. No other non-radiological impacts were identified or would be expected. Table 2 summarizes the non-radiological environmental impacts of the proposed EPU at SSES.
SSES uses waste treatment systems designed to collect, process, and dispose of gaseous, liquid, and solid wastes that might contain radioactive material in a safe and controlled manner such that the discharges are in accordance with the requirements of Title 10 of the
Minimal changes will be made to the waste treatment systems to handle the additional waste expected to be generated by the proposed EPU; the installation of an additional condensate filter and demineralizer. The gaseous, liquid, and solid radioactive wastes are discussed individually (Reference 9).
During normal operation, the gaseous effluent treatment system processes and controls the release of small quantities of radioactive noble gases, halogens, tritium, and particulate materials to the environment. The gaseous waste management system includes the offgas system and various building ventilation systems. The single year highest annual releases of radioactive material, for the time period 2000-2005 were; 2002 for noble gases with 9.68 Curies, 2001 for particulates and iodines with 0.0074 Curies, and 2004 for tritium with 160 Curies (Reference 9).
The licensee has estimated that the amount of radioactive material released in gaseous effluents would increase in proportion to the increase in power level (20 percent) (Reference 9). Based on experience from EPUs at other plants, the staff concludes that this is an acceptable estimate. The offsite dose to a member of the public, including the additional radioactive material that would be released from the proposed EPU, is calculated to still be well within the radiation standards of 10 CFR Part 20 and the design objectives of Appendix I to 10 CFR Part 50. Therefore, the staff concludes the increase in offsite dose due to gaseous effluent release following implementation of the proposed EPU would not be significant.
During normal operation, the liquid effluent treatment system processes and controls the release of radioactive liquid effluents to the environment, such that the dose to individuals offsite are maintained within the limits of 10 CFR Part 20 and the design objectives of Appendix I to 10 CFR Part 50. The liquid radioactive waste system is designed to process and purify the waste and then recycle it for use within the plant, or to discharge it to the environment as radioactive liquid waste effluent in accordance with facility procedures which comply with Commonwealth of Pennsylvania and Federal regulations. The single year highest radioactive liquid releases, for the time period 2000-2005 were: 2005 at 1,470,000 gallons, 2003 with 70.25 Curies of tritium, 2000 with 36.95 Curies of fission and activation products, and 2002 with 0.0002 Curies of dissolved and entrained gases (Reference 9).
Even though the EPU would produce a larger amount of radioactive fission and activation products and a larger volume of liquid to be processed, the licensee performed an evaluation which shows that the liquid radwaste treatment system would remove all but a small amount of the increased radioactive material. The licensee estimated that the volume of radioactive liquid effluents released to the environment and the amount of radioactive material in the liquid effluents would increase slightly (less than 1 percent) due to the proposed EPU. Based on experience from EPUs at other plants, the staff concludes that this is an acceptable estimate. The dose to a member of the public from the radioactive releases described above, increased by 1 percent, would still be well within the radiation standards of 10 CFR Part 20 and the design objectives of Appendix I to 10 CFR Part 50. Therefore, the staff concludes that there would not be a significant environmental impact from the additional amount of radioactive material generated following implementation of the proposed EPU.
The solid radioactive waste system collects, processes, packages, and temporarily stores radioactive dry and wet solid wastes prior to shipment offsite for permanent disposal. The volume of solid radioactive waste generated varied from about 2500 to almost 8000 cubic feet (ft
The proposed EPU would produce a larger amount of radioactive fission and activation products which would require more frequent replacement or regeneration of radwaste treatment system filters and demineralizer resins. The licensee has estimated that the volume of solid radioactive waste would increase by approximately 11 percent due to the proposed EPU (Reference 9). Based on experience from EPUs at other plants, the staff concludes that this is an acceptable estimate. The increased volume of the solid waste would still be bounded by the estimate of 10,400 ft
The licensee did not provide an estimate of the increase in the amount of radioactive solid waste in terms of Curies. However, for 4 of the 6 years between 2000 and 2005, the annual amount of radioactive material in the solid waste generated varied from 2500 to 5779 Curies (Reference 9). Based on experience from EPUs at other plants, the staff estimated that the amount of radioactive material in the solid waste would increase by 20 percent, proportional to the proposed EPU power increase. In 2000 and 2003, work was done that generated large amounts of used irradiated components, accounting for 98 percent and 92 percent, respectively, of the radioactive material generated in solid radwaste. Such work and the solid radwaste generated by that work occasionally occurs at SSES, but the range of 2500 to 5779 Curies is more
The licensee estimates that the EPU would require replacement of 10 percent more fuel assemblies at each refueling. This increase in the amount of spent fuel being generated would require an increase in the number of dry fuel storage casks used to store spent fuel. The current dry fuel storage facility at SSES has been evaluated and can accommodate the increase (Reference 9). Therefore, the staff concludes that there would be no significant environmental impacts resulting from storage of the additional fuel assemblies.
The proposed EPU would result in the production of more radioactive material and higher radiation dose rates in the restricted areas at SSES. SSES's radiation protection staff will continue monitoring dose rates and would make adjustments in shielding, access requirements, decontamination methods, and procedures as necessary to minimize the dose to workers. In addition, occupational dose to individual workers must be maintained within the limits of 10 CFR Part 20 and as low as reasonably achievable (Reference 9).
The licensee has estimated that the work necessary to implement the proposed EPU at the plant would also increase the collective occupational radiation dose at the plant to approximately 230 person-rem per year until the implementation is completed in 2009. After the implementation is completed, the licensee estimates that the annual collective occupational dose would be in the range of 200 person-rem, roughly 20 percent higher than the current dose of 182 person-rem in 2005 and 184 person-rem in 2006 (Reference 9). Based on experience from EPUs at other plants, the staff concludes that these estimates are acceptable. The staff notes that SSES is allowed a maximum of 3,200 person-rem per year as provided in the 1981 Final Environmental Statement—Operating Stage. Therefore, the staff concludes that the increase in occupational exposure would not be significant.
Offsite radiation dose consists of three components: gaseous, liquid, and direct gamma radiation. As previously discussed under the Gaseous Radiological Waste and Liquid Radiological Waste sections, the estimated doses to a member of the public from radioactive gaseous and liquid effluents after the proposed EPU is implemented, would be well within the dose limits of 10 CFR Part 20 and the design objectives of Appendix I to 10 CFR Part 50.
The final component of offsite dose is from direct gamma radiation from radioactive waste stored temporarily onsite, including spent fuel in dry cask storage, and radionuclides (mainly nitrogen-16) in the steam from the reactor passing through the turbine system. The high energy radiation from nitrogen-16 is scattered or reflected by the air above the facility and represents an additional public radiation dose pathway known as “skyshine.” The licensee estimated that the offsite radiation dose from skyshine would increase linearly with the increase in power level from the proposed EPU (20 percent); more nitrogen-16 is produced at the higher EPU power, and less of the nitrogen-16 decays before it reaches the turbine system because of the higher rate of steam flow due to the EPU. The licensee's radiological environmental monitoring program measures radiation dose at the site boundary and in the area around the facility with an array of thermoluminescent dosimeters. The licensee reported doses ranging from 0.2 to 1.3 mrem per year for the time period 2000-2005. The licensee estimated that the dose would increase approximately in proportion to the EPU power increase (20 percent) (Reference 9). Based on experience from EPUs at other plants, the staff concludes that this is an acceptable estimate. EPA regulation 40 CFR Part 190 and NRC regulation 10 CFR Part 20 limit the annual dose to any member of the public to 25 mrem to the whole body from the nuclear fuel cycle. The offsite dose from all sources, including radioactive gaseous and liquid effluents and direct radiation, would still be well within this limit after the proposed EPU is implemented. Therefore, the staff concludes that the increase in offsite radiation dose would not be significant.
As a result of implementation of the proposed EPU, there would be an increase in the inventory of radionuclides in the reactor core; the core inventory of radionuclides would increase as power level increases. The concentration of radionuclides in the reactor coolant may also increase; however, this concentration is limited by the SSES Technical Specifications. Therefore, the reactor coolant concentration of radionuclides would not be expected to increase significantly. Some of the radioactive waste streams and storage systems may also contain slightly higher quantities of radioactive material. The calculated doses from design basis postulated accidents for SSES are currently well below the criteria of 10 CFR 50.67; this was confirmed by the NRC staff in the Safety Evaluation Report supporting a license amendment for SSES dated January 31, 2007. The licensee has estimated that the radiological consequences of postulated accidents would increase approximately in proportion to the increase in power level from the proposed EPU (20 percent) (Reference 9). Based on experience from EPUs at other plants, the NRC staff concludes that this is an acceptable estimate. The calculated doses from design basis postulated accidents are based on conservative assumption and would still be well within the criteria of 10 CFR 50.67 after the increase due to the implementation of the proposed EPU.
The staff has reviewed the licensee's analyses and performed confirmatory calculations to verify the acceptability of the licensee's calculated doses under accident conditions. The staff's independent review of dose calculations under postulated accident conditions determined that dose would be within regulatory limits. Therefore, the staff concludes that the EPU would not significantly increase the consequences of accidents and would not result in a significant increase in the radiological environmental impact of SSES 1 and 2 from postulated accidents.
Tables S-3 and S-4 in 10 CFR Part 51 specify the environmental impacts due to the uranium fuel cycle and transportation of fuel and wastes, respectively. SSES's EPU would increase the power level to 3952 mega-watt thermal (Mwt), which is 3.3 percent above the reference power level for Table S-4. The increased power level of 3952 Mwt corresponds to 1300 mega-watt electric (Mwe), which is 30 percent above the reference power level for Table S-3. Part of the increase is due to a more efficient turbine design; this increase in efficiency does not affect the impacts of the fuel cycle and transportation of wastes. However, more fuel will be used in the reactor (more
Based on staff review of licensee submissions and the 1981 FES for operation, it is concluded that the proposed EPU would not significantly increase the consequences of accidents, would not result in a significant increase in occupational or public radiation exposure, and would not result in significant additional fuel cycle environmental impacts. Accordingly, the staff concludes that there would be no significant radiological environmental impacts associated with the proposed action. Table 3 summarizes the radiological environmental impacts of the proposed EPU at SSES.
As an alternative to the proposed action, the staff considered denial of the proposed EPU (i.e., the “no-action” alternative). Denial of the application would result in no change in the current environmental impacts. However, if the proposed EPU were not approved, other agencies and electric power organizations may be required to pursue alternative means of providing electric generation capacity to offset the increased power demand forecasted for the PJM regional transmission territory.
A reasonable alternative to the proposed EPU would be to purchase power from other generators in the PJM network. In 2003, generating capacity in PJM consisted primarily of fossil fuel-fired generators: coal generated 36.2 percent of PJM capacity, oil 14.3 percent, and natural gas 6.8 percent (Reference 10). This indicates that purchased power in the PJM territory would likely be generated by a fossil-fuel-fired facility. Construction (if new generation is needed) and operation of a fossil fuel plant would create impacts in air quality, land use, and waste management significantly greater than those identified for the proposed EPU at SSES. SSES's nuclear units do not emit sulfur dioxide, nitrogen oxides, carbon dioxide, or other atmospheric pollutants that are commonly associated with fossil fuel plants. Conservation programs such as demand-side management could feasibly replace the proposed EPU's additional power output. However, forecasted future energy demand in the PJM territory may exceed conservation savings and still require additional generating capacity (Reference 9). The proposed EPU does not involve environmental impacts that are significantly different from those originally identified in the 1981 SSES FES for operation.
This action does not involve the use of any resources not previously considered in the original FES for construction.
In accordance with its stated policy, on July 2, 2007, the staff consulted with the Pennsylvania State official, Brad Fuller, of the Pennsylvania Department of Environmental Protection, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the Environmental Assessment, the Commission concludes that the proposed action would not have a significant effect on the quality of the human environment. Accordingly, the Commission has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's application dated October 11, 2006. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the NRC Web site,
The comment period expires September 20, 2007. Comments received after this date will be considered if it is practical to do so, but the Commission is only able to assure consideration of comments received on or before September 20, 2007.
Submit written comments to Chief, Rulemaking, Directives, and Editing Branch, Office of Administration, U.S. Nuclear Regulatory Commission, Mail Stop T-6D59, Washington, DC 20555-0001. Written comments may also be delivered to 11545 Rockville Pike, Room T-6D59, Rockville, Maryland 20852 from 7:30 a.m. to 4:15 p.m. on Federal workdays. Copies of written comments received will be electronically available at the NRC's Public Electronic Reading Room
The NRC is considering issuance of amendments to Facility Operating License Nos. NPF-014 (Unit 1) and NPF-022 (Unit 2) issued to PPL Susquehanna, LLC for operation of Susquehanna Steam Electric Station, Units 1 and 2, located in Luzerne County, Pennsylvania.
Richard V. Guzman, Office of Nuclear Reactor Regulation, Mail Stop O8-C2, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by telephone at (301) 415-1030, or by e-mail at
For the Nuclear Regulatory Commission.
1. Commonwealth of Pennsylvania (PA).
2. Ecology III, Inc. (Ecology III).
3. Pennsylvania Department of Conservation and Natural Resources (DCNR).
4. Pennsylvania Department of Environmental Protection (DEP).
5. Pennsylvania Fish and Boat Commission (FBC).
6. Pennsylvania Game Commission (PGC).
7. PPL Electric Utilities Corporation (PPL).
8. PPL Susquehanna, LLC (PPL).
9. PPL Susquehanna, LLC (PPL).
10. PPL Susquehanna, LLC (PPL).
11. U.S. Environmental Protection Agency.
12. U.S. Nuclear Regulatory Commission. “Pennsylvania Power and Light Company, Docket No. 50-388, Susquehanna Steam Electric Station, Unit 2, Luzerne County, Pennsylvania.”
13. U.S. Nuclear Regulatory Commission. “Pennsylvania Power & Light Co., Allegheny Electric Cooperative, Inc., Susquehanna Steam Electric Station, Unit 1; Environmental Assessment and Finding of No Significant Impact.”
14. U.S. Nuclear Regulatory Commission. “PPL Susquehanna, LLC; Susquehanna Steam Electric Station Environmental Assessment and Finding of No Significant Impact.”
15. U.S. Nuclear Regulatory Commission. E-mail from J. Fields, PPL Susquehanna, LLC, Allentown, Pennsylvania, to A. Mullins, U.S. Nuclear Regulatory Commission, Rockville, Maryland. Subject: “Application to Susquehanna River Basin Commission (SRBC).” January 8, 2007. (ML070320756).
16. U.S. Nuclear Regulatory Commission. Letter from R. Bowen, Pennsylvania Department of Conservation and Natural Resources, Harrisburg, Pennsylvania, to A. Mullins, U.S. Nuclear Regulatory Commission, Rockville, Maryland. Subject: “Pennsylvania Natural Diversity Inventory Review, PNDI Number 19031.” January 8, 2007. (ML070190672).
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering an application for the renewal of operating licenses NPF-68 and NPF-81, which authorizes Southern Nuclear Operating Company, Inc. (SNC), to operate the Vogtle Electric Generating Plant (VEGP), Units 1 and 2, at 3565 and 3565 megawatts thermal, respectively. Renewal of the licenses would authorize the applicant to operate VEGP, Unit 1 for an additional 20-year period beyond the period specified in the current operating license. For VEGP, Unit 2, the renewed license would authorize the applicant to operate for an additional 20 years beyond the period specified in the current operating license or 40 years from the date of issuance of the new license, whichever occurs first. The current operating license for VEGP, Unit 1, (NPF-68), expires on January 16, 2027. VEGP, Unit 1 is a Pressurized Water Reactor designed by Westinghouse. The current operating license for VEGP, Unit 2, (NPF-81), expires on February 9, 2029. VEGP, Unit 2, is a Pressurized Water Reactor designed by Westinghouse. Both units are located near Waynesboro, Georgia.
On June 29, 2007, the Commission's staff received an application from SNC, to renew operating licenses NPF-68 and NPF-81, pursuant to Title 10, Part 54, “Requirements for Renewal of Operating Licenses for Nuclear Power Plants,” of the
The Commission's staff has reviewed the LRA for its acceptability and has determined that SNC has submitted sufficient information in accordance with 10 CFR 54.19, 54.21, 54.22, 54.23, and 51.53(c), and that the application is acceptable for docketing. The
Before issuance of each requested renewed license, the NRC will have made the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. In accordance with 10 CFR 54.29, “Standards for Issuance of a Renewed License,” the NRC will issue a renewed license on the basis of its review if it finds that actions have been identified and have been or will be taken with respect to (1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified as requiring aging management review, and (2) time-limited aging analyses that have been identified as requiring review, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the current licensing basis (CLB), and that any changes made to the plant's CLB comply with the Act and the Commission's regulations.
Additionally, in accordance with 10 CFR 51.95(c), the NRC will prepare an environmental impact statement that is a supplement to the Commission's NUREG-1437, “Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants,” dated May 1996. Pursuant to 10 CFR 51.26, and as part of the environmental scoping process, the staff intends to hold a public scoping meeting. Detailed information regarding this meeting will be the subject of a separate
Within 60 days after the date of publication of this
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding, taking into consideration the limited scope of matters that may be considered pursuant to 10 CFR Parts 51 and 54. The petition must specifically explain the reasons why intervention should be permitted with particular reference to (1) the nature of the requestor/petitioner's right under the Act to be made a party to the proceeding, (2) the nature and extent of the requestor/petitioner's property, financial, or other interest in the proceeding, and (3) the possible effect of any decision or order which may be entered in the proceeding on the requestor/petitioner's interest. The petition must also set forth the specific contentions that the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall briefly explain the bases of each contention and concisely state the alleged facts or the expert opinion that supports the contention on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the requestor/petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The requestor/petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.
The Commission requests that each contention be given a separate numeric or alphabetical designation within one of the following groups (1) technical (primarily related to safety concerns), (2) environmental, or (3) miscellaneous.
As specified in 10 CFR 2.309, if two or more requestors/petitioners seek to co-sponsor a contention or propose substantially the same contention, the requestors/petitioners must jointly designate a representative who shall have the authority to act for the requestors/petitioners with respect to that contention.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing. A request for a hearing or a petition for leave to intervene must be filed by either (1) first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff, (2) courier, express mail, and expedited delivery services to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff, (3) e-mail addressed to the Office of the Secretary, U.S. Nuclear Regulatory Commission,
Untimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition, request, and/or contentions should be granted based on a balancing of the factors specified in 10 CFR 2.309(a)(1)(i)-(viii).
Detailed information about the license renewal process can be found under the Nuclear Reactors icon at
For the Nuclear Regulatory Commission.
Weeks of August 20, 27; September 3, 10, 17, 24, 2007.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of September 3, 2007.
There are no meetings scheduled for the Week of September 10, 2007.
There are no meetings scheduled for the Week of September 17, 2007.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify the NRC's Disability Program Coordinator, Rohn Brown, at 301-492-2279, TDD: 301-415-2100, or by e-mail at
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Nuclear Regulatory Commission.
Notice of availability.
The U.S. Nuclear Regulatory Commission (NRC) is announcing the availability of the final interim staff guidance (ISG) document, “HLWRS-ISG-04 Preclosure Safety Analysis—Human Reliability Analysis,” and NRC responses to the public comments received on the draft document. The ISG clarifies or refines guidance provided in the Yucca Mountain Review Plan (YMRP) (NUREG-1804, Revision 2, July 2003). The YMRP provides guidance to NRC staff for evaluating a potential license application (LA) for a high-level radioactive waste geologic repository constructed or operated at Yucca Mountain, Nevada.
HLWRS-ISG-04 is available electronically at NRC's Electronic Reading Room, at
This document may also be viewed electronically on the public computers located at NRC's PDR, Mail Stop: O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents, for a fee.
The following discussion indicates how the comments were addressed, and the changes, if any, made to ISG-04 as a result of the comments. Line numbers in the following comments refer to draft HLWRS-ISG-04, ADAMS ML070820387, which was made available for public comment on April 19, 2007 (72 FR 19729).
The ISG has been revised to change ISG lines 79-82 to: “Examples of human actions that are risk-significant include: (1) Direct manual operator actions that are related to reliability of important-to-safety (ITS) structures, systems, or components (SSCs); (2) administrative or procedure safety controls that are related to reliability of ITS SSCs and involve human actions; or (3) human actions that contribute significantly to the reliability of ITS SSCs.”
The commenter recommends adding text to:
(a) Recognize human reliability data sources in addition to those associated with nuclear power plants; specifically, the commenter recommends adding a sentence at the beginning of Line 138, as follows: “Use of any quantification method, either data-driven or contextual, requires justification that it applies to Geologic Repository Operations Area (GROA) operations”;
(b) provide guidance on the use of generic second-generation methods.
ISG lines 138-139 have been revised as follows: “Commercial nuclear power applications” has been changed to “applications for commercial nuclear power plants or other facilities.”
ISG line 142 has been revised as follows: “Commercial nuclear-power-plant HRAs” has been changed to “HRAs for commercial nuclear-power plants or other facilities.”
The sentence in ISG lines 142-145 has been revised to “Staff should expect the use of any quantification method, either data-driven or model-driven, to be justified regarding its applicability to GROA operations.”
(b) The U.S. Department of Energy (DOE) has the flexibility to use any quantification method it chooses, including CREAM or HEART, provided there is sufficient technical basis to use the method for a particular application.
The following sentence is added after ISG line 136: “DOE has the flexibility to choose any method(s) to support the PCSA, given there is a sufficient technical basis for applying the method(s) and approach(es) to the GROA.”
The ISG has been revised as follows.
The following has been added to the end of ISG line 64:
“The goal of the review is to evaluate whether there is reasonable assurance that the performance objectives in Part 63 will be met, which in turn is determined by: (a) Whether an identified event sequence is category 1, category 2, or beyond category 2, and (b) whether the projected consequences meet the performance objective for that category. NRC expects the data and information in an LA to be commensurate with supporting these determinations, rather than supporting precise quantification for all event sequences.”
The following definition has been added to the Glossary, after ISG line 379: “
In addition, the following sentence has been added to the beginning of the Glossary: “The definitions provided in this glossary are specific to the way the terms are used in this ISG, and may not be universally appropriate or applicable.”
ISG line 56 has been revised to change “full-blown HRA” to “full HRA (i.e., encompassing all elements of a complete HRA).”
ISG lines 117-119 have been revised to change “Because * * * hazards)” to “For waste-facility initiators that may not have safeguards to prevent events-in-progress, once initiated (e.g., drop events).”
The following has been added to the beginning of item 1. at ISG line 173: “
No change was made to ISG as a result of these comments.
The ISG has been revised, as follows, to add the recommended terms, to the Glossary, which begins on ISG line 352, except the term “Pre-initiator Human Failure Event,” which has been defined already in ISG lines 375-379 as “Pre-initiators.” The “Pre-initiators” term has been revised to “Pre-initiator Human Failure Event (HFE).”
1. To ensure that human actions that could affect event sequences are systematically identified, screened, analyzed, and incorporated into the safety analysis in a traceable manner;
2. Where necessary, to quantify the probabilities of success and failure of
ISG lines 354-355 and 357-358 have been revised as follows: “Plant configuration” is changed to “facility configuration,” and “degraded plant state” is changed to “degraded facility state that may lead to an event sequence.”
No change to the ISG was made as a result of this comment.
For clarification, the ISG has been revised as follows.
The following sentence has been added to the introduction, in line 7: “In this ISG, “the HRA” refers to any consideration of human performance in the PCSA analyses, i.e., the evaluation of the potential for, and mechanisms of, human errors that may affect safety of GROA operations, including consideration of human reliability, as it relates to design and programs such as training of personnel.”
ISG line 5 has been revised to change “the HRA review” to “in the review of HRA in the PCSA.”
ISG lines 38-39 have been revised to change “The HRA supporting an LA” to “The HRA supporting the PCSA in an LA.”
The following sentence has been added to the paragraph preceding ISG line 65: “Staff should also recognize that the analysis of how human performance fits into planned operations and meeting performance goals at the GROA may appear in many different parts of the PCSA, and in varying scopes (in other words, human performance is likely to be addressed in different relevant parts of the PCSA, rather than addressed together in one place).”
The sentence in ISG lines 65-66 has been changed to the following: “The guidance in this ISG is written with the expectation that staff will seek the assistance of an HRA specialist(s) for review of risk-significant aspects of an LA affected by human performance.”
ISG line 78 has been revised to change “qualitative analyses in the HRA” to “the qualitative HRA analyses.”
ISG lines 123-124 have been revised to change “an HRA for the GROA” to “HRA in the GROA PCSA.”
No change to the ISG was made as a result of this comment.
The ISG, however, has been revised, as follows, to clarify the staff's intent:
In ISG line 36, “(e.g., nuclear power plant,” is revised to “(e.g., at-power nuclear power-generation operations.”
In ISG line 37, “nuclear materials facility” is revised to “nuclear materials facility activities.”
For clarification, the ISG has been revised as follows.
ISG lines 69-74 are replaced with the following sentences: “It is important to have a conceptual understanding of how human performance fits into the planned GROA operations and safety. Although quantified reliability estimates are typically needed for categorizing event sequences, much of the HRA review should focus on the HRA tasks, that are performed as part of an overall PCSA, that explain the conceptual understanding of human performance in the planned operations. These tasks are part of the qualitative HRA analysis and would include, for example: (1) Identification of HFEs and unsafe actions; (2) identification of important factors influencing human performance; and (3) selection of appropriate HRA quantification method(s), if considered necessary.”
The following entry has been added to the ISG glossary: “
• A qualitative evaluation justifying the use of empirical data for the repository PCSA is a reasonable NRC staff expectation, but the applicant should be required to perform quantitative HRA as part of the reliability inputs only if human factors were not part of the existing data sets.
• “HRA is only one method of quantifying the human elements of risk. A preferable, and likely more accurate, method would be to use empirical reliability and event data that quantifies the total operational reliability including human influenced circumstances.”
• Regarding the crane data from NUREG-1774, “Human error is implicit in the data. If the applicant can show or commit to programs that have comparable rigor to the programs under which the data was collected, separate HRA should not be necessary.”
• ISG lines 428-431 guide NRC staff reviewers to determine whether the LA provides justification for data sources, based on relevant qualitative considerations—namely HRA activities: (a) Identification of HFEs, and associated unsafe actions, to be considered in the overall PCSA; and (b) identification of important factors influencing human performance. The commenter stated that this is an inappropriate implied requirement that is more appropriate for the goal of improving human performance, but is not necessary to perform safety analysis, and is not required by Part 63 .
• “Items 4, 5, 6, and 7 on page 14 and 15 are more reasonable expectations of the NRC staff review of the repository license application than items 2 and 3 (
In addition, see ISG lines 145-150, for guidance on staff review of use of empirical failure rates and their technical bases, with regard to human performance. If the LA relies on empirical data where human performance is an important contributor, the staff expects a qualitative evaluation that the relevant conditions at facilities from which the empirical data were obtained are similar to those expected at the GROA, since HFEs depend greatly on context (see ISG “Discussion” section, lines 28-39). NRC expects that, as part of this justification of “similarity,” of the operations at the empirical data facilities and the GROA, DOE would include a discussion on conditions relevant to human performance, if human performance were an important contributor. Item 6, in the Appendix beginning on ISG line 461, also clarifies the information pertinent to the data source (NUREG-1774), in the hypothetical example and potential discussion, that could be included in an LA, to address differences between the GROA and data source facilities.
No change to the ISG was made as a result of this comment.
For further clarification, ISG line 167 has been revised to change “programmatic elements of the HRA” to “programmatic elements supporting the HRA.”
No change to the ISG was made as a result of this comment.
The ISG has been revised as follows.
ISG line 108 has been changed from “the HRA” to “any HRA in the LA.”
ISG lines 252-253 have been changed from “Verify that the human reliability analysis is consistent with * * * ” to “Verify that any human reliability analysis in the license application is consistent with * * *.”
No change to the ISG was made as a result of this comment.
To help clarify, the ISG is revised to add the following sentence starting in line 425: “The reason for citing this statistic is not to imply that human performance is deteriorating over time, but as an indicator that human performance
No change to the ISG was made as a result of this comment.
Jon Chen, Project Manager, Division of High-Level Waste Repository Safety, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 [Telephone: (301) 492-3197; fax number: (301) 492-3361; e-mail:
For the Nuclear Regulatory Commission.
Office of the United States Trade Representative.
Decision not to initiate investigation.
The United States Trade Representative (USTR) has determined not to initiate an investigation under section 302 of the Trade Act of 1974 with respect to a petition addressed to China's currency valuation policies because initiation of an investigation would not be effective in addressing the issues raised in the petition.
June 14, 2007.
Terrence J. McCartin, Deputy Assistant United States Trade Representative for China Enforcement, (202) 395-3900; or William Busis, Associate General Counsel and Chairman of the Section 301 Committee, (202) 395-3150.
On May 17, 2007, the Bipartisan China Currency Action Coalition filed a petition pursuant to section 302(a)(1) of the Trade Act of 1974, as amended (the Trade Act), alleging that certain acts, policies and practices of the Government of China with respect to the valuation of China's currency deny and violate international legal rights of the United States, are unjustifiable, and burden or restrict U.S. commerce. In particular, the petition alleged that China's acts, policies, and practices that maintain a fixed exchange rate vis-á-vis the U.S. dollar have resulted in a significant undervaluation of China's currency. The petition alleged that these acts, policies and practices amount to: a prohibited export subsidy under the Agreement on Subsidies and Countervailing Measures and articles VI and XVI of the General Agreement on Tariffs and Trade 1994 (GATT 1994); exchange action under article XV of the GATT 1994 that frustrates the intent of articles I, II, III, VI, XI , and XVI of the GATT 1994; and subsidies that are inconsistent with China's obligations under articles 3, 9, and 10 of the Agreement on Agriculture. The petition also alleged that these acts, policies, and practices of China violate international legal rights of the United States under articles IV and VIII of the Articles of Agreement of the International Monetary Fund, and that they burden or restrict U.S. commerce by, among other things, suppressing U.S. manufacturing for domestic consumption and the growth in U.S. exports.
On June 14, 2007, the USTR determined not to initiate an investigation under section 302 of the Trade Act because, among other reasons, an investigation would not be effective in addressing the acts, policies, and practices covered in the petition. The Administration is currently involved in efforts to address with the Government of China the currency valuation issues raised in the petition. The USTR believes that initiation of an investigation under section 302 would hamper, rather than advance, Administration efforts to address China's currency valuation policies.
Peace Corps.
Notice to add a new system of records.
As required under the Privacy Act of 1974, (5 U.S.C. 552a), as amended, the Peace Corps is giving notice of a new system of records, Volunteer Language Testing Scores System.
This action will be effective without further notice on October 5, 2007 unless comments are received by September 20, 2007 that would result in a contrary determination.
You may submit comments by e-mail to
Suzanne Glasow, Associate General Counsel, 202-692-2150,
The Privacy Act, 5 U.S.C. 552a, provides that the public will be given a 30-day period in which to comment on the new system. The Office of Management and Budget (OMB), which has oversight responsibility under the Act, requires a 40-day period in which to review the proposed system. In accordance with 5 U.S.C. 552a, Peace Corps has provided a report on this system to OMB and the Congress.
PC-32, Volunteer Language Testing Scores System.
Overseas Training Division, Training and Staff Development Unit, Peace Corps, 1111 20th St., NW., Washington, DC 20526.
Any Peace Corps Trainee or currently serving Volunteer.
Name, Volunteer Identification Number, gender, Social Security Number, country of service, region of service, date of birth, project type, project name or assigned sector, language background, notes, test date, language code, tester code, length of preservice training, Educational Testing Services/Teaching of Foreign Language rating, certificate of language proficiency, and reason not tested, if applicable.
The Peace Corps Act, 22 U.S.C. 2501
To record Educational Testing Services/Teaching of Foreign Language rating of Peace Corps Volunteers.
General routine uses A-L apply to this system.
Peace Corps Volunteer host country officials for review of their qualifications for a program.
In a computerized database.
By name, region, gender, assigned sector, or date tested.
Computer records are maintained in a secure, password-protected computer system.
Records in the computerized database are kept for seven years after swear in and five years after close of service.
Chief, Overseas Training, Center for Field Assistance and Applied Research (CEN), 1111 20th St., NW., Washington, DC 20526.
Any individual who wants to know whether this system of records contains a record about him or her, who wants access to his or her record, or who wants to contest the contents of a record, should make a written request to the System Manager. Requesters will be required to provide adequate identification, such as a driver's license, employee identification card, or other identifying document. Additional identification may be required in some instances. Requests for correction or amendment must identify the record to be changed and the corrective action sought. Complete Peace Corps Privacy Act procedures are set out in 22 CFR Part 308.
Record subject and official records of Educational Testing Services/Teaching of Foreign Language rating.
None.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rules 1000-AEMI, 1000A-AEMI, 1200-AEMI, 1200A-AEMI, 1200B-AEMI, 1500-AEMI, and Rule 1400 to eliminate the prohibition on the entering of certain limit orders in Exchange Traded Fund Shares and other equity derivative products into the Exchange's trading systems.
The text of the proposed rule change is available at the Amex, the Commission's Public Reference Room, and
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
In August 2001, the Exchange adopted rules restricting the entry of certain limit orders in Portfolio Depositary Receipts, Index Fund Shares, and Trust Issued Receipts. Subsequently, the Exchange adopted the same rules for trading in Commodity-Based Trust Shares, Currency Trust Shares, Paired Trust Shares, and Partnership Units when those products began trading on the Exchange. All of these products will be collectively referred to herein as “Exchange Traded Fund Shares” or “ETFs.” Specifically, the rules provide that members, acting as either principal or agent, may not permit the entry of orders into the Exchange's electronic order routing system if the orders are limit orders for the account or accounts of the same or related beneficial owners and the limit orders are entered in such a manner that the member or the beneficial owner(s) effectively is operating as a market maker by holding itself out as willing to buy and sell such securities on a regular or continuous basis.
The Exchange adopted these rules because its business model at that time depended upon specialists and registered traders for competition and liquidity. To encourage participation by specialists and registered traders, the Exchange determined to limit the ability of non-specialists/registered traders to compete on equal terms within its automated systems. The Exchange determined that certain actions—simultaneous entry of limit orders to buy or sell the same ETF, multiple acquisition and liquidation of positions in the same ETF, and the entry of multiple orders at different prices in the same ETF—were tantamount to operating as a market maker and gave such members an advantage over the specialist who was required to yield priority to their orders. The adoption of these rules by the Exchange did not, however, confer market maker status on such members for any purpose under the Act or otherwise.
Since that time, trading in ETFs has changed considerably. Most recently, the implementation of the AEMI trading system and the introduction of Regulation NMS have changed the Exchange's view of these restrictions and the need to encourage order flow from all types of liquidity providers, particularly member firms trading for their own proprietary accounts. ETF specialists and registered traders now have the ability to stream quotations into the AEMI system using their own proprietary quoting systems in a manner that allows them to compete effectively with orders from members' proprietary accounts. In addition, specialists and registered traders have the ability to be on parity with these orders from members. Thus, the Exchange is proposing to amend its rules to eliminate the prohibition on limit orders from members operating as market makers. Management believes the removal of these restrictions will provide a level playing field for all market participants on parity and should enhance access to the Exchange providing additional liquidity in our ETFs.
The prohibition, however, will continue to apply to customer agency orders since those orders continue to have priority over specialists and registered traders. The rule prevents certain customers from obtaining an unfair advantage by acting as unregistered specialists and traders while having priority over the specialists and registered traders by virtue of their customer status. Permitting customers to enter multiple limit orders to such an extent that they are effectively acting as market makers in a secuirty, while at the same time giving them priority over all other orders on the book, gives such customers an inordinate advantage over other market participants.
The Exchange believes the proposed rule change is consistent with Section 6(b)(5) of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective immediately pursuant to Section 19(b)(3)(A)(iii) of the Act
Rule 19b-4(f)(6) provides that the proposal may not become operative for 30 days after the date of its filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. The Commission hereby waives the 30 day pre-operative period.
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public
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.
All submissions should refer to File No. SR-Amex-2007-77. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of 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 Boston Options Exchange (“BOX”) Rules to reflect BOX's continued participation in the Penny Pilot Program, which would follow a two-phased extension schedule, first extending through March 27, 2008 and then extending through March 27, 2009. During this extension, the Exchange also proposes a corresponding expansion of the Penny Pilot Program, with each of the two expansion phases commencing when its corresponding extension phase becomes operative. The text of the proposed rule change is available on the BSE's Web site at (
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the BOX Rules to reflect BOX's continued participation in the Penny Pilot Program, namely its participation in a two-phased extension and expansion of the program. The Exchange proposes to amend Section 33, (“Penny Pilot Program”) to Chapter V (“Doing Business on BOX”) of the BOX Rules.
All six options exchanges, including BOX, currently participate in the thirteen class
Furthermore, the Exchange proposes a second extension and expansion of the Penny Pilot Program. This second proposal would extend the Penny Pilot Program for an additional year, from March 28, 2008 through March 27, 2009. During this second extension, the number of options classes trading in pennies would again increase. The Exchange proposes to add the most actively traded, multiply listed options classes up to the top 50 by volume.
The minimum price variation for all classes included in the Penny Pilot Program, except for the QQQQs, would continue to be $0.01 for all quotations in option series that are quoted at less than $3 per contract and $0.05 for all quotations in option series that are quoted at $3 per contract or greater. The QQQQs would continue to be quoted in $0.01 increments for all options series.
During the extended and expanded pilot program, the BOX would deliver four reports to the Commission. Each report would analyze the impact of penny pricing on market quality and options system capacity. The first report would analyze the penny pilot results from May 1, 2007 through September 27, 2007. The second would analyze the results from September 28, 2007 through January 31, 2008. The third would analyze the results from February 1, 2008 through July 31, 2008. And the fourth and final report would examine the results from August 1, 2008 through January 31, 2009. These reports would be provided to the Commission within 30 days of the conclusion of the reporting period.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
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. The Commission also requests and encourages interested persons to submit comments on the following specific questions:
• Whether there are circumstances under which options classes included in the Penny Pilot should be removed from the Pilot?
• If so, what factors should be considered in making the determination to remove an option class from the Penny Pilot?
○ Should an objective standard be used? For instance, should an option class come out of the Penny Pilot if its trading volume drops below a threshold amount? If so, what should that threshold be? Or, should an option class come out of the Penny Pilot if it is no longer among the most actively traded options? If so, what should be considered the most-actively traded options? What statistics or analysis should be used to support a determination to remove an options class?
○ Should a more subjective analysis be allowed? If so, what factors should be taken into account?
• What concerns might arise by removing an option from the Penny Pilot? How could such concerns be ameliorated?
• How frequently should the analysis be undertaken (
• If a determination is made that an option should be removed from the Penny Pilot, how much notice should be given to market participants that the quoting increment will change?
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.
All submissions should refer to File Number SR-BSE-2007-40. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 26, 2007, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the rule change is to provide guidance regarding both new and pending NYSE Arca Rule 12 arbitration claims in light of the consolidation of the member firm regulation function of NYSE Regulation, Inc. (“NYSE Regulation”) with the National Association of Securities Dealers, Inc. (“NASD”).
Because the consolidation has already occurred, the effective date of this rule change will be when the Commission approves this proposed rule change (SR-NYSEArca-2007-59) (“Effective Date”). As a result, on and after July 30, 2007, all arbitration claims filed prior to the Effective Date, and previously subject to Rule 12 or NYSE Regulation rules, will be administered by NASD DR
The amendments to Rule 12 provide that: (i) All arbitrations filed with NYSE Arca after January 31, 2007 and prior to the Effective Date, shall continue to be governed by the Code of Arbitration contained in the 600 series of the NYSE Rules; (ii) arbitrations filed on or prior to January 31, 2007 shall continue to be governed by NYSE Arca Rule 12 as it was in effect on or prior to January 31, 2007; and (iii) from and after the Effective Date, disputes between NYSE Arca Option Trading Permit (“OTP”) holders and NYSE Arca OTP firms, associated persons, and/or their customers will be arbitrated under the NASD DR Codes of Arbitration Procedure.
Rule 12(a) will provide detailed guidance concerning claims involving OTP Holders and/or OTP Firms and/or associated persons that are asserted on and after the Effective Date. First, any dispute, claim or controversy between or among OTP Holders and/or OTP Firms and/or associated persons shall be arbitrated pursuant to the NASD DR Codes of Arbitration Procedure. Second, any dispute, claim or controversy between a customer or a non-member and an OTP Holder and/or OTP Firm, and/or associated person arising in connection with the business of such OTP Holder and/or OTP Firm and/or in connection with the activities of an associated person, shall be arbitrated pursuant to NASD DR Codes of Arbitration Procedure as provided by any duly executed and enforceable written agreement, or upon the demand of the customer or non-member. This obligation to arbitrate shall extend only to those matters that are permitted to be arbitrated under NASD DR Codes of Arbitration Procedure.
Rule 12(b) will explicitly retain NYSE Arca's enforcement authority related to arbitration. Rule 12(c) also will provide that any OTP Holder and/or OTP Firm, and/or associated person of any OTP Holder and/or OTP Firm, that fails to honor an award of arbitrators rendered under the NASD DR Codes of Arbitration Procedure, or under the auspices of any other self-regulatory organization, shall be subject to disciplinary proceedings in accordance with NYSE Arca Rule 10. Rule 12(d)
After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of Section 6(b)(5)
The Commission finds good cause to approve the proposed rule change, as amended, prior to the thirtieth day after the proposal was published for comment in the
For these reasons, the Commission finds good cause, consistent with Section 19(b)(2) of the Act, to grant accelerated approval to the proposed rule change.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 26, 2007, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the rule change is to provide guidance regarding both new and pending NYSE Arca Equities Rule 12 arbitration claims in light of the consolidation of the member firm regulation function of NYSE Regulation, Inc. (“NYSE Regulation”) with the National Association of Securities Dealers, Inc. (“NASD”).
Because the consolidation has already occurred, the effective date of this rule change will be when the Commission approves this proposed rule change (SR-NYSEArca-2007-60) (“Effective Date”). As a result, on and after July 30, 2007, all arbitration claims filed prior to the Effective Date, and previously subject to NYSE Arca Equities Rule 12 or NYSE Regulation rules, will be administered by NASD DR
The amendments to NYSE Arca Equities Rule 12 provide that: (i) All arbitrations filed with NYSE Arca Equities after January 31, 2007 and prior to the Effective Date, shall continue to be governed by the Code of Arbitration contained in the 600 series of the NYSE Rules; (ii) arbitrations filed on or prior to January 31, 2007 shall continue to be governed by NYSE Arca Equities Rule
Arca Equities Rule 12(a) will provide detailed guidance concerning claims involving ETP Holders and/or associated persons that are asserted on and after the Effective Date. First, any dispute, claim or controversy between or among ETP Holders and/or associated persons shall be arbitrated pursuant to the NASD DR Codes of Arbitration Procedure. Second, any dispute, claim or controversy between a customer or a non-member and an ETP Holder and/or associated person arising in connection with the business of such ETP Holder and/or in connection with the activities of an associated person, shall be arbitrated pursuant to NASD DR Codes of Arbitration Procedure as provided by any duly executed and enforceable written agreement, or upon the demand of the customer or non-member. This obligation to arbitrate shall extend only to those matters that are permitted to be arbitrated under NASD DR Codes of Arbitration Procedure.
Rule 12(b) will explicitly retain NYSE Arca Equities' enforcement authority related to arbitration. Rule 12(c) also will provide that any ETP Holder and/or associated person, that fails to honor an award of arbitrators rendered under the NASD DR Codes of Arbitration Procedure, or under the auspices of any other self-regulatory organization, shall be subject to disciplinary proceedings in accordance with NYSE Arca Equities Rule 10. Rule 12(d) also will specify that the submission of any matter to arbitration as provided for under the Rule shall in no way limit or preclude any right, action or determination by NYSE Arca Equities that it would otherwise be authorized to adopt, administer or enforce.
After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of Section 6(b)(5)
The Commission finds good cause to approve the proposed rule change, as amended, prior to the thirtieth day after the proposal was published for comment in the
For these reasons, the Commission finds good cause, consistent with Section 19(b)(2) of the Act, to grant accelerated approval to the proposed rule change.
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 NYSE Arca Equities Rule 4.1 (Minimum Net Capital) by deleting Commentary .02 (Trading in Gold and Silver Bullion) thereto. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the 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 Corporation has determined that Commentary .02 to NYSE Arca Equities Rule 4.1, which relates to trading in gold and silver bullion, is obsolete because the Corporation no longer trades gold and silver bullion. Therefore, the Corporation proposes to delete Commentary .02 from NYSE Arca Rule 4.1. In 2005, the Exchange filed a proposed rule change that sought to delete a similar rule related to trading options on gold and silver bullion, but failed to make the same filing for its equities rules.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the operative delay in this case. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because Commentary .02 to NYSE Arca Equities Rule 4.1 no longer serves any purpose, and hereby grants the Exchange's request.
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.
All submissions should refer to File Number SR-NYSEArca-2007-83. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commissions Internet Web site (
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 Phlx proposes to amend Phlx Rule 1014(c)(i)(A) relating to quote spread parameters (bid/ask differentials) and Phlx Rule 1014(g)(i)(B) relating to purchase or sale priority for orders of 100 contracts or more, to standardize the rules such that they would apply equally to options on equities, options on exchange-traded fund (“ETF”) shares, and index options.
The text of the proposed rule change is available on Phlx's Web site at (
In its filing with the Commission, the Phlx 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 Phlx 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 above-mentioned rules so that they would apply equally to options on equities, options on ETFs, and index options. Currently, Phlx's rules concerning bid/ask differentials and split-price priority in open outcry apply either exclusively to equity and ETF options, or apply differently to equity and ETF options versus index options. In order to standardize the applicability of Phlx's rules to all options traded on Phlx, the following rule changes are proposed:
Currently, Phlx Rule 1014(c)(i)(A) includes only language concerning equity options. In order to clarify the applicability of the rule to all options traded on the Exchange, including index options, and options on ETFs, the proposal would specifically list index options and options on ETFs in the rule.
Phlx Rule 1014(g)(i)(B) currently affords priority in open outcry to a member that purchases (sells) 50 or more option contracts of a particular series at a particular price or prices, at the next lower (higher) price, up to the equivalent number of option contracts of the same series that he purchased (sold) at the higher (lower) price or prices. The rule currently applies only to transactions in equity options (including options overlying ETFs).
The proposed amendment would delete the limitation of applicability to equity and ETF options from the rule; the rule would therefore apply to all options traded on the Exchange, including index options.
The Exchange believes that the standardization of these rules should obviate any potential confusion among customers and Exchange members concerning their applicability.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 35 days of the date of publication of this notice in the
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.
All submissions should refer to File Number SR-Phlx-2007-27. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Maine (FEMA-1716-DR), dated August 8, 2007.
Incident: Severe Storms and Flooding.
Incident Period: July 11, 2007 through July 12, 2007.
Effective Date: August 8, 2007.
Physical Loan Application Deadline Date: October 9, 2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 08/08/2007, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates Are:
The number assigned to this disaster for physical damage is 10969.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of New York dated August 14, 2007.
Incident: Severe Storms and Flash Flooding.
Incident Period: June 19, 2007.
August 14, 2007.
Physical Loan Application Deadline Date: October 15, 2007.
Economic Injury (EIDL) Loan Application Deadline Date: May 14, 2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 10966 6 and for economic injury is 10967 0.
The States which received an EIDL Declaration # are New York and Pennsylvania.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of OHIO dated August 14, 2007.
Incident: Severe Storms and Flooding.
Incident Period: August 7, 2007.
Effective Date: August 14, 2007.
Physical Loan Application Deadline Date: October 15, 2007.
Economic Injury (EIDL) Loan Application Deadline Date: May 14, 2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 10964 6 and for economic injury is 10965 0.
The State which received an EIDL Declaration # is Ohio.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance only for the State of Vermont (FEMA-1715-DR), dated August 3, 2007.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 08/03/2007, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates Are:
The number assigned to this disaster for physical damage is 10968.
Social Security Administration (SSA).
Notice of the renewal of an existing computer matching program which is scheduled to expire on October 1, 2007.
In accordance with the provisions of the Privacy Act, as amended, this notice announces the renewal of an existing computer matching program that SSA is currently conducting with VA.
SSA will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The renewal of the matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 965-8582 or writing to the Associate Commissioner for Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Associate Commissioner for Income Security Programs as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State or local government
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating or denying an individual's benefits or payments.
We have taken action to ensure that all of SSA's computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and VA.
The purpose of this matching program is to establish the conditions, terms and safeguards under which VA agrees to disclose VA compensation and pension payment data to SSA. This disclosure will provide SSA with information necessary to verify an individual's self-certification of eligibility for prescription drug subsidy assistance under section 1860D-14 of the Social Security Act (Act)(42 U.S.C. 1395w-114). The disclosure will also enable SSA to implement a Medicare outreach program mandated by section 1144 of title XI of the Social Security Act. Information disclosed by VA will enable SSA to identify individuals to determine their eligibility for Medicare Savings Programs (MSP) and subsidized Medicare prescription drug coverage and enable SSA, in turn, to identify these individuals to the States.
The legal authority for SSA to conduct this matching activity is contained in section 1860D-14 (42 U.S.C. 1395w-114) and section 1144 (42 U.S.C. 1320b-14) of the Act.
VA will provide SSA with electronic files containing compensation and pension payment data from its system of records entitled the Compensation, Pension, Education and Rehabilitation Records-VA (58VA21/22). Routine use 46 for VA permits the disclosure of this information. SSA will then match VA data with SSA SOR 60-0321, the MDB.
SSA has published notice of its new system of records, which establishes as a routine use the disclosure of information in the MDB to VA only for the purpose of supporting SSA in the administration of the prescription drug subsidy program under the MMA of 2003 (No. 60-0321, published at 69
The matching program will become effective upon signing of the agreement by all parties to the agreement and approval of the agreement by the Data Integrity Boards of the respective agencies, but no sooner than 40 days after notice of the matching program is sent to Congress and the Office of Management and Budget, or 30 days after publication of this notice in the
Social Security Administration (SSA).
Notice of the renewal of an existing computer matching program which is scheduled to expire on October 1, 2007.
In accordance with the provisions of the Privacy Act, as amended, this notice announces the renewal of an existing computer matching program that SSA is currently conducting with OPM.
SSA will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The renewal of the matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 965-8582 or writing to the Associate Commissioner for Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Associate Commissioner for Income Security Programs as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating or denying an individual's benefits or payments.
We have taken action to ensure that all of SSA's computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and OPM.
The purpose of this matching program is to establish the conditions, terms and safeguards under which OPM agrees to disclose civil service benefit and payment data to SSA. This disclosure will provide SSA with information necessary to verify an individual's self-certification of eligibility for prescription drug subsidy assistance under section 1860D-14 of the Social Security Act (42 U.S.C. 1395w-114), as added by section 101 of Public Law 108-173, the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA). The disclosure will also enable SSA to implement a Medicare outreach program mandated by section 1144 of title XI of the Social Security Act. Information disclosed by OPM will enable SSA to identify individuals to determine their eligibility for Medicare Savings Programs (MSP) and subsidized Medicare prescription drug coverage and enable SSA, in turn, to identify these individuals to the States.
The legal authority for SSA to conduct this matching activity is contained in section 1860D-14 (42 U.S.C. 1395w-114) and section 1144 (42 U.S.C. 1320b-14) of the Act.
Monthly, OPM will provide SSA with electronic files containing civil service benefit and payment data from the OPM system of records published as OPM/Central-1 (Civil Service and Insurance Records), on October 8, 1999 (64 FR 54930), as amended on May 3, 2000 (65 FR 25775). SSA will then match the OPM data with the SSA SOR (60-0321), the MDB.
SSA has published notice of its new system of records, which establishes as a routine use the disclosure of information in the MDB to OPM only for the purpose of supporting SSA in the administration of the prescription drug subsidy program under the MMA of 2003 (No. 60-0321, published at 69
The matching program will become effective upon signing of the agreement by all parties to the agreement and approval of the agreement by the Data Integrity Boards of the respective agencies, but no sooner than 40 days after notice of the matching program is sent to Congress and the Office of Management and Budget, or 30 days after publication of this notice in the
Social Security Administration (SSA).
Notice of the renewal of an existing computer matching program which is scheduled to expire on October 1, 2007.
In accordance with the provisions of the Privacy Act, as amended, this notice announces the renewal of an existing computer matching program that SSA is currently conducting with HHS/ACF/OCSE.
SSA will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The renewal of the matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 965-8582 or writing to the Associate Commissioner for Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Associate Commissioner for Income Security Programs as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating or denying an individual's benefits or payments.
We have taken action to ensure that all of SSA's computer matching
SSA and OCSE.
The purpose of this matching program is to establish the conditions, terms and safeguards under which OCSE agrees to disclose quarterly wage and unemployment insurance data from their National Directory of New Hires database to SSA. This disclosure will provide SSA with information necessary to verify an individual's self-certification of eligibility for prescription drug subsidy assistance under section 1860D-14 of the Social Security Act (Act) 42 U.S.C. 1395w-114).
The legal authority for SSA to conduct this matching activity is contained in section 1860D-14 (42 U.S.C. 1395w-114) of the Act.
a. On the basis of certain identifying information as provided by SSA to OCSE, OCSE and SSA will conduct a computerized comparison of the quarterly wage payment and unemployment insurance benefit information in the National Directory of New Hires (NDNH) maintained by OCSE in its Location and Collection (LCS) system of records.
b. SSA will match this data against the Medicare database (MDB).
The OCSE will provide SSA with electronic files containing quarterly wage and unemployment insurance data from its system of records, the Location and Collection System (ACF/OCSE, 09-90-0074). Pursuant to U.S.C. 552a(b)(3), OCSE has established routine use to disclose the subject information.
SSA will match the OCSE information with electronic files from its system of records, No. 60-0321, MDB (Medicare Database).
The matching program will become effective upon signing of the agreement by all parties to the agreement and approval of the agreement by the Data Integrity Boards of the respective agencies, but no sooner than 40 days after notice of the matching program is sent to Congress and the Office of Management and Budget, or 30 days after publication of this notice in the
A meeting of the Advisory Committee on International Law will take place on Friday, September 14, 2007, from 10 a.m. to approximately 4 p.m., in Room 1105 of the United States Department of State, 2201 C Street, NW., Washington, DC. The meeting will be chaired by the Legal Adviser of the Department of State, John B. Bellinger, III, and will be open to the public up to the capacity of the meeting room. Participants at the meeting will discuss a range of issues relating to current international legal topics, including recent developments in litigation under the Alien Tort Statute; the establishment by the United Nations of the Special Tribunal for Lebanon; recent developments in U.S. non-proliferation efforts; and the use of preventive detention to deter terrorism.
Entry to the building is controlled and will be facilitated by advance arrangements. Members of the public who wish to attend the session should, by Wednesday, September 12, 2007, notify the Office of the Assistant Legal Adviser for Claims and Investment Disputes (telephone: 202-776-8351) of their name, date of birth; citizenship (country); ID number, i.e., U.S. government ID (agency), U.S. military ID (branch), passport (country) or driver's license (state); professional affiliation, address and telephone number in order to arrange admittance. This includes admittance for government employees as well as others. All attendees must use the “C” Street entrance. One of the following valid IDs will be required for admittance: any U.S. driver's license with photo, a passport, or a U.S. government agency ID. Because an escort is required at all times, attendees should expect to remain in the meeting for the entire morning or afternoon session.
The U.S. Advisory Commission on Public Diplomacy will hold a public meeting on September 12, 2007, in Room 150 at the National Academy of Sciences Building at 2100 C Street, NW., Washington, DC 20418. The meeting will be held from 9 a.m. to 12 noon. The Commissioners plan to discuss the human resources dimension of the State Department's public diplomacy programs and operations; and legislative branch-based public diplomacy programming.
The Advisory Commission was originally established under Section 604 of the United States Information and Exchange Act of 1948, as amended (22 U.S.C. 1469) and Section 8 of Reorganization Plan Numbered 2 of 1977. It was reauthorized pursuant to Public Law 110-21 (2007). The Commission is a bipartisan panel created by Congress in 1948 to assess public diplomacy policies and programs of the U.S. government and publicly funded nongovernmental organizations. The Commission reports its findings and recommendations to the President, the Congress and the Secretary of State and the American people. Current Commission members include Barbara M. Barrett of Arizona, who is the Chairman; Harold Pachios of Maine; Ambassador Penne Percy Korth of Washington, DC; Ambassador Elizabeth Bagley of Washington, DC; Jay T. Snyder of New York; and Maria Sophia Aguirre of Washington, DC.
Seating at this meeting is limited. To attend and for more information, please contact Carl Chan at (202) 203-7883. E-mail:
The Secretary of State's Advisory Committee on Transformational Diplomacy (“Committee”) will conduct and open meeting on Friday, September 14, 2007, from 8 a.m. to 10:15 a.m. in Room 7516 HST, U.S. Department of State, 2201 C Street, NW., Washington, DC. The purpose of this meeting is to review progress on the proposed recommendations that the Committee will submit to the Secretary in final form at a later date and to receive briefings from Department officials.
The provisional agenda calls for the Committee to consider draft recommendations from each working group and to discuss as necessary. This meeting is open to the public from 8 a.m. until 10:15 a.m. as seating capacity allows. The Committee will meet in closed session from 10:30 a.m. until 11:30 a.m. to receive a secure briefing focused on classified information. It has been determined that this portion of the meeting will be closed to the public pursuant to Section 10 (d) of the Federal Advisory Committee Act and 5 U.S.C. 552b [c][1].
Entry to the building is controlled; to obtain pre-clearance for entry, members of the public (including government employees and Department of State employees) planning to attend should provide by no later than September 10, 2007, their name; place of birth and date of birth; citizenship (country); ID number, i.e., U.S. government ID (agency), U.S. military ID (branch), passport (country), or drivers license number (state); professional affiliation, address, and telephone number to Carlene Roy by fax (202) 647-2524, e-mail (
One of the following valid photo IDs will be required for admittance to the State Department building: U.S. driver's license, passport, or U.S. Government agency ID. Members of the public must use the “C” Street entrance, after going through the exterior screening facilities. Due to escorting requirements, attendees should arrive 15 minutes before the meeting begins.
For additional information, contact Madelyn Marchessault, Office of Management Policy, at (202) 647-0093 or at
Tennessee Valley Authority.
Submission for Office of Management and Budget (OMB) review; comment request.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). The Tennessee Valley Authority is soliciting public comments on this proposed collection as provided by 5 CFR Section 1320.8(d)(1). Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Agency Clearance Officer: Alice D. Witt, Tennessee Valley Authority, 1101 Market Street (EB 5B), Chattanooga, TN 37402-2801; (423) 751-6832. (SC: 0019QYX)
Comments should be sent to OMB Office of Information and Regulatory Affairs, Attention: Desk Officer for Tennessee Valley Authority, no later than September 20, 2007.
Tennessee Valley Authority.
Proposed collection; comment request.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). The Tennessee Valley Authority is soliciting public comments on this proposed collection as provided by 5 CFR Section 1320.8(d)(1). Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Agency Clearance Officer: Alice D. Witt, Tennessee Valley Authority, 1101 Market Street (EB 5B), Chattanooga, TN 37402-2801; (423) 751-6832. (SC: 000YRFB)
Comments should be sent to the Agency Clearance Officer no later than October 22, 2007.
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) has received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the statutory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
Central Montana Rail, Inc. (CMR) has petitioned for an extension of its temporary waiver of compliance from the requirements of Title 49 U.S.C. 21103(a), the Federal hours of service law (HSL), for train employees. This provision states that the railroad may neither require nor allow train employees to begin or remain on duty in excess of 12 hours in a 24-hour period without receiving the appropriate 8- or 10-hour statutory off-duty period. However, the HSL contains a provision (49 U.S.C. 21102(b)) that permits a railroad to seek an exemption from the 12-hour limitation if it employs no more than 15 employees subject to the statute. CMR states that it is the railroad's intent to use such a waiver only in unusual circumstances dictated by geographic remoteness, weather, or traffic peaks, and the waiver is not to be used on a daily basis.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2001-10948) and must be submitted to the Docket Clerk, DOT Central Docket Management Facility, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590.
Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
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
In accordance with section 236.913 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) has received an informational filing from the Union Pacific Railroad Company (UP) to permit field testing of the railroad's processor-based train control systems. The informational filing is described below, including the requisite docket number where the informational filing and any related information may be found. The document is also available for public inspection; however, FRA is not accepting public comments.
UP has submitted an informational filing to FRA to permit field testing of the railroad's processor-based train control systems identified as Communications Based Train Control (CBTC) and Vital-Train Management System (V-TMS). The informational filing addresses the requirements under 49 CFR 236.913(j)(1).
Specifically, the informational filing contains a description of the CBTC/V-TMS product and an operational concepts document, pursuant to 49 CFR 236.913(j)(1). The CBTC is a locomotive-centric, non-vital system designed to be overlaid on existing methods of operation and intended to provide an improved level of safety through enforcement of authority limits, permanent speed restrictions, and temporary speed restrictions. The V-TMS is a locomotive-centric, vital train control system designed to be overlaid on existing methods of operation and intended to provide a high level of railroad safety through enforcement of authority limits, permanent speed restrictions, and temporary speed restrictions.
UP desires to commence CBTC/V-TMS field testing on or about October 1, 2007, or as soon as practicable thereafter, contingent upon FRA's acceptance and approval of the informational filing.
Interested parties are invited to review the informational filing and associated documents at the following locations:
You may review the DOT's complete Privacy Act Statement in the
Britax Child Safety, Inc. (Britax) has determined that certain child restraint systems that it produced in 2006 do not comply with paragraph S5.1.1 of 49 CFR 571.213, Federal Motor Vehicle Safety Standard (FMVSS) No. 213,
For further information on this decision, contact Mr. Zachary R. Fraser, Office of Vehicle Safety Compliance, NHTSA, telephone (202) 366-5754, facsimile (202) 366-7002.
Affected are a total of approximately 34,355 Marathon Child Restraint Systems (models E9L06, E9W06, and E906) produced by Britax between May 23 and July 28, 2006. Britax recommends that the Marathon be used forward-facing for children weighing between 20 and 65 pounds, and with the tether at all times. FMVSS No. 213 specifies that a child restraint recommended for use above 50 pounds be tested with a 49 CFR Part 572 Subpart S dummy. The Subpart S dummy is a Hybrid III 6 year-old dummy with weights added to the spine. Also, paragraph S5(d) specifies that each child restraint system tested with a 49 CFR Part 572 Subpart S dummy need not meet paragraph S5.1.2,
Britax believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. Britax states that the system has “excellent biomechanical performance * * * even with the opening of the system's top tether hook.” Britax says that the systems “exceed expectation with head excursion well below the limit for products in which this performance is actually measured,” even though the noncompliant systems are not required to meet head excursion limits. Britax also points out that there was a lower HIC and lower chest acceleration with the top tether hook open than when not open, and “[t]hese results demonstrate that the opening of the top tether dissipates some of the occupant energy and thereby reduc[es] overall biomechanical injury measures.”
Britax concludes that the open top tether hook is inconsequential to the system working. Britax states, “The biomechanical results and performance of the other structural components of the Marathon prove that the
Advocates commented by expressing their concern about the potential negative impacts on public confidence that failures of this type in actual use and an agency decision granting inconsequential noncompliance could have on the rate of tether use. Advocates also asserted that publicity that may accompany the failure of an upper tether could have a negative impact on consumer confidence and complicate the agency's efforts to educate the public regarding the use of tethers.
In reaching our decision, NHTSA has carefully reviewed the subject petition, the Advocates' comments and a similar petition (which Britax attempts to distinguish from its petition) that was submitted to NHTSA in 2002 by another child restraint systems manufacturer, Dorel Juvenile Group (Dorel). (To view the Dorel petition and all supporting documents, go to: NHTSA Docket No. NHTSA-2002-13014.)
As part of its reasoning, Britax argued that because the Britax Marathon system displayed “excellent biomechanical performance * * * even with the opening of the system's top tether hook” during the NHTSA testing that the noncompliance is inconsequential to motor vehicle safety. NHTSA does not agree with this line of reasoning. As Britax acknowledges, even though the Britax Marathon system met other dynamic test requirements, it did not meet paragraph S5.1.1(a) of FMVSS No. 213 because the system's top tether hook opened and released from the top tether anchorage. The agency has consistently viewed tether strap separation as a load bearing structural failure. A tether strap structural failure is similar to vehicle LATCH anchorage failure; a failure of either one will not provide full occupant protection for children. In requiring upper tethers and anchors, NHTSA noted that, “the tether is especially effective at reducing head excursion and the potential for head impacts.” 64 FR 10786. By definition, the child restraint anchorage system consists of both the lower anchorages and the tether. 49 CFR 571.225 S3. This line of reasoning is consistent with NHTSA's decision to deny the previously referenced Dorel petition. Here, because the seat was recommended for weights greater than 50 pounds, the injury criteria applicable in other situations did not apply. This makes structural integrity all the more important. As Britax itself notes (petition at page 2), where the injury criteria do not apply, “there is a reliance on the structural integrity of the restraint to ensure safety of the child occupant * * *”
The agency has taken enforcement action for a similar failure. In 2001, the agency notified Britax of a potential noncompliance due to the detachment of a tether strap during dynamic testing of one of its child restraint models. Britax initiated a recall campaign to provide owners of the affected model with repair kits. In its current petition, Britax stated it did not believe that the failure that resulted in the 2001 recall should be compared to the current failure. Britax's argument for this is that the 2001 failure had the potential for increased forward movement of the head and therefore potential for exceeding head excursion limits whereas the current Marathon “exceeds its biomechanical requirements and expectations.” We disagree with this reasoning and believe that the Marathon, while not required to meet a
Finally, NHTSA agrees with Advocates that granting this petition would send a mixed message to the public regarding the use of tethers and would be contradictory to NHTSA's mission to promote greater use of LATCH and tether.
In consideration of the foregoing, NHTSA has decided that the petitioner has not met its burden of persuasion that the noncompliance described is inconsequential to motor vehicle safety. Accordingly, Britax's petition is hereby denied, and the petitioner must notify according to 49 U.S.C. 30118 and remedy according to 49 U.S.C. 30120.
49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and 501.8.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permit.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR Part 107, Subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. This notice is abbreviated to expedite docketing and public notice. Because the sections affected, modes of transportation, and the nature of application have been shown in earlier
Comments must be received on or before September 5, 2007.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
The notice of receipt of applications for modification of special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR Part 107, Subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before September 20, 2007.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC or at
This notice of receipt of applications for special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of 46 newly-designated individuals and entities whose property and interests in property are blocked pursuant to Executive Order 12978 of October 21, 1995, “Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers.” In addition, OFAC is publishing changes to the identifying information associated with three persons previously designated pursuant to Executive Order 12978.
The designation by the Director of the Office of Foreign Assets Control of the 46 individuals and entities identified in this notice pursuant to Executive Order 12978 is effective on August 15, 2007.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of Treasury, in consultation with the Attorney General and Secretary of State, to play a significant role in international narcotics trafficking centered in Colombia; or (3) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to this order; and (4) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to this Order.
On August 15, 2007, the Director of the Office of Foreign Assets Control, in consultation with the Attorney General and Secretary of State, as well as the Secretary of Homeland Security, designated 46 entities and individuals whose property and interests in property are blocked pursuant to the Order.
The list of additional designees is as follows:
1. ALFONSO BARRERA RIOS Y CIA. S. EN C.S., Calle 14 Oeste No. 2B1-45 apto. 302E, Cali, Colombia; NIT # 900101150-5 (Colombia) [SDNT].
2. ALVARO ENRIQUE BARRERA RIOS Y CIA. S. EN C.S., Calle 14 Oeste No. 2B1-45 apto. 302E, Cali, Colombia; NIT # 900105952-3 (Colombia) [SDNT].
3. AMADOR CEDIEL, Fernando, c/o APVA S.A., Cali, Colombia; c/o CECEP EDITORES S.A., Cali, Colombia; c/o CECEP S.A., Cali, Colombia; c/o NEGOCIOS Y CAPITALES S.A., Pereira, Colombia; c/o RFA CONSULTORES Y AUDITORES LTDA., Cali, Colombia; c/o WORLD LINE SYSTEM S.A., Palmira, Valle, Colombia; Avenida 9A No. 25N-30, Cali, Colombia; DOB 12 Oct 1962; POB Sogamoso, Boyaca, Colombia; Cedula No. 16683047 (Colombia); Passport AG830763 (Colombia) (individual) [SDNT].
4. APVA S.A., Calle 5A No. 22-13, Cali, Colombia; NIT # 805010421-0 (Colombia) [SDNT].
5. ARQUITECTOS UNIDOS LTDA., Calle 22N No. 5A-75, Cali, Colombia; NIT # 805022512-4 (Colombia) [SDNT].
6. ASESORIAS OCUPACIONALES LTDA., Carrera 66 No. 11-129, Cali, Colombia; NIT # 800040728-6 (Colombia) [SDNT].
7. BARRERA MARIN, Alvaro, c/o APVA S.A., Cali, Colombia; c/o BARRERA RIOS NEGOCIOS INMOBILIARIOS E.U., Cali, Colombia; c/o CECEP EDITORES S.A., Cali, Colombia; c/o CECEP S.A., Cali, Colombia; c/o CIDCA, Bogota, Colombia; c/o COMERCIALIZADORA DE BIENES Y SERVICIOS ADMINISTRATIVOS Y FINANCIEROS S.A., Cali, Colombia; c/o ENSAMBLADORA COLOMBIANA AUTOMOTRIZ S.A., Barranquilla, Colombia; c/o NEGOCIOS Y CAPITALES S.A., Pereira, Colombia; c/o WORLD LINE SYSTEM S.A., Palmira, Valle, Colombia; Calle 56D No. 28B-73, Barrio Las Mercedes, Palmira, Valle, Colombia; DOB 21 Nov 1940; POB Sevilla, Valle, Colombia; Cedula No. 6451857 (Colombia); Passport AG003135 (Colombia) (individual) [SDNT].
8. BARRERA RIOS NEGOCIOS INMOBILIARIOS E.U., Carrera 22 No. 5A-21, Cali, Colombia; NIT # 805030626-9 (Colombia) [SDNT].
9. BARRERA RIOS, Alfonso, c/o ALFONSO BARRERA RIOS Y CIA S. EN C.S., Cali, Colombia; c/o APVA S.A., Cali, Colombia; c/o BARRERA RIOS NEGOCIOS INMOBILIARIOS E.U., Cali, Colombia; c/o CECEP EDITORES S.A., Cali, Colombia; c/o CECEP S.A., Cali, Colombia; c/o ENSAMBLADORA COLOMBIANA AUTOMOTRIZ S.A., Barranquilla, Colombia; c/o NEGOCIOS Y CAPITALES S.A., Pereira, Colombia; c/o WORLD LINE SYSTEM S.A., Palmira, Valle, Colombia; Calle 14 Oeste No. 2B1-45 apto. 302E, Cali, Colombia; DOB 08 Dec 1975; POB Cali, Colombia; Cedula No. 79648943 (Colombia); Passport AJ963037 (Colombia) (individual) [SDNT].
10. BARRERA RIOS, Alvaro Enrique, c/o ALFONSO BARRERA RIOS Y CIA. S. EN C.S., Cali, Colombia; c/o ALVARO ENRIQUE BARRERA RIOS Y CIA S. EN C.S., Cali, Colombia; c/o APVA S.A., Cali, Colombia; c/o BARRERA RIOS NEGOCIOS INMOBILIARIOS E.U., Cali, Colombia; c/o CECEP EDITORES S.A., Cali, Colombia; c/o CECEP S.A., Cali, Colombia; c/o COMERCIALIZADORA DE BIENES Y SERVICIOS ADMINISTRATIVOS Y FINANCIEROS S.A., Cali, Colombia; c/o ENSAMBLADORA COLOMBIANA AUTOMOTRIZ S.A., Barranquilla, Colombia; c/o NEGOCIOS Y CAPITALES S.A., Pereira, Colombia; c/o WORLD LINE SYSTEM S.A., Palmira, Valle, Colombia; Carrera 54A No. 5A-21, Cali, Colombia; DOB 05 Dec 1968; POB Cali, Colombia; Cedula No. 16758185 (Colombia); Passport AJ149349 (Colombia) (individual) [SDNT].
11. BARRERA RIOS, Victoria Eugenia, c/o ALFONSO BARRERA RIOS Y CIA. S. EN C.S., Cali, Colombia; c/o APVA S.A., Cali, Colombia; c/o CECEP EDITORES S.A., Cali, Colombia; c/o CECEP S.A., Cali, Colombia; c/o
12. BENOIT SANTAMARIA, Alvaro Jose, c/o BENOIT VELEZ AGROPECUARIA LA VEREDA Y CIA. S.C.S., Pereira, Colombia; Calle 24 No. 7-29 apto. 413, Pereira, Colombia; DOB 23 Oct 1964; POB Cali, Colombia; Cedula No. 16704710 (Colombia); Passport AH283771 (Colombia) (individual) [SDNT].
13. BENOIT VELEZ AGROPECUARIA LA VEREDA Y CIA. S.C.S., Carrera 4 No. 26-14, Pereira, Colombia; NIT # 816005088-0 (Colombia) [SDNT].
14. CAMPO LIBRE A LA DIVERSION E.U. (a.k.a. PARQUE YAKU; a.k.a. YAKU E.U.), Calle 15 No. 27-33, Yumbo, Valle, Colombia; NIT # 805026848-1 (Colombia) [SDNT].
15. CECEP EDITORES S.A., Calle 5A No. 22-13, Cali, Colombia; Carrera 22 No. 5A-21, Cali, Colombia; NIT # 805018858-1 (Colombia) [SDNT].
16. CECEP S.A. (f.k.a. CENTRO COLOMBIANO DE ESTUDIOS PROFESIONALES LTDA.), Avenida 6 No. 28-102, Cali, Colombia; Calle 9B No. 29A-67, Cali, Colombia; NIT # 890315495-4 (Colombia) [SDNT].
17. CIDCA (a.k.a. CENTRO INVESTIGACION DOCENCIA Y CONSULTORIA ADMINISTRATIVA), Calle 61 No. 11-09 Chapinero, Bogota, Colombia; Carrera 5 No. 23-16, Bogota, Colombia; NIT # 860404579-7 (Colombia) [SDNT].
18. COMERCIALIZADORA DE BIENES Y SERVICIOS ADMINISTRATIVOS Y FINANCIEROS S.A. (f.k.a. RENTAS Y ADMINISTRACIONES S.A.), Calle 6 No. 39-25 Local 206, Cali, Colombia; NIT # 800200471-6 (Colombia) [SDNT].
19. CONSULTORIAS FINANCIERAS S.A. (a.k.a. COFINANZAS), Carrera 3 No. 12-40 ofc. 1001, Cali, Colombia; NIT # 805017446-6 (Colombia) [SDNT].
20. CRIADERO SANTA GERTRUDIS S.A., Callejon Zapatoca Km. 1 Via Jamundi, Jamundi, Valle, Colombia; NIT # 805014721-3 (Colombia) [SDNT].
21. ENSAMBLADORA COLOMBIANA AUTOMOTRIZ S.A. (a.k.a. E.C.A. S.A.), Carrera 39 No. 43-75, Barranquilla, Colombia; NIT # 817000791-1 (Colombia) [SDNT].
22. ESPITIA ORTIZ, Mauricio Arturo (a.k.a. SPITIA, Mauricio), c/o ESVA S.C.S., Cali, Colombia; c/o M S CONSTRUCTORES LTDA., Cali, Colombia; c/o SPITIA VALENCIA LTDA., Cali, Colombia; c/o ARQUITECTOS UNIDOS LTDA., Cali, Colombia; Carrera 25 F No. 7-15 Oeste, Cali, Colombia; Carrera 42 No. 8-36, Cali, Colombia; Spain; DOB 29 Dec 1959; POB Barranquilla, Colombia; Cedula No. 16634827 (Colombia); Passport AJ424421 (Colombia) (individual) [SDNT].
23. ESVA S.C.S. (a.k.a. FLEXX GYM), Carrera 42 No. 8-36, Cali, Colombia; NIT # 805019977-4 (Colombia) [SDNT].
24. FAJARDO, Mary Victoria, c/o APVA S.A., Cali, Colombia; c/o CECEP EDITORES S.A., Cali, Colombia; c/o CECEP S.A., Cali, Colombia; c/o NEGOCIOS Y CAPITALES S.A., Pereira, Colombia; c/o WORLD LINE SYSTEM S.A., Palmira, Valle, Colombia; Cali, Colombia; Cedula No. 31923020 (Colombia) (individual) [SDNT].
25. FRANCO RUIZ, Nestor Raul, Carrera 142 No. 18A-80 Casa 23, Cali, Colombia; Avenida 5AN No. 51N-27, Cali, Colombia; DOB 21 Aug 1967; POB Cali, Colombia; Cedula No. 16744648 (Colombia); Passport AF828495 (Colombia) (individual) [SDNT].
26. FRANCO RUIZ, Ruben Alberto, c/o CAMPO LIBRE A LA DIVERSION E.U., Yumbo, Valle, Colombia; Avenida 5N No. 51-57, Cali, Colombia; Calle 34N No. 3CN-62, Cali, Colombia; DOB 18 Feb 1964; POB Cali, Colombia; Cedula No. 16702454 (Colombia); Passport AH070927 (Colombia) (individual) [SDNT].
27. GIRALDO VELASCO, Hector Fabio, c/o CRIADERO SANTA GERTRUDIS S.A., Jamundi, Valle, Colombia; DOB 17 Mar 1965; Cedula No. 16711573 (Colombia) (individual) [SDNT].
28. M S CONSTRUCTORES LTDA., Calle 22N No. 5AN-75, Cali, Colombia; NIT # 800206430-1 (Colombia) [SDNT].
29. NEGOCIOS Y CAPITALES S.A., Avenida 30 de Agosto No. 34-51, Pereira, Colombia; NIT # 800101701-0 (Colombia) [SDNT].
30. PARRA DUQUE, Guillermo, Carrera 3 Oeste No. 11-168, Cali, Colombia; DOB 30 Dec 1964; POB Cali, Colombia; Cedula No. 16824664 (Colombia); Passport AF776832 (Colombia) (individual) [SDNT].
31. QUINONES MELO Y CIA. LTDA., Carrera 3 No. 11-55 ofc. 206, Cali, Colombia; NIT # 890327616-0 (Colombia) [SDNT].
32. QUINONES, Benedicto (a.k.a. QUINONEZ, Benedicto), c/o QUINONES MELO Y CIA. LTDA., Cali, Colombia; DOB 25 Jun 1946; POB Cali, Colombia; Cedula No. 14934266 (Colombia); Passport 14934266 (Colombia) (individual) [SDNT].
33. RAMIREZ GARCIA, Hernan Felipe, c/o CONSULTORIAS FINANCIERAS S.A., Cali, Colombia; Calle 7 No. 51-37, Cali, Colombia; DOB 09 Jun 1969; POB Cali, Colombia; Cedula No. 16772586 (Colombia); Passport AI848476 (Colombia) (individual) [SDNT].
34. RAMIREZ LENIS, Jhon Jairo, Carrera 4C No. 34-27, Cali, Colombia; DOB 19 Jul 1966; Cedula No. 79395056 (Colombia) (individual) [SDNT].
35. RAMIREZ RIVERA, Gustavo, c/o UNIDAD CARDIOVASCULAR LTDA., Cali, Colombia; Avenida 4 Oeste No. 6-103, Cali, Colombia; Calle 25 N No. 5BN-16, Cali, Colombia; DOB 05 Apr 1968; POB Medellin, Colombia; Cedula No. 16281514 (Colombia); Passport AJ077853 (Colombia) (individual) [SDNT].
36. RAMIREZ RIVERA, Sergio Alberto, Cali, Colombia; DOB 14 Jan 1964; POB Cali, Colombia; Cedula No. 16694220 (Colombia); Passport AF771317 (Colombia) (individual) [SDNT].
37. RENGIFO VALVERDE, Fabian Francisco, c/o APVA S.A., Cali, Colombia; c/o CECEP S.A., Cali, Colombia; c/o CECEP EDITORES S.A., Cali, Colombia; c/o NEGOCIOS Y CAPITALES S.A., Pereira, Colombia; c/o RFA CONSULTORES Y AUDITORES LTDA., Cali, Colombia; c/o WORLD LINE SYSTEM S.A., Palmira, Valle, Colombia; Cali, Colombia; DOB 18 Oct 1963; Cedula No. 16690994 (Colombia) (individual) [SDNT].
38. RFA CONSULTORES Y AUDITORES LTDA., Avenida 6 Norte No. 23N-85, Cali, Colombia; NIT # 805025427-1 (Colombia) [SDNT].
39. ROSERO ANGULO, German, Mexico; Calle 40 No. 27-59, Cali, Colombia; DOB 07 Oct 1964; POB Ipiales, Narino, Colombia; Cedula No. 16708846 (Colombia); Passport AF832289 (Colombia) (individual) [SDNT].
40. SPITIA VALENCIA LTDA., Calle 9 No. 44-59, Cali, Colombia; NIT # 805006598-1 (Colombia) [SDNT].
41. UNIDAD CARDIOVASCULAR LTDA. (a.k.a. UNICA LTDA.), Calle 25 No. 5BN-08, Cali, Colombia; NIT # 800232679-8 (Colombia) [SDNT].
42. VALERO JIMENEZ, Alejandro, c/o UNIDAD CARDIOVASCULAR LTDA., Cali, Colombia; Transversal 18 No. 102-42 apto. 401, Bogota, Colombia; 826 SW Canary Terrace, Port St. Lucie, FL 34953; DOB 25 Oct 1967; POB Cali, Colombia; Cedula No. 16746340 (Colombia); Passport P059298 (Colombia) (individual) [SDNT].
43. VALERO JIMENEZ, Luis Hernan, Avenida 4N No. 19N-34, Cali, Colombia; Spain; DOB 22 Sep 1965; Cedula No. 16723237 (Colombia); Passport 16723237 (Colombia) (individual) [SDNT].
44. VALERO SANCHEZ, Francisco Javier, c/o ASESORIAS OCUPACIONALES LTDA., Cali, Colombia; c/o UNIDAD CARDIOVASCULAR LTDA., Cali, Colombia; Cedula No. 2436976 (Colombia) (individual) [SDNT].
45. VILLA VINASCO, Armando Alonso, Calle Angel Larra, 4, Madrid 28027, Spain; Miranda, Cauca, Colombia; DOB 24 Oct 1960; Cedula No. 16645357 (Colombia) (individual) [SDNT].
46. WORLD LINE SYSTEM S.A., Calle 46 No. 45A-38, Palmira, Valle, Colombia; Avenida 6 Norte No. 23N-85, Cali, Colombia; NIT # 815003764-9 (Colombia) [SDNT].
Internal Revenue Service (IRS), Treasury.
Correction to notice and request for comments.
This document contains corrections to a notice and request for comments (Revenue Procedure 2004-46) that was published in the
Allan Hopkins at (202) 622-6665 (not a toll-free number), or through the internet at
The notice and request for comments that is the subject of the correction is required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
As published, the comment request for Revenue Procedure 2004-46 contains errors that may prove to be misleading and are in need of clarification.
Accordingly, the publication of the comment request for Revenue Procedure 2004-46, which was the subject of FR Doc. E7-15268, is corrected as follows:
1. On page 44227, column 1, in the preamble, under the caption “ Summary:”, second line from bottom of the paragraph, the language “Revenue Procedure 2004-45, Relief” is corrected to read “Revenue Procedure 2004-46, Relief”.
2. On page 44227, column 1, in the preamble, under the caption “Supplementary Information:”, fourth line, the language “Procedure 2004-45.” is corrected to read “Procedure 2004-46.”.
3. On page 44227, column 1, in the preamble, under the caption “Supplementary Information:”, fifth line, the language “
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Taxpayer Advocacy Panel Earned Income Tax Credit Issue Committee will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Monday, September 24, 2007.
Audrey Y. Jenkins at 1-888-912-1227 (toll-free), or 718-488-2085 (non toll-free).
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Earned Income Tax Credit Issue Committee will be held Monday, September 24, 2007 from 10:30 a.m. to 11:30 a.m. via a telephone conference call. The public is invited to make oral comments. Individual comments will be limited to 5 minutes. Notification of intent to attend the meeting must be made with Audrey Y. Jenkins. For information or to confirm attendance, Ms. Jenkins may be reached at 1-888-912-1227 or (718) 488-2085. Written comments may be sent to Ms. Jenkins, TAP Office, 10 MetroTech Center, 625 Fulton Street, Brooklyn, NY 11201 or post comments to the Web site:
The agenda will include various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 1 Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, September 18, 2007.
Audrey Y. Jenkins at 1-888-912-1227 (toll-free), or 718-488-2085 (non toll-free).
An open meeting of the Area 1 Committee of the Taxpayer Advocacy Panel will be held Tuesday, September 18, 2007 from 9 a.m. to 10 a.m. ET via a telephone conference call. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 718-488-2085, or write
The agenda will include various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Ad Hoc Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Thursday, September 13, 2007 at 2 p.m. ET.
Inez De Jesus at 1-888-912-1227, or 954-423-7977.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Ad Hoc Committee of the Taxpayer Advocacy Panel will be held Thursday, September 13, 2007 at 2 p.m. ET via a telephone conference call. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 954-423-7977, or write Inez De Jesus, TAP Office, 1000 South Pine Island Road, Suite 340, Plantation, FL 33324. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Inez De Jesus. Ms. De Jesus can be reached at 1-888-912-1227 or 954-423-7977, or post comments to the Web site:
The agenda will include: Various IRS issues.
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 22, 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 Celeste Anderson, Senior Project Manager, Compliance and Consumer Protection, (202) 906-7990, 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.
OTS needs the information collected to fulfill its obligations under the Community Reinvestment Act (CRA) (12 U.S.C. 2901
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the Advisory Committee on OIF/OEF Veterans and Families will meet on September 11-13, 2007, at the Department of Veterans Affairs' Medical Center in Minneapolis, Minnesota. The meeting will be held in the auditorium of that facility and will be open to the public.
On September 11, the session will begin at 9:30 a.m. and end at 12 noon. On September 12, the session will begin at 9 a.m. and end at 2 p.m. On September 13, the session will begin at 9 a.m. and end at 3:30 p.m.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the full spectrum of health care, benefits delivery and related family support issues that confront servicemembers during their transition from active duty to veteran status and during their post-service years. The Committee will focus on the concerns of all men and women with active military service in Operation Iraqi Freedom and/or Operation Enduring Freedom, but will pay particular attention to severely disabled veterans and their families.
The agenda for the September 11-13 meeting will include briefings by each of the two subcommittees on recent site visits, an update on recent legislation affecting veterans and veterans' benefits, and an update on recommendations from the President's Task Force on Returning Global War on Terror Heroes. The Committee will also discuss its findings and recommendations, its general workplan, next steps and future meeting dates.
The meeting will include time reserved for public comments. Individuals wishing to make oral statements must pre-register not later than September 4, 2007 by contacting Tiffany Glover by e-mail at
Anyone seeking additional information should contact Ronald Thomas, Esq., Designated Federal Officer, at (202) 273-5182.
By Direction of the Secretary.
United States Patent and Trademark Office, Commerce.
Final rule.
The United States Patent and Trademark Office (Office) is revising the rules of practice in patent cases relating to continuing applications and requests for continued examination practices, and for the examination of claims in patent applications. The Office is revising the rules of practice to require that any third or subsequent continuing application that is a continuation application or a continuation-in-part application, and any second or subsequent request for continued examination in an application family, be filed to obtain consideration of an amendment, argument, or evidence, and be supported by a showing as to why the amendment, argument, or evidence sought to be entered could not have been previously submitted. The Office is also revising the rules of practice to provide that an applicant must provide an examination support document that covers all of the claims in an application if the application contains more than five independent claims or more than twenty-five total claims. The Office is also revising the rules of practice with respect to multiple applications that have the same claimed filing or priority date, substantial overlapping disclosure, a common inventor, and common ownership. These changes will allow the Office to conduct a better and more thorough and reliable examination of patent applications.
The Office of Patent Legal Administration, by telephone at (571) 272-7704, by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, or by facsimile to (571) 273-0100, marked to the attention of the Office of Patent Legal Administration.
The Office is revising the rules of practice in patent cases relating to continued examination filings (continuing applications and requests for continued examination), multiple applications containing patentably indistinct claims, and the examination of claims in applications.
The Office is revising the rules of practice for continuation applications, continuation-in-part applications and requests for continued examination. Under these revisions, an applicant may file two continuation applications (or continuation-in-part applications), plus a request for continued examination in the application family, without any justification. An application family includes the initial application and its continuation or continuation-in-part applications. Applicant may file any additional continuation application, continuation-in-part application, or request for continued examination with a justification. Specifically, the Office is revising the rules of practice to require a justification for any third or subsequent continuing application that is a continuation application or a continuation-in-part application, and any second or subsequent request for continued examination in an application family. The third or subsequent continuing application or request for continued examination must be filed with a petition showing why the amendment, argument, or evidence sought to be entered could not have been previously submitted.
The Office is also revising the rules of practice for divisional applications. Under these revisions, an applicant is permitted to file a divisional application of an application for the claims to a non-elected invention that has not been examined if the application was subject to a requirement for restriction. The divisional application need not be filed during the pendency of the application subject to a requirement for restriction, as long as the copendency requirement of 35 U.S.C. 120 is met. Thus, applicant may file the divisional application during the pendency of the application that was subject to a requirement for restriction or the pendency of any continuing application of such an application. Applicant may also file two continuation applications of the divisional application plus a request for continued examination in the divisional application family, without any justification. A divisional application family includes the divisional application and its continuation applications. In addition, applicant may file any additional continuation application or request for continued examination in the divisional application family with a petition and adequate justification.
The Office is also revising the rules of practice for the examination of claims in an application to provide that if the number of independent claims is greater than five or the number of total claims is greater than twenty-five, the Office will require the applicant to help focus examination by providing additional information to the Office in an examination support document covering all of the claims (whether in independent or dependent form) in the application.
The Office is also revising the rules of practice with respect to multiple applications that have patentably indistinct claims and a common assignee by either requiring that all patentably indistinct claims in such applications be submitted in a single application or effectively treating the multiple applications as a single application.
These changes will mean more effective and efficient examination for the typical applicant without any additional work on the part of most applicants. However, in the applications that place an extensive burden on the Office, the applicant will be required to help focus examination by providing additional information to the Office.
The changes to 37 CFR 1.117 are applicable to any nonprovisional application filed before, on, or after November 1, 2007, with respect to any fee under 37 CFR 1.16(h), (i), or (j) or 1.492(d), (e), or (f) paid on or after December 8, 2004.
The changes to 37 CFR 1.78(a), 1.78(d)(1), 1.495 and 1.704(c)(11) are applicable only to any application, including any continuing application, filed under 35 U.S.C. 111(a) on or after November 1, 2007, or any application entering the national stage after compliance with 35 U.S.C. 371 on or after November 1, 2007. Except as otherwise indicated in this final rule, any application filed under 35 U.S.C. 111(a) on or after November 1, 2007, or any application entering the national stage after compliance with 35 U.S.C.
With respect to applications that claim the benefit under 35 U.S.C. 120, 121, or 365(c) only of nonprovisional applications or international applications filed before August 21, 2007: an application is not required to meet the requirements set forth in 37 CFR 1.78(d)(1) if: (1) The application claims the benefit under 35 U.S.C. 120, 121, or 365(c) only of nonprovisional applications filed before August 21, 2007 or applications entering the national stage after compliance with 35 U.S.C. 371 before August 21, 2007; and (2) there is no other application filed on or after August 21, 2007 that also claims the benefit under 35 U.S.C. 120, 121, or 365(c) of such prior-filed nonprovisional applications or international applications.
The changes to 37 CFR 1.114 are applicable to any application in which a request for continued examination is filed on or after November 1, 2007. Specifically, a petition under 37 CFR 1.114(g) must accompany any request for continued examination filed on or after November 1, 2007, in an application in which a request for continued examination has previously been filed, or in a continuation application or continuation-in-part application of an application in which a request for continued examination has previously been filed, or in an application whose benefit is claimed in a continuation application or continuation-in-part application in which a request for continued examination has previously been filed.
The changes to 37 CFR 1.17, 1.26, 1.52, 1.53, 1.76, 1.78 (except 1.78(a) and 1.78(d)(1)), 1.104, 1.105, 1.110, 1.136, 1.142(a), and 1.145 are applicable to any nonprovisional application pending on or after November 1, 2007.
This final rule amends the following sections in title 37 of the Code of Federal Regulations (CFR): §§ 1.17, 1.26, 1.52, 1.53, 1.75, 1.76, 1.78, 1.104, 1.105, 1.110, 1.114, 1.136, 1.142, 1.145, 1.495, and 1.704. This final rule adds §§ 1.117, and 1.265 to title 37 of the CFR.
In view of the need for a better focused and effective examination process to reduce the large and growing backlog of unexamined applications while maintaining or improving the quality of issued patents, the Office published two notices in January of 2006 proposing changes to the practice for continuing applications, requests for continued examination, multiple applications containing patentably indistinct claims, and the examination of claims in applications.
Both the Continuing Applications Proposed Rule and the Claims Proposed Rule requested public comments and provided a comment period of four months to give the public an opportunity to submit written comments. The Office provided this extended comment period to ensure that the public would have sufficient time to submit written comments on the proposed changes to the rules of practice and to ensure that the Office would receive comments from all interested persons and organizations. In addition to the notices and requests for written comments, the Office conducted public meetings including town hall meetings and presentations at various locations in the United States to discuss the proposed changes and obtain feedback from the public. The Office received over five hundred written comments from government agencies, universities, intellectual property organizations, industry, law firms, individual patent practitioners, and the general public. The Office has spent nearly one year carefully analyzing and considering all of the written comments that were received. The comments and the Office's responses to the comments are provided in Section III, Response to Comments. In response to the comments, the Office has made appropriate modifications to the proposed changes to balance the interests of the public, patent owners, applicants, practitioners, and other interested parties with the need to reduce the large and growing backlog of unexamined patent applications, improve the quality of issued patents, and make the patent examination process more effective.
Under the proposed changes, applicants would have been permitted to file one of the following without any
The proposed changes would have permitted applicants to file a divisional application of an application for the claims to a non-elected invention if the application is subject to a requirement for restriction and the divisional application is filed during the pendency of that application. However, this final rule permits applicant to file a divisional application of an application if the application is subject to a requirement for restriction and the divisional application meets the copendency requirement of 35 U.S.C. 120. Thus, this final rule allows applicants to file divisional applications in series whereas the proposed rule would have required applicants to file divisional applications in parallel. This final rule also permits applicant to file two continuation applications of a divisional application, plus a request for continued examination in the divisional application family, without any justification. Under the proposed changes, about thirteen percent of divisional applications filed in fiscal year 2006 would need to have been filed earlier, where the changes being adopted in this final rule would not have required any of the divisional applications filed in fiscal year 2006 to have been filed earlier.
The proposed changes would have required applicant to provide an examination support document before the first Office action on the merits if applicant designated more than ten representative claims including all of the independent claims in the application for initial examination. The Office received a substantial number of comments from the public opposing this “representative claims” examination approach and suggesting that the Office should simply adopt a threshold to invoking the examination support document requirement based upon whether an application contains more than a given number of independent and total claims. The Office took those comments into consideration and adopted a similar approach. This final rule requires an applicant to submit an examination support document before the issuance of a first Office action on the merits of an application to assist in the patentability determination when the applicant presents more than five independent claims or more than twenty-five total claims in an application. This final rule also encourages applicant to submit all of the claims that are patentably indistinct in one single application and requires applicant to identify multiple applications that contain patentably indistinct claims (same as the proposed rule). Therefore, for each invention, an applicant is permitted to present up to fifteen independent claims and seventy-five total claims via an initial application and two continuation or continuation-in-part applications without providing either an examination support document or justification, as long as those applications are either prosecuted serially or contain patentably distinct claims. An examination support document must include a preexamination search statement, a listing of references deemed most closely related to the subject matter of each of the claims, an identification of all of the claim limitations that are disclosed in the references, a detailed explanation particularly pointing out how each of the independent claims is patentable over the cited references, and a showing of where each claim limitation finds support under 35 U.S.C. 112, ¶ 1, in the application and any prior-filed application. The examination support document will assist the Office in the examination process and the determination of patentability of the invention by providing the most relevant prior art and other useful information.
Under the proposed changes, about one percent of the applications filed in fiscal year 2006 would have required either the cancellation of one or more independent claims or an examination support document. Furthermore, about eighty percent of the applications filed in fiscal year 2006 would have required either a designation of dependent claims for initial examination or an examination support document. Under the changes being adopted in this final rule, less than eight percent of the applications filed in fiscal year 2006 would have required either the cancellation of one or more independent claims or an examination support document. In addition, less than twenty-five percent of the applications filed in fiscal year 2006 would have required either the cancellation of one or more dependent claims or an examination support document. However, by prosecuting an initial application and two continuation applications serially, about ninety-five percent of the applications filed in fiscal year 2006 would not have required either the cancellation of any claims or an examination support document.
The volume of continued examination filings (including both continuing applications and requests for continued examination) and duplicative applications that contain “conflicting” or patentably indistinct claims, is having a crippling effect on the Office's ability to examine “new” (
Commentators have noted that an applicant's use of the unrestricted continuing application and request for continued examination practices may preclude the Office from ever finally rejecting an application or even from ever finally allowing an application.
The Office also notes that not every application as filed particularly points out and distinctly claims what the applicant regards as his or her invention. For example, this may occur where the applicant's attorney or agent has not adequately reviewed or revised the application documents received from the applicant. Applicants frequently file literal translations of foreign documents as applications, resulting in problems with compliance with U.S. patent law, such as the written description requirement, as well as problems with formatting and presentation of the claims. In these situations, examination of what applicants actually regard as their invention may not begin until after one or more continued examination filings. Applicants should not rely on an unlimited number of continued examination filings to correct deficiencies in the claims and disclosure that applicant or applicant's representative could have corrected earlier. In addition, while only a small minority of applications are a third or subsequent continuing application, it appears that some applicants and practitioners have used multiple continued examination filings as a strategy to delay the conclusion of examination. The Office, however, considers such a strategy to be a misuse of continued examination practice. Specifically, the Office considers such a strategy to be inconsistent with an applicant's and practitioner's duty under 37 CFR 10.18(b)(2)(i) not to submit an application or other filing to cause unnecessary delay or needless increase in the cost of prosecution before the Office. This misuse of continued examination practice also prejudices the public by keeping applications in pending status while awaiting developments in similar or parallel technology and then later amending their applications to cover these developments. The courts have permitted the addition of claims, when supported under 35 U.S.C. 112, ¶ 1, to encompass products or processes later discovered in the marketplace.
The Office, in light of its backlog and anticipated continued increase in application filings, is making every effort to become more efficient. Achieving greater efficiency requires the cooperation of those who provide the input into the examination process, the applicants and their representatives.
In the Continuing Applications Proposed Rule, the Office proposed to change the rules of practice to require that: (1) Any second or subsequent continued examination filing (continuation or continuation-in-part application or request for continued examination) include a showing that the amendment, argument, or evidence could not have been submitted prior to the close of prosecution after a single continuation or continuation-in-part application or request for continued examination; and (2) multiple applications that have the same claimed filing or priority date, substantial overlapping disclosure, a common inventor, and a common assignee include either an explanation of how the claims are patentably distinct, or a terminal disclaimer and explanation of why patentably indistinct claims have been filed in multiple applications.
In response to the comments on the proposed changes to the practices for continued examination filings, the Office has modified these provisions relative to proposed changes. Under this final rules, an applicant may instead file two continuation applications (or two continuation-in-part applications, or one continuation application and one continuation-in-part application), plus a request for continued examination in any one of the initial application or two continuation or continuation-in-part applications, without any justification. Any additional continuation application, continuation-in-part application, or request for continued examination, however, must be filed to obtain consideration of an amendment, argument, or evidence, and be supported by a showing as to why the amendment, argument, or evidence sought to be entered could not have been previously submitted. This final rule would also ease the burden of examining multiple applications that have the same claimed filing or priority date, substantial overlapping disclosure, a common inventor, and common assignee by requiring that all patentably indistinct claims in such applications be submitted in a single application absent good and sufficient reason.
As discussed previously, the unrestricted continued examination practice and the filing of multiple applications containing patentably indistinct claims are impairing the Office's ability to examine new applications without real certainty that these practices effectively advance prosecution, improve patent quality, or serve the typical applicant or the public. These changes to the rules in title 37 of the CFR are intended to ensure that continued examination filings are used efficiently to move applications forward. The Office expects that the changes to the rules of practice in this final rule will: (1) Lead to more focused and efficient examination, improve the quality of issued patents, result in patents that issue faster, and give the public earlier notice of what the patent claims cover; and (2) address the growing practice of filing (by a common applicant or assignee) multiple applications containing patentably indistinct claims.
35 U.S.C. 111(a) and 120, respectively, permit an applicant to file a nonprovisional application and to claim the benefit of a prior-filed nonprovisional application. Similarly, 35 U.S.C. 363 and 365(c), respectively, permit an applicant to file an international application under Patent Cooperation Treaty (PCT) Article 11 and 35 U.S.C. 363 and, if the international application designates the United States of America, to claim the benefit of a prior-filed international application
35 U.S.C. 120 is generally considered the statutory basis for continuing application practice.
The practice of filing “continuation applications” arose early in Office practice mainly as a procedural device to effectively permit the applicant to amend an application after a rejection and receive an examination of the “amended” (or new) application.
An applicant should understand, however, that he or she does not have an unfettered right to file multiple continuing applications without making a good faith attempt to claim the applicant's invention. 35 U.S.C. 2(b) gives the Director the inherent authority to promulgate regulations to ensure that applicants prosecute applications in good faith. Moreover, by assuming that an unlimited number of continuations are available, applicants have slipped into unfocused practices in prosecution that impede the Office's ability to conduct effective examination. Such practices likewise cause delays in prosecution and increase the cost of examination, both of which are contrary to an applicant's duties under the rules of conduct before the Office set forth in 37 CFR Part 10.
The changes in this final rule do not set a
Likewise, the Office is putting conditions on request for continued examination practice. 35 U.S.C. 132(b) provides for the request for continued examination practice set forth in § 1.114. Unlike continuation application practice, the request for continued examination practice was recently added to title 35, United States Code, in section 4403 of the American Inventors Protection Act of 1999 (AIPA).
The Office appreciates that appropriate continued examination practice permits an applicant to obtain further examination and advance an application to final action. The unrestricted continued examination practice, however, does not provide adequate incentives to assure that the exchanges between an applicant and the examiner during the examination process are efficient. The marginal value vis-à-vis the patent examination process as a whole of exchanges between an applicant and the examiner during the examination process tends to decrease after each additional continued examination filing. The Office resources absorbed by the examination of additional continued examination filings are diverted away from the examination of new applications, thus increasing the backlog of unexamined applications.
The Office also appreciates that applicants sometimes use continued examination practice to obtain further examination rather than file an appeal to avoid the delays that historically have been associated with the appeal process. The Office, however, has taken major steps to eliminate such delays. First, the Board of Patent Appeals and Interferences (BPAI) has radically reduced the inventory of pending appeals and appeal pendency during the last five fiscal years. Second, the Office has adopted an appeal conference program to review the rejections in applications in which an appeal brief has been filed.
This final rule also provides that an applicant may file a divisional application directed to each non-elected invention that has not been examined if the prior-filed application is subject to a requirement for restriction. The divisional application need not be filed during the pendency of the application subject to a requirement for restriction, as long as the copendency requirement of 35 U.S.C. 120 is met. This final rule also permits applicant to file two continuation applications of a divisional application plus a request for continued examination in the divisional application family, without any justification. This final rule, however, does not permit a “divisional” application to be filed if it is not the result of a requirement for restriction in the prior-filed application (a so-called “voluntary” divisional application). Such a “voluntary” divisional application would be a continuation application, and subject to the requirements for continuation applications, under the changes in this final rule.
A number of patent applications contain a large number of claims, which makes efficient and effective
Applications which contain a large number of claims, however, continue to absorb an inordinate amount of patent examining resources, as they are extremely difficult to properly process and examine. As a result, contrary to the proposal under consideration in 1998, the Claims Proposed Rule sought a change to the practice for examination of claims that would not place a limit on the number of total or independent claims that may be presented for examination in an application. The Office proposed in the Claims Proposed Rule to revise the practice for the examination of claims in an application as follows: (1) The Office would give an initial examination only to the representative claims, namely, all of the independent claims and only the dependent claims that are expressly designated for initial examination; and (2) if the number of representative claims is greater than ten, the Office would require the applicant to help focus examination by submitting an examination support document covering all of the representative claims.
The Office received a substantial number of comments from the public opposing the proposed “representative claims” examination approach and suggesting that the Office should simply adopt a strategy based upon whether an application contains more than a given number of independent and total claims. As a result of the public comments on the Claims Proposed Rule, the Office is not adopting the “representative claims” examination approach.
Instead, this final rule provides that if the number of independent claims is greater than five or the number of total claims is greater than twenty-five, the applicant must help focus examination by providing an examination support document covering all of the claims in the application (whether in independent or dependent form) before the issuance of a first Office action on the merits of an application. An applicant may present up to five independent claims and twenty-five total claims in an initial application and each continuation or continuation-in-part application without providing either an examination support document or justification, as long as those applications are either prosecuted serially or contain patentably distinct claims. Thus, an applicant may present up to fifteen independent claims and seventy-five total claims to a single patentably distinct invention via an initial application and two continuation or continuation-in-part applications that are filed and prosecuted serially without providing either an examination support document or a justification. Furthermore, an applicant may present up to fifteen independent claims and seventy-five total claims via a divisional application and its two continuation applications without providing either an examination support document or a justification, if the Office issues a restriction requirement in the prior-filed application. Thus, the change to the practice for examination of claims adopted in this final rule avoids placing a limit on the number of total or independent claims that may be presented for examination in an application, but does require an applicant who presents more than five independent claims or more than twenty-five total claims in an application to help focus examination by providing additional information to the Office in an examination support document.
If an applicant thinks fifteen independent claims or seventy-five total claims to an invention is not sufficient, or if applicant wishes to present more than five independent claims or twenty-five total claims in any one application, then applicant has the option of presenting as many independent and total claims as desired by providing an examination support document. The examination support document will assist the examiner in examining the application and determining the patentability of a claimed invention by providing the most relevant prior art and other useful information. Specifically, the examination support document will assist the examiner in understanding the invention and interpreting the claims before conducting a prior art search. The examination support document will also assist the examiner in evaluating the prior art cited by the applicant and in determining whether a claim limitation has support in the original disclosure and in any prior-filed application. An examination support document must be filed before the issuance of a first Office action on the merits of an application. This is so that the information concerning the invention will be available when the Office begins the examination process, and thus avoids the piecemeal examination that would result if the examination support document were not provided until after the first Office action on the merits in the application.
The changes in this final rule also require that applicants provide additional information to the Office when they file multiple applications containing “conflicting” or patentably indistinct claims. The rules of practice provided that “[w]here two or more applications filed by the same applicant contain conflicting claims, elimination of such claims from all but one application may be required in the absence of good and sufficient reason for their retention during pendency in more than one application.”
This final rule provides that an applicant must identify other pending applications or patents that are commonly owned, have a common inventor, and have a claimed filing or priority date within two months of the claimed filing or priority date of the application. This requirement does not supplant an applicant's duty to bring other applications that are “material to patentability” of an application (
This final rule provides that if there are other pending applications or patents that are commonly owned and have a common inventor, substantial overlapping disclosures, and the same claimed filing or priority date, the Office will presume that the applications contain patentably indistinct claims. In such a situation, the applicant must either rebut this presumption by explaining how the applications contain patentably distinct claims, or submit the appropriate terminal disclaimers and explain why two or more pending applications containing “conflicting” or patentably indistinct claims should be maintained.
The Office proposed a provision that if an application contains at least one claim that is patentably indistinct from at least one claim in one or more other applications or patents, the Office would (if certain conditions were met) treat the independent claims and the dependent claims designated for initial examination in the first application and in each of such other applications or patents as present in each of the applications for purposes of determining whether the applicant would be required to submit an examination support document.
The Office has a first action final rejection practice under which the first Office action in a continuing application, or in the prosecution of a request for continued examination, may be made final under certain circumstances.
The Office is also not changing the final action practice for the Office action following a submission under § 1.129(a).
The Office is revising second action final practice as it pertains to second or subsequent Office actions that include a new double patenting rejection (either statutory or obviousness-type double patenting). Double patenting can arise when a party (or parties to a joint research agreement under the Cooperative Research and Technology Enhancement Act of 2004 (CREATE Act), Public Law 108-453, 118 Stat. 3596 (2004)) has filed multiple patent applications containing patentably indistinct claims. The applicant (or the owner of the application) is in a far better position than the Office to determine whether there are one or more other applications or patents containing patentably indistinct claims. For this reason, when an applicant files multiple applications that are substantially the same, the applicant is responsible for assisting the Office in resolving potential double patenting situations, rather than taking no action until faced with a double patenting rejection. Thus, if an Office action must include a double patenting rejection, it is because the applicant has not met his or her responsibility to resolve the double patenting situation. Therefore, the inclusion of a new double patenting rejection in a second or subsequent Office action will not preclude the Office action from being made final.
The Office is also revising second action final practice as it pertains to second or subsequent Office actions that include a new ground of rejection necessitated by a showing that a claim element that does not use the phrase “means for” or “step for” is nevertheless a means- (or step-) plus-function claim element under 35 U.S.C. 112, ¶ 6. The Office revised the examination guidelines for means- (or step-) plus-function claim elements under 35 U.S.C. 112, ¶ 6, in June of 2000.
This final rule requires applicant to identify any claims in a continuation-in-part application for which the subject matter is disclosed in the manner provided by 35 U.S.C. 112, ¶ 1, in the prior-filed application.
Therefore, the Office is revising second action final practice to provide that a second or any subsequent Office action on the merits may be made final, except when the Office action contains a new ground of rejection that is not: (1) Necessitated by applicant's amendment of the claims, including amendment of a claim to eliminate unpatentable alternatives; (2) necessitated by applicant's providing a showing that a claim element that does not use the phrase “means for” or “step for” is written as a function to be performed and does not otherwise preclude application of 35 U.S.C. 112, ¶ 6; (3) based on information submitted in an information disclosure statement filed during the period set forth in 37 CFR 1.97(c) with the fee set forth in 37 CFR 1.17(p); (4) based upon double patenting (statutory or obviousness-type double patenting); or (5) necessitated by applicant's identification of the claim or claims in a continuation-in-part application for which the subject matter is disclosed in the manner provided by 35 U.S.C. 112, ¶ 1, in the prior-filed application. The provision in MPEP § 904.02 that a search should cover the claimed subject matter and should also cover the disclosed features which might reasonably be expected to be claimed does not preclude an examiner from making the second or any subsequent Office action on the merits final if the Office action contains a new ground of rejection that was necessitated solely by applicant's amendment of the claims to eliminate an unpatentable alternative. An examiner cannot be expected to foresee whether or how an applicant will amend a claim to overcome a rejection except in very limited circumstances (
Title 37 of the Code of Federal Regulations, part 1, is amended as follows:
Section 1.75(b) (introductory text) is amended to set forth the existing provisions concerning dependent claims in § 1.75(c), namely, that “[o]ne or more claims may be presented in dependent form, referring back to and further limiting another claim or claims in the same application.” Section 1.75(b) (introductory text) is also amended to clarify that a dependent claim is required to incorporate by reference all the limitations of the previous claim to which it refers and to specify a further limitation of the subject matter of the previous claim.
Section 1.75(b)(1) provides that an applicant must file an examination support document in compliance with § 1.265 that covers each claim (whether in independent or dependent form) before the issuance of a first Office action on the merits of the application if the application contains or is amended to contain more than five independent claims or more than twenty-five total claims. Section 1.75(b)(1) also provides that the application may not contain or be amended to contain more than five independent claims or more than twenty-five total claims if an examination support document in compliance with § 1.265 has not been filed before the issuance of a first Office action on the merits of an application. The examination support document in compliance with § 1.265 is required to be filed before the issuance of the first Office action on the merits of the application because the information provided by the applicant in the examination support document will assist the examiner in understanding the invention of the application, determining the effective filing date of each claim, interpreting the claims before a prior art search, understanding the state of the art and the most closely related prior art cited by the applicant, and determining the patentability of the claims. Applicant is permitted to present more than five independent claims or more than twenty-five total claims in a continuing application, if the applicant files an examination support document in compliance with § 1.265 before the first Office action on the merits of the continuing application, regardless of whether an examination support document has been filed in the prior-filed application.
Claims withdrawn from consideration under §§ 1.141 through 1.146 or § 1.499 as drawn to a non-elected invention or inventions are not taken into account in determining whether an application exceeds this five independent claim and twenty-five total claim threshold.
Section 1.75(b)(2) concerns claims in dependent form that are effectively independent claims. Section 1.75(b)(2) provides that a claim that refers to another claim but does not incorporate by reference all the limitations of the claim to which such claim refers will be treated as an independent claim for fee calculation purposes under § 1.16 (or § 1.492) and for purposes of § 1.75(b). The Office must treat such claims as independent claims because 35 U.S.C. 112, ¶ 4, provides (
Section 1.75(b)(3) provides that the applicant will be notified if the application contains or is amended to contain more than five independent claims or more than twenty-five total claims but the applicant has not complied with the requirements set forth in § 1.75(b)(1) or 1.75(b)(4) (
If a notice under § 1.75(b)(3) is mailed before the first Office action on the merits of an application and it appears that the omission of an examination support document was inadvertent, the notice will set a two-month time period within which the applicant must: (1) File an examination support document in compliance with § 1.265 that covers each claim (whether in independent or dependent form); or (2) amend the application such that it contains no more than five independent claims and no more than twenty-five total claims. Section 1.75(b)(3) provides that this two-month time period is not extendable under § 1.136(a) and that the failure to reply to such a notice will result in abandonment of the application. Due to the increase in patent pendency that would result from the routine granting of extensions in the situation in which an application contains or is amended to contain more than five independent claims or more than twenty-five total claims but the applicant has not complied with the requirements set forth in § 1.75(b)(1) or 1.75(b)(4) (
Once the Office issues a notice under § 1.75(b)(3), the applicant may not simply submit a suggested alternative requirement for restriction under § 1.142(c), but instead must: (1) File an examination support document in compliance with § 1.265 that covers each claim (whether in independent or dependent form); or (2) amend the application such that it contains no more than five independent claims and no more than twenty-five total claims.
If an examination support document in compliance with § 1.265 as required under § 1.75(b) was not filed before the issuance of a first Office action on the merits of an application, an amendment that results in the application containing more than five independent claims or more than twenty-five total claims will be treated as non-responsive. Specifically, if the non-compliance with § 1.75(b) appears to have been inadvertent, the Office would give the applicant a two-month time period that is not extendable under § 1.136(a) within which to provide an amendment that does not result in the application containing more than five independent claims or more than twenty-five total claims.
Section 1.75(b)(4) provides for the situation in which: (1) A nonprovisional application contains at least one claim that is patentably indistinct from at least one claim in one or more other pending nonprovisional applications; and (2) the nonprovisional application and the one or more other pending nonprovisional applications either are owned by the same person or are subject to an obligation of assignment to the same person. In this situation, § 1.75(b)(4) provides that the Office will treat the claims in the first nonprovisional application and in each of such other pending nonprovisional applications as being present in each of the pending nonprovisional applications for purposes of § 1.75(b). That is, if the conditions specified in § 1.75(b)(4) are present, the Office will treat each such nonprovisional application as having the total number of claims present in all of such applications (and not just the claim that is patentably indistinct) for purposes of determining whether an examination support document is required by § 1.75(b). For example: If application “A” contains only one claim that is patentably indistinct from the claims in application “B”, application “A” and application “B” are owned by the same company, and each application contains three independent claims and twenty total claims, the Office will treat each application as having six independent claims and forty total claims in determining whether each application exceeds the five independent claim and twenty-five total claim threshold set forth in § 1.75(b). In this example, an examination support document would be required in each application before the issuance of a first Office action on the merits of the application. To avoid the provisions of § 1.75(b)(4), applicant may present all of the patentably indistinct claims in application “B” by canceling the patentably indistinct claim from application “A”. As discussed previously, § 1.75(b)(4) is to preclude an applicant from submitting multiple applications to the same subject matter (with claims that are patentably indistinct), each with five or fewer independent claims or twenty-five or fewer total claims, for the purpose of avoiding the requirement to submit an examination support document in compliance with § 1.265.
Under § 1.75(b)(4), the Office will count the claims in the copending nonprovisional applications containing patentably indistinct claims (including applications having a continuity relationship) but not in issued patents containing patentably indistinct claims, in determining whether each such application exceeds the five independent claim or twenty-five total claim threshold for invoking the examination support document requirement. An applicant may present up to five independent claims and twenty-five total claims in an initial application and each continuing application, provided that continuing applications that contain patentably indistinct claims are not prosecuted in parallel with the initial application or each other. Thus, an applicant may present up to fifteen independent claims and seventy-five total claims to a single invention via an initial application and two continuing applications that are filed and prosecuted serially without providing either an examination support document or a justification. In addition, an applicant may prosecute a divisional application (an application containing claims that are patentably distinct from the claims to the invention prosecuted in the initial application) in parallel with the initial application or its continuation or continuation-in-part applications without the claims in the divisional application being taken into account in determining whether the initial application or its continuation or continuation-in-part applications
Section 1.75(b)(4) also provides that the total number of claims present in all of such copending nonprovisional applications containing patentably indistinct claims may not exceed five independent claims or twenty-five total claims unless an examination support document in compliance with § 1.265 is filed before the issuance of a first Office action on the merits of the application containing patentably indistinct claims.
The provisions of § 1.75(b)(4) do not depend upon the relative filing dates of the nonprovisional application and the one or more other nonprovisional applications. The provisions of § 1.75(b)(4) apply regardless of whether the filing dates of the applications are the same, are within two months of each other (
Section 1.75(b)(4) as adopted in this final rule differs from proposed § 1.75(b)(4) in that it does not provide that the Office may require elimination of the patentably indistinct claims from all but one of the applications. Such a provision would be a substantial duplicate of § 1.78(f)(3) as adopted in this final rule, which provides that if the conditions set forth in § 1.75(b)(4) exist, the Office may require elimination of the patentably indistinct claims from all but one of the applications in the absence of good and sufficient reason for there being two or more such nonprovisional applications containing patentably indistinct claims.
Section 1.75(b)(5) provides that claims withdrawn from consideration under §§ 1.141 through 1.146 or § 1.499 as drawn to a non-elected invention or inventions will not, unless they are reinstated or rejoined, be taken into account in determining whether an application exceeds the five independent claim and twenty-five total claim threshold set forth in §§ 1.75(b)(1), (b)(3), and (b)(4). Thus, claims withdrawn from consideration as the result of an Office-initiated requirement under § 1.142, 1.146, or 1.499 (regardless of whether the election is with or without traverse), or as the result of the acceptance of a suggested restriction requirement under § 1.142(c), are not taken into account in determining whether an application exceeds the five independent claim and twenty-five total claim threshold. In addition, claims withdrawn from consideration in an application (
Section 1.142(c) as adopted in this final rule provides that the applicant may submit a suggested requirement for restriction if two or more independent and distinct inventions are claimed in the application. Section 1.142(c) further provides that any suggested requirement for restriction must be filed before the earlier of the first Office action on the merits or any Office action that contains a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction (including an election of species) under 35 U.S.C. 121 in the application. Section 1.142(c) provides that any suggested requirement for restriction must also be accompanied by an election without traverse of an invention to which there are no more than five independent claims and no more than twenty-five total claims, and identify the claims to the elected invention. If the applicant submits a suggested restriction requirement, the suggested restriction requirement is accepted, and there are five or fewer independent claims and twenty-five or fewer total claims to the elected invention (as required by § 1.142(c)), the Office will simply treat the non-elected claims as withdrawn from consideration and proceed to act on the application (assuming the application is otherwise in condition for action). The Office action will set out the requirement for restriction under § 1.141(a),
If the applicant files a suggested requirement for restriction in an application containing more than five independent claims or more than twenty-five total claims, the applicant will also be notified if the suggested restriction requirement is not accepted. The refusal to accept a suggested requirement for restriction may result in the examiner making a different restriction requirement or making no restriction requirement.
If the examiner makes a restriction requirement (which includes an election of species requirement) different from the suggested restriction requirement, the applicant will be notified of the restriction requirement. The applicant will be given a two-month time period that is not extendable under § 1.136(a) within which the applicant must make an election consistent with the Office-issued restriction requirement in order to avoid abandonment of the application. Once the Office issues a requirement for restriction, the applicant may not simply submit a suggested alternative requirement for restriction under § 1.142(c). Instead, the applicant must make an election (with or without traverse) responsive to the Office-issued requirement for restriction. If an application subject to an Office-issued requirement for restriction contains more than five independent claims or more than twenty-five total claims, the reply must also either: (1) Amend the application to contain no more than five independent claims and no more than twenty-five total claims to the elected invention and/or species; or (2) include an examination support document in compliance with § 1.265 that covers
If the examiner does not make a restriction requirement, the applicant will simply be given a notice under § 1.75(b)(3). That notice will set a two-month time period that is not extendable under § 1.136(a) within which, to avoid abandonment of the application, the applicant must: (1) Amend the application to contain no more than five independent claims and no more than twenty-five total claims; or (2) file an examination support document in compliance with § 1.265 that covers each claim (whether in independent or dependent form) pending in the application.
Section 1.75(b)(5) also provides that claims reinstated (
Since claims reinstated or rejoined in the application are taken into account in determining whether an application exceeds the five independent claim and twenty-five total claim threshold, applicants cannot rely upon a requirement for restriction to avoid submitting an examination support document before the issuance of a first Office action on the merits of an application. This is especially true where: (1) The applicant traverses the requirement for restriction; (2) the requirement for restriction may be conditional, such as a requirement for election of species in an application that contains a claim that is generic to all of the claimed species (hereafter “generic claim”) (
Applicant is not permitted to file a divisional application of a prior-filed application that is no longer subject to a restriction requirement. Under § 1.78(a)(2) and 1.78(d)(1)(ii), the prior-filed application to which a divisional application claims the benefit must be subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121. Sections 1.78(a)(2) and 1.78(d)(1)(ii) also require a divisional application to contain only claims directed to a non-elected invention that has not been examined.
For an application that contains a generic claim in which a requirement for an election of species has been made, applicants should conclude prosecution (in the initial application and its continuation or continuation-in-part applications), including exhaustion of any available appeals, as to the generic claim before ever filing a divisional application to a non-elected species. If applicant no longer wants to pursue the generic claim, applicant may file a divisional application directed to a non-elected species. If an applicant files a divisional application directed to a non-elected species, applicant should: (1) Cancel the claims to the non-elected species and the generic claim in the prior-filed application before rejoinder or reinstatement occurs; (2) not present the non-elected claims and the generic claim in any continuation or continuation-in-part application of the initial application; and (3) not present the generic claim in the divisional application or any other continuation application of the divisional application (because the generic claim has been examined in the initial application and it is patentably indistinct from the claims of the non-elected species).
When an application contains a generic claim and the examiner makes a provisional restriction requirement, requiring an election of species for initial search and examination purposes, the applicant must elect a single species. (The requirement is provisional because the restriction will be withdrawn upon allowance of the generic claim.) The examiner will determine the patentability of the elected species and generic claim. Upon the allowance of the generic claim, the provisional restriction requirement will be withdrawn, as explained above. The claims of the non-elected species then will be rejoined. The Office will count the rejoined claims together with the other pending claims to determine whether the application exceeds the five independent claim and twenty-five total claim threshold set forth § 1.75(b)(1).
Furthermore, upon the allowance of a claim that is generic to all of the claimed species (either in the initial application or any continuing application), the application is no longer subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121. In such a situation, if applicant had filed a “divisional” application to the non-elected species following the provisional restriction in the prior-filed application, that “divisional” application would no longer be proper under §§ 1.78(a)(2) and 1.78(d)(1)(ii). This is because the “divisional” application would not meet the conditions set forth in §§ 1.78(a)(2) and 1.78(d)(1)(ii). If applicant wishes to maintain the application, then applicant must delete or correct the benefit claim to indicate that the application is a continuation application, provided the requirements set forth in § 1.78(d)(1)(i) can be
When an application subject to an election of species is allowed with no claim that is generic to all of the claimed species being found to have been allowable, the applicant will be notified that the Office considers the requirement that the application be restricted to a single species to be final. At that point, the applicant may cancel the claims to the non-elected species and the generic claim in the prior-filed application and file a divisional application in accordance with § 1.78(d)(1)(ii) to the non-elected species. However, if the applicant later files a continuing application of the initial application or the divisional application presenting one or more generic claims in such later application, the Office will consider the requirement that the initial application be restricted to a single species to no longer be final. Should that occur, the “divisional” application directed to the non-elected species would not be proper under §§ 1.78(a)(2) and 1.78(d)(1)(ii) for the reasons explained above. Thus, applicants should conclude prosecution, including exhaustion of any available appeals, as to the generic claim before ever filing a divisional application to a non-elected species. In other words, applicants cannot rely upon a requirement that an application containing a generic claim will be restricted to a single species to permit filing one or more divisional applications until the applicant has concluded prosecution with respect to any generic claims.
Under the Office's rejoinder practice, an applicant may request rejoinder of claims to a non-elected invention that depend from or otherwise require all the limitations of an allowable claim.
Section 1.75(c) is amended to provide for multiple dependent claims only. Dependent claims are now provided for in § 1.75(b). Section 1.75(c) further provides that multiple dependent claims and claims that depend from a multiple dependent claim will be considered to be that number of claims to which direct reference is made in the multiple dependent claim for purposes of § 1.75(b) (as well as § 1.16 or 1.492).
The changes to § 1.75 are applicable to any application (including any reissue application) filed under 35 U.S.C. 111(a) on or after November 1, 2007, and to any nonprovisional application entering the national stage after compliance with 35 U.S.C. 371 on or after November 1, 2007, as well as to any application (including any reissue application) in which a first Office action on the merits (§ 1.104) was not mailed before November 1, 2007. The Office will provide an applicant who filed a nonprovisional application under 35 U.S.C. 111(a) before November 1, 2007, or a nonprovisional application that entered the national stage after compliance with 35 U.S.C. 371 before November 1, 2007, and who would be affected by the changes in the final rule, with an opportunity to submit: (1) An examination support document under § 1.265; (2) a new set of claims such that the application contains five or fewer independent claims and twenty-five or fewer total claims; or (3) a suggested restriction requirement under § 1.142(c). Specifically, the Office will issue a notice setting a two-month time period that is extendable under § 1.136(a) or (b) within which the applicant must exercise one of these options in order to avoid abandonment of the application. The Office, however, may combine such a notice with a requirement for restriction, in which case the applicant must make an election responsive to the restriction requirement and, if there are more than five independent claims or more than twenty-five total claims drawn to the elected invention, the applicant must also: (1) File an examination support document in compliance with § 1.265; or (2) amend the application such that it contains five or fewer independent claims and twenty-five or fewer total claims drawn to the elected invention. Thus, if such a notice is combined with a requirement for restriction, the applicant does not have the option of replying to such notice with a suggested restriction requirement under § 1.142(c).
With respect to the application of the changes to § 1.75 in this final rule to a reissue application, an examination support document under § 1.265 will not be required pursuant to § 1.75(b) in a reissue application if the reissue application does not seek to change the claims in the patent being reissued. A change in the claims in the patent being reissued is sought either by an amendment to or addition of a claim or claims, or by an amendment to the specification which changes a claim or claims.
Section 1.78(a)(1) defines a “continuing application” as a nonprovisional application or international application designating the United States of America that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of a prior-filed nonprovisional application or international application designating the United States of America. Section 1.78(a)(1) provides that an application that does not claim the benefit under 35 U.S.C. 120, 121, or 365(c) of a prior-filed application, is not a continuing application even if the application claims the benefit under 35 U.S.C. 119(e) of a provisional application, claims priority under 35 U.S.C. 119(a)-(d) or 365(b) to a foreign application, or claims priority under 35 U.S.C. 365(a) or (b) to an international application designating at least one country other than the United States of America. A continuing application must be a continuation application, a divisional application, or a continuation-in-part application.
Section 1.78(a)(2) defines a “divisional application” as a continuing application that discloses and claims only an invention or inventions that were disclosed and claimed in a prior-filed application, but were subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121 in the prior-filed application, and were not elected for examination and were not examined in any prior-filed application. This definition is more precise than the definition of “divisional application” currently found in MPEP § 201.06. MPEP § 201.06 defines a divisional application as an application for an independent and distinct invention, which discloses and claims only subject matter that was disclosed in the prior-filed nonprovisional application. Section 1.78(a)(2), however, limits the definition of “divisional application” to an application that claims only an invention or inventions that were subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121 in the prior-filed application and not elected for examination and not examined in any prior-filed application.
Section 1.78(a)(3) defines a “continuation application” as a continuing application as defined in § 1.78(a)(1) that discloses and claims only an invention or inventions that were disclosed in the prior-filed application.
Section 1.78(a)(4) defines a “continuation-in-part application” as a continuing application as defined in § 1.78(a)(1) that discloses subject matter that was not disclosed in the prior-filed application.
Section 1.78(b) addresses claims under 35 U.S.C. 119(e) for the benefit of a prior-filed provisional application. Under 35 U.S.C. 119(e)(1), a provisional application must disclose the invention claimed in at least one claim of the later-filed application in the manner provided by 35 U.S.C. 112, ¶ 1, for the later-filed application to receive the benefit of the filing date of the provisional application.
Section 1.78(b)(1) provides that the nonprovisional application or international application designating the United States of America must be filed not later than twelve months after the date on which the provisional application was filed, and that this twelve-month period is subject to 35 U.S.C. 21(b) and § 1.7(a). 35 U.S.C. 21(b) and § 1.7(a) provide that when the day, or the last day, for taking any action (
Sections 1.78(b)(2) through (b)(5) contain the provisions of former 1.78(a)(4) and (a)(5). Section 1.78(c) contains provisions relating to delayed claims under 35 U.S.C. 119(e) for benefit of prior-filed provisional applications. Section 1.78(c) contains the provisions of former § 1.78(a)(6).
Section 1.78(d) contains provisions relating to claims under 35 U.S.C. 120, 121, or 365(c) for the benefit of a prior-filed nonprovisional or international application.
Section 1.78(d)(1) provides conditions under which an application may claim the benefit under 35 U.S.C. 120, 121, or 365(c) and § 1.78 of a prior-filed nonprovisional application or international application designating the United States of America. Section 1.78(d)(1) also provides that the Office
These provisions of § 1.78(d)(1) were included in the proposed changes to § 1.78(d)(3).
Section 1.78(d)(1)(i) provides for continuation applications or continuation-in-part applications that do not claim the benefit of a divisional application (either directly or indirectly). Section 1.78(d)(1)(i) permits such a continuation application or continuation-in-part application of a prior-filed nonprovisional application or international application designating the United States of America if: (1) The application is a continuation application as defined in § 1.78(a)(3) or a continuation-in-part application as defined in § 1.78(a)(4) that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of no more than two prior-filed applications; and (2) any application whose benefit is claimed under 35 U.S.C. 120, 121, or 365(c) in such nonprovisional application has its benefit claimed in no more than one other nonprovisional application. This does not include any nonprovisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), (d)(1)(iii) or (d)(1)(vi).
Section 1.78(d)(1)(i) permits an applicant to continue prosecution of an application via two continuation applications (in parallel or serially), a continuation application and a continuation-in-part application (in parallel or serially), or two continuation-in-part applications (in parallel or serially). Applicants choosing to file applications (whether continuing or non-continuing) in parallel are reminded that § 1.75(b)(4) provides that, if certain conditions are met, the Office will treat each such application as having the total number of claims present in all of such applications for purposes of determining whether an examination support document is required by § 1.75(b).
If an application is identified as a continuation-in-part application, however, § 1.78(d)(3) provides that the applicant must identify the claim or claims in the continuation-in-part application for which the subject matter is disclosed in the manner provided by 35 U.S.C. 112, ¶ 1, in the prior-filed application.
For a continuation-in-part application that contains one or more claims for which the subject matter is not disclosed in the manner provided by 35 U.S.C. 112, ¶ 1, in the prior-filed application, § 1.78(d)(1)(i) will permit an applicant to continue prosecution of the claims that are directed solely to subject matter added in such continuation-in-part application via two continuation applications (or a continuation application and a continuation-in-part application, or two continuation-in-part applications). However, the “additional” continuation or continuation-in-part applications cannot claim the benefit of the prior-filed application relative to the first continuation-in-part application. The subject matter of at least one claim of a later-filed application must be disclosed in the prior-filed application in the manner provided by 35 U.S.C. 112, ¶ 1, for the later-filed application to actually receive the benefit of the filing date of the prior-filed application under 35 U.S.C. 120.
Applicants are permitted to file two continuation or continuation-in-part applications (§ 1.78(d)(1)) and one request for continued examination (§ 1.114) without any justification. The provisions of § 1.78(d)(1) are independent of the provisions of § 1.114. Therefore, the filing of a request for continued examination does not preclude an applicant from filing two continuation or continuation-in-part applications. In addition, an applicant may not agree to forgo a continuation application (or continuation-in-part application) to obtain a second or third request for continued examination, nor can an applicant agree to forgo a request for continued examination in exchange for a third continuation or continuation-in-part application. For example, an applicant cannot file a second request for continued examination without any justification instead of filing one of the two permitted continuation applications; and an applicant cannot file three continuation applications
The Office, however, is implementing an optional streamlined continuation application procedure under which an applicant may request to have a continuation application filed on or after November 1, 2007, placed on an examiner's amended (Regular Amended) docket. The examiner will normally pick up for action a continuation application that has been placed on the examiner's amended (Regular Amended) docket faster (
The optional streamlined continuation application procedure, however, does require that the applicant provide a continuation application filed under 35 U.S.C. 111(a) and § 1.53(b) (and not a request for continued examination under 35 U.S.C. 132(b) and § 1.114 or a continued prosecution application under § 1.53(d)). Thus, the applicant must file a continuation application that meets the conditions set forth in 35 U.S.C. 111(a) and § 1.53(b) to be accorded a filing date. The continuation application must also be complete under § 1.51(b) or completed under § 1.53(f). The Office will not docket an application for examination until the application is complete (§§ 1.51(b) and 1.53(f)) and in condition for publication (§ 1.211).
This optional streamlined continuation application procedure concerns only the placement of the continuation application on an examiner's amended (Regular Amended) docket. The continuation application is otherwise treated as a new application for patent. For example, (1) the application filing fees including the basic filing fee, search and examination fees, and any required excess claims fees (and not the request for continued examination fee set forth in § 1.17(e)) are required; (2) the continuation application will be assigned a new application number; and (3) the continuation application is subject to the patent term provisions of 35 U.S.C. 154(b) and § 1.702
Section 1.78(d)(1)(ii) provides for divisional applications of an application for the claims to a non-elected invention that has not been examined if the application was subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121. The divisional application need not be filed during the pendency of the application subject to a requirement for restriction, as long as the copendency requirement of 35 U.S.C. 120 is met. This final rule also permits applicant to file two continuation applications of a divisional application plus a request for continued examination in the divisional application family, without any justification.
Specifically, § 1.78(d)(1)(ii) permits a divisional application of a prior-filed nonprovisional application or international application designating the United States of America under the following conditions. First, the divisional application must be a divisional application as defined in § 1.78(a)(2) that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of a prior-filed application that was subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121. Second, the divisional application must contain only claims directed to an invention or inventions that were identified in the requirement to comply with the requirement of unity of invention or requirement for restriction but were not elected for examination and were not examined in the prior-filed application or in any other nonprovisional application. The “not elected for examination and were not examined in any other nonprovisional application” requirement does not apply to any continuation application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of the divisional application and satisfies the conditions set forth in § 1.78(d)(1)(iii) or (d)(1)(vi).
Section 1.78(d)(1)(ii)(A) permits an applicant to obtain examination of claims that were withdrawn from consideration in the prior-filed application due to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121. Thus, § 1.78(d)(1)(ii)(A) permits a divisional application filed as a result of a requirement to comply with the requirement of unity of invention under PCT Rule 13 or requirement for restriction under 35 U.S.C. 121 in the prior-filed application. Section 1.78(d)(1)(ii)(A), however, does not permit a divisional application not filed as a result of such a requirement in the prior-filed application. Thus, § 1.78(d)(1)(ii)(A) permits so-called “involuntary” divisional applications but does not permit so-called “voluntary” divisional applications.
Section 1.78(d)(1)(ii)(B) does not permit the filing of a set of parallel divisional applications containing claims to the same invention. Applicant, however, may serially prosecute up to two continuation applications that contain claims to the same invention as is claimed in a prior-filed divisional application if the continuation application satisfies the conditions of § 1.78(d)(1)(iii).
As discussed previously, applicants cannot rely upon a requirement for restriction including an election of species to file a divisional application in situations where: (1) The applicant traverses the requirement for restriction;
For an application that contains a generic claim in which a requirement for an election of species has been made, applicants should conclude prosecution of the generic claim in the initial application and its continuation or continuation-in-part applications, including exhaustion of any available appeals, before even filing a divisional application to a non-elected species. If applicant no longer wants to pursue the generic claim, applicant may file a divisional application directed to a non-elected species. If applicant files a divisional application directed to a non-elected species, applicant must: (1) Cancel the claims to the non-elected species and the generic claim in the prior-filed application before a rejoinder or reinstatement occurs; (2) not present the non-elected claims and the generic claim in any continuation or continuation-in-part application of the initial application; and (3) not present the generic claim in the divisional application or any continuation application of the divisional application.
Under the Office's rejoinder practice, an applicant may request rejoinder of claims to a non-elected invention that depend from or otherwise require all the limitations of an allowable claim.
Section 1.78(d)(1)(iii) provides for continuation applications that claim the benefit of a divisional application (either directly or indirectly). Section 1.78(d)(1)(iii) permits such a continuation application of a prior-filed nonprovisional application or international application designating the United States of America if: (1) The application is a continuation application as defined in § 1.78(a)(3) that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of a divisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii); (2) the application discloses and claims only an invention or inventions that were disclosed and claimed in the divisional application; (3) the application claims the benefit of only the divisional application, any application to which such divisional application claims benefit under 35 U.S.C. 120, 121, or 365(c) in compliance with the conditions set forth in § 1.78(d)(1)(ii), and no more than one intervening prior-filed nonprovisional application (
Section 1.78(d)(1)(iii) does not permit a continuation-in-part of a divisional application. Section 1.78(d)(1)(iii) is designed to permit an applicant to complete prosecution with respect to an invention or inventions that were disclosed and claimed in a divisional application, and not to permit an applicant to seek patent protection for a new invention that merely bears some relationship to an invention or inventions that were disclosed and claimed in a divisional application. Section 1.78(d)(1)(i) provides a mechanism for applicants to seek patent protection for a new invention that is an improvement of an invention or inventions that were disclosed and claimed in an initial or continuing (including a divisional) application.
The provisions of §§ 1.78(d)(1)(i) through (d)(1)(iii) are illustrated with the following example: (1) There is an initial application “A” that is subject to a restriction requirement under 35 U.S.C. 121 and § 1.141
Under § 1.78(d)(1)(i), application “C” is either a continuation application under § 1.78(a)(3) or a continuation-in-part application under § 1.78(a)(4) that claims the benefit of no more than two prior-filed applications “B” and “A”. In addition, applications “B” and “A” whose benefit is claimed in application “C” have their benefit claimed in no more than one other application (not including divisional application “D” or continuation applications “E” and “F” of the divisional application “D”). That is, the benefit of application “A” is claimed in only one other application “B” (not including divisional application “D” or continuation
Under § 1.78(d)(1)(ii), nonprovisional application “D” is a divisional application under § 1.78(a)(2) since it claims the benefit of prior-filed application “A” that was subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121. Divisional application “D” may contain only claims directed to an invention identified in the requirement to comply with the requirement of unity of invention or requirement for restriction but were not elected for examination in prior-filed application “A” or in any other nonprovisional application (applications “B and “C”), except for a nonprovisional application (applications “E” and “F”) that claims the benefit of divisional application “D” and satisfies the conditions of § 1.78(d)(1)(iii). That is, divisional application “D” may contain only claims directed to an invention or inventions that were identified in such requirement to comply with the requirement of unity of invention or requirement for restriction but were not elected for examination in any other application except for its continuation applications “E” and “F”. Finally, the divisional application “D” claims the benefit of the prior-filed applications (applications “A”, “B”, and “C”).
Under § 1.78(d)(1)(iii), nonprovisional application “F” is a continuation application under § 1.78(a)(3) that claims the benefit of divisional application “D”. Application “D” is a divisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii). The nonprovisional application “F” may disclose and claim only an invention that was disclosed and claimed in divisional application “D”. The nonprovisional application “F” claims the benefit of only divisional application “D”, the applications to which divisional application “D” claims benefit in compliance with the conditions of § 1.78(d)(1)(ii) (applications “A”, “B”, and “C”), and no more than one intervening prior-filed nonprovisional application (application “E”). Divisional application “D” whose benefit is claimed in nonprovisional application “E” and in nonprovisional application “F” has its benefit claimed in no more than one other nonprovisional application. That is, with respect to application “F”, divisional application “D” has its benefit claimed in no more than one other nonprovisional application (application “E”), and with respect to application “E”, divisional application “D” has its benefit claimed in no more than one other nonprovisional application (application “F”).
Section 1.78(d)(1)(iv) pertains to the situation in which an applicant files a bypass continuation (or continuation-in-part) application rather than paying the basic national fee (entering the national stage) in an international application in which a Demand for international preliminary examination (PCT Article 31) has not been filed, and the international application does not claim the benefit of any other nonprovisional application or international application designating the United States of America. Section 1.78(d)(1)(iv) provides that in this situation the applicant may file “one more” continuation application (or continuation-in-part application) without there being a requirement for a petition and showing under § 1.78(d)(1)(vi). A “bypass” continuation (or continuation-in-part) application is an application for patent filed under 35 U.S.C. 111(a) that claims the benefit of the filing date of an earlier international application designating the United States of America that did not enter the national stage under 35 U.S.C. 371.
Specifically, § 1.78(d)(1)(iv) provides that a continuation application or continuation-in-part application is permitted if the following conditions are met: (1) The application claims benefit under 35 U.S.C. 120 or 365(c) of a prior-filed international application designating the United States of America, and a Demand has not been filed and the basic national fee (§ 1.492(a)) has not been paid in the prior-filed international application and the prior-filed international application does not claim the benefit of any other nonprovisional application or international application designating the United States of America; (2) the application is a continuation application as defined in § 1.78(a)(3) or a continuation-in-part application as defined in § 1.78(a)(4) that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of no more than three prior-filed applications; and (3) any application whose benefit is claimed under 35 U.S.C. 120, 121, or 365(c) in such nonprovisional application has its benefit claimed in no more than two other nonprovisional applications. This does not include any nonprovisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), (d)(1)(iii) or (d)(1)(vi).
Section 1.78(d)(1)(v) pertains to the situation in which an applicant files a continuation (or continuation-in-part) application to correct informalities rather than completing an application for examination under § 1.53 (
Section 1.78(d)(1)(vi) provides that a continuing nonprovisional application that is filed to obtain consideration of an amendment, argument, or evidence that could not have been submitted during the prosecution of the prior-filed application, and does not satisfy the conditions set forth in § 1.78(d)(1)(i), (ii), (iii), (iv) or (v), may claim the benefit under 35 U.S.C. 120, 121, or 365(c) of such prior-filed application. Under § 1.78(d)(1)(vi), a petition must be filed in such nonprovisional application that is accompanied by the fee set forth in § 1.17(f) and a showing
With respect to the application of the changes to § 1.78 in this final rule to a reissue application, benefit claims under 35 U.S.C. 120, 121, or 365(c) in the application for patent that is being reissued will not be taken into account in determining whether a continuing reissue application claiming the benefit under 35 U.S.C. 120, 121, or 365(c) of the reissue application satisfies one or more of the conditions set forth in §§ 1.78(d)(1)(i) through 1.78(d)(1)(vi). However, an applicant may not use the reissue process to add to the original patent benefit claims under 35 U.S.C. 120, 121, or 365(c) that do not satisfy one or more of the conditions set forth in §§ 1.78(d)(1)(i) through 1.78(d)(1)(vi), if the application for the original patent was filed on or after November 1, 2007.
Section 1.78(d)(2) provides that each prior-filed application must name as an inventor at least one inventor named in the later-filed application. In addition, each prior-filed application must either be: (1) An international application entitled to a filing date in accordance with PCT Article 11 and designating the United States of America; or (2) a nonprovisional application under 35 U.S.C. 111(a) that is entitled to a filing date as set forth in § 1.53(b) or § 1.53(d) for which the basic filing fee set forth in § 1.16 has been paid within the pendency of the application (provisions from former § 1.78(a)(1)).
Section 1.78(d)(3) is amended to include the parenthetical “(
Section 1.78(d)(3) also provides that if an application is identified as a continuation-in-part application, the applicant must identify the claim or claims in the continuation-in-part application for which the subject matter is disclosed in the manner provided by 35 U.S.C. 112, ¶ 1, in the prior-filed application. Any claim in the continuation-in-part application for which the subject matter is not identified as being disclosed in the manner provided by 35 U.S.C. 112, ¶ 1, in the prior-filed application will be treated as entitled only to the actual filing date of the continuation-in-part application, and will be subject to prior art based on the actual filing date of the continuation-in-part application. As discussed previously, to avoid any unnecessary delay in the prosecution of the application, applicant should provide the identification before the examiner begins to conduct a prior art search. If the failure to identify the claims for which the subject matter is disclosed in the manner provided by 35 U.S.C. 112, ¶ 1, in the prior-filed application causes the examiner to include a new prior art rejection in a second or subsequent Office action, the inclusion of the new prior art rejection will not preclude the Office action from being made final.
This final rule eliminates from § 1.78(d) the provision that the prior-filed application disclose the invention claimed in at least one claim of the later-filed application in the manner provided by 35 U.S.C. 112, ¶ 1. For a later-filed application to receive the benefit of the filing date of a prior-filed application, 35 U.S.C. 120 requires that the prior-filed application must disclose the invention claimed in at least one claim of the later-filed application in the manner provided by 35 U.S.C. 112, ¶ 1. The Office, however, does not make a determination as to whether a prior-filed application discloses the invention claimed in a claim of the later-filed application in the manner provided by 35 U.S.C. 112, ¶ 1, unless that determination is necessary to determine the patentability of such claim.
Section 1.78(d)(4) and (d)(5) contain the provisions of former § 1.78(a)(2).
Section 1.78(d)(6) provides that cross-references to applications for which a benefit is not claimed must be located in a paragraph separate from the paragraph containing the references to applications for which a benefit is claimed. Including cross-references to applications for which a benefit is not claimed in the same paragraph as the paragraph containing the references to applications for which a benefit is claimed may lead to the Office inadvertently scheduling the application for publication under 35 U.S.C. 122(b) and § 1.211
Section 1.78(e) contains provisions relating to delayed claims under 35 U.S.C. 120, 121, or 365(c) for benefit of prior-filed nonprovisional or international applications. Section 1.78(e) contains the provisions of former § 1.78(a)(3).
Section 1.78(f) contains provisions relating to applications and patents naming at least one inventor in common.
Section 1.78(f)(1)(i) provides that the applicant in a nonprovisional application that has not been allowed (§ 1.311) must identify by application number (
The phrase “taking into account any filing date for which a benefit is sought under title 35, United States Code” in § 1.78(f)(1)(i)(A) means any filing date for which a benefit (or priority) is sought or claimed under 35 U.S.C. 111, 119, 120, 121, 363, or 365.
The phrase “owned by the same person, or subject to an obligation of assignment to the same person” in § 1.78(f)(1)(i)(C) (and in § 1.78(f)(2)(i)(C) and 1.78(f)(3)) has the same meaning as it does in 35 U.S.C. 103(c).
The phrase “has not been allowed” in § 1.78(f)(1)(i) (and in § 1.78(f)(2)(ii) and (iii)) means a notice of allowance under § 1.311 has not been mailed in the application, or a notice of allowance under § 1.311 has been mailed in the application but the application has been withdrawn from issue. Thus, the identification of such one or more other pending or patented nonprovisional applications under § 1.78(f)(1)(i) is not required in an application in which a notice of allowance has been mailed, unless the application is withdrawn from issue.
Section 1.78(f)(1)(ii) also provides that one or more other nonprovisional applications under § 1.78(f)(1)(i) must be identified within the later of: (1) Four months from the actual filing date of a nonprovisional application filed under 35 U.S.C. 111(a); (2) four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in a nonprovisional application entering the national stage from an international application under 35 U.S.C. 371; or (3) two months from the mailing date of the initial filing receipt in the other nonprovisional application that is required to be identified under § 1.78(f)(1)(i).
Section 1.78(f)(2)(i) provides that a rebuttable presumption shall exist that a nonprovisional application contains at least one claim that is not patentably distinct from at least one of the claims in the one or more other pending or patented nonprovisional applications if: (1) The application has a filing date that is the same as the filing date of another pending application or patent, taking into account any filing date for which a benefit is sought; (2) the application names at least one inventor in common with the other pending application or patent; (3) the application is owned by the same person, or subject to an obligation of assignment to the same person, as the other pending application or patent; and (4) the application contains substantially overlapping disclosure as the other pending application or patent. Section 1.78(f)(2)(i) further provides that substantial overlapping disclosure exists if the other pending or patented nonprovisional application has written description support under 35 U.S.C. 112, ¶ 1, for at least one claim in the nonprovisional application.
If these conditions exist, the applicant must under § 1.78(f)(2)(ii) in the nonprovisional application, unless the nonprovisional application has been allowed (§ 1.311), within the time period specified in § 1.78(f)(2)(iii) either: (1) Rebut this presumption by explaining how the application contains only claims that are patentably distinct from the claims in each of such other pending applications or patents; or (2) submit a terminal disclaimer in accordance with § 1.321(c). In addition, § 1.78(f)(2)(ii)(B) provides that where one or more other pending nonprovisional applications containing patentably indistinct claims have been identified, the applicant must explain why there are two or more pending nonprovisional applications naming at least one inventor in common and owned by the same person, or subject to an obligation of assignment to the same person, which contain patentably indistinct claims. Unless applicant presents good and sufficient reasons for such multiple applications, the Office may require elimination of the patentably indistinct claims from all but one of the applications.
As discussed previously, for applications having a continuity relationship, the prior application must be pending at the time the continuing application is filed.
Under § 1.78(f)(2)(iii), the actions specified in § 1.78(f)(2)(ii) (if required) must be taken within the later of: (1) Four months from the actual filing date of a nonprovisional application filed under 35 U.S.C. 111(a); (2) four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in a nonprovisional application entering the national stage from an international application under 35 U.S.C. 371; (3) the date on which a claim that is not patentably distinct from a claim in one or more other pending or patented applications is presented; or (4) two months from the mailing date of the initial filing receipt in the one or more other pending or patented applications.
The requirement under § 1.78(f)(2)(ii) for taking one of the actions specified in § 1.78(f)(2)(ii) does not apply to the applicant in the application in which a notice of allowance has been mailed, unless the application is withdrawn from issue (§ 1.313). For example, if an applicant filed a continuation application after a notice of allowance has been mailed in the prior-filed application, the applicant must either rebut the presumption under
As discussed previously, when an applicant files multiple applications that are substantially the same, the applicant is responsible for assisting the Office in resolving potential double patenting situations, rather than taking no action until faced with a double patenting rejection. Thus, if an Office action must include a double patenting rejection (either statutory or obviousness-type double patenting), it is because the applicant has not met his or her responsibility to resolve the double patenting situation. Therefore, the inclusion of a new double patenting rejection in a second or subsequent Office action will not preclude the Office action from being made final.
Section 1.78(f)(3) applies when there are two or more commonly owned (owned by the same person, or are subject to an obligation of assignment to the same person) nonprovisional applications containing patentably indistinct claims. Under § 1.78(f)(3), unless applicant presents good and sufficient reasons for such multiple applications, the Office may require elimination of the patentably indistinct claims from all but one of the applications. Section 1.78(f)(3) contains provisions similar to former § 1.78(b). The Office expects to apply this provision primarily in situations covered by § 1.78(f)(2)(ii), under which applicants must explain why it is necessary that there are two or more pending nonprovisional applications naming at least one inventor in common and owned by the same person, or subject to an obligation of assignment to the same person, which contain patentably indistinct claims. The Office, however, may require that an applicant provide good and sufficient reason whenever there are two or more pending nonprovisional applications with such common ownership or assignment obligation and patentably indistinct claims, regardless of the relative filing dates of the applications. Section 1.78(f)(3) does not apply to the claims in a patent.
The following are two examples where an applicant may have a good and sufficient reason under § 1.78(f)(3) for there being two or more pending nonprovisional applications that contain patentably indistinct claims: (1) An applicant filed a continuation application after the mailing of a notice of allowance in the prior-filed application, but the allowance of the prior-filed application was subsequently withdrawn by the Office; or (2) an interference was declared in an application that contains both claims corresponding to the count and claims not corresponding to the count, the BPAI suggests that the claims not corresponding to the count be canceled from the application in interference and pursued in a separate application, and the applicant filed a continuation application to present the claims not corresponding to the count. These examples are merely illustrative and not exhaustive.
Section 1.78(g) addresses applications or patents under reexamination that name different inventors and contain patentably indistinct claims. Section 1.78(g) contains the provisions of former § 1.78(c), except that “conflicting claims” is changed to “patentably indistinct claims” for clarity and for consistency with the language of § 1.78(f).
Section 1.78(h) covers the situation in which parties to a joint research agreement are treated (in essence) as a common owner for purposes of 35 U.S.C. 103 by virtue of the CREATE Act. Section 1.78(h) provides that if an application discloses or is amended to disclose the names of parties to a joint research agreement under 35 U.S.C. 103(c)(2)(C), the parties to the joint research agreement are considered to be the same person for purposes of § 1.78. The CREATE Act amended 35 U.S.C. 103(c) to provide that subject matter developed under a joint research agreement shall be treated as owned by the same person or subject to an obligation of assignment to the same person for purposes of determining obviousness if three conditions are met: (1) The claimed invention was made by or on behalf of parties to a joint research agreement that was in effect on or before the date the claimed invention was made; (2) the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; and (3) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.
Section 1.78(i) provides that the time periods set forth in § 1.78 are not extendable.
The changes to § 1.78 (except §§ 1.78(a) and 1.78(d)(1)) are applicable to any nonprovisional application pending on or after November 1, 2007. The changes to §§ 1.78(a) and 1.78(d)(1) are applicable to any application filed on or after November 1, 2007, or any application entering the national stage after compliance with 35 U.S.C. 371 on or after November 1, 2007. Except as otherwise indicated in this final rule, any application filed under 35 U.S.C. 111(a) on or after November 1, 2007, or any application entering the national stage after compliance with 35 U.S.C. 371 on or after November 1, 2007, seeking to claim the benefit under 35 U.S.C. 120, 121, or 365(c) and § 1.78 of a prior-filed nonprovisional application or international application must either: (1) Meet the requirements specified in one of §§ 1.78(d)(1)(i) through (d)(1)(v); or (2) include a grantable petition under § 1.78(d)(1)(vi).
With respect to applications that claim the benefit under 35 U.S.C. 120, 121, or 365(c) only of nonprovisional applications or international applications filed before August 21, 2007: An application is not required to meet the requirements set forth in § 1.78(d)(1) if: (1) The application claims the benefit under 35 U.S.C. 120, 121, or 365(c) only of prior-filed nonprovisional applications filed before August 21, 2007 or prior-filed applications entering the national stage after compliance with 35 U.S.C. 371 before August 21, 2007; and (2) there is no other application filed on or after the publication date of this final rule in the
Section 1.104(a)(1) is amended to add the phrase “and other requirements” to the phrase “the examination shall be complete with respect both to compliance of the application or patent under reexamination with the applicable statutes and rules” to address situations in which the requirement is based upon Office practice as set forth in the MPEP or in the case law. For example, the phrase “other requirements” would address the situation in which a claim did not comply with the requirement in MPEP § 608.01(m) that each claim be the object of a single sentence starting with “I (or we) claim,” “The invention claimed is,” or the equivalent.
Section 1.104(b) is also amended to delete the sentence “[h]owever, matters of form need not be raised by the examiner until a claim is found allowable.” The Office would prefer that all matters of form be resolved at the earliest time during the patent examination process. Nevertheless, an Office action would not be considered improper simply because the Office action did not raise every applicable issue of form present in the application.
Section 1.114(a) is amended to make clear that an applicant may not file an unrestricted number of requests for continued examination, that a request for continued examination must include a petition under § 1.114(g) unless the conditions set forth in § 1.114(f)(1), (f)(2), or (f)(3) are satisfied, and that a request for continued examination must be identified as a request for continued examination. Section 1.114(a) otherwise contains the provisions of former § 1.114(a).
Section 1.114(d) is revised to eliminate the sentence “[i]f an applicant timely files a submission and fee set forth in § 1.17(e), the Office will withdraw the finality of any Office action and the submission will be entered and considered.” This change is to avoid misleading applicants into believing that the Office will
Section 1.114(f) provides the conditions under which an applicant may file a request for continued examination under § 1.114 without a petition under § 1.114(g).
Section 1.114(f)(1) permits an applicant to file a single request for continued examination in any one (but only one) of an initial application or its continuation applications or
Section 1.114(f)(2) permits an applicant to file a single request for continued examination under § 1.114 in a divisional application meeting the conditions set forth in § 1.78(d)(1)(ii) provided that no request for continued examination has been filed in any continuation application of the divisional application. Section 1.114(f)(2) provides that an applicant may file a request for continued examination under § 1.114 in a divisional application without a petition under § 1.114(g) if a request for continued examination has not previously been filed in any of: (1) The divisional application; and (2) any application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of that divisional application, not including any nonprovisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), (d)(1)(iii) or (d)(1)(vi).
Section 1.114(f)(3) permits an applicant to file a single request for continued examination in a continuation application of a divisional application meeting the conditions set forth in § 1.78(d)(1)(ii) provided that no request for continued examination has been filed in the divisional application or any other continuation application of the divisional application. Section 1.114(f)(3) provides that an applicant may file a request for continued examination under § 1.114 in a continuation application of a divisional application without a petition under § 1.114(g) if a request for continued examination has not previously been filed in any of: (1) The continuation application; (2) the divisional application; and (3) any other application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of that divisional application, not including any nonprovisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), (d)(1)(iii) or (d)(1)(vi).
The provisions of § 1.114(f) are illustrated with the following example (the example used to illustrate the provisions of §§ 1.78(d)(1)(i) through (d)(1)(iii)): (1) There is an initial application “A” that is subject to a restriction requirement under 35 U.S.C. 121 and § 1.141
Section 1.114(f)(1) permits the filing of a single request for continued examination without a petition under § 1.114(g) in any one of applications “A”, “B”, or “C”. Specifically, a request for continued examination may be filed in application “A”, if a request for continued examination has not previously been filed in any of: (1) application “A”; (2) any application (none) whose benefit is claimed in application “A”; and (3) any application (applications “B” and “C”) that claims the benefit of application “A”, not including divisional application “D” and its continuation applications “E” and “F”. In addition, a request for continued examination may be filed in application “B”, if a request for continued examination has not previously been filed in any of: (1) Application “B”; (2) any application (application “A”) whose benefit is claimed in application “B”; and (3) any application (application “C”) that claims the benefit of application “B”, not including divisional application “D” and its continuation applications “E” and “F”. Finally, a request for continued examination may be filed in application “C”, if a request for continued examination has not previously been filed in any of: (1) Application “C”; (2) any application (applications “A” and “B”) whose benefit is claimed in application “C”; and (3) any application (none) that claims the benefit of application “C”, not including divisional application “D” and its continuation applications “E” and “F”.
Section 1.114(f)(2) permits the filing of a single request for continued examination without a petition under § 1.114(g) in application “D”, if a request for continued examination has not previously been filed in application “E” or application “F”. Specifically, a request for continued examination may be filed in application “D”, if a request for continued examination has not previously been filed in any of: (1) Divisional application “D”; and (2) any application (applications “E” and “F”) that claims the benefit of divisional application “D”.
Section 1.114(f)(3) permits the filing of a single request for continued examination without a petition under § 1.114(g) in any one of applications “E” or “F”, if a request for continued examination has not previously been filed in application “D”. Specifically, a request for continued examination may be filed in continuation application “E”, if a request for continued examination has not previously been filed in any of: (1) Continuation application “E”; (2) divisional application “D”; and (3) any other application (application “F”) that claims the benefit of divisional application “D”. In addition, a request for continued examination may be filed in continuation application “F”, if a request for continued examination has not previously been filed in any of: (1) continuation application “F”; (2) divisional application “D”; and (3) any other application (application “E”) that claims the benefit of divisional application “D”.
Section 1.114(g) provides that a request for continued examination must include a petition accompanied by the fee set forth in § 1.17(f) and a showing that the amendment, argument, or evidence sought to be entered could not have been submitted before the close of prosecution in the application. A petition under § 1.114(g) and the fee set forth in § 1.17(f) are not required if the
Thus, an applicant may file a single request for continued examination without a petition under § 1.114(g) in any one (but only one) of an initial application or its continuation applications or continuation-in-part applications. An applicant may also file a single request for continued examination without a petition under § 1.114(g) in any one (but only one) of a divisional application (meeting the conditions set forth in § 1.78(d)(1)(ii)) or its continuation applications. Any second or subsequent request for continued examination in an application or application family must include a petition, accompanied by the fee set forth in § 1.17(f), and a showing that the amendment, argument, or evidence sought to be entered could not have been submitted prior to the close of prosecution in the application.
Section 1.114(h) provides that the filing of an improper request for continued examination, including a request for continued examination with a petition under § 1.114(g) that is not grantable, will not stay any period for reply or other proceedings. This is consistent with the current practice for requests for continued examination.
The Office proposed § 1.114(f) to include: “[a]ny other proffer of a request for continued examination in an application not on appeal will be treated as a submission under § 1.116. Any other proffer of a request for continued examination in an application on appeal will be treated only as a request to withdraw the appeal.”
As discussed previously, applicants are permitted to file two continuation or continuation-in-part applications and a single request for continued examination without any justification. The provisions of § 1.78(d)(1) are independent of the provisions of § 1.114. Thus, filing a request for continued examination does not preclude an applicant from filing a first or second continuation application (or continuation-in-part application). In addition, an applicant may not agree to forgo a first or second continuation application (or continuation-in-part application) to obtain a second or third request for continued examination, nor can applicant forgo a request for continued examination to obtain a third continuation or continuation-in-part application. For example, an applicant cannot file two requests for continued examination without a petition and showing in an application instead of filing one of the two permitted continuation applications.
The Office is implementing an optional streamlined continuation application procedure under which an applicant may have a continuation application placed on an examiner's amended (Regular Amended) docket (see discussion of § 1.78(d)(1)(i)). Thus, an applicant may effectively obtain the docketing benefit (
The changes to § 1.114 apply to any application in which a request for continued examination is filed on or after November 1, 2007. Thus, a request for continued examination filed on or after November 1, 2007, in an application in which a request for continued examination has previously been filed, in a continuation or continuation-in-part application of an application in which a request for continued examination has previously been filed, or in an application whose benefit is claimed in any other nonprovisional application in which a request for continued examination has previously been filed, must include a petition under § 1.114(g). That is, an applicant may file a request for continued examination (and not “one more” request for continued examination) on or after November 1, 2007, without a petition under § 1.114(g) only if the conditions set forth in § 1.114(f)(1), (f)(2), or (f)(3) are met.
Section 1.117 is added to implement this provision of the Consolidated Appropriations Act. Section 1.117(a) provides that if an amendment canceling a claim is filed before an examination on the merits has been made of the application, the applicant may request a refund of any fee under § 1.16(h), (i), or (j) or under § 1.492(d), (e), or (f) paid on or after December 8, 2004, for such claim. Thus, if an applicant decides to cancel the claims in excess of five independent claims and in excess of twenty-five total claims rather than provide an examination support document in compliance with § 1.265, the applicant may request a refund of any fee for such claim that is paid on or after December 8, 2004. Section 1.117(a) as adopted, however, does not require that the amendment have been filed in reply to a notice under § 1.75(b)(3). Section 1.117(a) requires only that the amendment have been filed before an examination on the
•“[A]n examination on the merits has been made of the application” for purposes of § 1.117(a) once a first Office action on the merits, notice of allowability or allowance, or action under
Section 1.117(b) (§ 1.117(c) as proposed) provides that if a request for refund under this section is not filed within two months from the date on which the claim was canceled, the Office may retain the excess claims fee paid in the application. This two-month period is not extendable. If an amendment canceling a claim is not filed before an examination on the merits, the Office will not refund any part of the excess claims fee paid in the application except as provided in § 1.26.
The provisions of § 1.117(b) as proposed are duplicative of the provisions of § 1.138(d) and have not been adopted as unnecessary.
The patent fee provisions of the Consolidated Appropriations Act expire (in the absence of additional legislation) on September 30, 2007 (at the end of fiscal year 2007). Therefore, in the absence of subsequent legislation, the refund provision in § 1.117 will likewise expire on September 30, 2007 (at the end of fiscal year 2007), regardless of the date on which the excess claims fee was paid.
Section 1.142(c) is added to permit applicants to suggest requirements for restriction. Specifically, § 1.142(c) provides that if two or more independent and distinct inventions are claimed in a single application, the applicant may file a suggested requirement for restriction under § 1.142(c). Any suggested requirement for restriction must be filed before the earlier of the first Office action on the merits or an Office action that contains a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121 in the application. It must also be accompanied by an election without traverse of an invention to which there are no more than five independent claims and no more than twenty-five total claims, and must identify the claims to the elected invention. Claims to the non-elected invention, if not canceled, will be withdrawn from further consideration by the examiner. If the examiner accepts the suggested restriction, then the claims to the non-elected invention, if not canceled by the applicant, will be withdrawn from further consideration by the examiner.
Section 1.75(b)(3)(iii) as proposed would have permitted applicants to reply to a notice from the Office that an application contains more than ten representative claims (under certain conditions) by submitting a suggested requirement for restriction accompanied by an election without traverse of an invention to which there are no more than five independent claims and no more than twenty-five total claims.
Section 1.142(c) further provides that if the applicant's suggested requirement for restriction is accepted, the restriction requirement will be set forth in a subsequent Office action. Any claim to the non-elected invention or inventions, if not canceled, is by the election withdrawn from further consideration.
If the suggested requirement for restriction is refused, the applicant will be notified in an Office action. That Office action may include, a notice under § 1.75(b)(3) requiring applicant to file an examination support document or amend the application to contain no more than five independent claims or no more than twenty-five total claims. If an applicant's suggested restriction requirement is refused, the examiner may make a different restriction requirement or make no restriction requirement. 35 U.S.C. 121 authorizes, but does not compel, the Director to require that an application containing two or more independent and distinct inventions be restricted to one of the inventions. A decision not to restrict an application to a single invention is not an action or requirement within the meaning of § 1.181(a). Thus, any review of an examiner's requirement for restriction that differs from a suggested restriction requirement will only concern the appropriateness of the examiner's restriction requirement and will not address the appropriateness of the applicant's suggested restriction requirement or compare the examiner's restriction requirement and the suggested restriction requirement.
Section 1.265 contains fewer requirements than an accelerated examination support document under the revised procedures for certain petitions to make special (
Section 1.265(a)(1) provides that an examination support document must include a statement that a preexamination search in compliance with § 1.265(b) was conducted. The examination support document must identify (in the manner set forth in MPEP § 719.05) the field of search by class and subclass and the date of the search, where applicable. For database searches, the examination support document must identify the search logic or chemical structure or sequence used as a query, the name of the file or files searched and the database service, and the date of the search.
Section 1.265(a)(2) provides that an examination support document must include a listing in compliance with § 1.265(c) of the reference or references deemed most closely related to the subject matter of each of the claims (whether in independent or dependent form). The references that would be most closely related to the subject matter of each of the claims include: (1) A reference that discloses the most number of limitations in an independent claim; (2) a reference that discloses a limitation of an independent claim that is not shown in any other reference in the listing of references required under § 1.265(a)(2); and (3) a reference that discloses a limitation of a dependent claim that is not shown in any other reference in the listing of references required under § 1.265(a)(2). References that are only relevant to the general subject matter of the claims would not be most closely related to the subject matter of each of the claims if there are other references that are deemed to be more closely related to the subject matter of the claims.
It is envisioned that the reference or references presented as being most closely related to the subject matter of the claims will generally be references that result from the preexamination search provided for in § 1.265(a)(1). The preexamination search provided for in § 1.265(a)(1) should result in the reference or references that are most closely related to the subject matter of the claims. However, an applicant may not exclude a reference from an examination support document simply because the reference was not the result of the preexamination search provided for in § 1.265(a)(1). The reference, for instance, may have been brought to applicant's attention via a foreign or PCT search report. References that have
Section 1.265(a)(3) provides that an examination support document must, for each reference in the listing of references required under § 1.265(a)(2), identify all of the limitations of each of the claims (whether in independent or dependent form) that are disclosed by the reference. Applicant may satisfy this requirement either by mapping the limitations of each of the claims to the references or by mapping the references to the limitations of the claims. Applicants may map the limitations of each of the claims to the references by, for each claim, identifying where the cited references disclose features, showings, or teachings that are relevant to each limitation of such claim. Applicants may map the references to the limitations of the claims by, for each cited reference, identifying where the reference discloses features, showings, or teachings that are relevant to the limitations of each of the claims.
Section 1.265(a)(3) requires the applicant to identify at least one appearance in the reference (a representative portion) of a specific feature, showing, or teaching for which the reference is being cited. If the feature, showing, or teaching appears in more than one portion of the reference, applicant would not need to specifically point out more than one occurrence. Applicant, however, should do so where the additional appearance may not be apparent to the examiner and may have some additional significance over its first identified appearance. If an applicant recognizes that a document is relevant for more than one feature, showing, or teaching, the applicant would need to specifically identify each additional feature, showing, or teaching and the portion where the feature, showing, or teaching appears in the document. A mere statement indicating that the entire reference, or substantially the entire reference, is relevant would not comply with § 1.265(a)(3).
Section 1.265(a)(4) provides that an examination support document must include a detailed explanation particularly pointing out how each of the independent claims is patentable over the references cited in the listing of references required under § 1.265(a)(2). The explanation required by § 1.265(a)(4) may be set forth together with the identification required by § 1.265(a)(3) or may be provided separately. For example, the identification required by § 1.265(a)(3) and the explanation required by § 1.265(a)(4) may be set out in a single spreadsheet with two columns, or may be set out in two spreadsheets. A general statement that all of the claim limitations are not described in a single reference does not satisfy the requirements of § 1.265(a)(4). Section 1.265(a)(4) requires that the examination support document set out with particularity, by reference to one or more specific claim limitations, why the claimed subject matter is not described in the references, taken as a whole. The applicant must explain why a person of ordinary skill in the art would not have combined the features disclosed in one reference with features disclosed in another reference to arrive at the claimed subject matter. The applicant must also explain why the claim limitations referenced render the claimed subject matter novel and non-obvious over the cited prior art.
Section 1.265(a)(5) provides that an examination support document must include a showing of where each limitation of the claims (whether in independent or dependent form) finds support under 35 U.S.C. 112, ¶ 1, in the written description of the specification. If the application claims the benefit of one or more applications under title 35, United States Code, the showing must also include where each limitation of the claims finds support under 35 U.S.C. 112, ¶ 1, in each such application in which such support exists. For means- (or step-) plus-function claim elements under 35 U.S.C. 112, ¶ 6, this requires: (1) That the claim limitation be identified as means- (or step-) plus-function claim element under 35 U.S.C. 112, ¶ 6; and (2) that the structure, material, or acts in the specification that correspond to each means- (or step-) plus-function claim element under 35 U.S.C. 112, ¶ 6, be identified.
If the examiner, after considering the application and any examination support document, still has questions concerning the invention or how the claims define over the prior art or are patentable, the examiner may request an interview before the first Office action. If the applicant declines such a request for an interview or if the interview does not result in the examiner obtaining the necessary information, the examiner may issue a requirement for information under § 1.105 to obtain such information. Section 1.133(a)(2) was amended in November of 2005 to permit an interview before the first Office action if the examiner determines that such an interview would advance prosecution.
Section 1.265(b) provides that the preexamination search must involve U.S. patents and patent application publications, foreign patent documents, and non-patent literature, unless the applicant can justify with reasonable certainty that no references more pertinent than those already identified are likely to be found in the eliminated source. That justification must be included in the statement required by § 1.265(a)(1). Section 1.265(b) also provides that the preexamination search must encompass all of the limitations of the independent claims. It must also encompass all of the limitations of the dependent claims separately from the claim or claims from which they depend. The claims must be given the broadest reasonable interpretation. A search report from a foreign patent office will not automatically satisfy the requirement in § 1.265(a)(1) for a preexamination search unless it includes the information required by § 1.265.
Section 1.265(c) provides for the content requirements of the listing of references required under § 1.265(a)(2) as part of an examination support document. Section 1.265(c) provides the same content requirements as those that are currently provided in §§ 1.98(a) and (b). Specifically, § 1.265(c) provides that the listing of references required under § 1.265(a)(2) as part of an examination support document must include a list identifying each of the cited references (§§ 1.265(c)(1) and (c)(2)), a copy of each reference except for references that are U.S. patents or U.S. patent application publications (§ 1.265(c)(3)), and each English language translation if required by § 1.265(c)(4). Applicant may use the USPTO form, “Examination Support Document Listing of References,” to submit the listing of references. The form will be available on the Office's Internet Web site at
Section 1.265(c)(1) provides that the list of cited references must group U.S. patents and U.S. patent application publications (including international
Section 1.265(c)(2) provides that the list of cited references must identify each cited reference as follows: (1) Each U.S. patent must be identified by first named patentee, patent number, and issue date; (2) each U.S. patent application publication must be identified by applicant, patent application publication number, and publication date; (3) each U.S. application must be identified by the applicant, application number, and filing date; (4) each foreign patent or published foreign patent application must be identified by the country or patent office which issued the patent or published the application, an appropriate document number, and the publication date indicated on the patent or published application; and (5) each publication must be identified by publisher (
Section 1.265(c)(4) provides that if a non-English language document is being cited, any existing English language translation of the non-English language document must be submitted if the translation is within the possession, custody, or control of, or is readily available to any individual identified in § 1.56(c).
Section 1.265(d) provides for a supplemental examination support document. If an information disclosure statement is filed in an application in which an examination support document is required and has been filed, the applicant must also file a supplemental examination support document addressing the references cited in the information disclosure statement in the manner required under §§ 1.265(a)(3) and (a)(4), unless the information disclosure statement cites only references that are less closely related to the subject matter of one or more claims than the references cited in the examination support document listing of references required under § 1.265(a)(2).
Section 1.265(e) provides that the applicant will be notified if: (1) The examination support document or preexamination search is deemed to be insufficient; or (2) the claims have been amended such that the examination support document no longer covers each claim. The notice will give the applicant a two-month time period within which the applicant must either file a corrected or supplemental examination support document or amend the application such that it contains no more than five independent claims and no more than twenty-five total claims in order to avoid abandonment. Section 1.265(e) further provides that this two-month period is not extendable under § 1.136(a).
Section 1.265(f) provides an exemption from the requirement in § 1.265(a)(3) that an examination support document must, for each reference cited in the listing of references required under § 1.265(a)(2), include an identification of all of the limitations of each of the claims (whether in independent or dependent form) that are disclosed by the reference that applies to applications by a small entity as defined by the Regulatory Flexibility Act (5 U.S.C. 601
With respect to the business or other concerns defined in § 1.265(f)(1), the Regulatory Flexibility Act provides that “the term ‘small business’ has the same meaning as the term `small business concern' under section 3 of the Small Business Act, unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
With respect to the not-for-profit enterprises defined in § 1.265(f)(2), the Regulatory Flexibility Act provides that “the term ‘small organization' means any not-for-profit enterprise which is independently owned and operated and is not dominant in its field, unless an agency establishes, after opportunity for public comment, one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
With respect to the governments defined in § 1.265(f)(3), the Regulatory Flexibility Act provides that “the term `small governmental jurisdiction' means governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand, unless an
An entity that meets the definition of a small entity set forth in § 1.27 for paying reduced patent fees may or may not meet one of the definitions under §§ 1.265(f)(1) through (f)(3) to make a certification under § 1.265(f). The Office will not give advisory opinions as to whether or not a specific individual or entity meets the definitions under §§ 1.265(f)(1) through (f)(3) to make a certification under § 1.265(f). Questions related to standards for small business concerns, not-for-profit enterprises, or governments may be directed to: Small Business Administration, Size Standards Staff, 409 Third Street, SW., Washington, DC 20416.
The examiner's acceptance of a suggested requirement for restriction accompanied by an election without traverse of an invention to which there are no more than five independent claims and no more than twenty-five total claims would be sufficient to obviate the need for an examination support document under § 1.265. If the suggested requirement for restriction is not accepted, the applicant will be notified and given a time period within which the applicant must either file an examination support document or amend the application such that it contains no more than five independent claims and no more than twenty-five total claims. Failure to timely reply to such a notice would result in the abandonment of the application. The abandonment of an application results in the period of adjustment set forth in § 1.703 (if any) being reduced under § 1.704(c)(3).
As discussed previously, the Office published notices in January of 2006 proposing: (1) Changes to practice for continuing applications, requests for continued examination, and applications containing patentably indistinct claims; and (2) changes to the practice for the examination of claims in patent applications.
Furthermore, the definitions of continuation, divisional, and continuation-in-part application set forth in § 1.78(a) are substantially the same as the previous definitions set forth in the MPEP, except that a divisional application is now defined more narrowly.
Furthermore, applicant may suggest a requirement for restriction under § 1.142(c) if the applicant believes that two or more independent and distinct inventions are claimed in the application.
35 U.S.C. 121 provides that “[i]f two or more independent and distinct inventions are claimed in one application, the Director may require the application to be restricted to one of the inventions.” (Emphasis added.) Thus, 35 U.S.C. 121 authorizes, but does not compel, the Director to require that an application containing two or more independent and distinct inventions be restricted to one of the inventions. The Office typically decides whether to issue a restriction requirement when an application contains two or more independent and distinct inventions based upon,
Moreover, under the PCT and the Paris Convention, the determination of the conditions and effect of internal (domestic) priority claims is a matter for the authority concerned.
For example, where claims directed to a product and to a process of making and/or using the product are presented in the same application and subject to a requirement for restriction, the applicant may request rejoinder of the non-elected process claims that depend from or otherwise require all the limitations of an allowable product claim.
If the applicant chooses to retain the non-elected claims and files a divisional application claiming the non-elected invention and then the restriction requirement is withdrawn in the prior-filed application, the benefit claim under § 1.78(d)(1)(ii) in the later-filed divisional application would no longer be proper. Thus, the later-filed application would not be entitled to the benefit of the prior-filed application. If applicant still desires to maintain the later-filed application, applicant must delete or correct the benefit claim to indicate that the application is a continuation application if the requirements set forth in § 1.78(d)(1)(i) can be met. If applicant no longer wants to maintain the later-filed application, applicant may abandon the application before the examination has been made of the application and may request a refund of any previously paid search and excess claims fees.
The changes in this final rule do not impact applicants' ability to protect improvements to the invention disclosed in a prior-filed application. Section 1.78(d)(1)(i) allows an applicant to file two continuation-in-part applications of a prior-filed application without a petition and showing. Applicant may also file any third or subsequent continuation-in-part application with a petition and showing. Hence, applicants have ample opportunity to seek protection for improvements.
Furthermore, for the continuation-in-part application to actually receive the benefit of the filing date of the prior-filed application, 35 U.S.C. 120 requires that the subject matter of at least one claim of the continuation-in-part application must be disclosed in the prior-filed application in the manner provided by 35 U.S.C. 112, ¶ 1.
For example, applicant may file a third continuation (or continuation-in-part) application claiming the benefit of an intervening (second) continuation (or continuation-in-part) application, a first continuation (or continuation-in-part) application, and a prior-filed application without a petition under § 1.78(d)(1)(vi), if the prior-filed application became abandoned due to the failure to timely reply to a Notice to File Missing Parts mailed by the Office of Initial Patent Examination and does not claim the benefit of any other application. The prior-filed application, however, must be entitled to a filing date and have paid therein the basic filing fee within the pendency of the application.
Whether any “new matter” is inventive or based on ordinary skill is not determinative of whether the claims of the continuation-in-part application are entitled to the filing date of the prior-filed application. The test is whether the original disclosure of the prior-filed application provides adequate support and enablement for the claimed subject matter of the continuation-in-part application in compliance with the requirement of 35 U.S.C. 112, ¶ 1.
For example, applicant may file a third continuation application claiming the benefit of an intervening (second) continuation (or continuation-in-part) application, the first “bypass” continuation (or continuation-in-part) application, and the prior-filed international application without a petition under § 1.78(d)(1)(vi), if a Demand has not been filed and the basic national fee has not been paid in the international application, and the international application does not claim the benefit of any other nonprovisional application or international application designating the United States of America.
Applicant may also file any additional continuation or continuation-in-part application or request for continued examination with a petition and showing. If an international application that enters the U.S. national stage contains or is amended to contain a specific reference to a prior-filed application that is not permitted by at least one of §§ 1.78(d)(1)(i) through (d)(1)(vi), the Office will refuse to enter, or will delete if present, the specific reference to the prior-filed application.
Refusal to grant a petition under § 1.78(d)(1)(vi) (assuming such a petition is necessary) would not prevent an applicant from completing the requirements for entry into the national phase under 35 U.S.C. 371. The requirements for entry of an international application into the national phase under 35 U.S.C. 371 are set forth in 35 U.S.C. 371(c) and § 1.495. The effect of a refusal to grant any such petition would only be that the national stage application would not be entitled to the benefit of the filing date of the nonprovisional application under 35 U.S.C. 120 and 365(c). Furthermore, the necessity to file a petition under § 1.78(d)(1)(vi) in the national stage application to obtain benefit to the nonprovisional application would not
Note that, in the first described application chain, the international application claims benefit to a nonprovisional application under 35 U.S.C. 120 or 365(c) and therefore is a “continuing application” as defined in § 1.78(a). In the second described application chain, the international application is not a continuing application as it only claims benefit to the provisional application. In any event, § 1.78(d)(1) as adopted in this final rule would not require a petition and showing for the national stage application to claim the benefit of a prior-filed application in which a request for continued examination has been filed.
The Office recognizes the amount and type of resources needed to implement the changes to §§ 1.78 and 1.114 being adopted in this final rule. The authority to decide petitions under §§ 1.78(d)(1)(vi) and 1.114(g) has been delegated to the Deputy Commissioner for Patent Examination Policy (who may further delegate this authority to officials under the Deputy Commissioner for Patent Examination Policy). The Office is planning to provide sufficient staff to handle the projected number of petitions.
The Office provides the procedure under § 1.181 for applicants to seek review of requirements and objections made by the examiner. If applicant finds that a requirement or an objection made in an Office action is procedurally wrong, applicant should request reconsideration or file a petition under § 1.181 to review the requirement or objection. As an example, when applicant challenges the finality of an Office action as being premature, the applicant should focus on whether the Office action met the appropriate standard for finality. The Office will make every effort to decide the petitions in a timely manner. Applicant, however, should not file a continuing application or a request for continued examination in an effort to address improper procedural requirements. Petitions for supervisory review of Office actions and restriction requirements will continue to be decided by supervisory patent examiners or other managers. Therefore, examiners will not be diverted from the examination process by these petitions. Finally, it should be noted that complaints about an Office action that relate to the merits of patentability of the claims must be addressed in an appeal to the BPAI, and not in a petition under § 1.181 for supervisory review, even if the issues may be phrased in procedural terms.
The changes being adopted in this final rule do not encourage applicants to file multiple applications with patentably indistinct claims. Pursuant to § 1.78(f)(3), the Office may require elimination of the patentably indistinct claims from all but one of the nonprovisional applications. If the patentably indistinct claims are not eliminated from all but one of the applications, the Office will treat each application as having the total of all of the claims (whether in independent or dependent form) for purposes of determining whether an examination support document is required by § 1.75(b).
If applicants need more time to determine the aspect of the invention for which patent protection should be sought, applicant may file a request for deferred examination under § 1.103(d) upon filing the initial application. Applicant should have sufficient time to determine whether to file a divisional application for a non-elected invention because a divisional application is not required under this final rule to be filed during the pendency of the initial application, as long as the copendency requirement of 35 U.S.C. 120 is met. If applicant disagrees with the examiner's rejections, it would be more effective to appeal the rejections than to file a continuing application or a request for continued examination. It should not be burdensome for applicants and their representatives to prosecute diligently by drafting claims that particularly point out and distinctly claim the subject matter which the applicant regards as his or her invention, as well as replies that are fully responsive to the Office actions.
The requirements for seeking third and subsequent continuing applications in this final rule will not have an effect on the vast majority of patent applicants. Approximately 342,600 nonprovisional patent applications (excluding plant and design applications) were filed in the Office in fiscal year 2006. Of those applications, approximately 32,700 were identified as continuation applications, approximately 15,700 were identified as continuation-in-part applications, and approximately 20,600 were identified as divisional applications. In addition, approximately 74,700 requests for
The Office is concerned that practitioners and applicants may indeed be increasingly using continuing applications not to advance prosecution but to compensate for changes in the law of the doctrine of equivalents. Such practices would appear to be likely to contravene § 10.18(b)(2)(i), under which a party presenting a paper to the Office is certifying that the paper is not being presented to cause unnecessary delay or needless increase in the cost of prosecution before the Office. Under
One comment stated that the Office does not have a pendency problem because the average pendency is within zero to three years. One comment argued that the Office provides no studies to show that businesses are being harmed due to delayed prosecution. One comment argued that reducing the backlog is not an appropriate reason for limiting the number of continuing applications and requests for continued examination as a matter of right. Several comments argued that the Office has not identified continuation applications as a major source of the backlog, and therefore, the rule changes would have limited impact on the backlog. One comment pointed out that second and subsequent continued examination filings make up only a small percentage of the total number of continued examination filings. Several comments alleged that the Office's statistics are misleading and the rule changes would only eliminate at most five to ten percent of the continuation applications because the Office should not have included “involuntary” divisional applications and requests for continued examination. One comment argued that the Office provided no statistical data showing the percentage of applicants that “misuse” the continued examination practice as alleged. One comment also suggested that although the Continuing Applications Proposed Rule cites to data regarding the total number of continuations and the consequential burdens imposed on examiners, no analysis is provided as to the grounds for filing these applications and whether those grounds constituted “abuse.”
Several comments argued that there is no indication that the Office has conducted any serious analysis of how or why requests for continued examination and continuation applications are used by applicants. The comments suggested the following: A suitable analysis would involve review of prosecution histories of patents that were issued from a continuation application or a request for continued examination and determination of whether such patents could have issued if the rule changes were in place; and if such patents would not have issued, the Office should explain how such a loss of rights is consistent with the goals of the patent system. A number of comments asserted that the rule changes should be narrowly tailored to only those few applicants who intentionally delay the conclusion of examination rather than adversely impacting all applicants. A number of comments suggested that the Office should conduct a pilot program on the changes and report the results to the public prior to implementing the rule changes.
Several comments further argued that the Office has not identified any study showing that restricting applicants to a single continued examination opportunity would satisfactorily address its problems without causing substantial harm to the protection of innovation or the patent examining process. Several comments alleged that the Office has not sufficiently considered the effect of the rule changes on U.S. applicants and the U.S. economy and suggested that further study is needed because the ability to file multiple continuing applications helps U.S. applicants to protect their inventions against foreign competitors and the rule changes would cause further outsourcing of American manufacturing and loss of American jobs.
Several comments, however, supported the rule changes. The comments provided the following reasons why the rule changes would be appropriate: (1) They would improve
Continued examination filings divert the Office's limited examining resources from the examination of new applications. One of the Office's goals is to focus the limited examining resources on the examination of new applications. The rules do not place an absolute limit on the number of continued examination filings. The Office recognizes there are appropriate reasons for applicant to file a continuing application or request for continued examination. Under this final rule, applicant is permitted to file the initial application, two continuing applications, and a request for continued examination in an application family, without any justification. Thus, applicant has sufficient opportunities to present claims, amendments, arguments, evidence, and prior art during the prosecution of the initial application, two continuing applications, and a request for continued examination. An applicant who considers this to be insufficient may file a third or subsequent continuing application or second or subsequent request for continued examination with a petition and showing as to why the amendment, argument, or evidence sought to be entered could not have been previously submitted. If the amendment, argument, or evidence can be submitted earlier in the prosecution process, applicant is required to do so, rather than delay the prosecution and waste the Office's patent examining resources on a prosecution that is not focused. The examination process is more efficient when the applicant diligently prosecutes the application so that the examiner has all of the relevant information, including amendments, evidence, arguments, and prior art as early as possible. Most applicants who prosecute diligently will not need to file a third or subsequent continuing application. Reviewing the prosecution histories of patents, conducting pilot programs, publishing green papers,
As discussed previously, approximately 342,600 nonprovisional patent applications (excluding plant and design applications) and approximately 74,700 requests for continued examination were filed in the Office in fiscal year 2006. The requirements for seeking a third or subsequent continuation or continuation-in-part application or a second or subsequent request for continued examination would only have affected 2.7 percent of these filings (applications or requests for continued examination). The Office did not include divisional applications in this analysis. The Office included requests for continued examination because when an applicant files a request for continued examination, the examiner reopens the prosecution of the application and conducts another substantive examination similar to a continuation application.
The Office did not place a
The changes adopted in this final rule will not discourage applicants from filing patent applications because the substantive criteria for entitlement to a patent and the basic incentives for a patent (exclusive rights) have not changed. Whether applicants file narrow or broad disclosures, the changes in this final rule will reduce uncertainty with respect to what the applicant is claiming as the invention. The Office also does not expect applicants to delay the filing of an application because any commercial activities and public disclosures that occurred more than one year prior to the filing of an application would still be considered prior art under 35 U.S.C. 102(b). The changes being adopted in this final rule simply require applicants to prosecute their applications diligently and submit amendments, argument, and evidence early in the prosecution of the initial application, two continuing applications and a request for continued examination. As previously discussed, applicant has sufficient time to determine whether to file a divisional application. If applicant needs more time to determine which aspect of the invention to seek protection for, applicant may file a request for deferral of examination under § 1.103(d).
Applicant should also have sufficient opportunities to spread the cost of prosecution. Applicant has a one-year grace period under 35 U.S.C. 102(b) before filing a patent application to test the market or obtain capital resources. Before the end of the one-year grace period, applicant may file a provisional application to obtain a U.S. filing date and wait up to twelve additional months to file an initial nonprovisional application. During this two-year time period, applicants may determine the commercial value of each aspect of the invention before filing the initial nonprovisional application. Applicant may also request a deferral of examination under § 1.103(d) and defer the examination up to three years from the earliest filing date claimed (
The changes being adopted in this final rule do not disproportionately impact small entities. The Office estimates that the change would have required such a petition and showing in only 2.9 percent of the 112,210 small entity applications and requests for continued examination filed in fiscal year 2006. The Office included the number of requests for continued examination into the analysis because requests for continued examination divert the Office's patent examining resources from the examination of new applications and contribute to the increasing backlog of unexamined applications, just like continuation and continuation-in-part applications.
The Office notes that, during fiscal year 2006, it appears that the percentage of small entity continued examination filings that would have required a petition is slightly higher than the percentage of total continued examination filings that would have required a petition (2.9 percent small entity as opposed to 2.7 percent for all applicants). The Office also notes that, during fiscal year 2006, it appears that the percentage of small entity applications that exceeded the five independent claims and twenty-five total claim threshold is also slightly higher than the percentage of total applications that exceeded the five independent claim and twenty-five total claim threshold (24.4 as opposed to 23.7). These percentages are based upon data that is available in the Office's PALM system for applications filed during the most recent fiscal year. The Office does not think these slight differences establish that the changes in this final rule will have a disproportionate economic impact on small entities since these differences are within the margin of error. In addition, the comments provide no reason, and there is no apparent one for why small entity applicants would inherently require more continued examination filings to prosecute the applications to completion or more claims to adequately cover their inventions. Thus, even higher differences in these percentages could easily be explained by the fact that small entity applicants pay only one-half of the fees that other applicants pay for continuing applications, requests for continued examination, and excess claims.
In other situations, however, applicant is not permitted to maintain an application in pending status, without advancing prosecution, for the sole purpose of awaiting developments in similar or parallel technology. As previously discussed, such practice does not advance prosecution before the Office and impairs the ability of the Office to examine new and existing applications.
The Federal Circuit noted in
Further continuation practice is not intended to supplant or permit circumvention of reissue practice. The patent statute at 35 U.S.C. chapter 25 provides for the correction of patents, and specifically provides for the reissue of a patent in those situations in which a “patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of * * * the patentee claiming more or less than he had a right to claim in the patent.”
Applicant may copy claims from another application or patent that is not commonly owned for the purposes of provoking an interference, without triggering § 1.78(f)(3). Section 1.78(f)(3) applies only to multiple commonly owned applications that contain patentably indistinct claims. Section 1.78(f)(3) is a restatement of former § 1.78(b), which previously gave the Office the same discretion to require elimination of patentably indistinct claims in all but one of the pending nonprovisional applications. The Office is not preventing applicants from providing such patentably indistinct claims in a single application, or in multiple applications if applicant submits a terminal disclaimer in accordance with § 1.321(c) and explains why submitting patentably indistinct claims in separate applications is necessary.
A time limit requirement for filing continuing applications and requests for continued examination would not be desirable because it would encourage applicants to file an unlimited number of continued examination filings before the time period expires. Furthermore, a time limit would preclude an applicant from filing appropriate continued examination filings after the time period expires. Additionally, this suggested strategy would also disproportionately impact applications in certain technologies (
Requiring a patentability report or a prior art search in a continuation application would not increase efficiency in the examination of the initial application. If applicant submits the information earlier in the initial application, applicant most likely would not need to file a third or subsequent continuing application because the examiner would have all of the relevant information to make the patentability determination in the initial application.
The Office recognizes there are appropriate reasons for filing continued examination filings. As a result, the Office did not place an absolute limit on the number of continued examination filings. If the prior-filed application was subject to a requirement for restriction, applicant may file a divisional application directed to a non-elected invention that has not been examined. The divisional application need not be filed during the pendency of the application subject to a requirement for restriction, as long as the copendency requirement of 35 U.S.C. 120 is met.
The changes to §§ 1.78(d) and 1.114(g) adopted in this final rule apply to all applicants, regardless of whether they are individuals, small businesses or large multinational corporations. These changes do not disproportionately affect individuals and small businesses. Applicants who seek to file a third or subsequent continuation or continuation-in-part application or a second or subsequent request for continued examination are required to file a petition under § 1.78(d)(1)(vi) or 1.114(g) regardless of their status. The requirements for seeking a third or subsequent continuation or continuation-in-part application or a second or subsequent request for continued examination would only have affected 2.9 percent of the applications or requests for continued examination filed by a small entity in fiscal year 2006. The Office notes that a vast majority of applicants do not file more than two continuation or continuation-in-part applications and more than one request for continued examination in an application family. Therefore, the $400 petition fee and the showing requirement will impact only a small minority of applicants.
When applicant files a request for continued examination, the prosecution of the application is reopened and the examiner conducts another substantive examination on the claims present in the application. Consequently, similar to continuation or continuation-in-part applications, requests for continued examination divert the Office's patent examining resources from the examination of new applications and contribute to the backlog of unexamined applications. The request for continued examination practice should not be used as a substitute for the appeal, petition or reissue process. If the applicant disagrees with the examiner's rejections, then the applicant should pursue the appeal process as a means to more efficiently resolve the disagreement.
In addition, under the Office's new optional streamlined continuation procedure, an applicant may request that a continuation application be placed on an examiner's amended (Regular Amended) docket (see discussions of §§ 1.78(d)(1)(i) and 1.114) which would be picked up for action faster than an application placed on the examiner's new continuing application (New Special) docket. By requesting that the two continuation applications permitted under § 1.78(d)(1)(i) be treated under the optional streamlined continuation application procedure, an applicant may obtain the benefits of faster processing similar to having a second and third request for continued examination without a petition under § 1.114(g).
Applicants and practitioners have a duty to refrain from submitting an application or other filing to cause unnecessary delay or needless increase in the cost of prosecution before the Office.
Finally, as discussed further in this final rule, the Office may grant relief “in an extraordinary situation” in which “justice requires” even if the situation does not technically meet the standard that the amendment, argument or evidence sought to be entered could not have been previously submitted.
Other than the situations provided in §§ 1.78(d)(1)(iv) and (d)(1)(v), this final rule permits that a third or subsequent continuing application or any second or subsequent request for continued examination to be filed with a petition and a showing as to why the amendment, argument, or evidence sought to be entered could not have been previously submitted. Sections 1.78(d)(1)(iv) and (d)(1)(v) provide that applicant may file “one more” continuation or continuation-in-part application without a petition and showing in certain situations. Specifically, § 1.78(d)(1)(iv) pertains to the situation where an applicant files a bypass continuation or continuation-in-part application rather than paying the basic national fee (entering the national stage) in an international application in which a Demand for international preliminary examination (PCT Article 31) has not been filed, and the international application does not claim the benefit of any other nonprovisional application or international application designating the United States of America. See the discussion of § 1.78(d)(1)(iv). Section 1.78(d)(1)(v) pertains to the situation where an applicant files a continuation or continuation-in-part application to correct informalities rather than completing an application for examination under § 1.53.
The Office will decide petitions under §§ 1.78(d)(1)(vi) and 1.114(g) based on their substantive argument and the facts in the record and apply the standard in a consistent manner. There are no situations that will result in a
With respect to the first factor (whether applicant should be filing an appeal or a petition under § 1.181 rather than a continuing application or request for continued examination), if the showing under § 1.78(d)(1)(vi) or 1.114(g) relates to an issue that should be petitioned or appealed, the Office will likely not grant the petition for an additional continuing application or request for continued examination. Applicant should address any issues pertaining to inadequate examination by seeking review via a petition under § 1.181 or an appeal, rather than by filing a continuing application or request for continued examination.
If the disagreement between the examiner and applicant is procedural in nature (
With respect to the second factor (the number of applications filed in parallel or serially with substantially identical disclosures), the higher the number of applications with identical or substantially identical disclosures or the higher the number of applications in the chain of prior-filed copending applications, the more opportunities applicant had to present the amendment, argument or evidence. Accordingly, a petition under § 1.78(d)(1)(vi) or 1.114(g) is less likely to be granted.
With respect to the third factor (whether the evidence, amendments, or arguments are being submitted with reasonable diligence), the Office will focus on whether the evidence or data submitted with the petition to meet the showing under § 1.78(d)(1)(vi) or 1.114(g) was presented in a reasonably diligent manner. This will take into account the condition of the application at the time of examination (
Additionally, a disclaimer of a terminal portion of the term of an individual claim, or individual claims, is not allowed by statute. 35 U.S.C. 253 provides that “any patentee or applicant may disclaim or dedicate to the public * * * any terminal part of the term, of the
Under 35 U.S.C. 251, applicant may file a reissue application to correct an error in the patent which was made without any deceptive intent, where, as a result of the error, the patent is deemed wholly or partly inoperative or invalid.
The proposed IDS changes (if adopted) would permit applicant to submit an IDS after a first Office action on the merits, but before the mailing date of a notice of allowability or a notice of allowance under § 1.311, if applicant files the IDS with either: (1) The certification under § 1.97(e)(1) and a copy of the foreign search report, or (2) an explanation under proposed § 1.98(a)(3)(iv) as to why each reference is being cited, and a non-cumulative description under proposed § 1.98(a)(3)(v) as to how each reference is not cumulative of any other reference cited. Applicant would also be permitted to submit an IDS after allowance but before the payment of the issue fee, if applicant files the IDS with a patentability justification under proposed § 1.98(a)(3)(vi), including any appropriate amendments to the claims.
Applicant would also be permitted to submit an IDS after the payment of the issue fee if applicant files a petition to withdraw from issue pursuant to § 1.313(c)(1), the patentability justification under proposed § 1.98(a)(3)(vi)(B), and an amendment to the claims. Prior to the effective date of the final rule of the changes to IDS
The Office recognizes that, in certain unpredictable arts (including, for example, biotechnology and certain pharmaceuticals), there may be a need for research or testing to obtain additional evidence or data to obviate a rejection for lack of utility under 35 U.S.C. 101 (and consequently for lack of enablement under 35 U.S.C. 112, ¶ 1). The case law, however, does not shift the burden to the applicant to provide rebuttal evidence or data concerning the invention's utility until the examiner “provides evidence showing that one of ordinary skill in the art would reasonably doubt the asserted utility.”
Nevertheless, in the situation in which there is a rejection such as lack of utility under 35 U.S.C. 101 (and/or consequently for lack of enablement under 35 U.S.C. 112, ¶ 1) in an application claiming subject matter in such an unpredictable art, the Office will likely grant a petition under § 1.78(d)(1)(vi) or 1.114(f) if, in a continuing application or request for
Rule 60(b)(6), however, does provide for relief on the “catchall” basis of “any other reason justifying relief from the operation of the judgment.”
Several comments requested clarification regarding the procedures for appealing the denial of a petition under § 1.78(d)(1)(vi) or 1.114(g). Specifically, the comments questioned whether a denial of a petition should be appealed to the BPAI or petitioned to the Director. The comment further requested that the Office publish the decisions to encourage consistency and understanding of the standard. One comment sought clarification on the remedies available to an applicant if the Office denies a petition for an additional continuing application or request for continued examination when the examiner introduced new prior art in a final Office action. One comment questioned whether petitions under §§ 1.78(d)(1) and 1.114 could be decided objectively due to the Office's desire to dramatically curtail continuing applications and requests for continued examination.
The Deputy Commissioner for Patent Examination Policy and officials under the Deputy Commissioner for Patent Examination Policy will decide petitions under §§ 1.78(d)(1)(vi) and 1.114(g) on their merits and the facts in the record and apply the standard in a consistent manner. The officials who will decide petitions under §§ 1.78(d)(1)(vi) and 1.114(g) are professionals who perform their duties within the framework of the law, rules, and examination practice. The Office only desires to curtail continuing applications and requests for continued examination in situations in which the continued examination filing is for the purpose of presenting an amendment, argument or evidence that could have been, but was not, submitted earlier. The Office recognizes the need for continued examination filings for presenting an amendment, argument or evidence that truly could not have been submitted earlier.
In the situation where applicant already filed a request for continued examination in the application family, a better alternative is for applicant to file the request for continued examination with a petition under § 1.114(g), and then if the petition is not decided prior to the expiration of the statutory period for reply to the final Office action, applicant may file a notice of appeal within the period for reply (and petition for any extension of this period under § 1.136(a) or (b), if necessary) to avoid abandonment of the application. If the Office subsequently dismisses the petition, the request for continued examination will be treated as an improper request for continued examination. However, the request for continued examination will not be treated as a request to withdraw the appeal because the request for continued examination was filed before the notice of appeal (
Section 1.78(f)(2) requires applicant to resolve the double patenting issues early in the prosecution by either: (1) Filing a terminal disclaimer and an explanation as to why the multiple applications containing patentably indistinct claims are necessary; or (2) explaining how the application contains only claims that are patentably distinct from the claims of other related applications. Therefore, with the benefit of § 1.78(f)(2), double patenting issues could be resolved more expeditiously before the first Office action on the merits, thus saving the examiner time by eliminating the need to search for related applications, analyze the potentially conflicting claims, and make the rejection. Merely identifying the other applications under § 1.78(f)(1) would not result in these benefits.
If the criteria set forth in § 1.78(f)(2) are met, the rebuttable presumption would apply regardless of whether a few of the claims are patentably distinct from the claims in the other related applications because § 1.78(f)(2) provides that “a rebuttable presumption shall exist that a nonprovisional application contains at least one claim that is not patentably distinct * * * .” To rebut this presumption, applicant must explain how the application contains only claims that are patentably distinct. Merely explaining that some of the claims are patentably distinct would not be sufficient to rebut this presumption.
None of the criteria under § 1.78(f)(1) for identifying certain related applications has anything to do with claims that could be filed in the initial application as suggested by the comment. Instead, § 1.78(f)(1) merely requires identification of applications that meet the identified criteria. Accordingly, there is no such burden placed on applicants.
It is envisioned that many applicants will be proactive by filing fewer applications containing patentably indistinct claims, unless there is a good and sufficient reason to do so. By minimizing such filings, applicants will reduce the Office's burden of examining multiple applications containing patentably indistinct claims. Applicants are in a far better position than the Office to identify related applications pursuant to § 1.78(f)(1). The Office's searchable database is not a sufficient substitute for applicant's knowledge of related applications, particularly in view of the fact that ownership identification is not required when an application is filed, and the fact that applications are often filed without executed declarations that correctly name all of the inventors.
The terminal disclaimer statistic cited in the comment covers all granted patents. It does not specifically relate to the limited situation covered by § 1.78(f)(2). Furthermore, double patenting issues must be considered in every application where the applicant filed another related application, not only those applications in which applicant filed a terminal disclaimer. For example, the statistic cited in the comment does not include applications in which the applicants canceled the patentably indistinct claims.
The burden on the examiner to evaluate arguments presented by applicant is less compared to the burden of independently identifying and reviewing each application that meets the criteria set forth in § 1.78(f)(2). Furthermore, the issues would be resolved earlier in the prosecution. Without the presumption of at least one patentably indistinct claim and applicant's assistance under § 1.78(f)(2), it is more difficult to resolve potential double patenting situations.
Without the rebuttable presumption of § 1.78(f)(2), it would be harder for the examiner to identify and resolve the potential double patenting situation. In addition, if an Office action in an application to which the rebuttable presumption applies must include a double patenting rejection, it is because the applicant has not helped to resolve the double patenting situation pursuant to § 1.78(f)(2). Accordingly, a double patenting rejection made for the first time in a second or subsequent Office action will not preclude the Office action from being made final (assuming that the conditions for making a second or subsequent action final are otherwise met). Thus, applicants' responsibility to take the initiative under § 1.78(f)(2) to resolve double patenting situations will expedite examination, even if this responsibility does not result in the prompt resolution of the double patenting situation. Further, the Office envisions that many applicants will file fewer applications containing patentably indistinct claims in light of § 1.78(f)(2) unless there is a good and sufficient reason to do so. Therefore, the Office expects that the requirements of § 1.78(f)(2) will not increase examination pendency or add to the Office backlog.
The BPAI's jurisdiction and appeal procedure in general has not been changed as a result of this final rule. As before, applicant may appeal the decision of the examiner to the BPAI under 35 U.S.C. 134 and § 41.31 if at least one claim has been twice rejected (
A number of comments, however, argued in a variety of terms that the “representative claims” examination approach would lead to piecemeal examination and prolonged examination, would require additional searching when features from non-designated dependent claims are added to designated dependent or independent claims, and would lead to additional filings, increased appeals, and less thorough examination. Several comments suggested that the number of claims examined should not be limited
Several comments argued that since excess claim fees have presumably been determined based on the resources necessary to carry out search and examination of all of the claims, it is not appropriate for the Office to neglect to fully search and examine the entire application for which all fees have been paid. One comment stated that there is no basis for limiting the consideration of a dependent claim during examination because under 35 U.S.C. 112, ¶ 4, a dependent claim is treated as a claim that incorporates all the limitations of the preceding claims.
A number of comments argued that the “representative claims” examination approach may be appropriate in other proceedings (such as before the BPAI) or even during examination, but not before first Office action on the merits. One comment argued that statistical data from the appeal stage is misleading because there are fewer issues during an appeal than during prosecution of an application before the examiner. Several comments stated that the BPAI would be forced to perform examination on the merits of the non-representative claims.
A number of comments suggested that the Office should address excessive claiming concerns in a simple and straightforward manner by limiting the number of claims permitted and fully examined under the basic fee structure to, for example, six independent and thirty total numbered claims, and allowing multiple dependent claims that depend on other multiple dependent claims. Several comments suggested that the Office specify that excess claims over a certain number will only be examined if accompanied by an independent search report, rather than burdening all applicants with the requirement to designate claims. Several comments suggested that instead of representative claims, applicants should be allowed to select claims that stand or fall together.
Finally, a number of comments also raised implementation issues, requested clarification concerning implementation issues, or provided suggestions concerning the implementation of the “representative claims” examination approach.
Although, the “representative claims” examination approach is not being adopted, the Office disagrees that such an approach amounts to piecemeal examination or that it would be less efficient than the current examination process. Under such an approach, the Office would have examined a claim before applicant could seek review of any rejection of the claim on appeal, regardless of whether the claim was designated or non-designated under the “representative claims” examination approach.
Regarding escalating fees, the Office previously proposed a system of escalating fees and it was overwhelmingly opposed by user groups. The Office has also determined that charging higher fees for large numbers of claims would likely still not result in the desired increase in quality since many applicants would simply pay the higher fees. Furthermore, claim fees are set by statute, not the Office. As discussed previously, 35 U.S.C. 112, ¶ 5, prohibits multiple dependent claims depending on other multiple dependent claims.
The Office notes that, during fiscal year 2006, the percentage of small entity applications that exceeded the five independent claim and twenty-five total claim threshold appeared slightly higher than the percentage of total applications that exceeded the five independent claim and twenty-five total claim threshold (24.4 percent as opposed to 23.7 percent). The Office does not consider this slight differential as establishing that the changes in this final rule have a disproportionate economic impact on small entities. While it is possible to engage in a mathematical exercise to exaggerate the significance of any slight differential, these percentages are based upon data that is available in the Office's PALM system for applications filed during the most recent fiscal year, and this slight differential is not sufficient to establish that the changes in this final rule have a disproportionate economic impact on small entities. In addition, there is no apparent reason why small entity applicants would inherently require more claims to adequately cover their inventions. Thus, even higher differences in these percentages could easily be explained by the fact that small entity applicants pay only one-half of the fees that other applicants pay for excess claims. Moreover, the five independent claim and twenty-five total claim threshold adopted in this final rule has a smaller differential than other alternatives suggested in the comments. For example, in fiscal year 2006: (1) 17.1 percent of small entity applicants exceeded a six independent claim and thirty total claim threshold where only 15.7 percent of all applications exceeded a six independent claim and thirty total claim threshold; (2) 10.3 percent of small entity applicants exceeded a six independent claim and forty total claim threshold where only 9.2 percent of all applications exceeded a six independent claim and forty total claim threshold; and (3) 5.0 percent of small entity applicants exceeded a ten independent claim and fifty total claim threshold where only 4.1 percent of all applications exceeded a ten independent claim and fifty total claim threshold.
The remaining explanations (post-
Section 1.75 does not limit the number of claims that applicant can present in an application. Section 1.75(b)(1) permits an applicant to present five independent claims and twenty-five total claims for examination without the need for an examination support document. An applicant who considers five independent claims or twenty-five total claims to be insufficient may present more than five independent claims or twenty-five total claims by submitting an examination support document under § 1.265 before the first Office action on the merits of an application.
Several comments argued that the proposed rule relating to determining the presence of separate claims in a Markush grouping will slow down prosecution, in part due to an increased number of petitions to review.
The Office is also clarifying second action final practice with respect to using alternative language (
This final rule adopts the proposed changes to § 1.75(b)(2) to provide that a claim that refers to a claim of a different statutory class of invention will also be treated as an independent claim for fee
Several comments stated that the rules affect the vast majority of applications that contain an ordinary number of claims, rather than targeting the small number of problem applications with excessive claims. One comment stated that it was unclear why all applicants should be limited to representative claims when approximately ninety percent of all non-provisional applications currently filed contain six or fewer independent claims and forty or fewer total claims. The comment argued that examining forty or fewer claims does not appear to constitute an undue examination burden. One comment suggested that the rule changes should be more narrowly tailored with respect to the technology areas where the inventions are not capable of being adequately protected using only twenty claims. One comment inquired about the need for establishing a separate procedure for examination of claims if only 1.2 percent of applications fall within the category of excess claims. Several comments argued that there is a lack of statistical analysis relating to the number of applications containing more than ten total claims.
The Office received a significant number of comments suggesting a threshold of six independent claims and thirty total claims. The Office also received a number of comments suggesting independent claim thresholds ranging from three to ten and total claim thresholds ranging from twenty to sixty (or no limit). The comments, however, provided no justification for deeming any particular independent and total claim threshold to be the ideal threshold or even superior to any other possible independent and total claim threshold. The Office arrived at the five independent claim and twenty-five total claim threshold primarily for the following reasons.
First, a significant number of comments suggested a threshold of six independent claims and thirty total claims, but did not suggest such a threshold if it were not considered sufficient to provide adequate patent protection for an invention.
Second, the majority of applications contain no more than five independent claims and no more than twenty-five total claims. Specifically, over 92 percent of the applications filed in fiscal year 2006 contained no more than five independent claims, and over 78 percent of the applications filed in fiscal year 2006 contained no more than twenty-five total claims. These figures do not take into account that many applications contained claims to more than one distinct invention, and the changes in this final rule permit an applicant to suggest a restriction requirement and elect an invention to which there are drawn no more than five independent and twenty-five total claims. In addition, the majority of applications in every Technology Center contain five or fewer independent claims and twenty-five or fewer total claims. Therefore, there is no support for the position that there are technology areas that are just not capable of being adequately protected with five or fewer independent claims and twenty-five or fewer total claims. Finally, the Office notes that the most common number of independent claims presented in an application is three, and the most common number of total claims presented in an application is twenty.
Third, an applicant may present up to fifteen independent claims and seventy-five total claims via an initial application and two continuation or continuation-in-part applications that are prosecuted serially without providing either an examination support document or a justification as discussed previously. Only about five percent of the applications filed in fiscal year 2006 were in an application family that contained more than fifteen independent claims or more than seventy-five total claims.
Finally, this final rule does not preclude an applicant from presenting more than five independent claims or more than twenty-five total claims. Rather, an applicant may present more than five independent claims or more than twenty-five total claims in an application with an examination support document in compliance with § 1.265 if the applicant considers it necessary or desirable in the particular application. Specifically, this final rule requires applicant to file an examination support document in compliance with § 1.265 before the issuance of a first Office action on the merits of an application that contains more than five independent claims or twenty-five total claims, counting all of the claims in any other copending application having a patentably indistinct claim. If an examination support document in compliance with § 1.265 is not filed before the issuance of a first Office action on the merits of the application, the application may not contain or be amended to contain more than five independent claims or more than twenty-five total claims.
The refusal to accept a suggested requirement for restriction may result in the examiner making a different restriction requirement or making no restriction requirement. If the examiner makes a restriction requirement (different from the suggested restriction requirement), the applicant will be notified (a notice under § 1.75(b)(3) coupled with a restriction requirement) and given a time period within which the applicant must make an election. In addition, if there are more than five independent claims or more than twenty-five total claims to the elected invention and/or species, the applicant must also: (1) Amend the application such that it contains no more than five independent claims and no more than twenty-five total claims to the elected invention and/or species; or (2) file an examination support document in compliance with § 1.265 that covers each claim (whether in independent or dependent form) to the elected invention and/or species.
The Office was given feedback that the costs for preparing an examination support document could be anywhere from $5,000 to $100,000. No data to support the alleged costs were submitted. Contrary to some of the comments, the Office is not requiring a validity search and opinion. The pre-filing preparation of an application that contains more than five independent claims or more than twenty-five total claims should involve obtaining a patent novelty search, analysis and opinion. Preparation of an examination support document requires that this information be reduced to writing in a particular format.
The Office commissioned a detailed analysis of the final rule's impacts on small entities. This analysis indicated that the cost of an examination support document is likely to be in the range of $2,563 to $13,121. This analysis also concludes that this final rule is not expected to result in a significant economic impact on a substantial number of small entities. This final rule does provide an exemption from the requirement (§ 1.265(a)(3)) that an examination support document must, for each reference cited in the listing of the references required under § 1.265(a)(2), include an identification of all the limitations of each of the claims that are disclosed by the reference that applies to applications by a small entity as defined by the Regulatory Flexibility Act (5 U.S.C. 601
Furthermore, an examination support document in compliance with § 1.265 is required under § 1.75(b) only when an applicant presents more than five independent claims or more than twenty-five total claims. It is not required in applications that contain five or fewer independent claims and twenty-five or fewer total claims. Thus, the majority of applications would not need an examination support document since a majority of applications contain five or fewer independent claims and twenty-five or fewer total claims.
In addition, the accelerated examination procedure was recently revised. The accelerated examination procedure has more requirements than are contained in § 1.265.
The accelerated examination procedure has more requirements than are contained in § 1.265.
Finally, a statement that applicant has searched on the Office's database and the resources available to examiners would not be sufficient. A mere statement that the applicant has searched on the Office's database and the resources available to examiners would not identify the field of search, the date of the search, and, for database searches, the search logic or chemical structure or sequence used as a query, the name of the file or files searched and the database service, and the date of the search.
The changes in this final rule do not force an applicant to carry any affirmative duty that may expose him or her to a greater risk of inequitable conduct. The submission of an examination support document to assist the Office in gathering information for use during examination does not expose an applicant to a greater risk of inequitable conduct. Inequitable conduct is a doctrine based, in part, upon “intent to deceive.”
The Office has reduced the requirements for an examination support document under § 1.265 as adopted in this final rule. The Office proposed to require applicants to provide a detailed explanation of how each independent and dependent claim was patentable over the cited art (proposed § 1.261(a)(4)). Section 1.265(a)(4) as adopted in this final rule requires applicants to provide the same explanation for the independent claims only. The Office also proposed to require applicants to provide statements of utility of the invention as defined in each independent claim (proposed § 1.261(a)(5)). Section 1.265 as adopted in this final rule does not include such a requirement. These changes reduce the requirements for applicants who
Section 1.265(a)(2) requires a listing of references deemed most closely related to the subject matter of each of the claims (whether in independent or dependent form). As discussed previously, the references that would be most closely related to the subject matter of each of the claims include: (1) A reference that discloses the greatest number of limitations in an independent claim; (2) a reference that discloses a limitation of an independent claim that is not shown in any other reference in the listing of references required under § 1.265(a)(2); and (3) a reference that discloses a limitation of a dependent claim that is not shown in any other reference in the listing of references required under § 1.265(a)(2). References that are only relevant to the general subject matter of the claims would not be most closely related as long as there are other references that are more closely related to the subject matter of the claims. Applicant may not exclude a reference from an examination support document simply because the reference was not the result of the preexamination search provided for in § 1.265(a)(1). References, from whatever source, that have been brought to the applicant's attention must be considered in determining the references most closely related to the subject matter of each of the claims. Accordingly, if applicant merely cites generic references and does not cite the most pertinent art (including applicant's own work), then the examination support document would most likely not be compliant with § 1.265. Simply because the Office knows of a closer prior art reference (that is not applicant's own work) than the prior art cited by the applicant is generally not enough to hold a preexamination search insufficient.
An examination support document could be deemed insufficient based on an insufficient search. If the preexamination search or examination support document is deemed insufficient, applicant will be given only a two-month time period that is not extendable under § 1.136(a) in which to file a corrected examination support document or amend the application to contain five or fewer independent claims and twenty-five or fewer total claims to avoid abandonment of the application.
The regulations at issue in this final rule concern application processing
The substantive right at issue during the patent examination process involves whether the applicant has met the conditions and requirements under title 35, United States Code, to be entitled to a patent, rather than the ability to file and maintain an unlimited number of continuing applications or requests for continued examination or the ability to refrain from obtaining and providing information pertinent to the examination of the application to the Office.
The changes to continuing application practice adopted in this final rule do not set a
The changes to the examination of claims practice adopted in this final rule do not prevent an applicant from presenting as many claims as are considered necessary or desirable to protect the full scope of the invention. The changes to the examination of claims practice adopted in this final rule simply provide that if an applicant exceeds or contemplates exceeding a specified threshold (five independent claims or twenty-five total claims), the applicant can provide for that eventuality by submitting additional information to the Office in an examination support document in order to facilitate effective examination of the application. The submission of an examination support document does not change the substantive criteria applied during examination (
The patentably indistinct claims provisions do not affect applicant's patent rights because once the required explanation of patentable indistinctness has been provided, the claimed invention is examined on the merits and patentability is determined by the Office. The requirement that applicant show that claims are patentably distinct up front is simply a tool to focus and consolidate the examination of multiple applications.
None of the statutory provisions related to continuing applications cited by the comment provide that an applicant may file an unlimited number of continuing applications. 35 U.S.C. 120 simply provides that an applicant may claim the benefit of the filing date of a prior-filed application provided that certain conditions are satisfied. 35 U.S.C. 121 provides that if the Director requires that an application containing claims to two or more independent and distinct inventions be restricted to one of the inventions and a non-elected invention is made the subject of a divisional application, the applicant in the divisional application may claim the benefit of the filing date of prior-filed
Since 35 U.S.C. 120, 121 and 365(c) all hinge upon 35 U.S.C. 120, the response focuses on that provision. 35 U.S.C. 120 provides that:
An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States, or as provided by section 363 of this title, which is filed by an inventor or inventors named in the previously filed application shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application. No application shall be entitled to the benefit of an earlier filed application under this section unless an amendment containing the specific reference to the earlier filed application is submitted at such time during the pendency of the application as required by the Director. The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this section. The Director may establish procedures, including the payment of a surcharge, to accept an unintentionally delayed submission of an amendment under this section.
35 U.S.C. 120 has been revised significantly since its codification as part of the 1952 Patent Act. 35 U.S.C. 120 as codified in the 1952 Patent Act provided that: “[a]n application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application.” 35 U.S.C. 120 (1952). 35 U.S.C. 120 was amended in 1975 to add “or as provided by section 363 of this title” to provide for claims under 35 U.S.C. 120 to the benefit of an international application filed under the PCT (
No application shall be entitled to the benefit of an earlier filed application under this section unless an amendment containing the specific reference to the earlier filed application is submitted at such time during the pendency of the application as required by the Director. The Director may consider the failure to submit such an amendment within that time period as a waiver of any benefit under this section. The Director may establish procedures, including the payment of a surcharge, to accept an unintentionally delayed submission of an amendment under this section.
Turning to the legislative history of the 1952 Patent Act, it does not mention whether an applicant may file an unlimited number of continuing applications. The Senate Report simply documents that “[s]ections 120 and 121 express in the statute certain matters which exist in the law today but which had not before been written into the statute, and in so doing make some minor changes in concepts involved.” S. Rep. No. 1979, at 2400 (June 27, 1952). The House Report contains basically the same description for 35 U.S.C. 120. The testimony from hearings before a Subcommittee of the Committee on the Judiciary, House of Representatives, for the 82nd Congress, held on June 13, 14, and 15, 1951, contains the same description for 35 U.S.C. 120 and little else of substance. For example, P.J. Federico testified: “Sections 120 and 121 express in the statute certain things which exist in the law today that have not been written into the statute, and in so doing make some changes in the concepts involved.” Patent Law Codification and Revision, 82d Cong. 39 (June 13, 1951) (statement of P.J. Federico, Examiner-In-Chief, United States Patent Office). Additionally, as noted in the congressional record for the 1952 Patent Act, 35 U.S.C. 120 codified existing patent practice. 98 Cong. Rec. 7, 9323 (June 28, 1952 to July 7, 1952) (statements of Senators Saltonstall and McCarran). In particular, “[t]he provisions set out in section 120 giving the applicant the benefit of the date of an earlier application by him for the same invention constitute a restatement of the former practice which was not, however, spelled out in the former law.” Charles L. Zinn, Commentary on New Title 35, U.S. Code “Patents” 2515.
Secondary sources providing information about 35 U.S.C. 120 also do not offer guidance with respect to whether an applicant may file an unlimited number of continuing applications. The 1952 Patent Act was drafted by: (1) P.J. Federico, Examiner-In-Chief of the Patent Office; (2) Giles S. Rich, then an attorney of some twenty years representing the National Council of Patent Law Associations; (3) Paul Rose, chairman of the laws and rules committee of the American Patent Law Association; and (4) Henry Ashton, a representative of the coordinating committee on revision and amendment of the patent laws of the National Council of Patent Law Associations.
Federico explained that 35 U.S.C. 120 was “not specified in the old statute but was developed by decisions of the courts beginning with a decision of the Supreme Court of 1864,
Although Federico's Commentary did not expressly mention any limits or conditions on an applicant's ability to file a continuation, it also did not state that the drafters contemplated allowing an applicant to file an unlimited number of continuation applications. Thus, there is nothing which indicates that the drafters intended to permit an applicant to file an unlimited number of continuing applications. What is more, Federico described examples of situations where continuations were used before the codification of the 1952 Patent Act:
Continuing applications are utilized in a number of different situations; for example, in the case of a requirement to restrict an application to a single invention a second application might be filed for the invention excluded from the the [sic] first application as explained in connection with the next section of the law, or a second application might be filed for a separable invention even though no requirement was made. A continuing application with the disclosure the same as a first application might sometimes be filed for procedural reasons with the first application thereafter being abandoned. And a continuing application with added subject matter may sometimes be filed when the inventor has additional details relating to the invention which he wishes to disclose in the application; in such cases the second application would be entitled to the date of the first application only as to the common subject matter.
Federico's list, albeit not exhaustive, suggests that patent practitioners used continuing applications in more limited circumstances before the 1952 Patent Act than today. His first example focuses on the divisional-type situation where a continuing (divisional) application is pursued to protect a second invention as a result of a restriction in the initial application. His third example focuses on a continuation-in-part situation where a continuing application is filed to enable an applicant to add subject matter to the application. Only his second example contemplates anything like current continuation practice where a continuing application is filed to pursue protection for an invention disclosed in the initial application. Federico nevertheless explained that the first application to which the continuing application claims priority is abandoned after the continuation is filed.
Federico did not include the then-rare situation in which the first application issued as a patent and the continuing application was filed to pursue further protection for the invention of the patent on the first application. At the time of the 1952 Patent Act the double patenting doctrine did not permit a patentee to obtain more than one patent on patentably indistinct subject matter.
Moreover, both before and long after the 1952 Patent Act applicants did not file long strings of continuation applications as is often done today. Indeed, the Board of Patent Appeals (Board) in
Following the enactment of the 1952 Patent Act, case law has specifically addressed the imposition of limits or conditions on continuation practice in the two cases cited by the comments (
The changes adopted in this final rule, however, do not set a limit on the applicant's ability to claim the benefit of a prior-filed application regardless of the pendency period, nor do they set a
The action of the board is akin to a retroactive rule change which may have the effect of divesting applicants of valuable rights to which, but for the change in Patent
Although the Court of Customs and Patent Appeals in a “post script” mentioned congressional resolution to remedy the abuses associated with continuation applications in both
More recent case law demonstrates that an applicant does not have the right to file an endless stream of continuing applications.
By amending the procedures under which an applicant may file continuation applications, the Office is seeking to encourage the prompt presentation of amendment, argument and evidence in patent prosecution. To do so, the Office has determined that it must, at some point, change the continuing application practice that has facilitated the past dilatory presentation of amendment, argument and evidence that could have been presented earlier. The changes adopted in this final rule allow an applicant the flexibility to choose between filing a continuing application and filing an appeal, but do not permit an applicant to persist indefinitely before the examiner rather than seek an appeal. Therefore, this final rule does not preclude an applicant from obtaining a patent on an invention when requirements of title 35, United States Code, are satisfied. As explained in the Continuing Applications Proposed Rule, the changes to § 1.78 will “make the exchange between examiners and applicants more efficient, get claims to issue faster, and improve the quality of issued patents.”
Like the statutory provisions for continuing applications, the statutory provision for requests for continued examination, namely, 35 U.S.C. 132(b), does not provide that an applicant may file an unlimited number of requests for continued examination. As discussed previously, the provisions of 35 U.S.C. 132(b) were added relatively recently by section 4403 of the AIPA.
The Director shall prescribe regulations to provide for the continued examination of applications for patent at the request of the applicant. The Director may establish appropriate fees for such continued examination and shall provide a 50 percent reduction in such fees for small entities that qualify for reduced fees under section 41(h)(1) of this title.
The AIPA is title IV of the Intellectual Property and Communications Omnibus Reform Act of 1999 (S. 1948), and was incorporated and enacted into law as part of Public Law 106-113. The Conference Report for H.R. 3194, 106th Cong., 1st. Sess. (1999), which resulted in Public Law 106-113, does not contain any discussion (other than the incorporated language) of S. 1948.
Section 4403 amends section 132 of the Patent Act to permit an applicant to request that an examiner continue the examination of an application following a notice of “final” rejection by the examiner. New section 132(a) authorizes the Director to prescribe regulations for the continued examination of an application notwithstanding a final rejection. The Director may also establish appropriate fees for continued examination proceedings, and shall provide a 50% fee reduction for small entities which qualify for such treatment under section 41(h)(1) of the Patent Act.
35 U.S.C. 132(b) does not specify the conditions and requirements for continued examination under 35 U.S.C. 132(b), but rather authorizes the Director to “prescribe regulations to provide for the continued examination of applications for patent at the request of the applicant.”
Additionally, the provisions of § 1.78, which concern continuing applications, govern proceedings in the Office because they set forth the process by which an applicant can file a continuing application.
The Office is responsible for the granting and issuing of patents and has the authority and responsibility to establish regulations that govern the conduct of proceedings in the Office and facilitate and expedite the processing of patent applications.
Furthermore, this final rule does not stifle inventors' rights because it provides inventors with ample opportunity to present their claims and secure protection for their inventions. In fact, this final rule encourages inventors to fully disclose and fully claim their inventions promptly, on first filing. Applicants may file two continuation or continuation-in-part applications and a
The possibility that, without justification, a string of continuing applications could last as long as two decades has created inefficiencies and opportunities for the delay of proceedings before the Office that, as a practical matter, can only be addressed by general rule making. Requiring that, at a given stage in the continuing application process, an applicant must make an affirmative showing of need is necessary for the Office to assure an effective examination process. Relying only on a case-by-case approach to address the most egregious cases of abuse would not be sufficient when continued examination filings (other than divisional applications) have grown from less than twelve percent of total filings in 1980 to over twenty-nine percent of total filings in fiscal year 2006. The Federal Circuit specifically indicated in
This final rule also permits an applicant to file an application that is in substance both a divisional application and a continuation-in-part application. Specifically, § 1.78(d)(1)(i) as adopted in this final rule permits an applicant to file an application directed both to an invention that was disclosed and claimed, but not elected for examination, in a prior-filed application, and an invention or subject matter that was not described or claimed in the prior-filed application. Such an application would be subject to the conditions applicable to other applications that disclose subject matter that was not disclosed in the prior-filed application (
Thus, the changes adopted in this final rule do not limit the number of claims that will be examined in an application because an applicant is always free to file as many claims as necessary to adequately protect the invention provided that applicant files an examination support document before the first Office action on the merits of the application. This final rule simply provides that an applicant who puts a disproportionate burden on examination by presenting more than five independent claims or twenty-five total claims must provide additional information to the Office to facilitate effective examination of the application. The Office, in turn, will ensure that every claim submitted in an application is examined prior to the issuance of a patent. Neither 35 U.S.C. 112 nor 131 provides that an applicant has an unfettered right to submit an unlimited number of claims. In contrast to
While this final rule does not implement a “representative claims” examination approach, that proposal approach was simply a mechanism to focus the examination process and in no way impacted the merits of the examination. Even under a “representative claims” approach, the Office would examine and determine the patentability for every claim in an application before issuing a patent on the application. Thus, a “representative claims” approach would have altered the examination process (
The requirement for submission of an examination support document is not an abdication of the examination function, or a shifting of the burden to applicant to make a
When the Office is faced with multiple applications containing overlapping subject matter, it is in the best interest of the applicant, the Office, and the public to ensure that patentably indistinct claims are identified early in the examination process. The applicant is responsible for drafting the application, including the claims, and is in the best position to identify indistinct claims spanning across multiple applications so that they can be consolidated in a single application, or so that the Office will at least be alerted to evaluate them for double patenting. Further, requiring the applicant to ferret out which claims are indistinct from each other is procedural in nature and assists the Office with processing multiple related applications, but should not be confused with a patentability determination on the merits. Such a procedural requirement is not contrary to statute or case law, but is fully within the Office's authority to regulate the procedure of examination.
Further, neither the excess claim fees nor the search fee is directly proportional to actual agency costs. The fee provisions are not a restriction on the agency's ability to promulgate reasonable regulations governing the application process.
In addition, the Office has an ongoing “in process review” of applications to identify problems and trends. Each Technology Center develops ongoing action plans and training each year to address the problems/trends found via the “in process reviews” and the pre-appeal brief conferences. Additionally, the Office will reinforce, during the training on this final rule, issues such as proper final rejection practice, the importance of making proper final rejections, and the importance of indicating allowable subject matter at the earliest possible time. Furthermore, if an applicant believes a rejection was improperly made final, applicant may seek review by filing a petition under § 1.181.
The Office plans to hire 1,200 examiners each year for the next five fiscal years.
The Office already provides a robust bonus system for examiners that enables one to earn up to ten percent of one's salary per year in bonus compensation. Examiners are already on a special pay scale, with the most recent increase of seven percent for all patent professionals, granted in December 2006. In addition, an examiner receives regular salary increases upon promotions to increasing levels of responsibilities.
For non-first year examiners, the Office has expanded training to include patent law and evidence. Each employee must attend a specified number of training hours in a variety of pertinent legal and technical subjects. Additionally, the Office also offers a Law School Tuition Assistance Program (LSTAP) to qualified employees as an extension of the Office's internal training program. Reimbursements for university technical training courses related to the technology being examined are also available for employees. Creating a partnership between the Office and interested universities to offer an undergraduate course in patent law and examination practice to highlight career opportunities in the intellectual property field is also being investigated.
With respect to petitions, the Office is taking the necessary steps to minimize the backlog and to respond to petitions in a timely fashion. Within the Technology Centers, almost all petitions for relief from improper final rejections or restrictions are answered in a timely fashion. The Office is working to ensure that most of the petitions for relief from improper final rejections or restrictions are decided within four months from when they are filed, and continues to work on ways to make the process consistent across the different Technology Centers. The Office has also taken major steps to eliminate delays with the appeal process. The BPAI has radically reduced the inventory of pending appeals during the last five fiscal years.
The Office also recognizes that it is important to make sure that the finality of any final Office actions is proper. It is the Office's experience that applicants who seek review of the finality of an Office action also request review of the merits of the rejections contained in the final Office action. The propriety of the finality of an Office action is purely a question of Office practice that is wholly distinct from the merits of the rejections contained in the final Office action rejection.
The rules of practice provide that the mere filing of a petition under § 1.181 will neither stay any period for reply that may be running against the application, nor act as a stay of other proceedings.
Technology Center 1600 (biotechnology and organic chemistry) has implemented a comprehensive restriction training plan. This includes training examiners on proper restriction practices, including proper grouping of claims and rationale supporting the restriction requirement, using Art Unit and Work Group specific examples. Training has been ongoing, using materials that are published on the Office's Internet Web site. Feedback from the training to date has been incorporated into the initial patent examining training given to new hires.
Although the Office will continue to assign divisional applications to the technology area most appropriate for the claimed subject matter, they are not necessarily assigned to the same examiner.
Several comments stated that surcharges should be imposed on independent claims in excess of three and total claims in excess of twenty in order to address the problem of applications with excess numbers of claims. Several comments argued that the current fees appear to be having a significant impact in reducing the number of claims filed, that the Office has not fully evaluated that impact, and that the Office should give the fee increase more time to see if it will be effective.
In 2002, the Office proposed a patent fee structure that included a graduated excess claims fees schedule and additional fees for continuing applications. The House Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on July 18, 2002, at which patent user groups expressed strenuous opposition to the Office's 2002 proposed patent fee structure.
Section 801
Moreover, the examination fee in effect under this legislation does not recover the entire cost of examination. The excess claims fee structure in effect under this legislation does not provide sufficient incentive for all applicants to keep the number of claims in an application at a reasonable number. The application filing fees in effect under this legislation provide no incentive for applicants to keep the number of continuing applications to a reasonable number. Thus, increasing fees, as suggested by many of the comments, is not, by itself, a sufficient solution for the large and growing backlog of unexamined applications.
“A statute [or regulation] does not operate `retroactively' merely because it is applied in a case arising from conduct antedating the statute's enactment.”
Finally, this final rule does not raise constitutional due process concerns. This rule change does not preclude an applicant from filing an application or receiving a patent containing any number of claims. Rather, the changes to § 1.75 in this final rule simply revise the procedures for presenting more than five independent claims or more than twenty-five total claims. As for the changes to § 1.78 in this final rule, the filing of an application does not vest an applicant with a due process right to obtain continued examination via a continuation application, continuation-in-part application, or a request for continued examination for purposes of presenting amendments, arguments, or evidence that could have been submitted prior to close of prosecution in the initial application (or the prior-filed application).
The rules of practice currently provide that by presenting any paper (including any continuation application, continuation-in-part application, or request for continued examination) to the Office, the party presenting the paper is certifying that to the best of the party's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that the paper is not being presented for any improper purpose, such as to harass someone or to cause unnecessary delay or to needlessly increase the cost of prosecution before the Office.
It is the policy and objective of the Congress to use the patent system to promote the utilization of inventions arising from federally supported research or development; to encourage maximum participation of small business firms in federally supported research and development efforts; to promote collaboration between commercial concerns and nonprofit organizations, including universities; to ensure that inventions made by nonprofit organizations and small business firms are used in a manner to promote free competition and enterprise without unduly encumbering future research and discovery; to promote the commercialization and public availability of inventions made in the United States by United States industry and labor; to ensure that the Government obtains sufficient rights in federally supported inventions to meet the needs of the Government and protect the public against nonuse or unreasonable use of inventions; and to minimize the costs of administering policies in this area.
The changes to § 1.78 adopted in this final rule do not concern patent rights in inventions made with federal assistance and do not impinge upon any of the policies or objectives set forth in 35 U.S.C. 200. The changes in this final rule do not treat patent applications resulting from federally supported research differently from other patent applications. The policy objectives of the Bayh-Dole Act do not encourage or condone more favorable treatment of patent applications resulting from federally supported research.
This notice adopts changes to the rules of practice that concern the process for applying for a patent, namely, continuing applications and requests for continued examination practices, the treatment of applications containing more than a set number of independent or total claims, and the treatment of multiple applications containing patentably indistinct claims. The changes being adopted in this notice do not change the substantive criteria of patentability and do not effectively foreclose the applicant's opportunity to make a case on the merits (
As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), neither a regulatory flexibility analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601
This final rule provides that: (1) A third or subsequent continuation or continuation-in-part application or any second or subsequent request for continued examination must include a showing as to why the amendment, argument, or evidence sought to be entered could not have been submitted prior to the close of prosecution after a first and second continuation or continuation-in-part application and a request for continued examination; (2) any divisional application be the result of a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121 in the prior-filed application; (3) an application that contains or is amended to contain more than five independent claims or more than twenty-five total claims must include an examination support document under 37 CFR 1.265 that covers each claim (whether in independent or dependent form) before the first Office action on the merits; and (4) multiple applications that have the same claimed filing or priority date, substantial overlapping disclosure, a common inventor, and a common assignee include either an explanation as to how the claims are patentably distinct, or a terminal disclaimer and explanation as to why patentably indistinct claims have been filed in multiple applications.
In response to the Office's certification in the notices of proposed rule making, the Small Business Administration Office of Advocacy (SBA-Advocacy) submitted a comment contending that the proposed changes are likely to have a significant economic impact on a substantial number of small entities, including small businesses and small independent inventors. SBA-Advocacy recommended that the Office conduct a supplemental Initial Regulatory Flexibility Analysis before publishing a final rule.
The Office's analysis of the proposed rules indicated that the rules would not have a significant economic impact on a substantial number of small entities. The Office considered all public comments addressing small entities, including those submitted by SBA-Advocacy. In response to these comments, this final rule incorporates a number of revisions designed to further reduce the number of small entities affected by the changes and the impacts on small entities. These changes in this final rule vis-á-vis the proposed rules that reduce small entity impacts are as follows: (1) This final rule adopts an examination support document requirement threshold of five independent claims or twenty-five total claims, rather than ten representative claims; (2) this final rule provides that small entities as defined by the Regulatory Flexibility Act are exempt from the requirement that an examination support document must, for each cited reference, include an identification of all of the limitations of each of the claims that are disclosed by the reference; (3) this final rule adopts a continued examination filing petition threshold of two continuing applications (continuation or continuation-in-part applications), plus a request for continued examination in any one of the initial or two continuing applications, rather than one continuation application, continuation-in-part application, or request for continued examination; (4) this final rule does not require that a divisional application be filed during pendency of initial application; and (5) this final rule provides for at least “one more” continuation or continuation-in-part application after the effective date, regardless of the number of previous continued examination filings.
In addition, the Office commissioned a detailed analysis of the impacts of this final rule on small entities. The analysis concludes that this final rule is not expected to result in a significant economic impact on a substantial number of small entities. The analysis measured economic impact in terms of annualized incremental cost as a percentage of revenue. The analysis indicated that the incremental cost (not annualized) would be between $2,563 and $13,121 for an entity who would be required to file an examination support document, a petition for an additional continued examination filing, or both. The analysis presumed that an economic impact greater than three percent of annualized incremental cost as a percentage of revenue was a significant impact. The analysis indicated that no small entities fell into this category. The analysis also presumed that an economic impact greater than one percent of annualized incremental cost as a percentage of revenue was a more moderate impact. The analysis indicated that fewer than one percent of small entities fell into this category. The analysis also presumed that a substantial number of small entities are affected if more than twenty percent of small entities are impacted. The analysis indicated that about 1.0 percent of small entities would be affected by the requirement to submit an examination support document, that about 2.7 percent of small entities would be affected by the requirement to submit a petition for an additional continued examination filing, and that about 0.3 percent of small entities would be affected by both the requirement to submit an examination support document and the requirement to submit a petition for an additional continued examination filing. A copy of the report containing this analysis is available on the Office's Internet Web site at
As a result of this analysis, the Office has determined that it is appropriate to make a certification that the changes being adopted in this final rule would not have a significant economic impact on a substantial number of small entities. The Office has revised the final rule requirements, as discussed previously, to further reduce economic impacts on small entities.
SBA-Advocacy commented that while the Office asserts that preparation of the examination support document should cost about $2,500, small entities contend that completing an examination support document will be more costly, time consuming and restrict their ability to prosecute patents vigorously. SBA-Advocacy also commented that small entity representatives have provided feedback that completion of an examination support document could cost from $25,000 to $30,000.
The Claims Proposed Rule referenced a $2,500 figure covering a patent novelty search, analysis, and opinion, as reported in a 2003 survey conducted by the American Intellectual Property Law Association (AIPLA). The Office agrees with the comments that this figure is probably less than the cost of an examination support document in most situations. Therefore, the Office has further analyzed costs based on the modified examination support document requirements applicable to small entities. The analysis models cost variability based on the number of claims the examination support document must address, and on whether or not a prior art search was conducted when the application was prepared. Based on this analysis, the Office estimates that the examination support document costs for small entities will range from $2,563 up to $13,121, although this latter figure assumes the examination support document must address as many as fifty independent claims or three hundred and fifty total claims. Only a small number of small entities, however, will be required to prepare an examination support document, and nearly all of these will incur costs towards the lower end of the range. Thus, the Office does not expect the final rule to result in a
SBA-Advocacy commented that small entity representatives have asserted that, taken together, the two proposed changes would increase the cost of application preparation and hinder the patent prosecution process.
As discussed previously, the Office commissioned a detailed analysis of the impact of the final rule on small entities. The analysis explicitly considered the combined cost of both proposed rules (which have been combined into a single final rule). The analysis concludes that the final rule is not expected to result in a significant economic impact on a substantial number of small entities.
SBA-Advocacy commented that small entity representatives have raised concerns that the proposed changes will significantly impact the most valuable and commercially viable patents because those types of patents typically involved a higher number of continuations.
The Office notes that there are studies espousing the position that many commercially valuable patents are the result of a continuing application, or of a second or subsequent continuing application. However, these studies do not support the position that the applicants could not have obtained these commercially valuable patents but for the availability of an unlimited number of continuing applications. That is, these studies do not show that these commercially valuable patents could not have been obtained via two or fewer continuing applications prosecuted with a reasonable amount of foresight and diligence. Thus, these studies do not demonstrate that these commercially valuable patents happen to be the result of a continuing application or of multiple continuing applications for any reason other than simply because the prosecution tactics employed in the applications underlying these patents were based upon the availability of an unlimited number of continuing applications.
The analysis commissioned by the Office specifically considered the claim that the most valuable and commercially viable patents are those types of patents that typically involved a higher number of continuations. The Office ultimately rejected the claim that this final rule will preclude applicants from being able to obtain a patent on the most valuable and commercially viable patents due to the speculative nature of the nexus drawn between the availability of an unlimited number of continuing applications and an applicant's ability to obtain these commercially valuable patents.
SBA-Advocacy commented that small entity representatives have indicated that limiting applicants to ten representative claims would make it very difficult to properly identify a potential patent, could create future liability concerns, and would weaken potential patents.
The final rule requirements apply to patent applications with more than five independent claims or more than twenty-five total claims, rather than ten representative claims. As discussed previously, applicants with more than five but less than fifteen independent claims, or more than twenty-five but less than seventy-five total claims, to an invention are able to prosecute their application in a manner that does not trigger the claims or continuations requirements. Specifically, an applicant may do this by submitting an initial application containing up to five independent claims and up to twenty-five total claims, and then adding a similar number of claims in each of two continuation applications (or two continuation-in-part applications, or one continuation application and one continuation-in-part application) permitted without a petition. Moreover, even for those applications that will require an examination support document, the requirement does not “limit” applicants to any particular number of claims. Applicants may continue to submit as many claims as necessary to appropriately claim their inventions, even if doing so required them to prepare and submit an examination support document.
SBA-Advocacy commented that small entity representatives have contended that limiting continuation applications and examinations would inhibit their ability to enhance their applications, significantly increase costs through new fees, and force small entities to seek review through the very expensive appeals process. Small entity representatives thus assert that limiting the number of continuations could severely weaken small entities' ability to protect their patents.
The Office analysis indicates that the continued examination filing requirements adopted in this final rule will not lead to significant cost increases nor will it have a significant economic impact on a substantial number of small entities. The requirements are necessary to ensure that patent applications are of reasonable quality and that applicants pursue their patents in good faith. The excessive use of continued examination filings has been a major factor in the growing backlog of unexamined applications. With respect to having to use the appeals process in place of additional continued examination filings, if an applicant disagrees with the examiner's rejections, the applicant should file an appeal rather than filing a continuation application or a request for continued examination, for reasons discussed in detail in the statement of considerations for the final rule. The Office believes that applicants should have sufficient opportunity to place the application in condition for appeal during the prosecution of the initial application, two continuing applications, and a request for continued examination. An applicant who considers this to be insufficient may file a third or subsequent continuing application or second or subsequent request for continued examination with a petition showing why the amendment, argument, or evidence sought to be entered could not have been previously submitted.
SBA-Advocacy commented that the proposed changes will affect a substantial number of small entities, and that the two proposed changes to the rules reshape the basic rights of any small entity that files a patent application.
The Office agrees that the final rule places new requirements on the current patent application process. However, the Office's analysis indicates that the rule will not have a significant economic impact on a substantial number of small entities. In fact, only a small proportion of small entities will be affected by the changes in this final rule.
SBA-Advocacy commented that small entity representatives have contended that the definition of small entity that the Office uses in its certification is for calculating filing fees and excludes any small entity that has a contractual arrangement involving the invention with a larger company. SBA-Advocacy commented that small entity representatives have further asserted that small business size standards for Regulatory Flexibility Act purposes do not include this restriction so the number of small businesses affected is likely to be larger than stated in the certification.
The Regulatory Flexibility Act permits an agency head to establish, for purposes of Regulatory Flexibility Act analysis and certification, one or more definitions of “small business concern” that are appropriate to the activities of the agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment.
Nevertheless, in analyzing the provisions of the final rule, the Office explicitly considered a sensitivity analysis that assumed all patent applicants qualified as small entities. Even under this sensitivity analysis, this final rule is not expected to result in a significant impact on a substantial number of small entities.
SBA-Advocacy suggested that with respect to the continued examination filing requirements, the Office should increase the number of permissible continuing applications.
The final rule changes the continued examination filing petition threshold from a single continuation application, continuation-in-part application, or request for continued examination as proposed to two continuing applications (continuation or continuation-in-part applications), and a single request for continued examination in any one of the initial or two continuing applications.
SBA-Advocacy suggested that with respect to the continued examination filing requirement, the Office should consider increasing the fees for additional continuation applications.
Currently, patent application and excess claims fees are set by statute (35 U.S.C. 41(a)). In 2002, the Office proposed a patent fee structure that included a graduated excess claims fees schedule and additional fees for continued examination filings. As discussed previously, however, the Office was unable to garner sufficient support from patent user groups for a patent fee structure including a graduated excess claims fees schedule or any additional fees for continued examination filings. Therefore, the Office did not pursue this alternative.
SBA-Advocacy suggested that with respect to the continued examination filing requirement, the Office should defer review of subsequent continuation applications.
The Office considered expanding the deferral of examination provisions to allow a longer deferral of examination period. The Office currently has a provision (37 CFR 1.103(d)) under which an applicant may request deferral of examination for up to three years from the earliest filing date for which a benefit is claimed. As discussed previously, the Office is studying whether changes (
SBA-Advocacy suggested that with respect to the claims requirements, the Office should expand the number of representative claims included in initial review.
The Office has revised the final rule to change the examination support document threshold from ten representative claims to five independent claims or twenty-five total claims. As discussed previously, however, applicants with more than five but less than fifteen independent claims, or more than twenty-five but less than seventy-five total claims, to an invention are able to prosecute their application in a manner that does not trigger the claims or continuations requirements.
SBA-Advocacy suggested that with respect to the claims requirements, the Office should provide expedited review of applications that contain ten or fewer representative claims. The Office has considered the suggestion to provide expedited examination to applications containing less than a set number of claims. As discussed previously, the Office currently has an accelerated examination program for applicants who limit the number of claims in their applications (to no more than three independent claims and no more than twenty total claims) and who also provide an accelerated examination support document. Therefore, the Office did not pursue this alternative in the final rule.
SBA-Advocacy suggested that with respect to the claims requirements, the Office should not apply the regulation to the backlog of pending unexamined applications.
The Office has considered not applying the claims requirement to pending applications that have not yet been examined to minimize the impact on small entities. The examination support document threshold being adopted in this final rule (
The Office also received a number of additional comments from the public generally asserting that the Office did not comply with the requirements of the Regulatory Flexibility Act in certifying that the changes in this rule making will not have a significant economic impact on a substantial number of small entities. The comments stated that: (1) In light of the fact that several large companies support the proposed changes it is questionable whether the rule changes are truly neutral towards small companies and that a bias in favor of large companies and against small entities could be in violation of the Regulatory Flexibility Act; (2) the Office's certification did not adequately
The Office has received comments from some large entities that the changes being adopted in this final rule have a bias against large entities, and has received comments from small entities that the changes being adopted in this final rule have a bias in favor of large entities. The changes being adopted in this final rule are neutral towards both small entities and large entities. That several large entities support the changes being adopted in this final rule is more likely indicative of a willingness to take a systemic view with respect to the need to take more significant steps to address patent quality and pendency.
As discussed previously, the Office commissioned a detailed analysis of the final rule's impact on small entities. As a result of this analysis, the Office has determined that it is appropriate to make a certification that the changes being adopted in this final rule would not have a significant economic impact on a substantial number of small entities. Therefore, the Office is not required to conduct a Regulatory Flexibility Analysis.
Pursuant to 5 U.S.C. 605(b), the requirements in 5 U.S.C. 603 and 604 for an initial and final Regulatory Flexibility Analysis (including identification of viable regulatory alternatives to the proposed rules) do not apply if the agency head certifies that the changes will not have a significant economic impact on a substantial number of small entities. In accordance with 5 U.S.C. 605(b), the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed changes would not have a significant economic impact on a substantial number of small entities.
The Office considers this rule making to be in compliance with the requirements of the Regulatory Flexibility Act. Thus, the possibility of legal action does not warrant a decision to delay proceeding with the changes being adopted in this final rule to allow for preparation of an initial and final Regulatory Flexibility Analysis, or to completely exempt small entities from complying with the changes being adopted in this final rule.
This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).
This rule making has been determined to be significant for purposes of Executive Order 12866 (Sept. 30, 1993), as amended by Executive Order 13258 (Feb. 26, 2002) and Executive Order 13422 (Jan. 18, 2007).
This rule making will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).
This rule making is not a significant energy action under Executive Order 13211 because this rule making is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).
This rule making meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).
This rule making is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr, 21, 1997).
This rule making will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).
Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
The changes in this final rule will not result in the expenditure by State, local,
This rule making will not have any effect on the quality of environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969.
The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are inapplicable because this rule making does not contain provisions which involve the use of technical standards.
This final rule involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title, description and respondent description of the information collection under OMB control number 0651-0031 is shown below with an estimate of the annual reporting burdens. Included in the estimate is the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Comments are invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden; (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 to respondents.
Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to: (1) The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and (2) Robert A. Clarke, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Courts, Freedom of Information, Inventions and patents, Reporting and recordkeeping requirements, Small Businesses.
35 U.S.C. 2(b)(2).
(f) For filing a petition under one of the following sections which refers to this paragraph: $400.00
§ 1.36(a)—for revocation of a power of attorney by fewer than all of the applicants.
§ 1.53(e)—to accord a filing date.
§ 1.57(a)—to accord a filing date.
§ 1.78(d)(1)(vi)—for a continuing application not provided for in §§ 1.78(d)(1)(i) through (d)(1)(v).
§ 1.114(g)—for a request for continued examination not provided for in § 1.114(f).
§ 1.182—for decision on a question not specifically provided for.
§ 1.183—to suspend the rules.
§ 1.378(e)—for reconsideration of decision on petition refusing to accept
§ 1.741(b)—to accord a filing date to an application under § 1.740 for extension of a patent term.
(a) The Director may refund any fee paid by mistake or in excess of that required. Except as provided in § 1.117 or § 1.138(d), a change of purpose after the payment of a fee, such as when a party desires to withdraw a patent filing for which the fee was paid, including an application, an appeal, or a request for an oral hearing, will not entitle a party to a refund of such fee. The Office will not refund amounts of twenty-five dollars or less unless a refund is specifically requested, and will not notify the payor of such amounts. If a party paying a fee or requesting a refund does not provide the banking information necessary for making refunds by electronic funds transfer (31 U.S.C. 3332 and 31 CFR part 208), or instruct the Office that refunds are to be credited to a deposit account, the Director may require such information, or use the banking information on the payment instrument to make a refund. Any refund of a fee paid by credit card will be by a credit to the credit card account to which the fee was charged.
(b) Any request for refund must be filed within two years from the date the fee was paid, except as otherwise provided in this paragraph, or in § 1.28(a), § 1.117(b), or § 1.138(d). If the Office charges a deposit account by an amount other than an amount specifically indicated in an authorization (§ 1.25(b)), any request for refund based upon such charge must be filed within two years from the date of the deposit account statement indicating such charge, and include a copy of that deposit account statement. The time periods set forth in this paragraph are not extendable.
(d) * * *
(2)
(b)
(1) A continuation or divisional application that names as inventors the same or fewer than all of the inventors named in the prior application may be filed under paragraph (b) or (d) of this section. A continuation or divisional application naming an inventor not named in the prior application must be filed under paragraph (b) of this section. See § 1.78(a)(2) for the definition of a divisional application and § 1.78(a)(3) for the definition of a continuation application.
(2) A continuation-in-part application must be filed under paragraph (b) of this section. See § 1.78(a)(4) for the definition of a continuation-in-part application.
(c) * * *
(4) A provisional application is not entitled to the right of priority under 35 U.S.C. 119 or 365(a) or § 1.55, or to the benefit of an earlier filing date under 35 U.S.C. 120, 121 or 365(c) or § 1.78 of any other application. No claim for priority under 35 U.S.C. 119(e) or § 1.78 may be made in a design application based on a provisional application. No request under § 1.293 for a statutory invention registration may be filed in a provisional application. The requirements of §§ 1.821 through 1.825 regarding application disclosures containing nucleotide and/or amino acid sequences are not mandatory for provisional applications.
(b) More than one claim may be presented provided they differ substantially from each other and are not unduly multiplied. One or more claims may be presented in dependent form, referring back to and further limiting another claim or claims in the same application. A dependent claim must contain a reference to a claim previously set forth in the same application, incorporate by reference all the limitations of the previous claim to which such dependent claim refers, and specify a further limitation of the subject matter of the previous claim.
(1) An applicant must file an examination support document in compliance with § 1.265 that covers each claim (whether in independent or dependent form) before the issuance of a first Office action on the merits of the application if the application contains or is amended to contain more than five independent claims or more than twenty-five total claims. An application may not contain or be amended to contain more than five independent claims or more than twenty-five total claims if an examination support document in compliance with § 1.265 has not been filed before the issuance of a first Office action on the merits of the application.
(2) A claim that refers to another claim but does not incorporate by reference all of the limitations of the claim to which such claim refers will be treated as an independent claim for fee calculation purposes under § 1.16 (or § 1.492) and for purposes of paragraph (b) of this section. A claim that refers to a claim of a different statutory class of invention will also be treated as an independent claim for fee calculation purposes under § 1.16 (or § 1.492) and for purposes of paragraph (b) of this section.
(3) The applicant will be notified if the application contains or is amended to contain more than five independent claims or more than twenty-five total claims but the applicant has not complied with the requirements set forth in paragraph (b)(1) or (b)(4) of this section. If the non-compliance appears to have been inadvertent, the notice will set a two-month time period that is not extendable under § 1.136(a) within which, to avoid abandonment of the application, the applicant must comply
(4) If a nonprovisional application contains at least one claim that is patentably indistinct from at least one claim in one or more other pending nonprovisional applications, and if such one or more other nonprovisional applications and the first nonprovisional application are owned by the same person, or are subject to an obligation of assignment to the same person, the Office will treat the claims (whether in independent or dependent form) in the first nonprovisional application and in each of such other pending nonprovisional applications as present in each of the nonprovisional applications for purposes of paragraph (b) of this section.
(5) Claims withdrawn from consideration under §§ 1.141 through 1.146 or § 1.499 as drawn to a non-elected invention or inventions will not, unless they are reinstated or rejoined, be taken into account in determining whether an application exceeds the five independent claim and twenty-five total claim threshold set forth in paragraphs (b)(1), (b)(3), and (b)(4) of this section.
(c) Any dependent claim which refers to more than one other claim (“multiple dependent claim”) shall refer to such other claims in the alternative only. A multiple dependent claim shall not serve as a basis for any other multiple dependent claim. For fee calculation purposes under § 1.16 (or § 1.492) and for purposes of paragraph (b) of this section, a multiple dependent claim will be considered to be that number of claims to which direct reference is made therein. For fee calculation purposes under § 1.16 (or § 1.492) and for purposes of paragraph (b) of this section, any claim depending from a multiple dependent claim will be considered to be that number of claims to which direct reference is made in that multiple dependent claim. In addition to the other filing fees, any application which is filed with, or is amended to include, multiple dependent claims must have paid therein the fee set forth in § 1.16(j). A multiple dependent claim shall be construed to incorporate by reference all the limitations of each of the particular claims in relation to which it is being considered.
(b) * * *
(5)
(a)
(2)
(3)
(4)
(b)
(1) The nonprovisional application or international application designating the United States of America must be filed not later than twelve months after the date on which the provisional application was filed. This twelve-month period is subject to 35 U.S.C. 21(b) and § 1.7(a).
(2) Each prior-filed provisional application must name as an inventor at least one inventor named in the later-filed application. In addition, each prior-filed provisional application must be entitled to a filing date as set forth in § 1.53(c) and the basic filing fee set forth in § 1.16(d) must have been paid for such provisional application within the time period set forth in § 1.53(g).
(3) Any nonprovisional application or international application designating the United States of America that claims the benefit of one or more prior-filed provisional applications must contain or be amended to contain a reference to each such prior-filed provisional application, identifying it by the provisional application number (consisting of series code and serial number). If the later-filed application is a nonprovisional application, the reference required by this paragraph must be included in an application data sheet (§ 1.76), or the specification must contain or be amended to contain such reference in the first sentence(s) following the title.
(4) The reference required by paragraph (b)(3) of this section must be submitted during the pendency of the later-filed application. If the later-filed application is an application filed under 35 U.S.C. 111(a), this reference must also be submitted within the later of four months from the actual filing date of the later-filed application or sixteen months from the filing date of the prior-filed provisional application. If the later-filed application is a nonprovisional application which entered the national stage from an international application after compliance with 35 U.S.C. 371, this reference must also be submitted within the later of four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in the later-filed international application or sixteen months from the filing date of the prior-
(i) An application filed under 35 U.S.C. 111(a) before November 29, 2000; or
(ii) An international application filed under 35 U.S.C. 363 before November 29, 2000.
(5) If the prior-filed provisional application was filed in a language other than English and both an English-language translation of the prior-filed provisional application and a statement that the translation is accurate were not previously filed in the prior-filed provisional application, applicant will be notified and given a period of time within which to file the translation and the statement in the prior-filed provisional application. If the notice is mailed in a pending nonprovisional application, a timely reply to such a notice must include the filing in the nonprovisional application of either a confirmation that the translation and statement were filed in the provisional application, or an amendment or supplemental application data sheet withdrawing the benefit claim, or the nonprovisional application will be abandoned. The translation and statement may be filed in the provisional application, even if the provisional application has become abandoned.
(c)
(1) The reference required by 35 U.S.C. 119(e) and paragraph (b)(3) of this section to the prior-filed provisional application, unless previously submitted;
(2) The surcharge set forth in § 1.17(t); and
(3) A statement that the entire delay between the date the claim was due under paragraph (b)(4) of this section and the date the claim was filed was unintentional. The Director may require additional information where there is a question whether the delay was unintentional.
(d)
(1) A nonprovisional application that claims the benefit of one or more prior-filed copending nonprovisional applications or international applications designating the United States of America must satisfy the conditions set forth in at least one of paragraphs (d)(1)(i) through (d)(1)(vi) of this section. The Office will refuse to enter, or will delete if present, any specific reference to a prior-filed application that is not permitted by at least one of paragraphs (d)(1)(i) through (d)(1)(vi) of this section. The Office's entry of, or failure to delete, a specific reference to a prior-filed application that is not permitted by at least one of paragraphs (d)(1)(i) through (d)(1)(vi) of this section does not constitute a waiver of the provisions of paragraph (d)(1) of this section.
(i)(A) The nonprovisional application is either a continuation application as defined in paragraph (a)(3) of this section or a continuation-in-part application as defined in paragraph (a)(4) of this section that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of no more than two prior-filed applications; and
(B) Any application whose benefit is claimed under 35 U.S.C. 120, 121, or 365(c) in such nonprovisional application has its benefit claimed in no more than one other nonprovisional application, not including any nonprovisional application that satisfies the conditions set forth in paragraph (d)(1)(ii), (d)(1)(iii) or (d)(1)(vi) of this section.
(ii)(A) The nonprovisional application is a divisional application as defined in paragraph (a)(2) of this section that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of a prior-filed application that was subject to a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121; and
(B) The divisional application contains only claims directed to an invention or inventions that were identified in such requirement to comply with the requirement of unity of invention or requirement for restriction but were not elected for examination and were not examined in the prior-filed application or in any other nonprovisional application, except for a nonprovisional application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of such divisional application and satisfies the conditions set forth in paragraph (d)(1)(iii) or (d)(1)(vi) of this section.
(iii)(A) The nonprovisional application is a continuation application as defined in paragraph (a)(3) of this section that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of a divisional application that satisfies the conditions set forth in paragraph (d)(1)(ii) of this section;
(B) The nonprovisional application discloses and claims only an invention or inventions that were disclosed and claimed in such divisional application;
(C) The nonprovisional application claims the benefit under 35 U.S.C. 120, 121, or 365(c) of only the divisional application, any application to which such divisional application claims benefit under 35 U.S.C. 120, 121, or 365(c) in compliance with the conditions set forth in paragraph (d)(1)(ii) of this section, and no more than one intervening prior-filed nonprovisional application; and
(D) The divisional application whose benefit is claimed under 35 U.S.C. 120, 121, or 365(c) in such nonprovisional application has its benefit claimed in no more than one other nonprovisional application, not including any other divisional application that satisfies the conditions set forth in paragraph (d)(1)(ii) or any nonprovisional application that claims the benefit under 35 U.S.C. 120 or 365(c) of such other divisional application and satisfies the conditions set forth in paragraph (d)(1)(iii) or (d)(1)(vi) of this section.
(iv)(A) The nonprovisional application claims benefit under 35 U.S.C. 120 or 365(c) of a prior-filed international application designating the United States of America, and a Demand has not been filed and the basic national fee (§ 1.492(a)) has not been paid in the prior-filed international application and the prior-filed international application does not claim the benefit of any other nonprovisional application or international application
(B) The nonprovisional application is either a continuation application as defined in paragraph (a)(3) of this section or a continuation-in-part application as defined in paragraph (a)(4) of this section that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of no more than three prior-filed applications; and
(C) Any application whose benefit is claimed under 35 U.S.C. 120, 121, or 365(c) in such nonprovisional application has its benefit claimed in no more than two other nonprovisional applications, not including any nonprovisional application that satisfies the conditions set forth in paragraph (d)(1)(ii), (d)(1)(iii) or (d)(1)(vi) of this section.
(v)(A) The nonprovisional application claims benefit under 35 U.S.C. 120 or 365(c) of a prior-filed nonprovisional application filed under 35 U.S.C. 111(a), and such nonprovisional application became abandoned due to the failure to timely reply to an Office notice issued under § 1.53(f) and does not claim the benefit of any other nonprovisional application or international application designating the United States of America;
(B) The nonprovisional application is either a continuation application as defined in paragraph (a)(3) of this section or a continuation-in-part application as defined in paragraph (a)(4) of this section that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of no more than three prior-filed applications; and
(C) Any application whose benefit is claimed under 35 U.S.C. 120, 121, or 365(c) in such nonprovisional application has its benefit claimed in no more than two other nonprovisional applications, not including any nonprovisional application that satisfies the conditions set forth in paragraph (d)(1)(ii), (d)(1)(iii) or (d)(1)(vi) of this section.
(vi) The nonprovisional application is a continuing application as defined in paragraph (a)(1) of this section that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of a prior-filed application, is filed to obtain consideration of an amendment, argument, or evidence that could not have been submitted during the prosecution of the prior-filed application, and does not satisfy the conditions set forth in any of paragraphs (d)(1)(i) through (d)(1)(v) of this section. A petition must be filed in such nonprovisional application that is accompanied by the fee set forth in § 1.17(f) and a showing that the amendment, argument, or evidence sought to be entered could not have been submitted during the prosecution of the prior-filed application. If the continuing application is an application filed under 35 U.S.C. 111(a), this petition must be submitted within four months from the actual filing date of the continuing application. If the continuing application is a nonprovisional application which entered the national stage from an international application after compliance with 35 U.S.C. 371, this petition must be submitted within four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in the international application.
(2) Each prior-filed application must name as an inventor at least one inventor named in the later-filed application. In addition, each prior-filed application must either be:
(i) An international application entitled to a filing date in accordance with PCT Article 11 and designating the United States of America; or
(ii) A nonprovisional application under 35 U.S.C. 111(a) that is entitled to a filing date as set forth in § 1.53(b) or § 1.53(d) for which the basic filing fee set forth in § 1.16 has been paid within the pendency of the application.
(3) Except for a continued prosecution application filed under § 1.53(d), any nonprovisional application, or international application designating the United States of America, that claims the benefit of one or more prior-filed nonprovisional applications or international applications designating the United States of America must contain or be amended to contain a reference to each such prior-filed application, identifying it by application number (consisting of the series code and serial number) or international application number and international filing date. The reference must also identify the relationship of the applications (
(4) The reference required by 35 U.S.C. 120 and paragraph (d)(3) of this section must be submitted during the pendency of the later-filed application. If the later-filed application is an application filed under 35 U.S.C. 111(a), this reference must also be submitted within the later of four months from the actual filing date of the later-filed application or sixteen months from the filing date of the prior-filed application. If the later-filed application is a nonprovisional application which entered the national stage from an international application after compliance with 35 U.S.C. 371, this reference must also be submitted within the later of four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in the later-filed international application or sixteen months from the filing date of the prior-filed application. Except as provided in paragraph (e) of this section, failure to timely submit the reference required by 35 U.S.C. 120 and paragraph (d)(3) of this section is considered a waiver of any benefit under 35 U.S.C. 120, 121, or 365(c) to the prior-filed application. The time periods in this paragraph do not apply if the later-filed application is:
(i) An application for a design patent;
(ii) An application filed under 35 U.S.C. 111(a) before November 29, 2000; or
(iii) An international application filed under 35 U.S.C. 363 before November 29, 2000.
(5) The request for a continued prosecution application under § 1.53(d) is the specific reference required by 35 U.S.C. 120 to the prior-filed application. The identification of an application by application number under this section is the identification of every application assigned that application number necessary for a specific reference required by 35 U.S.C. 120 to every such application assigned that application number.
(6) Cross-references to other related applications may be made when appropriate. Cross-references to applications for which a benefit is not claimed under title 35, United States Code, must be located in a paragraph that is separate from the paragraph containing the references to applications for which a benefit is claimed under 35 U.S.C. 119(e), 120, 121, or 365(c) that is required by 35 U.S.C. 119(e) or 120 and this section.
(e)
(1) The reference required by 35 U.S.C. 120 and paragraph (d)(3) of this section to the prior-filed application, unless previously submitted;
(2) The surcharge set forth in § 1.17(t); and
(3) A statement that the entire delay between the date the claim was due under paragraph (d)(4) of this section and the date the claim was filed was unintentional. The Director may require additional information where there is a question whether the delay was unintentional.
(f)
(A) The nonprovisional application has a filing date that is the same as or within two months of the filing date of the other pending or patented nonprovisional application, taking into account any filing date for which a benefit is sought under title 35, United States Code;
(B) The nonprovisional application names at least one inventor in common with the other pending or patented nonprovisional application; and
(C) The nonprovisional application is owned by the same person, or subject to an obligation of assignment to the same person, as the other pending or patented nonprovisional application.
(ii) The identification of such one or more other pending or patented nonprovisional applications if required by paragraph (f)(1)(i) of this section must be submitted within the later of:
(A) Four months from the actual filing date in a nonprovisional application filed under 35 U.S.C. 111(a);
(B) Four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in a nonprovisional application entering the national stage from an international application under 35 U.S.C. 371; or
(C) Two months from the mailing date of the initial filing receipt in such other nonprovisional application for which identification is required by paragraph (f)(1)(i) of this section.
(2)(i) A rebuttable presumption shall exist that a nonprovisional application contains at least one claim that is not patentably distinct from at least one of the claims in another pending or patented nonprovisional application if the following conditions are met:
(A) The nonprovisional application has a filing date that is the same as the filing date of the other pending or patented nonprovisional application, taking into account any filing date for which a benefit is sought under title 35, United States Code;
(B) The nonprovisional application names at least one inventor in common with the other pending or patented nonprovisional application;
(C) The nonprovisional application is owned by the same person, or subject to an obligation of assignment to the same person, as the other pending or patented nonprovisional application; and
(D) The nonprovisional application and the other pending or patented nonprovisional application contain substantial overlapping disclosure. Substantial overlapping disclosure exists if the other pending or patented nonprovisional application has written description support under the first paragraph of 35 U.S.C. 112 for at least one claim in the nonprovisional application.
(ii) If the conditions specified in paragraph (f)(2)(i) of this section exist, the applicant in the nonprovisional application must, unless the nonprovisional application has been allowed (§ 1.311), take one of the following actions within the time period specified in paragraph (f)(2)(iii) of this section:
(A) Rebut this presumption by explaining how the application contains only claims that are patentably distinct from the claims in each of such other pending nonprovisional applications or patents; or
(B) Submit a terminal disclaimer in accordance with § 1.321(c). In addition, where one or more other pending nonprovisional applications have been identified, the applicant must explain why there are two or more pending nonprovisional applications naming at least one inventor in common and owned by the same person, or subject to an obligation of assignment to the same person, which contain patentably indistinct claims.
(iii) If the conditions specified in paragraph (f)(2)(i) of this section exist, the applicant in the nonprovisional application must, unless the nonprovisional application has been allowed (§ 1.311), take one of the actions specified in paragraph (f)(2)(ii) of this section within the later of:
(A) Four months from the actual filing date of a nonprovisional application filed under 35 U.S.C. 111(a);
(B) Four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in a nonprovisional application entering the national stage from an international application under 35 U.S.C. 371;
(C) The date on which a claim that is not patentably distinct from at least one of the claims in the one or more other pending or patented nonprovisional applications is presented; or
(D) Two months from the mailing date of the initial filing receipt in the one or more other pending or patented nonprovisional applications.
(3) In the absence of good and sufficient reason for there being two or more pending nonprovisional applications owned by the same person, or subject to an obligation of assignment to the same person, which contain patentably indistinct claims, the Office may require elimination of the patentably indistinct claims from all but one of the applications.
(g)
(h)
(i)
(a)
(b)
(a)(1) * * *
(ix)
When more than one inventor is named in an application or patent, the Office may require an applicant, patentee, or owner to identify the inventive entity of the subject matter of each claim in the application or patent when necessary for purposes of an Office proceeding. Where appropriate, the invention dates of the subject matter of each claim and the ownership of the subject matter on the date of invention may be required of the applicant, patentee or owner.
(a) If prosecution in an application is closed, an applicant may, subject to the conditions of this section, file a request for continued examination of the application accompanied by a submission, the fee set forth in § 1.17(e), and if required, a petition under paragraph (g) of this section accompanied by the fee set forth in § 1.17(f), prior to the earliest of:
(1) Payment of the issue fee, unless a petition under § 1.313 is granted;
(2) Abandonment of the application; or
(3) The filing of a notice of appeal to the U.S. Court of Appeals for the Federal Circuit under 35 U.S.C. 141, or the commencement of a civil action under 35 U.S.C. 145 or 146, unless the appeal or civil action is terminated.
(d) If an applicant files a request for continued examination under this section after appeal, but prior to a decision on the appeal, the request for continued examination will also be treated as a request to withdraw the appeal and to reopen prosecution of the application before the examiner. An appeal brief (§ 41.37 of this title), a reply brief (§ 41.41 of this title), or related papers will not be considered a submission under this section.
(f) An applicant may file a request for continued examination under this section in an application without a petition under paragraph (g) of this section if the conditions set forth in at least one of paragraphs (f)(1), (f)(2), or (f)(3) of this section are satisfied:
(1) A request for continued examination under this section has not previously been filed in any of:
(i) The application;
(ii) Any application whose benefit is claimed under 35 U.S.C. 120, 121, or 365(c) in such application; and
(iii) Any application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of such application, not including any nonprovisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), (d)(1)(iii) or (d)(1)(vi).
(2) The application is a divisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), and a request for continued examination under this section has not previously been filed in any of:
(i) The divisional application; and
(ii) Any application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of such divisional application, not including any nonprovisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), (d)(1)(iii) or (d)(1)(vi).
(3) The application is a continuation application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of a divisional application and satisfies the conditions set forth in § 1.78(d)(1)(iii), and a request for continued examination under this section has not been filed in any of:
(i) The continuation application;
(ii) The divisional application; and
(iii) Any other application that claims the benefit under 35 U.S.C. 120, 121, or 365(c) of such divisional application, not including any nonprovisional application that satisfies the conditions set forth in § 1.78(d)(1)(ii), (d)(1)(iii) or (d)(1)(vi).
(g) A request for continued examination must include a petition accompanied by the fee set forth in § 1.17(f) and a showing that the amendment, argument, or evidence sought to be entered could not have been submitted prior to the close of prosecution in the application, except as otherwise provided in paragraph (f) of this section.
(h) The filing of an improper request for continued examination, including a request for continued examination with a petition under paragraph (g) of this section that is not grantable, will not stay any period for reply that may be running against the application, nor act as a stay of other proceedings.
(a) If an amendment canceling a claim is filed before an examination on the merits has been made of the application, the applicant may request a refund of any fee under § 1.16(h), (i), or (j) or under § 1.492(d), (e), or (f) paid on or after December 8, 2004, for such claim. If an amendment adding one or more claims is also filed before the application has been taken up for examination on the merits, the Office may apply any refund under § 1.117 to any excess claims fees due as a result of such an amendment. The date indicated on any certificate of mailing or transmission under § 1.8 will not be taken into account in determining whether an amendment canceling a claim was filed before an examination on the merits has been made of the application.
(b) If a request for refund under this section is not filed within two months from the date on which the claim was canceled, the Office may retain the excess claims fee paid in the application. This two-month period is not extendable. If an amendment canceling a claim is not filed before an examination on the merits has been made of the application, the Office will not refund any part of the excess claims fee paid in the application except as provided in § 1.26.
(a)(1) If an applicant is required to reply within a nonstatutory or shortened statutory time period, applicant may extend the time period for reply up to the earlier of the expiration of any maximum period set by statute or five months after the time period set for reply, if a petition for an extension of time and the fee set in § 1.17(a) are filed, unless:
(i) Applicant is notified otherwise in an Office action;
(ii) The reply is to a notice requiring compliance with § 1.75(b) or § 1.265;
(iii) The reply is a reply brief submitted pursuant to § 41.41 of this title;
(iv) The reply is a request for an oral hearing submitted pursuant to § 41.47(a) of this title;
(v) The reply is to a decision by the Board of Patent Appeals and Interferences pursuant to § 1.304 or to § 41.50 or § 41.52 of this title; or
(vi) The application is involved in a contested case (§ 41.101(a) of this title).
(a) If two or more independent and distinct inventions are claimed in a single application, the examiner in an Office action may require the applicant in the reply to that action to elect an invention to which the claims will be restricted, this official action being called a requirement for restriction (also known as a requirement for division). Such requirement will normally be made before any action on the merits; however, it may be made at any time before final action.
(c) If two or more independent and distinct inventions are claimed in a single application, the applicant may file a suggested requirement for restriction under this paragraph. Any suggested requirement for restriction must be filed prior to the earlier of the first Office action on the merits or an Office action that contains a requirement to comply with the requirement of unity of invention under PCT Rule 13 or a requirement for restriction under 35 U.S.C. 121 in the application. Any suggested requirement for restriction must also be accompanied by an election without traverse of an invention to which there are no more than five independent claims and no more than twenty-five total claims, and must identify the claims to the elected invention. If the suggested requirement for restriction is accepted, the applicant will be notified in an Office action that will contain a requirement for restriction under paragraph (a) of this section. Any claim to the non-elected invention or inventions, if not canceled, is by the election withdrawn from further consideration.
If, after an Office action on the merits on an application, the applicant presents claims directed to an invention distinct from and independent of the invention previously claimed, the applicant may be required to restrict the claims to the invention previously claimed if the amendment is entered, subject to reconsideration and review as provided in §§ 1.143 and 1.144.
(a) An examination support document as used in this part means a document that includes the following:
(1) A statement that a preexamination search in compliance with paragraph (b) of this section was conducted, including an identification of the field of search by United States class and subclass and the date of the search, where applicable, and, for database searches, the search logic or chemical structure or sequence used as a query, the name of the file or files searched and the database service, and the date of the search;
(2) A listing of the reference or references deemed most closely related to the subject matter of each of the claims (whether in independent or dependent form) in compliance with paragraph (c) of this section;
(3) For each reference cited, an identification of all of the limitations of each of the claims (whether in independent or dependent form) that are disclosed by the reference;
(4) A detailed explanation particularly pointing out how each of the independent claims is patentable over the cited references; and
(5) A showing of where each limitation of each of the claims (whether in independent or dependent form) finds support under the first paragraph of 35 U.S.C. 112 in the written description of the specification. If the application claims the benefit of one or more applications under title 35, United States Code, the showing must also include where each limitation of each of the claims finds support under the first paragraph of 35 U.S.C. 112 in each such priority or benefit application in which such support exists.
(b) The preexamination search referred to in paragraph (a)(1) of this section must involve U.S. patents and patent application publications, foreign patent documents, and non-patent literature, unless the applicant justifies with reasonable certainty that no references more pertinent than those already identified are likely to be found in the eliminated source and includes such a justification with the statement required by paragraph (a)(1) of this section. The preexamination search referred to in paragraph (a)(1) of this section must be directed to the claimed invention and encompass all of the limitations of each of the claims (whether in independent or dependent form), giving the claims the broadest reasonable interpretation.
(c) The listing of references required under paragraph (a)(2) of this section as part of an examination support document must include a list identifying each of the cited references
(1) The list of cited references must itemize U.S. patents and U.S. patent application publications (including international applications designating the U.S.) in a section separate from the list of other references. Each page of the list of the cited references must include:
(i) The application number, if known, of the application in which the examination support document is being filed;
(ii) A column that provides a space next to each cited reference for the examiner's initials; and
(iii) A heading that clearly indicates that the list is part of an examination support document listing of references.
(2) The list of cited references must identify each cited reference as follows:
(i) Each U.S. patent must be identified by first named patentee, patent number, and issue date.
(ii) Each U.S. patent application publication must be identified by applicant, patent application publication number, and publication date.
(iii) Each U.S. application must be identified by the applicant, application number, and filing date.
(iv) Each foreign patent or published foreign patent application must be identified by the country or patent office which issued the patent or published the application, an appropriate document number, and the publication date indicated on the patent or published application.
(v) Each publication must be identified by publisher (
(3) The listing of references required under paragraph (a)(2) of this section must also be accompanied by a legible copy of each cited reference, except for references that are U.S. patents or U.S. patent application publications.
(4) If a non-English language document is being cited in the listing of references required under paragraph (a)(2) of this section as part of an examination support document, any existing English language translation of the non-English language document must also be submitted if the translation is within the possession, custody, or control of, or is readily available to any individual identified in § 1.56(c).
(d) If an information disclosure statement is filed in an application in which an examination support document is required and has been filed, the applicant must also file a supplemental examination support document addressing the reference or references in the manner required under paragraphs (a)(3) and (a)(4) of this section unless the information disclosure statement cites only references that are less closely related to the subject matter of one or more claims (whether in independent or dependent form) than the references cited in the examination support document listing of references under paragraph (a)(2) of this section.
(e) If an examination support document is required, but the examination support document or preexamination search is deemed to be insufficient, or the claims have been amended such that the examination support document no longer covers each of the claims, applicant will be notified and given a two-month time period that is not extendable under § 1.136(a) within which, to avoid abandonment of the application, the applicant must:
(1) File a corrected or supplemental examination support document in compliance with this section that covers each of the claims (whether in independent or dependent form); or
(2) Amend the application such that it contains no more than five independent claims and no more than twenty-five total claims.
(f) An examination support document, or a corrected or supplemental examination support document, is not required to comply with the requirements set forth in paragraph (a)(3) of this section if the examination support document is accompanied by a certification that any rights in the application have not been assigned, granted, conveyed, or licensed, and there is no obligation under contract or law to assign, grant, convey, or license any rights in the application, other than a security interest that has not been defaulted upon, to any entity other than:
(1) A business or other concern:
(i) Whose number of employees, including affiliates, does not exceed 500 persons; and
(ii) Which has not assigned, granted, conveyed, or licensed (and is under no obligation to do so) any rights in the invention to any person who made it and could not be classified as an independent inventor, or to any concern which would not qualify as a non-profit organization or a small business concern under paragraph (f)(1)(i) of this section.
(2) A not-for-profit enterprise which is independently owned and operated and is not dominant in its field; or
(3) A government of a city, county, town, township, village, school district, or special district, with a population of less than fifty thousand.
(g) The documents and fees submitted under paragraphs (b) and (c) of this section must be clearly identified as a submission to enter the national stage under 35 U.S.C. 371. If the documents and fees contain conflicting indications as between an application under 35 U.S.C. 111 and a submission to enter the national stage under 35 U.S.C. 371, the documents and fees will be treated as a submission to enter the national stage under 35 U.S.C. 371.
(c) * * *
(11) Failure to comply with § 1.75(b), in which case the period of adjustment set forth in § 1.703 shall be reduced by the number of days, if any, beginning on the day after the date that is the later of the filing date of the amendment resulting in the non-compliance with § 1.75(b), or four months from the filing date of the application in an application under 35 U.S.C. 111(a) or from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f) in an application which entered the national stage from an international application after compliance with 35 U.S.C. 371, and ending on the date that an examination support document in compliance with § 1.265, an election in reply to a requirement under § 1.142(a), 1.146 or 1.499 resulting in compliance with § 1.75(b), an amendment resulting in compliance with § 1.75(b), or a suggested restriction requirement in compliance with § 1.142(c), was filed;
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS, upon application from the U.S. Navy, is issuing regulations to govern the unintentional taking of marine mammals incidental to Navy operation of the Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar. Issuance of regulations, and Letters of Authorization issued under these regulations, is required by the Marine Mammal Protection Act (MMPA) when the Secretary of Commerce (Secretary), after notice and opportunity for comment, finds, as here, that such takes will have a negligible impact on the affected species or stocks of marine mammals and will not have an unmitigable adverse impact on their availability for taking for subsistence uses. These regulations set forth the permissible methods of take and other means of effecting the least practicable adverse impact on the affected species or stocks of marine mammals and their habitat.
Effective from August 16, 2007, through August 15, 2012.
A copy of the application, containing a list of references used in this document, and other documents cited herein, may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, by telephoning one of the contacts listed under
A copy of the Navy's Final Supplemental Environmental Impact Statement (Final SEIS) and the Final Environmental Impact Statement (Final EIS) can be downloaded at:
Kenneth Hollingshead, NMFS, at 301-713-2289, ext 128.
Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 1361
The MMPA directs the Secretary to allow the requested incidental taking during periods of not more than 5 consecutive years each if the Secretary finds that the total taking will have a negligible impact on the affected species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses. The Secretary must also issue regulations setting forth the permissible methods of taking and other means of effecting the least practicable adverse impact, including a consideration of personnel safety, the practicality of implementation of any mitigation, and the impact on the effectiveness of the subject military readiness activity, and the requirements pertaining to the monitoring and reporting of such taking. These regulations do not themselves authorize the taking of marine mammals. NMFS authorizes the incidental take through “letters of authorization” (LOAs) (50 CFR 216.106). Prior to issuance of an LOA, NMFS conducts a review of the activity and its impact on marine mammals (via the required monitoring, reporting and research) to ensure that the MMPA findings continue to be valid.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” For the purposes of “military readiness activities” harassment is defined as:
(i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B harassment].
The term “military readiness activity” is defined in Public Law 107-314 (16 U.S.C. 703 note) to include all training and operations of the Armed Forces that relate to combat; and the adequate and realistic testing of military equipment, vehicles, weapons and sensors for proper operation and suitability for combat use. The term expressly does not include the routine operation of installation operating support functions, such as military offices, military exchanges, commissaries, water treatment facilities, storage facilities, schools, housing, motor pools, laundries, morale, welfare and recreation activities, shops, and mess halls; the operation of industrial activities; or the construction or demolition of facilities used for a military readiness activity.
On May 12, 2006, NMFS received an application from the U.S. Navy requesting an authorization under section 101(a)(5)(A) of the MMPA for the taking of marine mammals by Level A and Level B harassment, incidental to deploying the SURTASS LFA sonar system for military readiness activities to include training, testing and routine military operations within the world's oceans (except for Arctic and Antarctic waters, coastal regions as specified in this rule, and offshore biologically important areas (OBIAs)) for a period of time not to exceed 5 years. According to the Navy's application, the Navy planned to operate the SURTASS LFA sonar system on a maximum of 4 ships in areas potentially including the Pacific, Atlantic, and Indian oceans and the Mediterranean Sea.
SURTASS LFA sonar provides the Navy with a reliable and dependable system for long-range detection of quieter, harder-to-find submarines. Low-frequency (LF) sound travels in seawater for greater distances than higher frequency sound used by most other active sonars. According to the Navy, the SURTASS LFA sonar system would meet the Navy's need for improved detection and tracking of new-generation submarines at a longer range. This would maximize the opportunity for U.S. armed forces to safely react to, and defend against, potential submarine threats while remaining a safe distance beyond a submarine's effective weapons range.
NMFS and the Navy have determined that the Navy's use of SURTASS LFA
NMFS' current regulations governing takings incidental to SURTASS LFA sonar activities and the current LOA extends through August 15, 2007.
On September 28, 2006 (71 FR 56965), NMFS published a Notice of Receipt of Application on the U.S. Navy application and invited interested persons to submit comments, information, and suggestions concerning the application and the structure and contents of regulations. These comments were considered in the development of the proposed and final rules.
On August 7, 2002, the Natural Resources Defense Council, the U.S. Humane Society and four other plaintiffs filed suit against the Navy and NMFS over SURTASS LFA sonar use and permitting. The U.S. District Court for the Northern District of California (Court) issued its Opinion and Order on the parties' motions for summary judgment in the SURTASS LFA sonar litigation on August 26, 2003. The Court found deficiencies in Navy and NMFS compliance with the MMPA, Endangered Species Act (ESA), and National Environmental Policy Act (NEPA). The Court determined that an injunction was warranted but did not order a complete ban on the use of SURTASS LFA sonar. Specifically, the Court found that a total ban on the employment of SURTASS LFA sonar would interfere with the Navy's ability to ensure military readiness and to protect those serving in the military against the threat posed by hostile submarines. The Court directed the parties to meet and confer on the scope of a tailored permanent injunction, which would allow for continued operation of the system with additional mitigation measures. The parties entered into a Stipulation Regarding Permanent Injunction that allowed the Navy to operate SURTASS LFA sonar from both
A detailed description of the operations is contained in the Navy's application (DON, 2006) and the Final SEIS (DON, 2007) which are available upon request (see
The SURTASS LFA sonar system is a long-range, LF sonar (between 100 and 500 Hertz (Hz)) that has both active and passive components. It does not have to rely on detection of noise generated by the target. The active component of the system is a set of up to 18 LF acoustic transmitting source elements (called projectors) suspended from a cable underneath a ship. The projectors are devices that transform electrical energy to mechanical energy by setting up vibrations, or pressure disturbances, with the water to produce the pulse or ping. The SURTASS LFA sonar acoustic transmission is an omnidirectional (full 360 degrees) beam in the horizontal. A narrow vertical beamwidth can be steered above or below the horizontal. The source level (SL) of an individual projector in the SURTASS LFA sonar array is approximately 215 decibels (dB), and because of the physics involved in beam forming and transmission loss processes, the array can never have a sound pressure level (SPL) higher than the SPL of an individual projector. The expected water depth at the center of the array is 400 ft (122 m) and the expected minimum water depth at which the SURTASS LFA sonar vessel will operate is 200 m (656.2 ft).
The typical SURTASS LFA sonar signal is not a constant tone, but rather a transmission of various signal types that vary in frequency and duration (including continuous wave (CW) and frequency-modulated (FM) signals). A complete sequence of sound transmissions is referred to by the Navy as a “ping” and can last as short as 6 seconds (sec) to as long as 100 sec, normally with no more than 10 sec at any single frequency. The time between pings is typically from 6 to 15 minutes. Average duty cycle (ratio of sound “on” time to total time) is less than 20 percent; however, the duty cycle, based on historical operating parameters, is normally 7.5 percent.
The passive, or listening, component of the system is SURTASS, which detects returning echoes from submerged objects, such as submarines, through the use of hydrophones. The hydrophones are mounted on a horizontal array that is towed behind the ship. The SURTASS LFA sonar ship maintains a minimum speed of 3.0 knots (5.6 km/hr; 3.4 mi/hr) in order to keep the array deployed.
Because of uncertainties in the world's political climate, a detailed account of future operating locations and conditions cannot be predicted. However, for analytical purposes, a nominal annual deployment schedule and operational concept have been developed, based on current LFA sonar operations since January 2003 and projected Fleet requirements. The Navy anticipates that a normal SURTASS LFA sonar deployment schedule for a single vessel would involve about 294 days/year at sea. A normal at-sea mission would occur over a 49-day period, with 40 days of operations and 9 days transit. Based on a 7.5-percent duty cycle, the system would actually be transmitting for a maximum of 72 hours per 49-day mission and 432 hours per year for each SURTASS LFA sonar system in operation. (In actuality however, the combined number of transmission hours for LFA sonar employed on both the
Annually, each vessel will be expected to spend approximately 54 days in transit and 240 days performing active operations. Between missions, an estimated 71 days will be spent in port for upkeep and repair. The nominal SURTASS LFA Sonar annual and 49-day deployment schedule for a single ship can be seen in Table 2-1 of the Final SEIS.
The two existing operational LFA sonar systems are installed on the SURTASS vessels:
The SURTASS LFA sonar vessel will operate independently of, or in conjunction with, other naval air, surface or submarine assets. The vessel will generally travel in straight lines or racetrack patterns depending on the operational scenario.
The following is a very basic and generic description of the propagation of LFA sonar signals in the ocean and is provided to facilitate understanding of this action. However, because the actual physics governing the propagation of SURTASS LFA sound signals is extremely complex and dependent on numerous in-situ environmental factors, the following is for illustrative purposes only.
In actual SURTASS LFA sonar operations, the crew of the SURTASS LFA sonar platform will measure oceanic conditions (such as sea water temperature and salinity versus depth) prior to and during transmissions and at least every 12 hours, but more frequently when meteorological or oceanographic conditions change. These technicians will then use U.S. Navy sonar propagation models to predict and/or update sound propagation characteristics. The short time periods between actual environmental observations and the subsequent model runs further enhance the accuracy of these predictions. Fundamentally, these models are used to determine what path the LF signal will take as it travels through the ocean and how strong the sound signal will be at given ranges along a particular transmission path.
Accurately determining the speed at which sound travels through the water is critical to predicting the path that sound will take. The speed of sound in seawater varies directly with depth, temperature, and salinity. Thus, an increase in depth or temperature or, to a lesser degree, salinity, will increase the speed of sound in seawater. However, the oceans are not homogeneous, and the contribution of each of these individual factors is extremely complex and interrelated. The physical characteristics that determine sound speed change with depth, and in the case of temperature and salinity, season, geographic location, and locally, with time of day. After accurately measuring these factors, mathematical formulas or models can be used to generate a plot of sound speed versus water depth. This type of plot is generally referred to as a sound speed profile (SSP).
Near the surface (variable within the top 1000 ft (305 m)), ocean near-surface water mixing results in a fairly constant temperature and salinity. Below the mixed layer, sea temperature drops rapidly in an area referred to as the thermocline. In this region, temperature influences the SSP, and speed decreases with depth because of the large decrease in temperature (sound speed decreases with decreasing temperature). Finally, beneath the thermocline, the temperature becomes fairly uniform and increasing pressure causes the SSP to increase with depth.
One way to envision sound traveling through the sea is to think of the sound as “rays.” As these rays travel through the sea, their direction of travel changes as a result of speed changes, bending, or refracting, toward areas of lower speed and away from areas of higher speed. Depending on environmental conditions, refraction can either be toward or away from the surface. Additionally, the rays can be reflected or absorbed when they encounter the surface or the bottom. For example, under certain environmental conditions, near-surface sound rays can repeatedly be refracted upward and reflected off the surface and thus become trapped in a duct.
Some of the more prevalent acoustic propagation paths in the ocean include: acoustic ducting; convergence zone (CZ); bottom interaction; and shallow-water propagation.
There are two types of acoustic ducting: surface ducts and sound channels.
As previously discussed, the top layer of the ocean is normally well mixed and has relatively constant temperature and salinity. Because of the effect of depth (pressure), surface layers exhibit a slightly positive sound speed gradient (that is, sound speed increases with depth). Thus, sound transmitted within this layer is refracted upward toward the surface. If sufficient energy is subsequently reflected downward from the surface, the sound can become “trapped” by a series of repeated upward refractions and downward reflections. Under these conditions, a surface duct, or surface channel, is said to exist. Sound trapped in a surface duct can travel for relatively long distances with its maximum range of propagation dependent on the specifics of the SSP, the frequency of the sound (e.g., there is a low-frequency cutoff dependent on the thickness of the duct), and the reflective characteristics of the surface. As a general rule, surface duct propagation will improve as the temperature uniformity and depth of the layer increase. For example, transmission is improved when cloudy, windy conditions create a well-mixed surface layer or in high-latitude midwinter conditions where the mixed layer extends to several hundred feet deep.
Variation of sound speed, or velocity, with depth causes sound to travel in curved paths. A sound channel is a region in the water column where sound speed first decreases with depth to a minimum value, and then increases. Above the depth of minimum value, sound is refracted downward; below the depth of minimum value, sound is refracted upward. Thus, much of the sound starting in the channel is trapped, and any sound entering the channel from outside its boundaries is also trapped. This mode of propagation is called sound channel propagation. This propagation mode experiences the least transmission loss along the path, thus resulting in long-range transmission.
At low and middle latitudes, the deep sound channel axis varies from 1,970 to 3,940 ft (600 to 1,200 m) below the surface. It is deepest in the subtropics and comes to the surface in the high latitudes, where sound propagates in the surface layer. Because propagating sound waves do not interact with either the sea surface or seafloor, sound
CZs are special cases of the sound-channel effect. When the surface layer is narrow or when sound rays are refracted downward, regions are created at or near the ocean surface where sound rays are focused, resulting in elevated sound levels. The existence of CZs depends on the SSP and the depth of the water. Due to downward refraction at shorter ranges, sound rays leaving the near-surface region are refracted back to the surface because of the positive sound speed gradient produced by the greater pressure at deep ocean depths. These deep-refracted rays often become concentrated at or near the surface at some distance from the sound source through the combined effects of downward and upward refraction, thus causing a CZ. CZs may exist whenever the sound speed at the ocean bottom, or at a specific depth, exceeds the sound speed at the source depth. Depth excess, also called sound speed excess, is the difference between the bottom depth and the limiting, or critical depth.
CZs vary in range from approximately 18 to 36 nautical miles (nm) (33 to 67 km), depending upon the SSP. The width of the CZ is a result of complex interrelationships and cannot be correlated with any specific factor. In practice, however, the width of the CZ is usually on the order of 5 to 10 percent of the range. For optimum tactical performance, CZ propagation of SURTASS LFA sonar signals is desired and expected in deep open ocean conditions.
Reflections from the ocean bottom and refraction within the bottom can extend propagation ranges. For mid- to high-level frequency sonars (greater than 1,000 Hz), only minimal energy enters into the bottom; thus reflection is the predominant mechanism for energy return. However, at low frequencies, such as those used by the SURTASS LFA sonar source, significant sound energy can penetrate the ocean floor, and refraction within the seafloor, not reflection, dominates the energy return. Regardless of the actual transmission mode (reflection from the bottom or refraction within the bottom), this interaction is generally referred to as “bottom-bounce” transmission.
Major factors affecting bottom-bounce transmission include the sound frequency, water depth, angle of incidence, bottom composition (e.g., sediments), and bottom roughness. A flat ocean bottom produces the greatest accuracy in estimating range and bearing in the bottom-bounce mode.
For SURTASS LFA sonar transmissions between 100 and 500 Hz, bottom interaction would generally occur in areas of the ocean where depths are between approximately 200 m (660 ft) (average minimum water depth for SURTASS LFA sonar deployment) and 2,000 m (6,600 ft).
In shallow water, propagation is usually characterized by multiple reflection paths off the sea floor and sea surface. Thus, most of the water column tends to become ensonified by these overlapping reflection paths. As LFA sonar signals approach the shoreline, they will be affected by shoaling, experiencing high transmission losses through bottom and surface interactions. Therefore, LFA sonar would be less effective in shallow, coastal waters.
In summary, for the SURTASS LFA sonar signal in low- and mid-latitudes, the dominant propagation paths for LFA sonar signals are CZ and bottom interaction (at depths less than 2000 m (6,600 ft)). In high-latitudes, surface ducting provides the best propagation. In most open ocean water, CZ propagation will be most prominent. The SURTASS LFA sonar signals will interact with the bottom, but due to high bottom and surface losses, SURTASS LFA sonar signals will not penetrate coastal waters with appreciable signal strengths.
On September 28, 2006 (71 FR 56965), NMFS published a Notice of Receipt of Application on the U.S. Navy SURTASS LFA sonar MMPA application and invited interested persons to submit comments, information, and suggestions concerning the application and the structure and contents of regulations. Those comments were considered in the development of the proposed rule. A proposed rule for renewal of the regulations governing SURTASS LFA sonar MMPA authorization was published on July 9, 2007 (72 FR 37404) with a 15-day public comment period. During the two comment periods, comments were received from a large number of organizations and individuals. Those organizations include the Marine Mammal Commission (Commission), the Natural Resources Defense Council (NRDC), Earth Island Institute (EII), Acoustic Ecology Institute (AEI), Animal Welfare Society (AWI), Cetacean Society Institute (CSI), Seaflow, International Ocean Noise Coalition, Olympic Coast Alliance, Citizens Opposing Active Sonar Threats, Ocean Care, Gesselschaft zur Rettung der Delphine, SBOOHER, Ocean Conservation Research, Friends of the San Juans, World Society for the Protection of Animals. We have addressed all comments on the proposed rule. We also responded to comments that appear to be directed solely at the draft SEIS, although we did not address comments strictly related to non-marine mammal issues. See the Navy's Final SEIS, which NMFS has adopted under NEPA.
The sound pressure level (SPL) that is capable of potentially causing injury to an animal is within approximately 1 km (0.54 nm) of the ship. For the purposes of analyses using the Acoustic Integration Model (AIM) and the risk continuum, there is a 50 percent risk of significant change in a biologically important behavior for a marine mammal exposed to a received level (RL) of 165 dB RMS. The range from the SURTASS LFA sonar vessel for this received level, which could cause behavioral disruption but not injury, could extend to 25 to 65 km (13.5 to 35.1 nm). The received level at the surface along any straight path away from the ship would not decline logarithmically over distance, as would be expected if the sound spread by spherical spreading alone. The reason is that, for CZ propagation, the sound moves in an undulating path with turning points near the surface and near the bottom, where sound is refracted either downward (near surface) or upward (near bottom). Turning points near the surface, termed caustics, occur approximately every 30 nm (56 km). The received level at the surface would be high at the caustics but low in between them because most of the sound energy there would be found at great depth. While the regulations permit the Navy to seek authorization through an LOA to take marine mammals while operating SURTASS LFA sonar in many of the world's oceans and SURTASS LFA sonar signal can be detected at several hundred miles using sophisticated listening gear, SURTASS LFA sonar's potential to cause injury or affect behavior is limited to relatively close to the ship. Thus, the impact of SURTASS LFA sonar is not global in scope. Moreover, monitoring to ensure that marine mammals are not injured is not impossible, as the commenter suggests, given the limited area around the vessel that is ensonified at decibel levels up to 180 dB, and the demonstrated effectiveness of the Navy's tripartite (visual, acoustic, and HF/M3) monitoring scheme.
Since the SURTASS LFA sonar will not operate in Arctic waters, there will not be an unmitigable adverse impact on relevant subsistence uses of marine mammals. That determination is provided later in this document. NMFS also believes the negligible impact standard has been met, as described in this final rule.
In addition, the Navy's proposal to deploy SURTASS LFA sonar in a number of oceans is not new. The Navy's Final EIS proposed, and NMFS original Final Rule and regulations addressed, deployment of SURTASS LFA sonar throughout most of the world's oceans. As stated in the Final SEIS, these systems will be employed as required for security operations in the oceanic areas as presented in Figure 1-1 of the Final EIS. Potential operations could occur in the Pacific, Atlantic, and Indian Oceans, and the Mediterranean Sea. Large oceanic areas are restricted from operations, including the Arctic and Antarctic Ocean areas, as are all offshore areas within 12 nm (22 km) of land, and OBIAs (Table 2-4 of the SEIS). The limitation of SURTASS LFA operation to the Western Pacific Ocean was a product of the parties' negotiations over the Stipulated Permanent Injunction.
Nevertheless, while the number of systems may increase under this Final Rule and the Navy may seek authorization to use SURTASS LFA sonar in more places than it could under the terms of the permanent injunction, the maximum permissible impact to any particular species or stock remains the same, since the Navy's overall use of SURTASS LFA sonar can have no more than a negligible impact on marine mammal species and stocks. Consistent with its findings in the original rule, NMFS has determined that takings by SURTASS LFA sonar operations during the effective time period (1 year) of any LOA issued to the Navy pursuant to these regulations must not exceed 12 percent of any marine mammal stock.
As stated in the Final SEIS Subchapter 1.2.3 and 2.1, compact LFA sonar (CLFA sonar) sonar is an upgrade and modification to the SURTASS LFA sonar system necessary to install and operate on the smaller VICTORIOUS Class T-AGOS 19 Class ocean surveillance ships. The operational characteristics of the active system components installed, or to be installed, on the
Subchapter 1.1.3 of the Final SEIS provides a definition of the term “littoral” as used by the U.S. Navy and explains the ways in which the use of the term as a tactical designation differs from its use as a geographic term. The littoral operating environment does not necessarily include or exclude any waters because of depth; it can include both deep and shallow water. However, under any of the alternatives analyzed in the Final SEIS, LFA sonar would not operate inside of 12 nm (22 km) from any coastline. The use of SURTASS LFA sonar in coastal environments was discussed in Response to Comments (RTCs) 1-1.4 and 3-2.8 in the Final EIS.
As stated in the proposed rule and the Navy's Final EIS, estimates were derived based on modeling sites, since it was not practical to model all areas where the system might be operated. Final EIS p. 4.2-1. These sites represented the upper bound of impacts expected from operation of SURTASS LFA sonar. Final EIS p. 4.2-3; see Final EIS tables 4.2-1, 4.2-4, 4.2-10, 4.2-11, and 4.2-12. If LFA sonar operations occur in a non-modeled area, the take estimates would most likely be less than those obtained from the most similar site that was modeled. Final EIS p. 4.2-3. As stated in the SEIS, the assumptions of the Final EIS are still valid and have been incorporated by reference into the SEIS p. 4-39, 40. Moreover there are no new data that contradict the assumptions or conclusions made in subchapter 4.2 of the FEIS. Thus, it was not necessary to reanalyze potential acoustic impacts in the SEIS.
The risk assessment for each planned mission site for each vessel is performed annually and is part of the Navy's annual mission intention (LOA application) letter. In its annual LOA applications, the Navy must project where it intends to operate during the period of the annual LOAs and provide NMFS with reasonable and realistic risk estimates of the marine mammal stocks in the proposed areas of operations. This process utilizes the best available data and is detailed in the SEIS including a case study. SEIS pp. 4-37 to 4-51. During the initial steps of the risk analysis process, if the take estimates exceed those required under the regulations (including the annual 12 percent per-stock cap), than the mission areas are changed or refined and the analysis is reinitiated. After receipt of an LOA application, NMFS reviews the activity (and previous annual reports) to ensure it remains within the parameters of the rule and the negligible impact assessment.
NMFS' general implementing regulations for section 101(a)(5)(A) of the MMPA, which have been in effect since 1982 and which governed the last rulemaking for SURTASS LFA sonar incidental take, set up the framework under which NMFS issues LOAs that an applicant must obtain before any incidental take is authorized. 50 CFR 216.106(a). The purpose of the requirement for obtaining LOAs is to ensure the authorized taking will be consistent with the original findings. See 47 FR 21248, 21251 (May 18, 1982). Therefore, issuance of an LOA is based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations for the specified activity. 50 CFR 216.106(b). The reporting requirements under these specific SURTASS LFA sonar regulations and LOAs require the Navy to provide both quarterly and annual reports to NMFS. In these reports, the Navy must provide estimated percentages of marine mammal species/stocks potentially affected for each quarter and annually. NMFS' general implementing regulations do not require the agency to provide notice and comment for LOAs. However, if NMFS were to obtain information that calls into question the validity of its determinations in this rule, the agency could withdraw or suspend authorization to take marine mammals if the Secretary, through the Assistant Administrator for Fisheries, finds, after notice and opportunity for public comment, that the regulations are not being substantially complied with, or the taking allowed pursuant to the regulations is having or may have more than a negligible impact on marine mammal species or stocks. 50 CFR 216.106(e). The requirement for notice and comment does not apply if an emergency exists that poses a significant risk to the wellbeing of the species or stocks of marine mammals concerned. 50 CFR 216.106(f).
As stated in the Final EIS, the 180-dB criterion for the purpose of SURTASS LFA sonar analysis is that all marine animals exposed to received levels (RLs) greater than 180-dB rms are evaluated as if they are injured. In its 2002 Final Rule for SURTASS LFA sonar, NMFS stated that temporary threshold shift (TTS) is not an injury. Since the boundary line between TTS and permanent threshold shift (PTS) is neither clear, definitive, nor predictable for marine mammals, NMFS has adopted (as a conservative estimate) 20 dB of TTS to define the onset of PTS (i.e., a temporary shift of 20 dB in hearing threshold) (67 FR 46711, July 16, 2002). As noted in Schlundt
In the Schlundt
In addition, recent data on critical ratios (CRs) in pinnipeds is discussed in the Final SEIS Subchapter 4.3.5. A CR is the difference between sound level for a barely audible tone and the spectrum level of background noise at nearby frequencies (Richardson
The Final SEIS also considered recent studies on LF sound and injury. In regard to injury, the issue of resonance is addressed in the Final SEIS (RTC 2.5.2). The analysis by the Navy (Cudahy and Ellison, 2002), reports on two workshops on acoustic impacts (DOC, 2002: Cox,
The NRC Report (2003) discusses acoustically-induced stress in marine mammals. The NRC stated that sounds resulting from one-time exposure are less likely to have population-level effects than sounds that animals are exposed to repeatedly over extended periods of time. The NRC also cited controlled laboratory investigations of the response of cetaceans to noise that have shown cardiac responses (Miksis
The NRC Report (2003) also stated that although techniques are being developed to identify indicators of stress in natural populations, determining the contribution of noise exposure to those stress indicators will be very difficult, but important, to pursue in the future when the techniques are fully refined. There are scientific data gaps regarding the potential for LFA sonar to cause stress in marine animals. Even though an animal's exposure to LFA sonar may be more than one time, the intermittent nature of the LFA sonar signal, its low duty cycle, and the fact that both the vessel and animal are moving, means that there is a very small chance that LFA sonar exposure for individual animals and stocks would be repeated over extended periods of time, such as those caused by shipping noise. There is sufficient information available to permit analysis and decision making. Therefore, impacts from stress are not a reasonably foreseeable significant adverse impact on marine mammals from exposure to LFA sonar.
In studying potential alerting stimuli for North Atlantic right whales, Nowacek
Concern that the LFA sonar signal may cause right whales to surface and thus be more vulnerable to ship strikes is not well founded because the vessels only move at about 5.6 km/hr (3 knots) (significantly lower than normal ship speeds) and LFA sonar mitigation measures will detect any large whales well before they enter the LFA sonar zone, at which time LFA sonar operations would be suspended.
The “public perception” referred to in the Draft SEIS (p. 4-55) was one that views LFA sonar the same as any other sonar. The intent of the statement was that there is a public perception that the effects of LFA sonar are the same as any other naval, or loud, sonars. As noted in the discussion in the Final SEIS RTC 4.3.1, the potential for impacts from LFA sonar differs from that of mid-frequency active sonar. The best available scientific evidence to date does not indicate that LFA sonar has the potential to cause strandings based on analyses of existing strandings (ICES, 2005; Cox
It is also unlikely that reverberation will significantly increase the duty cycles and result in a continuous signal. As a general rule, reverberation “dies off” or decreases with distance from the source as an exponent of time after sound transmission. However, this is not instantaneous and, depending on propagation and ocean boundary conditions, reverberation can linger in an area for seconds or minutes after a sound transmission, but at greatly reduced SPLs until it fades into background noise. In special cases (i.e., locations with the correct bathymetry, propagation conditions and signal repetition rates), the reverberation may not completely die off before the next transmission. Generally, however, the reverberation levels several seconds after transmission are so much less than the original signal, (i.e., approaching ambient noise levels) that they do not “add to the duty cycle.” LFA sonar signals have sufficient time to significantly decrease to levels much less than 120 dB in the vicinity of the source, prior to the transmission of the next signal. Additionally, reverberation away from the source's location starts at an even lower level than near the source and generally decreases faster than in proximity of the source, so it is always less than near the source (see Final SEIS comment 4.3.39).
In a recent analysis for the Policy on Sound and Marine Mammals: An International Workshop sponsored by the Marine Mammal Commission (U.S.) and the Joint Nature Conservation Committee (UK) in 2004, Dr. John Hildebrand provided a comparison of anthropogenic underwater sound sources by their annual energy output. Dr. Hildebrand reported that the most energetic regularly operated sound sources are seismic air gun arrays from approximately 90 vessels with typically 12 to 48 individual guns per array, firing about every 10 seconds. There are approximately 11,000 super tankers worldwide, each operating 300 days per year, producing constant LF noise at source levels of 198 dB (SEL) (Hildebrand, 2005). Conversely, LFA sonar signals are transmitted for a maximum of 432 hours (18 days) per vessel per year. The signal length is between 6 to 100 seconds with 6 to 15 minutes between transmissions with individual elements source levels of 215 dB. Therefore, LFA sonar contributes less acoustic energy to the oceans than other sources. For more detailed discussions on Hildebrand's (2004) analysis, please see SEIS RTCs 4.6.4 and 4.6.5.
Even though LFA sonar signals are long range, LFA sonar cannot be considered to be pervasive (pervasive means to permeate or be present throughout) because of the nominal 7.5 to 10 percent duty cycle, meaning that during any given mission LFA sonar is not transmitting 90 to 92.5 percent of the time. Moreover, impacts to marine mammals species and stocks must remain negligible and, in that regard, taking by behavioral harassment may not exceed 12 percent of a marine mammal stock in any given year.
Even though there is the potential for the LFA sonar signal to injure marine mammals at RLs greater than 180 dB, that possibility is highly unlikely given the reliability of the Navy's tripartite monitoring scheme and, in particular, the demonstrated effectiveness of the HF/M3. NMFS does not dismiss the possibility that behavioral reactions to sound can possibly produce Level A harassment; however, the best available scientific evidence strongly suggests that this is a concern primarily for certain species of odontocetes when exposed under particular conditions to mid-frequency sonar. The results of the LFS-SRP strongly indicate that the behavioral reactions of baleen whales, which hear best in the low frequency range, when exposed to SURTASS LFA sonar are minimal. Although there is no evidence that LF sound can cause biologically significant behavioral responses in odontocetes, and several factors including the inability of such species to hear well in the low frequency range contraindicate such responses, NMFS presumes that, while unlikely, it has the potential to occur. As a result, the Navy is presently planning its 2007-2008 field research for deep diving marine mammal behavioral response studies in an attempt to scientifically address this issue for LFA sonar, MFA, and seismic sources. This is discussed later in this document (see Research).
However, an analysis summarized in Final SEIS Subchapter 4.7.6 indicates that, while increasing the coastal standoff range from 12 nm (22 km) to 25 nm (46 km) decreases exposure to higher RLs for marine animals closest to the shore (shelf species), it does so at the expense of increasing exposure levels for shelf break species and pelagic species.
As a result of the Final EIS analysis, mitigation protocols were developed to prevent injury to marine mammals. Mitigation protocols were not deemed necessary or practical for other than Level A harassment (injury) takes. Results from operations under the initial
Since October 14, 2003, SURTASS LFA sonar use has been restricted under a permanent injunction to limited areas in the western Pacific Ocean (see Final SEIS, Subchapter 1-2.1, Figures 1-1 and 4-4.2). Since commencing operations in 2003, the
Moreover, the Northwestern Pacific Ocean areas where SURTASS LFA sonar is presently operating are some of the most heavily populated areas in the world and cannot be considered “remote.”
As to the possibility of unreported strandings, the NMFS and the Navy do not consider that this is a very likely scenario for LFA sonar operations. Even though a visual observer onboard the vessel will be unable to see an animal that strands on the shoreline due to operations being greater than 12 nm (22 km) from land, this is not relevant because LFA sonar is unlikely to cause injury beyond the 180-dB mitigation zone (normally 1 km (0.5 nm) radius). Level A (injury) harassments are determined based on actual observations/detections within the LFA sonar mitigation zone. With passive and active acoustic detection, the probability of detection within this zone is over 95 percent for a single marine mammal (see Final EIS, Subchapters 2.3.2.2 and 4.2.7.1.). For multiple animals, the value is nearly 100 percent. The area of the northwestern Pacific Ocean, where LFA sonar vessels are currently operating, is not a remote area and there are stranding networks in the region. A review of reported strandings in the area does not show any correlations to LFA sonar operations either spatially or temporally (see discussion later in this document on strandings in Taiwan).
In regard to masking, the commenter is confusing the avoidance response of migrating gray whales and bowhead whales with masking. There was no evidence of masking in any of the research on these two species. Certainly in the gray whale case, the interpretation by the scientists who conducted the research was that the whales responded but responses were not interpreted as having a significant behavioral impact. Furthermore, a received level of 120 dB for LFA sonar would not mask the species-specific sounds of any low frequency mysticete, although under certain, rare circumstances it might interfere with species recognition. The masking effects of the SURTASS LFA sonar signal are expected to be limited for a number of reasons. First, the frequency range (bandwidth) of the system is limited to about 30 Hz, and the instantaneous bandwidth at any given time of the signal is small, on the order of 10 Hz. Second, the LFA sonar signal is active (or on) only about 7.5 percent of the time (i.e., low duty cycle based on historical LFA sonar operations, but may be on for up to 20 percent of the time) and limited to periods during actual missions. Therefore, the effect of masking will be limited because animals that use this frequency region typically use broader bandwidth signals. As a result, the chances of an LFA sonar sound actually overlapping whale calls at levels that would interfere with their detection and recognition would be extremely low.
Regarding stress, stress can be defined as a threat to homeostasis (Fair and Becker, 2000) and is frequently measured with changes in blood chemistry (Thomas
Less relevant to marine mammals, but still informative, Smith
These data support a linear dose response function (like the LFA sonar risk continuum) for sound exposure and the onset of stress, with only high levels of sound leading to a stress reaction. The extrapolation of the response thresholds from the Romano
The issue of potential calf strandings during the LFS SRP in Hawaii was addressed in the Final EIS RTC 4 5.25 where it was concluded that these events were not related to LFA sonar testing. Masking of communications could potentially affect the mother calf bond; however, masking effects from the SURTASS LFA sonar signal are extremely unlikely and are expected to be negligible considering the short duty cycle and other factors discussed in this document. The rationale for this is discussed in Final SEIS RTCs 4.3.23 and 4.3.36. Thus, LFA sonar signals are not expected to disrupt the mother calf bond.
These results have been supported by recent, peer-reviewed papers. Croll
Both Miller
Fristrup
NMFS believes that the latest information available is used by NMFS and the Navy when assessing impacts on marine mammals by LFA sonar. Regarding beaked whale research, NMFS notes that the Office of Naval Research (ONR) and SERDP (Strategic Environmental Research and Development Program) has funded the following beaked whale research:
In addition, ONR and SERDP have funded the development and fieldwork for the sound-and-orientation recording tag (DTAG), which has been successfully attached with suction cups to beaked whales (Tyack
As stated in the Final SEIS Subchapter 2.7, the NMFS initial LOA under Condition 7(d) required the Navy to conduct research in accordance with 50 CFR § 216.185(e). The SURTASS LFA sonar LTM Program has been budgeted by the Navy at a level of approximately $1M per year for five years, starting with the issuance of the first LOA. The status of this research was summarized in Table 2-5 of the Final SEIS. Finally, planning has commenced for a 2007-2008 deep-diving odontocetes behavioral response study (BRS) to determine the potential effects of LFA sonar, MFA, and seismic sources on beaked whales and other deep diving odontocetes at an estimated cost of $3M per year. The BRS study is discussed later in this document.
Regarding stock assessment data, the modeling analysis considers the total amount of risk for each marine mammal species by summing a particular species' risk estimate within that stock, across areas of operation for each mission. This methodology does not assume that populations are unstructured, but includes the best information available on the reproductive behavior of each species at each mission site in order to determine stock affiliation and the total risk to the sustainability of each stock. Stock assessment data within U.S. waters are required to be updated annually under the MMPA, with new stock assessments being published when new data are available. The best available data were used in all instances of the modeling analysis for determining stock abundance and distribution.
The Navy states that it performs regular reviews of the latest research, including updating stock and density data. The Navy's applications for SURTASS LFA sonar LOAs are submitted after conducting a thorough review of the latest data on the marine animals present in the potential operating areas.
The Final EIS states, “The model runs are designed to portray high potential effects for each site. For example, seasons were selected based on the potential for maximum LF-sensitive animal abundance.” (Please see FOEIS/EIS Subchapters 4.2.1 and 4.2.2.2, and RTCs 4-3.8, 4-3.9, and 4-3.11.)
In addition to strandings and non-auditory injuries, the harmful effects of high-intensity sonar include (1) temporary or permanent loss of hearing; (2) avoidance behavior; (3) disruption of biologically important behaviors such as mating, feeding, nursing, or migration, or loss of efficiency in conducting those behaviors; (4) aggressive (or agonistic) behavior; (5) masking of biologically meaningful sounds; (6) chronic stress; (7) habituation; and (8) declines in the availability and viability of prey species, such as fish and shrimp.
There are different types of anthropogenic sounds associated with possible impacts to and strandings of marine mammals. There are naval sonar and seismic airgun arrays, each with different characteristics and purposes. Many lump these types together. Accordingly, when there is a stranding that may be associated with the use of one type of sonar or sound source, all sources are implicated—a premise that does not stand up to scientific scrutiny in the marine bio-acoustics community. A wide range of naval sonars are used to detect, localize and classify underwater targets. For the purposes of the SURTASS LFA sonar Final SEIS, the MMPA application, and this Final Rule, these systems are categorized as LFA sonar (less than 1000 Hz) and MFA sonar (1 to 10 kHz). Table 1 in this document provides pertinent information on different types of LFA sonar and MFA sonar. General information is also provided on airgun arrays. (We also note that sonar signals are generally coherent while air guns are impulsive.)
Cox
While there was a LF component to the sonar potentially related to the Greek stranding in 1996, only mid-frequency components were present in the strandings in the Bahamas in 2000, Madeira in 2002, and Canaries in 2002. This supports the logical conclusion that the LF component in the Greek stranding was not causative (ICES, 2005; Cox
Most odontocetes, such as beaked whales, have relatively sharply decreasing hearing sensitivity below 2 kHz. If a cetacean cannot hear a sound of a particular frequency or hears it poorly, then it is unlikely to have a significant behavioral impact (Ketten, 2001). Therefore, it is unlikely that LF transmissions from LFA sonar would induce behavioral reactions from animals that have poor LF hearing, e.g. beaked whales, bottlenose dolphins, striped dolphins, harbor porpoise, belugas, and orcas (summarized in: Nedwell
New data describing potential mechanisms of harm to marine mammals from sonar are concerned with acoustically mediated bubble growth and resonance. Cox
Therefore, the numerous scientists, who participated in the 2004 Workshop convened by the U.S. Marine Mammal Commission (Cox
The masking effect of the SURTASS-LFA sonar signal will be limited for a number of reasons. First, the bandwidth of the system is limited (30 Hz), and the instantaneous bandwidth at any given time of the signal is small, on the order of 10 Hz. Therefore, within the frequency range in which masking is possible, the effect will be limited because animals that use this frequency range typically use signals with greater bandwidth. Thus, only a portion of the animal's signal would be masked by LFA sonar. Furthermore, the average duty cycle when LFA sonar is in operation, is always less than 20 percent, and based on past LFA sonar operational parameters (2003 to 2007) is nominally 7.5 to 10 percent (as stated in Chapter 2 of the Final SEIS) which means that for 80-92.5 percent of the time there is no risk of animal signals being masked by the LFA sonar signal when LFA sonar is operating. Therefore, within the area in which masking is possible, the effect will be limited because animals that use this frequency region typically use broader bandwidth signals. As a result, the chances of an LFA sonar sound actually overlapping whale calls at levels that would interfere with their detection and recognition would be extremely low. The potential effects of masking are discussed in the Final SEIS RTCs 4.3.1 and 4.3.23.
In regards to biologically significant behaviors, the risk continuum explicitly represents the potential for significant change in a biologically important behavior within the 119 to 180 dB RL range. For additional information, please see the previous discussion on this issue and also the Final EIS (RTCs 4-5.2, 4-5.6, 4-5.12, 4-5.22, 4-6.2, 4-6.3), and Appendix D. The conclusion that the potential effects on the stocks of marine mammals from behavioral changes would be minimal is discussed in the Final SEIS (RTC 4.3.29). It is reiterated that during Phase I of the LFS SRP research, there were times when the test source level was at the higher, operational level. During such test periods received levels at the subject animals were within the range as specified in the research permit and responses were no different than those observed when using lower source levels.
The Miller
The Fristrup
The effects of SURTASS LFA sonar on fish are discussed elsewhere in this document. Based on the analysis in the Final SEIS, Chapter 4.1, it is not believed that marine mammal prey species will be affected by SURTASS LFA sonar.
SURTASS LFA sonar has been operating since 2003 in a restricted area in the western Pacific Ocean, with approximately 470 hours of transmit time under the first four years of the LOAs. These extensive operations, with mitigation, have produced no known Level A takes on marine mammals. As noted before, LFA sonar is not the same as MFA (please see the Comment 44 in this document and the Final SEIS RTC 4.0.3 and 4.3.7). There is no evidence that SURTASS LFA sonar has caused injuries below or within the 180-dB mitigation zone as verified by mitigation monitoring requirements of the LFA sonar safety zone. Therefore, the 180-dB injury threshold remains valid, as does the effectiveness of the mitigation measures within the 180-dB potential injury zone.
The potential for SURTASS LFA sonar to cause harm to marine mammals and the validity of the 180-dB injury threshold for SURTASS LFA sonar are discussed in the Final SEIS RTCs 4.0.1, 4.0.2, 4.0.3, 4.3.1, 4.3.2, 4.3.7, 4.3.8, 4.3.9, 4.3.10, and 4.3.12. LFA sonar will not cause physical harm to marine mammals below 180 dB RL. Moreover, mitigation within the 180-dB mitigation zone is effective (See the Final EIS Subchapter 2.3.2.2).
Given that the LFA sonar sound source can be detected at moderate to low levels over large areas of the ocean, there was concern at the initiation of the Navy's NEPA process in 1996 that there was the potential for large percentages of species stocks to be exposed to moderate-to-low received levels. If animals are disturbed at these moderate-to-low exposure levels such that they experience a significant change in a biologically important behavior, then such exposures could potentially have an impact on rates of reproduction or survival. Knowing that cetacean responses to LF sound signals needed to be better defined using controlled experiments, the Navy helped develop and supported the three-year LFS SRP beginning in 1997. This study focused on baleen whales because, as low frequency hearing specialists they are believed to be the most sensitive to LFA sound and thus most likely to have an adverse behavioral reaction. This field research program was designed to address three important behavioral contexts for baleen whales: (1) Blue and fin whales feeding in the southern California Bight; (2) gray whales migrating past the central California coast; and (3) humpback whales breeding off Hawaii. Taken together, the results from the three phases of the LFS SRP do not support the hypothesis that most baleen whales, who are expected to be most sensitive to LF sounds, exposed to RLs near 140 dB would exhibit disturbance behavior and avoid the area. These experiments, which exposed baleen whales to RLs ranging from 120 to about 155 dB, detected only minor, short-term behavioral responses. Short-term behavioral responses do not necessarily constitute significant changes in biologically important behaviors.
Although the LFS SRP did not involve beaked whales, there was no indication during these tests that whales surfaced rapidly or dove prematurely in response to LFA sonar source transmissions. NMFS believes therefore, it is unlikely that, at least for fin, gray and humpback whales exposed to low levels of LFA sonar sounds will not result in the behavioral reactions theorized for beaked whales exposed to MF sonar signals. However, while this does that mean that LF sonar will not cause similar, but presently unknown, reactions in beaked whales, NMFS believes, that based on the best information available, such information does not currently exist. Therefore, NMFS believes, based on our current state of knowledge, it is unlikely that marine mammals would be severely injured by LFA sonar at great distances from the source.
NMFS believes the issue for this rulemaking is not whether sonar causes mass strandings of beaked whales, but whether SURTASS LFA sonar has the potential to cause marine mammal strandings. The evidence to date, supported by scientific reports, such as ICES (2005), Cox
The evidence to date, supported by scientific reports, such as ICES (2005), Cox
In the Final SEIS Subchapter 4.4.3, the Navy discusses both anthropogenic and natural causes of marine mammal strandings. In the conclusion in Subchapter 4.4.3.4, it is stated that military sonar is not the principal cause of marine mammal strandings. There was no conclusion that the majority of marine mammal strandings were related to only natural causes. The Navy did not intend to give the impression that it discounts any scientifically-supported links between anthropogenic sources and marine mammal strandings. However, it will point out that there is no known connection between marine mammal strandings and LFA sonar, which is supported by scientific workshops, reports, and published papers (ICES, 2005; Cox
Finally, to address the comment that there is no new data to contradict any of the assumptions or conclusions in the Final EIS, in order to address the comment, it must be pointed out once again that there are different types of anthropogenic sounds potentially associated with possible impacts to and strandings of marine mammals. These are naval sonar and seismic airgun arrays, each with different characteristics and purposes. Many comments lump these types under one heading, loud naval sonars or military sonars; or loud anthropogenic noise sources including sonars and seismic survey airguns. Thus, when there is a stranding that may be associated with the use of one type of sonar or sound source, it gets blamed on sonar as a whole-a premise that is not true and one that does not stand up to scientific scrutiny from the marine bio-acoustics community. A wide range of naval sonars are used to detect, localize and classify underwater targets. For the purposes of the SURTASS LFA sonar Final SEIS analysis, these systems are categorized as LFA sonar (less than 1000 Hz) and MFA sonar (1 to 10 kHz). Table 1 provides pertinent information on different types of LFA sonar and MFA sonar. General information is also provided on airgun arrays. Sonar signals are generally coherent while air guns are impulsive.
Cox
While it is true that there was a LF component of the sonar potentially related to the Greek stranding in 1996, only mid-frequency components were present in the strandings in the Bahamas in 2000, Madeira 2002, and Canaries in 2002. This supports the logical conclusion that the LF component in the Greek stranding was not causative (ICES, 2005; Cox
Most odontocetes, such as beaked whales, have relatively sharply decreasing hearing sensitivity below 2 kHz. If a cetacean cannot hear a sound of a particular frequency or hears it poorly, then it is unlikely to have a significant behavioral impact (Ketten, 2001). Therefore, it is unlikely that LF transmissions from LFA sonar would induce behavioral reactions from animals that have poor LF hearing, e.g. beaked whales, bottlenose dolphins, striped dolphins, harbor porpoise, belugas, and orcas (summarized in: Nedwell
New data describing potential mechanisms of harm to marine mammals from sonar are concerned with acoustically mediated bubble growth and resonance. Cox
The ICES (2005) report concluded that no strandings, injury, or major behavioral change has yet to be associated with the exclusive use of LF sonar.
Based on the above discussions, there are no “new” data: (1) Linking LFA sonar to whale strandings, (2) linking LFA sonar to non-stranding related injuries, or (3) describing mechanisms of harm to marine mammals from LFA sonar.
Regarding unexpectedly high propagation of noise in shallow water, this concerns the measurement of propagation of broadband noise from air gun arrays in both deep and shallow water (Tolstoy
The masking effect of the SURTASS-LFA sonar signal will be limited for a number of reasons. First, the bandwidth of the system is limited (30 Hz), and the instantaneous bandwidth at any given time of the signal is small, on the order of 10 Hz. Therefore, within the frequency range in which masking is possible, the effect will be limited because animals that use this frequency range typically use signals with greater bandwidth. Thus, only a portion of the animal's signal would be masked by the LFA sonar. Furthermore, when LFA sonar is in operation, the LFA sonar source is active only 7.5 percent of the time (based on historical LFA sonar operational parameters) and no more than 20 percent, which means that for 80-92.5 percent of the time there is no risk of animal signals being masked by the LFA sonar signal when LFA sonar is operating. Therefore, within the area in which masking is possible, the effect will be limited in duration and because animals that use this frequency region typically use broader bandwidth signals that allow them to communicate even when SURTASS LFA sonar is transmitting.
Finally, NMFS does not believe that the Navy has experienced difficulties in executing the mitigation procedures required by NMFS for LFA sonar, which are based on protecting marine animals from injury. Because it is impractical and infeasible for mitigation to cover vast oceanic areas, where the received levels do not cause physical injury to marine mammals or jeopardize threatened or endangered species, the laws provide methods for authorizations for limited non-injurious impacts to marine mammals and listed species. NMFS believes that SURTASS LFA sonar has met all of these requirements and has been operating since 2003-without any known physical injuries to marine animals. Potential non-injurious impacts are estimated based on location and times of operations and best available abundance and density data for the areas and seasons of the operations. These are reported to NMFS both quarterly and annually as required by regulation (50 CFR § 216 Subpart Q).
No citation was given with this comment but NMFS assumes that the reference to a recent paper on strandings in Japan refers to the examination by Brownell
It is inaccurate to state, as the Brownell
Therefore, because of the irreconcilable inconsistencies, Brownell
At the time the Final SEIS was published, a non-citable paper describing stranding events in Taiwan was being circulated. Even though the Navy requested but was not given permission by the authors to cite the paper, the strandings are reported to have occurred in the winter of 2004 and were part of the SEIS stranding assessment. These strandings were reported in the Cetacean Stranding Database (
The authors of the initial report on the 2004 Taiwan strandings have now published their findings in the Journal of Cetacean Research and Management (Wang and Yang, 2006). This paper also includes additional Taiwanese stranding events in the winter and summer of 2005. A review of these additionally reported strandings events did not indicate any association with the times and locations of SURTASS LFA sonar operations.
The commenter also states that the paper provides data of unusually high rate of strandings in Taiwan and cetaceans showing signs of acoustic trauma, occurring coincident with U.S. military and Chinese submarine-utilizing exercises, amongst other things. NMFS does not agree and believes that the commenter misstates the conclusions drawn in the Wang and Yang (2006) paper. While the information in the paper on the examination of the stranded animals is presented in a clear manner, the authors state that it was impossible to determine the reason for the stranding events. Although the authors opined that the injuries noted in at least one stranding (beaked whale) was from acoustic trauma, the evidence presented does not necessarily support this as the only possible conclusion. But in any event, SURTASS LFA sonar was not implicated in any of these events, as there was no spacial or temporal coincidence between the strandings and the operation of the SURTASS LFA sonar system. The relationship of at least one of the Taiwanese stranding events to naval maneuvers is based on conjecture, not facts.
For additional information on potential impacts on sonar sounds on marine mammals, the Navy's ONR sponsors significant research to study the potential effects of naval activities on marine mammals. In 2004 and 2005, Navy funded research produced approximately 65 peer-reviewed articles in professional journals. Publication in open professional literature through peer review is a benchmark for the quality of the research. This ongoing marine mammal research includes hearing and hearing sensitivity, auditory effects, dive and behavioral response models, noise impacts, beaked whale global distribution, modeling of beaked whale hearing and response, tagging of free ranging marine animals at-sea, and radar-based detection of marine
Since commencing operations in 2003, the
Finally, even the single stranding event where LF sonar was operating, the 1996 Greece stranding, has been addressed. According to Cox
As discussed previously, Dr. John Hildebrand provided a comparison of anthropogenic underwater sound sources by their annual energy output (Hildebrand, 2005). This analysis included SURTASS LFA sonar, in which he estimated that on an annual basis four SURTASS LFA sonar systems would have a total energy output two orders of magnitude less than seismic air gun arrays and one order of magnitude less than MF sonar and super tankers. This is discussed also in more detail in the Final SEIS (RTC 4.6.19). this information. Therefore, given that all sonars (MF and LF included) account for only 10 percent of the marine anthropogenic noise budget, and SURTASS LFA sonar's energy output using 4 systems is estimated at an order of magnitude less than MF sonar, the contribution of LFA sonar to the total noise budget is trivial, and the potential for adverse cumulative or synergistic effects as a result of LFA sonar use are unlikely.
As stated in the Final SEIS (Subchapter 4.6.3), SURTASS LFA sonar is not likely to cause lethal takes of marine mammals. This is supported by the ICES (2005) report that stated, “No strandings, injury, or major behavioural change has yet been associated with the exclusive use of low frequency sonar.”
The Final SEIS (Subchapter 4.6) discussed cumulative impacts, including other military sonars, whaling, by-catch and entanglement, ship strikes, oil and gas exploration, geophysical research, and shipping in terms of noise. It states that, even if considered in combination with other underwater sounds (from the aforementioned activities), the SURTASS LFA sonar systems do not add appreciably to the underwater sounds to which fish, sea turtles, and marine mammals stocks are exposed. See also the Final SEIS RTCs 4.6.5, 4.6.6, 4.6.7, 4.6.8, 4.6.13, 4.6.14, 4.6.19, 4.6.20, 4.6.21, 4.6.22, and 4.6.23 for additional information on cumulative impacts.
In regards to stating that the impacts of LFA sonar are small compared to other activities, as indicated by the LFS SRP, NMFS believes that while significant changes in biologically important behavior can occur to marine animals at significant distances from the LFA sonar source, these impacts will affect relatively few mammals at these distances. The Navy has assessed this potential impact by employing the risk continuum approach as discussed in the Final EIS. For those areas which are outside of the area covered by the risk continuum, the received LFA sonar signal is approximately that of the ambient environment. Thus, the signals do not add appreciably to the ambient noise levels, and therefore do not accumulate, or collect, to greater effects. The conclusion reached in the Final EIS (Subchapter 4.4.4) that even when considered in combination with other underwater sounds, SURTASS LFA sonar does not add appreciably to the underwater sounds that fish, sea turtle and marine mammals are exposed to, remains valid.
Since the Final EIS was published in early 2001, there has been additional research published in a peer reviewed journal that supports the 180-dB criterion for injury as being a conservative level for assessing potential injury to marine mammals. Laurer
From 2003 to 2006, the University of Maryland conducted a series of studies to test the effects of high intensity LFA sonar on fishes. These studies, which tested the effects of an actual LFA sonar transducer, examined the changes in hearing capabilities, changes in the mechanical structures of the ear, and the effects on other organ systems, including the swim bladder and brain. Detailed information on the experiment is provided in the Draft SEIS (pp. 4 10 to 4 22). Popper
To date, no evidence has been provided that supports the hypothesis that “SURTASS LFA sonar can do great harm to fish stocks.” The SEIS discussed several studies which examined fish catch rates before and after presentations of sounds from seismic air guns (SEIS Subchapter 4.1.1.4). These studies noted a temporary decline in catch rate for trawls and longlines. The Navy points out that the exposure to seismic air guns was over a much longer time frame than those projected for LFA sonar. Moreover, there are significant acoustic differences between the impulsive sounds of air guns and the coherent sounds of LFA sonar. Thus, at this time it is scientifically premature to extrapolate from these studies to LFA sonar. Since exposure times to LFA sonar is significantly shorter than to seismic air guns, it is reasonable to suggest that any behavioral effects from LFA sonar signals will be minor and transitory.
Since the Final EIS was published in early 2001, there has been additional research published in a peer reviewed journal further supports the 180-dB criterion for injury as being a conservative level for assessing potential injury to marine mammals. As described elsewhere in this document, Laurer
Regarding strandings, the best available scientific evidence supports a conclusion that beaked whales are the primary species of concern, and that mid-frequency active sonar, not LFA sonar, when combined with other factors, is the sonar most likely implicated. Also, most odontocetes have relatively sharply decreasing hearing sensitivity below 2 kHz. If a cetacean cannot hear a sound or hears it poorly, it is unlikely to have a significant behavioral impact (Ketten, 2001). Therefore, it is unlikely that LF transmissions from LFA sonar would induce behavioral reactions from animals that have poor LF hearing, such as beaked whales. While it is highly unlikely, the sounds could damage tissues even if the animal does not hear
The 330-Hz frequency restriction was an interim operational restriction added by NMFS in the 2002 Final Rule to preclude the potential for injury to marine mammals by resonance effects. That restriction was based on a statement made by Dr. Darlene Ketten, an expert on the functional morphology of marine mammal hearing, in her testimony before the Subcommittee on Fisheries Conservation, Wildlife and Oceans of the House Committee on Resources on October 11, 2001 (Ketten, 2001). The Navy's Final SEIS states that the NMFS acoustic resonance workshop ruled out resonance, but stated that the report provided part of the evidence required by NMFS that resonance and/or tissue damage from LFA sonar transmissions were unlikely to occur in marine mammals at levels below 190 dB (Final SEIS Subchapter 2.5.1). DOC (2002) states that it seemed unlikely that acoustic resonance in air spaces played a primary role in tissue trauma in the Bahamas and other events. Nevertheless, they suggested continued research. While the Marine Mammal Commission workshop did not discuss in detail the results of the NMFS acoustic resonance workshop, it endorsed three recommended areas of study: (1) Beaked whale lung resonance throughout the dive profile; (2) potential for other organs and structures to be affected by resonance; and (3) possibility that animals experience tissue shear (Cox
A full analysis of the mitigation measures was conducted in the Final SEIS, Chapter 5. Further, mitigation measures have been discussed in this document. NMFS believes that use of SURTASS LFA sonar consistent with these regulations meets the MMPA mandate that takings be reduced to the lowest level practicable.
In addition, if the Navy does operate at 12 nm from the coast, there are potential benefits over operating farther from shore. Analysis of the geometry, bathymetry, sound propagation, and animal densities in a variety of sample areas revealed that the overall risk to marine mammals is lower when SURTASS LFA sonar is operated at 12 nm from shore than when it is operated at 25 nm. First, a smaller volume of ocean is ensonified. For example, the estimated volume exposed to a received level of 155 dB decreases by 21%. This is due, in part, to shallower water depths closer to shore. In addition, in the majority of scenarios studied, when all biological factors were taken into account, including marine mammal densities, the risk incurred by moving closer to shore decreased or remained the same. Given the Navy's stated need to have the flexibility to use the system closer to shore if training, testing, or military operational demands required it, and in light of evidence demonstrating that operation at 12 nm from shore created less impact on marine mammals than a larger coastal exclusion zone, NMFS determined that a smaller coastal exclusion zone was warranted and consistent with its obligation under the MMPA to prescribe “other means of effecting the least practicable adverse impact,” while taking into account “personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.” Naturally, if the Navy's operational needs did not require it to take advantage of the additional flexibility offered by the narrower coastal exclusion zone, then the potential benefits would not be realized, and the impacts would remain the same as before under the broader coastal exclusion zone.
Because of the limitations of both passive acoustic and visual monitoring, the Navy developed the HF/M3 sonar to provide effective 24-hour, all-weather active acoustic monitoring of an area of approximately 2-km (1.1 nm) radius from the array. The HF/M3's detection effectiveness is calculated at 95 percent standing alone and is not dependent on the time of day. For further information see sections on mitigation and monitoring in this rule and the Final SEIS, Chapter 5, and the Navy's Final Comprehensive Report, Chapter 2.
There is recent scientific evidence that sonars, similar to the HF/M3, which are in common use in the fishing and maritime industries, do not harm marine life. In a recently published paper, Benoit-Bird
In addition, a requirement to ramp-up the HF/M3 ensures that marine mammals are detected by the HF/M3 sonar at the lowest sound level possible. If a marine mammal is detected during ramp-up within the 180-dB sound field or 1-km (0.54-nm) buffer zone, further increases in power are not initiated until the animal is no longer detected. At that time, ramp-up would continue unless that animal, or another, was detected. The HF/M3 sonar effectiveness has been discussed in a report by Ellison and Stein (2001), which is available to the public on the SURTASS LFA sonar Web site at
For additional information please see Final EIS Subchapter 4.2.7.3 and RTCs 5-2.4, 5-2.11, 5-2.12, 5-2.13, 5-2.19, 5-2.21, and 5-2.22; and NMFS 2002 Final Rule RTCs MOC10, MOC12, MOC14, and MOC17.
The cumulative impacts of LFA sonar and other military and commercial sonars used in conjunction have been addressed in the SEIS Subchapter 4.7.1. Because of the differences in the signal characteristics between LFA sonar and the HF/M3 sonar, synergistic effects are unlikely to occur. The HF/M3 is discussed further in Comment 74.
An evaluation of the effectiveness of the monitoring and mitigation measures has been provided to NMFS in the Final Comprehensive Report (DON, 2007) submitted under 50 CFR 216.186(c). This report is available to the public (see
The HF/M3 sonar was specifically developed to improve detection of marine mammals and potentially sea turtles, through active acoustic detection, ensuring that they are not within the LFA sonar mitigation zone during SURTASS LFA sonar transmissions. It provides 24-hour detection for marine animals, even during poor visibility conditions. Analysis and testing of the HF/M3 sonar operating capabilities indicates that this system substantially increases the chances of detecting marine mammals (and possibly sea turtles) within the LFA sonar mitigation zone (i.e., inside the 180-dB safety and 1-km buffer zone sound fields). The probability of detection of various marine mammals is presented in the Final EIS, Figure 2-5. The potential for SURTASS LFA sonar to cause harm to marine mammals and the validity of the 180-dB injury threshold for SURTASS LFA sonar are discussed in Final SEIS (RTCs 4.0.1, 4.0.2, 4.0.3, 4.3.1, 4.3.2, 4.3.7, 4.3.8, 4.3.9, 4.3.10, and 4.3.12).
In regards to animals changing their vocal behavior, the following response is a summary of the information provided in the Final EIS.
Given that the LFA sonar sound source can be detected at moderate to low levels over large areas of the ocean, there was concern at the initiation of the NEPA process in 1996 that there was the potential for large percentages of species stocks to be exposed to moderate-to-low received levels. If animals are disturbed at these moderate-to-low exposure levels such that they experience a significant change in a biologically important behavior, then such exposures could potentially have an impact on rates of reproduction or survival. Knowing that cetacean responses to LF sound signals needed to be better defined using controlled experiments, the Navy helped develop and supported the three-year LFS SRP beginning in 1997. This field research program was designed to address three important behavioral contexts for baleen whales: (1) blue and fin whales feeding in the southern California Bight, (2) gray whales migrating past the central California coast, and (3) humpback whales breeding off Hawaii. Taken together, the results from the three phases of the LFS SRP do not support the hypothesis that most baleen whales exposed to RLs near 140 dB would exhibit disturbance behavior and avoid the area. These experiments, which exposed baleen whales to RLs ranging from 120 to about 155 dB, detected only minor, short-term behavioral responses. Short-term behavioral responses do not necessarily constitute significant changes in biologically important behaviors.
These results have been supported by recent, peer reviewed papers. Croll
Both Miller
However, while third-party observers during military operations are not practicable, NMFS has recommended certain research projects be undertaken by the Navy, during which non-Navy scientists would be participants.
Under NMFS' first five year rule (50 CFR 216.191) concerning the designation of additional OBIAs, no nominations have been received.
As mentioned previously, utilization of third-party marine biological visual observers is also not feasible due to berthing concerns and security clearances. Please see Comment 81 in this document and the NMFS 2002 Final Rule (RTC MOC32) for further discussion. The Final EIS (Subchapter 5.2.1) states that visual monitoring is required during daylight hours. The effectiveness of visual monitoring declines during high sea states and periods of reduced visibility. Because of
Monitoring mitigation is designed to preclude marine mammals from being within the 180-dB mitigation zone of the LFA sonar array to protect them from potential injury. This zone is approximately 1-km (0.54 nm) in radius, thus making the use of other existing acoustic nodes (assuming the commenter is referring to fixed arrays such as SOSUS) and other external platforms not only impractical, but virtually impossible. The SOSUS arrays are no longer manned nor maintained, so their operations are degraded and not real-time. Other external platforms would only be vessels of opportunity. Because the SURTASS LFA sonar vessel would have limited or no communications with these vessels and the time delay in relaying information, the use of these platforms is impractical.
NMFS and the Navy do not consider modification of sonar signal characteristics (including reduction in source level) to be a practical mitigation option. First, the analyses and actual operations have demonstrated that the present mitigation methods are effective. The LFS SRP utilized the actual LFA sonar signal, sometimes at full power, with only minor behavioral effects. The Fish Controlled Exposure Experiment also utilized actual LFA sonar signals and source levels with no injury and minimal behavioral responses at received levels up to 193 dB. During the first four LOAs, the LFA sonar vessels completed 40 missions with over 470 hours of actual transmission (sound-in-the-water) with no known Level A harassment takes and Level B harassment takes estimated well within the requirement of the LOAs. Second, wavetrain characteristics and array source levels are optimally designed to detect threat submarines at long distances. Return signals are below ambient levels and any changes would potentially cause degradation in detection effectiveness. Therefore, there is no need for the Navy to consider modification of LFA sonar's signal characteristics, and NMFS is satisfied that doing so would not be practicable and would result in an “impact on the effectiveness of the military readiness activity.”
NMFS and the Navy concur that LFA sonar operations should avoid enclosed areas and coastal areas with complex, steep seabed topography. First, because of the lengths of both the passive (SURTASS) and active (LFA sonar) line arrays, enclosed areas are avoided. Second, during the annual LOA application process (Final SEIS Subchapter 4.4 and Figure 4.4-1), marine mammal habitats, seasonal activities, and behavioral activities are considered in the process of determining potential mission areas. Thus these areas will be analyzed as part of the annual LOA application process. Therefore, NMFS believes that the Navy avoids planning and conducting LFA sonar operations in areas of known high marine animal densities or “hot spots.”
As noted in the Final SEIS Subchapter 2.5.2.1, SURTASS LFA sonar operations are planned for areas with reduced risk by avoiding areas of high marine life concentrations. This process is detailed in SEIS Subchapter 4.4. Additionally, nominations for inclusion as OBIA can be made under 50 CFR 216.191, thus providing protection for specific geographic “hot spots.”
Because SURTASS LFA sonar will have a coastal standoff distance (at least 12 nm (22 km)), any LFA sonar signal heard by marine animals in the coastal zone will come from the same general direction, thus allowing an animal to move laterally away from the signal's source. Also, NMFS has addressed the wider coastal exclusion zone in Comment 67.
Vessels launched from land were addressed in the Final SEIS. They would have to sail from ports within reasonable distance from the operations site. Because of the classified nature of LFA sonar operations, National Security considerations would preclude the ability to arrange these vessels in advance. However, the primary concern with the utilization of small boats is not their effectiveness, but their unsafe nature and the impracticality of their operations from the LFA sonar vessels. Therefore, if the use of a single survey boat is considered impractical and unsafe, then this would concomitantly apply to the utilization of additional boats.
The Final SEIS did not state that the visual observers onboard the LFA sonar vessels would be able to see marine mammals better than visual observers during aerial surveys, nor were helicopters mentioned. Subchapter 4.2.7.1 of the Final EIS states that visual monitoring is limited to daylight hours and its effectiveness declines during high sea states. Because of the limitations of both passive acoustic and visual monitoring, the Navy developed the HF/M3 sonar to provide 24-hour, all-weather active acoustic monitoring of an area of approximately 2-km (1.1 nm) radius from the array. In calculating the effectiveness for the various monitoring systems for purposes of the Final EIS, the visual monitoring component of the three-part monitoring
When operated under the mitigation protocols required under this rulemaking, NMFS believes that marine mammals will not be exposed to LFA sonar sound levels that will cause injuries or strandings regardless of whether they are in coastal or open ocean waters. As mentioned previously, LFA sonar has never caused, nor is expected to cause, marine mammal strandings.
NMFS and the Navy did consider adopting MPAs as OBIAs, as shown in the Final SEIS. MPAs are discussed under E.O. 13158 in Chapter 6 and are further discussed in Comment 4.7.19 in Chapter 10. The commenter's book, Hoyt (2005), was also cited in the Final SEIS. Hoyt (2005) states that most MPAs fall within the nation's EEZ limits and most of them are coastal and would therefore fall within the SURTASS LFA sonar coastal exclusion zone. OBIAs are not designated based on speculation on the location and density of animals. As with the first Final Rule, NMFS has in place a process for the public to propose OBIAs. An area must be of particular importance for marine mammals as an area for primary feeding, breeding, or migration, and not simply an area occupied by marine mammals. The proposed area should also not be within a previously designated OBIA or other 180-dB exclusion area. Further information on proposing OBIAs can be found in the Designation of Biologically Important Marine Mammal Areas section of this Final Rule.
Aerial surveillance has been discussed previously in this document (see Final SEIS RTCs EIIs-4, 10, 11). Pre-operational aerial surveys are not practicable mitigation.
Passive monitoring and second vessel monitoring has been addressed in comment 88 and elsewhere. Because the nodes are inoperable and the SURTASS LFA sonar vessel would have limited or no communications with these vessels and the time delay in relaying information, the use of these measures are considered impracticable.
As mentioned previously, utilization of third-party marine biological visual observers is not necessary because visual monitoring is not the primary means of detecting marine mammals and NMFS has no reason to believe that the Navy is not complying with the regulatory requirements, and it is not feasible due to berthing concerns and security clearances. Please see Comments 81 and 88 in this document and the NMFS 2002 Final Rule (RTC MOC32) for further discussion.
Reviews of stranding reports in the area showed that there were a total of 19 strandings reported in Asia (four in Taiwan, nine throughout the Philippines, two in Thailand, two in Indonesia, and two in China) (The Cetacean Stranding Database, accessed: 11/28/2006). None of these strandings were coincident either temporally or spatially with LFA sonar operations. See the Final SEIS (RTC 4.4.12) for additional information of strandings.
Although not directly related to the LFA sonar MMPA regulatory process, the Navy funded independent research to determine the potential for SURTASS LFA sonar signals to affect fish. Popper
These results have been supported by recent, peer reviewed papers. Croll
In accordance with 40 CFR 1506.3(a), NOAA has adopted the Navy's Final SEIS as its own NEPA statement on the issuance of regulations and LOAs for the taking of marine mammals incidental to SURTASS LFA sonar operations.
In its Final SEIS and Final EIS and application, the Navy excluded from incidental take consideration marine mammal species that do not inhabit the areas in which SURTASS LFA sonar would operate. Where data were not available or were insufficient for one species, comparable data for a related species were used. Because all species of baleen whales produce LF sounds, and anatomical evidence strongly suggests their inner ears are well adapted for LF hearing, all balaenopterid species are considered sensitive to LF sound and, therefore, at risk of harassment or injury from exposure to LF sounds. The twelve species of baleen whales that may be affected by SURTASS LFA sonar are blue, fin, minke, Bryde's, sei, humpback, North Atlantic right, North Pacific right, southern right, pygmy right, bowhead, and gray whales.
The odontocetes (toothed whales) that may be affected because they inhabit the deeper, offshore waters where SURTASS LFA sonar might operate include both the pelagic (oceanic) whales and dolphins and those coastal species that also occur in deep water including harbor porpoise, spectacled porpoise, beluga,
Potentially affected pinnipeds include hooded seal, harbor seal, spotted seal, ribbon seal, gray seal, elephant seal, Hawaiian monk seal, Mediterranean monk seal, northern fur seal, southern fur seal (
A description of affected marine mammal species, their biology, and the criteria used to determine those species that have the potential for being taken by incidental harassment are provided and explained in detail in the Navy application and Final SEIS and, although not repeated here, are considered part of the NMFS' administrative record for this action. Additional information is available at the following URL:
To understand the effects of LF noise on marine mammals, one must understand the fundamentals of underwater sound and how the SURTASS LFA sonar operates in the marine environment. This description was provided earlier in this document and also by the Navy in Appendix B to the Final EIS.
The effects of underwater noise on marine mammals are highly variable, and have been categorized by Richardson
The original analysis of potential impacts on marine mammals from SURTASS LFA sonar was developed by the Navy based on the results of a literature review; the Navy's Low Frequency Sound Scientific Research Program (LFS SRP) (described later in this document); and a complex, comprehensive program of underwater acoustical modeling.
To assess the potential impacts on marine mammals by the SURTASS LFA sonar source operating at a given site, it was necessary for the Navy to predict the sound field that a given marine mammal species could be exposed to over time. This is a multi-part process involving (1) the ability to measure or estimate an animal's location in space and time, (2) the ability to measure or estimate the three-dimensional sound field at these times and locations, (3) the integration of these two data sets into the Acoustic Integration Model (AIM) to estimate the total acoustic exposure for each animal in the modeled population, (4) beginning the post-AIM analysis, converting the resultant cumulative exposures for a modeled population into an estimate of the risk from a significant disturbance of a biologically important behavior, and (5) using a risk continuum to convert these estimates of behavioral risk into an assessment of risk in terms of the level of potential biological removal.
In the post-AIM analysis, as mentioned in numbers (4) and (5) above, a relationship was developed for converting the resultant cumulative exposures for a modeled population into an estimate of the risk to the entire population of a significant disruption of a biologically important behavior and of injury. This process assessed risk in relation to received level (RL) and repeated exposure. The resultant risk continuum is based on the assumption that the threshold of risk is variable and occurs over a range of conditions rather than at a single threshold. Taken together, the LFS SRP results, the acoustic propagation modeling, and the risk assessment provide an estimate of potential environmental impacts to marine mammals. The results of 4 years of monitoring (2002-2006) onboard the two SURTASS LFA sonar vessels support the use of this methodology.
The acoustic propagation modeling was accomplished using the Navy's standard acoustical performance prediction transmission loss model-Parabolic Equation (PE) version 3.4. The results of this model are the primary input to the AIM. AIM was used to estimate marine mammal sound exposures. It integrates simulated movements (including dive patterns) of marine mammals, a schedule of SURTASS LFA sonar transmissions, and the predicted sound field for each transmission to estimate acoustic exposure during a hypothetical SURTASS LFA sonar operation. Description of the PE and AIM models, including AIM input parameters for animal movement, diving behavior, and marine mammal distribution, abundance, and density, are described in detail in the original Navy application and the Final EIS (see box, page 4.2-11) and are not discussed further in this document.
The same analytical methodology utilized in the application for the first 5-year rule and LOAs was utilized to provide reasonable and realistic estimates of the potential effects to marine mammals specific to the potential mission areas as presented in the application. Information on how the density and stock/abundance estimates are derived for the selected mission sites is in the Navy's application. These data are derived from current, published source documentation, and provide general area information for each mission area with species-specific information on the animals that could occur in that area, including estimates for their stock abundance and density.
Although this rule uses the same analysis that was used for the 2002-2007 rule, the AIM analysis is continuously updated with new marine mammal biological data (behavior, distribution, abundance and density) whenever new information becomes available. It was recently independently reviewed by a panel of experts in mathematics, modeling, acoustics, and marine mammalogy convened by NMFS' Center for Independent Experts (CIE). The task of the Panel was to evaluate whether AIM correctly implements the models and data on which it is based; whether animal movements are correctly implemented; and whether AIM meets the Council for Regulatory Environmental Monitoring (CREM) guidelines. As stated in their Report on AIM, the CIE Panel agreed that: (1) AIM appears to be correctly implemented; (2) the animal movement appears to be appropriately modeled; and (3) the principles of credible science had been addressed during the development of AIM and that AIM is a useful and credible tool for developing application models. A copy of the CIE report is available (see
During the analytical process in the Final EIS, the Navy developed 31 acoustic modeling scenarios for the major ocean regions. Locations were selected by the Navy to represent the greatest potential effects for each of the three major ocean acoustic regimes where SURTASS LFA sonar could potentially be used. These acoustic regimes were: (1) Deep-water convergence zone propagation, (2) near surface duct propagation, and (3) shallow water bottom interaction propagation. These sites were selected to model the greatest potential for effects from the use of SURTASS LFA sonar incorporating the following factors: (1) Closest plausible proximity to land (from SURTASS LFA sonar operations standpoint), and/or offshore biologically important areas (OBIAs) where biological densities are higher, particularly for animals most likely to be affected; (2) acoustic propagation conditions that allow minimum propagation loss, or transmission loss (TL) (
The goal of the 1997-1998 LFS SRP was to demonstrate the avoidance reaction of sensitive marine mammal species during critical biologically important behavior to the low frequency underwater sound produced by the LFA sonar system. Testing was conducted in three phases as summarized here from Clark
Phase I was conducted in September through October 1997. The objective of Phase I was to determine whether exposure to low frequency sounds elicited disturbance reactions from feeding blue and fin whales. The goal was to characterize how whale reactions to the sounds vary, depending on: (1) The received level of the sound; (2) changes in the received level; and (3) whether the system was operating at a relatively constant distance or approaching the whale. Full and reduced LFA sonar source power transmissions were used. The highest received levels at the animals were estimated to be 148 to 155 dB. In 19 focal animal observations (4 blue and 15 fin whales), no overt behavioral responses were observed. No changes in whale distribution could be related to LFA sonar operations, and whale the distributions correlated with the distribution of food.
Phase II was conducted in January 1998. The objectives were to quantify responses of migrating gray whales to low frequency sound signals, compare whale responses to different RLs, determine whether whales respond more strongly to RL, sound gradient, or distance from the source, and to compare whale avoidance responses to an LF source in the center of the migration corridor versus in the offshore portion of the migration corridor. A single source was used to broadcast LFA sonar sounds up to 200 dB. Whales showed some avoidance responses when the source was moored 1 mi (1.8 km) offshore, in the migration path, but returned to their migration path when they were a few kilometers from the source. When the source was moored 2 mi (3.7 km) offshore, responses were much less, even when the source level was increased to 200 dB, to achieve the same RL for most whales in the middle of the migration corridor. Also, offshore whales did not seem to avoid the louder offshore source.
Phase III was conducted from February to March 1998. The objectives were to assess the potential effects of LFA sonar signals on behavior, vocalization and movement of humpback whales off the Kona coast in Hawaii. The maximum exposure levels in this phase were as high as 152 dB. Approximately half of the whales observed visually ceased their song during the transmissions, but many of them did so while joining a group of whales, which is the time that singing whales usually stop their songs naturally. All singers who interrupted their songs were observed to resume singing within tens of minutes. The analysis of one data set showed that whales increased their song lengths during LFA sonar transmissions, but a second analysis indicated that song length changes were more complicated and depended on the portion of the song that was overlapped by LFA sonar transmissions. Overall patterns of singer and cow-calf abundance were the same throughout the experiments as they had been during several years of prior study.
To determine the potential impacts that exposure to LF sound from SURTASS LFA sonar operations could have on marine mammals, biological risk standards were defined by the Navy with associated measurement parameters. Based on the MMPA, the potential for biological risk was defined as the probability for injury (Level A) or behavioral (Level B) harassment of marine mammals. In this analysis, behavioral (Level B) harassment is defined as a significant disturbance in a biologically important behavior (also referred to as a biologically significant response). NMFS believes that this is equivalent to the MMPA definition of Level B harassment for military readiness activities. The potential for biological risk is a function of an animal's exposure to a sound that would potentially cause hearing, behavioral, psychological or physiological effects. The measurement parameters for determining exposure were RLs in dB, the pulse repetition interval (time between pings), and the number of pings received.
Before the biological risk standards could be applied to realistic SURTASS LFA sonar operational scenarios, two factors had to be considered by the Navy: (1) How does risk vary with repeated sound exposure? and (2) how does risk vary with RL? The Navy addressed these questions by developing a function that translates the history of repeated exposures (as calculated in the AIM) into an equivalent RL for a single exposure with a comparable risk. This dual-question method is similar to those adopted by previous studies of risk to human hearing (Richardson
It is intuitive to assume that effects on marine mammals would be greater with repeated exposures than for a single ping. However, no published data on repeated exposures of LF sound on marine mammals exist. Based on discussions in Richardson
The formula L + 5 log10(N) (where L = ping level in dB and N is the number of pings) defines the single ping equivalent (SPE). This formula is considered appropriate for assessing the risk to a marine mammal of a significant disturbance of a biologically important behavior from LF sound like SURTASS LFA sonar transmissions.
For reasons explained in detail in the Final EIS (Section 4.2.5), the Navy interpreted the results of the LFS SRP to support use of unlimited exposure to 119 dB during an LFA sonar mission as the lowest value for risk. Below this level, the risk of a biologically significant behavioral response from marine mammals approaches zero. It is important to note that risk varies with both received level and number of exposures.
Because the LFS SRP did not document a biologically significant response at maximum RLs up to 150 dB, the Navy determined there was a 2.5-percent risk of an animal incurring a disruption of biologically important behavior at an SPL of 150 dB, a 50-percent risk at 165 dB, and a 95-percent risk at 180 dB. For more detailed information, see Chapter 4.2.5 of the Final EIS and Navy's Technical Report #1 (Navy, 2001). The Navy used this risk continuum analysis as an alternative to an all-or-nothing use of standard thresholds for the onset of behavioral change or injury. NMFS has reviewed and agrees with this approach. The subsequent discussion of risk function emphasizes the advantages of using a smoothly varying model of biological risk in relation to sound exposure. These results are analogous to dose-response curves that are accepted as the best practice in disciplines such as epidemiology, toxicology, and pharmacology.
In NMFS's 2002 rule, NMFS and the Navy based their estimate of take by injury or the significant potential for such take (Level A harassment) on the criterion of 180 dB. NMFS continues to believe this is a scientifically supportable value for preventing auditory injury or the significant potential for such injury (Level A harassment), as it represents a value less than where the potential onset of a minor TTS in hearing might occur based on Schlundt
Schlundt
With three levels of mitigation monitoring for detecting marine mammals (described later in this document), NMFS and the Navy believe it is unlikely that any marine mammal would be exposed to received levels of 180 dB before being detected and the SURTASS LFA sonar shut down. However, because the probability is not zero, the Navy has included Level A harassment in its authorization request.
Unlike with behavioral responses, an “injury continuum” is not necessary because of the very low numbers of individual marine mammals that could potentially experience high received sound levels, and the high level of effectiveness of the monitoring and shutdown protocols. For this action, all marine mammals exposed to an SPL of 180 dB or above are considered to be injured even though the best scientific data available indicate a marine mammal would need to receive an SPL significantly higher than 180 dB to be injured.
When SURTASS LFA sonar transmits, there is a boundary that encloses a volume of water where received levels equal or exceed 180 dB, and a volume of water outside this boundary where received levels are below 180 dB. In this analysis, the 180-dB SPL boundary is emphasized because it represents a single-ping RL that is a scientifically supportable estimate for the potential onset of injury. Therefore, the level of risk for marine mammals depends on their location in relation to SURTASS LFA sonar. Under this rule, a marine mammal would have to receive one ping greater than or equal to 180 dB to be considered to have been injured or have the potential to incur an injury.
Although TTS is not considered Level A harassment, PTS is considered Level A harassment. The onset of PTS for marine mammals may be 15-20 dB above TTS levels. However, mitigation measures, such as mitigation zones and shutdown protocols, are required where there is the potential for a marine mammal to incur TTS so as to prevent an animal from incurring a PTS.
Since the release of the Final EIS, an investigation by Cudahy and Ellison (2002) hypothesized that the threshold for in vivo tissue damage (including lung damage and hemorrhaging) from LF sound can be on the order of 180 to 190 dB. Balance and equilibrium could be affected, but may not result in injury. These effects are based on studies of humans. Vestibular (balance and equilibrium) function was investigated by the Navy during its Diver's Study and the results reported in LFS SRP Technical Report 3. Measurable performance decrements in vestibular function were observed for guinea pigs using 160 dB SPL signals at lung resonance and 190 dB SPL signals at 500 Hz. Because guinea pigs are not aquatic species, like humans, they are not as robust to pressure changes as marine mammals and, therefore, are likely more susceptible to injury at lower SPLs than marine mammals.
Presently, there is controversy among researchers over whether marine mammals can suffer from decompression sickness. It is theorized that this may be caused by diving and then surfacing too quickly, forcing nitrogen bubbles to form in the bloodstream and tissues. Cox
As stated in Crum and Mao (1996) and as discussed in the Final EIS (pages 10-137) and the Final SEIS (pages 4-31), researchers hypothesized that RLs would have to exceed 190 dB for there to be the possibility of non-auditory trauma due to supersaturation of gases in the blood. Such non-auditory traumas are not expected to occur from sound exposure below SPLs of 180 dB.
In light of the high detection rate of the high-frequency marine mammal monitoring (HF/M3) sonar, ensuring required SURTASS LFA sonar shutdown when any marine mammal approaches or enters the 180-dB isopleth from LFA sonar, the risks of these traumas to a marine mammal approach zero.
Additional research published in the peer-reviewed journal Ultrasound in Medicine and Biology supports the 180-dB criterion for injury as being a scientifically supportable level for assessing potential non-auditory injury to marine mammals (Laurer
Marine mammal strandings are not a rare occurrence in nature. The Cetacean Stranding Database (
There is no record of SURTASS LFA sonar ever being implicated in any stranding event since LFA sonar prototype systems were first operated in the late 1980s. Moreover, the system acoustic characteristics differ between LF and mid-frequency (MF) sonars: LFA sonars use frequencies generally below 1,000 Hz, with relatively long signals (pulses) on the order of 60 sec; while MF sonars use frequencies greater than 1,000 Hz, with relatively short signals on the order of 1 sec. Cox
While there was an LF component in the Greek stranding in 1996, only mid-frequency components were present in the strandings in the Bahamas in 2000, Madeira 2000, and Canaries in 2002. This supports the conclusion that the LF component in the Greek stranding was not causative (ICES, 2005; Cox
Beaked whales have been the subject of particular concern in connection with strandings. Like most odontocetes, they have relatively sharply decreasing hearing sensitivity below 2 kHz (Cook
The effects on marine mammals from operation of SURTASS LFA sonar will not be the lethal removal of animals. In addition, while possible, Level A harassment, if it occurs at all, is expected to be so minimal as to have no effect on rates of reproduction or survival of affected marine mammal species. Based on AIM modeling results, the primary effects would be the potential for Level B harassment. The Final SEIS Subchapter 4.4 provides the risk assessment methodology applied to SURTASS LFA sonar operations for the annual LOA applications for proposed operational areas.
Tables 4.4-2 through 4.4-10 in the Final SEIS provide, through a case study based on the results of the Navy's 2005-2006 LOA, estimates of the percentage of stocks potentially affected for SURTASS LFA sonar operations, which are based on reasonable and realistic estimates of the potential effects to marine mammal stocks specific to the potential mission areas. Also, Tables 5 through 8 in the Navy's Final Comprehensive Report for the 2002-2007 rule provide annual total estimates of percentages of marine mammal stocks potentially affected annually during the first four years of LFA sonar operations, based on actual operations during the period of the LOAs.
The scenarios chosen by the Navy are not the only possible combinations of areas where the SURTASS LFA sonar will operate. The potential effects from other scenarios can be estimated by making a best prediction of the areas in which the Navy would conduct SURTASS LFA sonar operations annually in each oceanic basin area, determining from Tables 4.4-2 through 4.4-10 in the Final SEIS the percentage of each stock that may potentially be affected, and adding those percentages together for each affected stock. Tables 5-8 in the Navy's Comprehensive Report indicate that annually Level B harassment may affect 0 to 6 percent for most marine mammal stocks, rising to just over 11 percent annually for other species (e.g., common dolphins (6.4 percent), Risso's dolphins (6-8 percent), short-finned pilot whales (6 to 9 percent), false killer whales (5 to 10 percent), Pacific white-sided dolphins (6 to 11 percent) and melon-headed whales (11.2 percent)).
Also, using updated modeling where appropriate, the Navy will rerun AIM when planning missions and, if necessary, modify annual LOA requests with an analysis of take estimates prior to any mission in a new/different area. For this rule, NMFS is adopting the Navy estimates shown in Final SEIS (Tables 4.4-2 through 4.4-10) as the best scientific information currently available.
As with the 2002 rule, Navy will limit operation of LFA sonar to ensure no stocks will be subject to more than 12 percent of takes (by Level B harassment) annually, although most stocks are estimated to incur a lower percentage of takes. This per-stock cap applies regardless of the number of ships operating with LFA sonar or the overall increased number of hours of LFA sonar operations. The Navy will use the 12 percent take cap to guide its mission planning and annual LOA applications.
NMFS is requiring the same visual, passive acoustic, and active acoustic monitoring of the area surrounding the SURTASS LFA sonar array, as required for the current 2002-2007 rule and LOAs, to prevent the incidental injury of marine mammals that might enter the 180-dB isopleth from the SURTASS
In addition to establishing a mitigation zone at 180 dB plus 1 km (0.54 nm) to protect marine mammals, the Navy has established a mitigation zone for human divers at 145 dB re 1 microPa(rms) around all known human commercial and recreational diving sites. Although this geographic restriction is intended to protect human divers, it will also reduce the LF sound levels received by marine mammals located in the vicinity of known dive sites.
The Navy also recommended establishing OBIAs for marine mammal protection in its Final EIS and SEIS. The Navy evaluated nine sites in its Final EIS and SEIS where marine animals of concern (marine animals listed under the ESA and other marine mammals) congregate to carry out biologically important activities.
Based on the Navy's evaluation, NMFS has designated these nine sites as OBIAs for LFA sonar. The nine areas are: (1) The North American East Coast between 28° N. and 50° N. from west of 40° W. to the 200-m (656-ft) isobath year-round; (2) the Antarctic Convergence Zone, from 30° E. to 80° E. to 45° S., from 80° E. to 150° E. to 55° S., from 150° E. to 50° W. to 60° S., from 50° W to 30° E. to 55° S. from October through March; (3) the Costa Rica Dome, centered at 9° N. and 88° W., year-round; (4) Hawaiian Islands Humpback Whale National Marine Sanctuary-Penguin Bank, centered at 21° N. and 157° 30′ W. from November 1 through May 1; (5) Cordell Bank National Marine Sanctuary, boundaries in accordance 15 CFR 922.110 year-round; (6) Gulf of the Farallones National Marine Sanctuary, boundaries in accordance 15 CFR 922.80 year-round; (7) Monterey Bay National Marine Sanctuary, boundaries in accordance with 15 CFR 922.30 year-round; (8) Olympic Coast National Marine Sanctuary, boundaries within 23 nm of the coast from 47°07′ N. to 48°30′ N. latitude in December, January, March, and May; and (9) Flower Garden Banks National Marine Sanctuary, boundaries in accordance with 15 CFR 922.120 year-round.
NMFS has also designated an additional OBIA that was recommended by several commenters on the Draft SEIS: The Gully with boundaries at 44°13′ N., 59°06′ W. to 43°47′ N., 58°35′ W. to 43°35′ N., 58°35′ W. to 43°35′ N., 59°08′ W. to 44°06′ N., 59°20′ W., year round. NMFS believes this area is biologically important for marine mammals, based on its importance as habitat for several species of marine mammals, particularly the northern bottlenose whale.
NMFS” proposed rule solicited public comments and information on marine mammal distribution, densities, and the specific biologically important activities that take place in the Northwestern Hawaiian Islands to determine whether certain areas should be designated as OBIAs. We did not receive public comment on this issue. Any additional OBIA designations would be made through a separate rulemaking process.
NMFS is continuing the system established in the 2002-2007 rule for expanding the number of OBIAs, as described later in this document. While retaining the requirement to provide notice and an opportunity to comment, this final rule eliminates the specific length of time for public comment on proposed OBIAs. OBIAs are not intended to apply to other Navy activities and sonar operations, but rather as a mitigation measure to reduce incidental takings by SURTASS LFA sonar.
These regulations require the Navy to refrain from operating the SURTASS LFA sonar within any OBIA and requires that the SURTASS LFA sonar vessel ensures that the 180 dB (re 1 microPa(rms)) isopleth remains at least 1 km (0.54 nm) seaward of the outer perimeter of the OBIA.
In order to minimize risks to marine mammals that may be present in waters surrounding SURTASS LFA sonar, NMFS is again requiring the Navy to: (1) Conduct visual monitoring from the ship's bridge during daylight hours, (2) use passive SURTASS sonar to listen for vocalizing marine mammals; and (3) use high frequency active sonar (i.e., similar to a commercial fish finder) to monitor/locate/track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array.
Through observation, acoustic tracking and implementation of shut-down criteria, the Navy will ensure, to the greatest extent practicable, that no marine mammals approach the SURTASS LFA sonar source close enough to be subjected to potentially injurious sound levels (inside the 180-dB sound field; approximately 1 km (0.54 nm) from the source). In the Navy's Final EIS, as reanalyzed in the Final Comprehensive Report for SURTASS LFA sonar, the Navy assessed mitigation effectiveness. The overall effectiveness of detecting a marine mammal approaching the 180-dB sound field of the source array by at least one of these monitoring methods is above 95 percent. This value is supported by analyses of field data in a sampling of 6 missions between June 2004 and February 2006 (see the Navy's Final Comprehensive Report for LFA sonar).
The results of the visual, passive, and active monitoring for each LOA are discussed in the Annual Reports (most recently, Annual Report 5, 2007, Chapter 4). Mitigation effectiveness is described in Chapter 4 for the Final Comprehensive Report (2007) and in the Annual Reports.
Visual monitoring consists of daylight observations for marine mammals from the vessel. Daylight is defined as 30 minutes before sunrise until 30 minutes after sunset. Visual monitoring would begin 30 minutes before sunrise or 30 minutes before the SURTASS LFA sonar is deployed. Monitoring would continue until 30 minutes after sunset or until the SURTASS LFA sonar is recovered. Observations will be made by personnel trained in detecting and identifying marine mammals. Marine mammal biologists qualified in conducting at-sea
These personnel would maintain a topside watch and marine mammal observation log during operations that employ SURTASS LFA sonar in the active mode. The numbers and identification of marine mammals sighted, as well as any unusual behavior, will be entered into the log. A designated ship's officer will monitor the conduct of the visual watches and periodically review the log entries. There are two potential visual monitoring scenarios.
First, if a marine mammal is sighted outside of the LFA sonar mitigation zone, the observer will notify the Officer-in-Charge (OIC). The OIC then notifies the HF/M3 sonar operator to determine the range and projected track of the animal. If it is determined the animal will enter the LFA sonar mitigation zone, the OIC will order the delay or suspension of SURTASS LFA sonar transmissions when the animal enters the LFA sonar mitigation zone. Second, if the animal is visually observed within the mitigation zone, the OIC will order the immediate delay or suspension of SURTASS LFA sonar transmissions. The observer will continue visual monitoring/recording until the animal is no longer seen.
Passive acoustic monitoring is conducted when SURTASS is deployed, using the SURTASS towed horizontal line array to listen for vocalizing marine mammals as an indicator of their presence. If the sound is estimated to be from a marine mammal that may be in the SURTASS LFA sonar mitigation zone, the technician will notify the OIC who will alert the HF/M3 sonar operator and visual observers. If a marine mammal is detected within or approaching the mitigation zone prior to or during transmissions, the OIC will order the delay or suspension of SURTASS LFA sonar transmissions.
HF-active acoustic monitoring uses the HF/M3 sonar to detect, locate, and track marine mammals that could pass close enough to the SURTASS LFA sonar array to enter the LFA sonar mitigation zone. HF acoustic monitoring will begin 30 minutes before the first SURTASS LFA sonar transmission of a given mission is scheduled to commence and continue until transmissions are terminated. Prior to full-power operations, the HF/M3 sonar power level is ramped up over a period of 5 min from 180 dB SL in 10-dB increments until full power (if required) is attained to ensure that there are no inadvertent exposures of local animals to RLs greater than 180 dB from the HF/M3 sonar. There are two potential scenarios for mitigation via active acoustic monitoring.
First, if a “contact” is detected outside the LFA sonar mitigation zone, the HF/M3 sonar operator determines the range and projected track of the animal. If it is determined that the animal will enter the LFA sonar mitigation zone, the sonar operator notifies the OIC. The OIC then orders the delay or suspension of transmissions when the animal is predicted to enter the LFA sonar mitigation zone. If a contact is detected by the HF/M3 sonar within the LFA sonar mitigation zone, the observer notifies the OIC who promptly orders the immediate delay or suspension of transmissions.
All contacts will be recorded in the log and provided as part of the Long-Term Monitoring (LTM) Program to monitor for potential long-term environmental effects.
The Navy spends approximately $10 to 14 million annually on marine mammal research programs. These research programs provide a means of learning about potential effects of anthropogenic underwater sound on marine mammals (including long-term) and ways to mitigate potential effects. During the first 4 years of LFA sonar operations, the Navy conducted research on several research areas. Table 9 in the Navy's Final Comprehensive Report for SURTASS LFA sonar provides the status of the research that is planned or underway.
NMFS is requiring the Navy to continue researching the impacts of LF sounds on marine mammals to supplement its monitoring and increase knowledge of the species, and coordinate with others on additional research opportunities and activities. This includes cumulative impact analyses of the annual takes of marine mammals over the next 5 years and the continuation of scientific data collection during SURTASS LFA sonar operations.
NMFS recommends that the Navy conduct, or continue to conduct, the following research regarding SURTASS LFA sonar over the second 5-year authorization period:
1. Systematically observe SURTASS LFA sonar training exercises for injured or disabled marine mammals.
2. Compare the effectiveness of the three forms of mitigation (visual, passive acoustic, HF/M3 sonar).
3. Conduct research on the responses of deep-diving odontocete whales to LF-sonar signals. These species are believed to be less sensitive to LF-sonar sounds than the species studied prior to the LFS SRP. However, enough questions exist that these species should be studied further. The Navy has applied for a Scientific Research Permit under section 104 of the MMPA to conduct a behavioral response study on deep-diving cetacean species exposed to natural and artificial underwater sounds and quantify exposure conditions associated with various effects (72 FR 19181, April 17, 2007).
4. Conduct research on the habitat preferences of beaked whales.
5. Conduct passive acoustic monitoring using bottom-mounted hydrophones before, during, and after LF sonar operations for the possible silencing of calls of large whales.
6. Continue to evaluate the HF/M3 mitigation sonar. This is the primary means of mitigation, and its efficacy must continue to be demonstrated.
7. Continue to evaluate improvements in passive sonar capabilities.
During routine operations of SURTASS LFA sonar, technical and environmental data would be collected and recorded, which, along with research, are part of the Navy's LTM Program. These would include data from visual and acoustic monitoring, ocean environmental measurements, and technical operational inputs.
First, a mission report would be provided to NMFS on a quarterly basis, with the report including all active-mode missions completed 30 days or more prior to the date of the deadline for the report. Second, the Navy would submit an annual report no later than 45 days after expiration of an LOA. Third, the Navy would submit a Final Comprehensive Report at least 240 days prior to expiration of these regulations. These reports are summarized here.
The annual report would also include: (1) Analysis of the effectiveness of the mitigation measures with recommendations for improvements where applicable; (2) assessment of any long-term effects from SURTASS LFA sonar operations; and (3) any discernible or estimated cumulative impacts from SURTASS LFA sonar operations.
Annual reports and the Comprehensive Report will be posted on the NMFS homepage (see
Any substantial modifications to NMFS' mitigation, monitoring, and reporting requirements will be proposed in the
In addition to NMFS designating OBIAs independently, this rule describes a process for members of the public to petition NMFS to add an area to the list of OBIAs for marine mammals. To qualify for designation, an area must be of particular importance for marine mammals as an area for feeding, breeding, calving, or migration, and not simply an area occupied by marine mammals. The proposed area should not be within a previously designated OBIA or other 180-dB exclusion area. In order for NMFS to begin a rulemaking process for designating OBIAs, proponents must petition NMFS and submit the information described in 50 CFR 216.191(a). If NMFS makes a preliminary determination that the area is biologically important for marine mammals, NMFS will publish a
NMFS has determined good cause exists to waive the delay in effectiveness date for this final rule. Regulations governing the current MMPA authorization for Navy SURTASS LFA sonar operations expires on August 15, 2007. This final rule must therefore be effective by August 16, 2007 to avoid a gap in SURTASS LFA sonar operations. The Navy recently provided specific, credible, and verifiable information indicating that activities may occur on or after August 16, 2007 such that a gap in SURTASS LFA sonar operations would be detrimental to national security and reduce protection of U.S. and Allied naval forces from submarine threats. This rule, together with LOAs issued hereunder, will afford the Navy lawful incidental take coverage for marine mammals during SURTASS LFA sonar testing, training, and routine operations and avoid any gap in operations. The required mitigation and monitoring, which are designed to ensure the least practicable adverse impact on affected species or stocks will ensure that SURTASS LFA sonar will have a negligible impact on the affected species or stocks of marine mammals.
NMFS has amended the proposed rule to add a 1-km (0.5-nm) buffer to the OBIA SPL restriction. Accordingly, the final rule requires the Navy to ensure SPLs do not exceed 180 dB (re 1 microPa(rms)) at a distance of 1km (0.5 nm) seaward of the outer perimeter of the OBIA. This measure will limit SPLs within OBIA to less than approximately 174 dB.
These regulations require the Navy to refrain from operating the SURTASS LFA sonar within any OBIA and further require the Navy to ensure SPLs do not exceed 180 dB (re 1 microPa(rms)) at a distance of 1km (0.5 nm) seaward of the outer perimeter of the OBIA.
Based on the scientific analyses detailed in the Navy application and further supported by information and data contained in the Navy's Final SEIS and Final EIS for SURTASS LFA sonar operations and summarized in this rule, NMFS has determined that the incidental taking of marine mammals resulting from SURTASS LFA sonar operations would have a negligible impact on the affected marine mammal species or stocks over the 5-year period of LFA sonar operations covered by these regulations. That assessment is based on a number of factors: (1) The best information available indicates that effects from SPLs less than 180 dB will be limited to short-term Level B behavioral harassment averaging less than 12 percent annually for all affected marine mammal species; (2) the
Finally, because SURTASS LFA sonar operations will not take place in Arctic waters, it would not have an unmitigable adverse impact on the availability of marine mammals for subsistence uses identified in MMPA section 101(a)(5)(A)(i), 16 U.S.C. 1371(a) (5)(A)(i).
On November 10, 2005 (70 FR 68443), the Environmental Protection Agency (EPA) announced receipt of a Draft SEIS from the U.S. Navy on the deployment of SURTASS LFA sonar. This Final SEIS incorporated by reference the Navy's Final EIS on SURTASS LFA sonar deployment. The public comment period on the Draft SEIS ended on February 10, 2006. On May 4, 2007 (72 FR 25302), EPA announced receipt of a Final SEIS from the U.S. Navy on the deployment of SURTASS LFA sonar. NMFS was a cooperating agency, as defined by the Council on Environmental Quality (40 CFR 1501.6), in the preparation of these documents. NMFS reviewed the Navy's Final SEIS, adopted the Navy Final EIS, as provided for in 40 CFR 1506.3, and has determined it is unnecessary to prepare additional NEPA analyses. The Navy's Final SEIS is available at:
On June 9, 2006, the Navy submitted a Biological Assessment to NMFS to initiate consultation under section 7 of the ESA for the 2007-2012 SURTASS LFA sonar activities and NMFS” authorization for incidental take under the MMPA. NMFS concluded consultation with the Navy on this action on August xx, 2007. The conclusion of that consultation was that operation of the SURTASS LFA sonar system for testing, training and military operations and the issuance by NMFS of MMPA incidental take authorizations for this activity are not likely 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.
This action has been determined to be significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage, that this action would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. If implemented, this rule would affect only the U.S. Navy which, by definition, is not a small business. Because of this certification, a regulatory flexibility analysis is not required.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
16 U.S.C. 1361
Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by the U.S. Navy, Department of Defense, while engaged in the operation of no more than four SURTASS LFA sonar systems conducting active sonar operations, in areas specified in paragraph (a) of this section. The authorized activities, as specified in a Letter of Authorization issued under §§ 216.106 and 216.188, include the transmission of low frequency sounds from the SURTASS LFA sonar and the transmission of high frequency sounds from the mitigation
(a) With the exception of those areas specified in § 216.183(d), the incidental taking by harassment may be authorized in the areas (biomes, provinces, and subprovinces) described in Longhurst (1998), as specified in a Letter of Authorization.
(b) The incidental take, by Level A and Level B harassment, of marine mammals from the activity identified in this section is limited to the following species and species groups:
(1) Mysticete whales—blue (
(2) Odontocete whales—harbor porpoise (
(3) Pinnipeds—hooded seal (
Regulations in this subpart are effective from August 16, 2007 through August 15, 2012.
(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 216.188, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment within the areas described in § 216.180(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.
(b) The activities identified in § 216.180 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.
No person in connection with the activities described in § 216.180 shall:
(a) Take any marine mammal not specified in § 216.180(b);
(b) Take any marine mammal specified in § 216.180(b) other than by incidental, unintentional Level A and Level B harassment;
(c) Take a marine mammal specified in § 216.180(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of the regulations in this subpart or any Letter of Authorization issued under §§ 216.106 and 216.188.
The activity identified in § 216.180(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.180, the mitigation measures described in this section and in any Letter of Authorization issued under §§ 216.106 and 216.188 must be implemented.
(a) Through monitoring described under § 216.185, the Holder of a Letter of Authorization must act to ensure, to the greatest extent practicable, that no marine mammal is subjected to a sound pressure level of 180 dB or greater.
(b) If a marine mammal is detected within or about to enter the mitigation zone (the area subjected to sound pressure levels of 180 dB or greater plus the 1 km (0.54 nm) buffer zone extending beyond the 180-dB zone), SURTASS LFA sonar transmissions will be immediately delayed or suspended. Transmissions will not resume earlier than 15 minutes after:
(1) All marine mammals have left the area of the mitigation and buffer zones; and
(2) There is no further detection of any marine mammal within the mitigation and buffer zones as determined by the visual and/or passive or active acoustic monitoring described in § 216.185.
(c) The high-frequency marine mammal monitoring sonar (HF/M3) described in § 216.185 will be ramped-up slowly to operating levels over a period of no less than 5 minutes:
(1) At least 30 minutes prior to any SURTASS LFA sonar transmissions;
(2) Prior to any SURTASS LFA sonar calibrations or testings that are not part of regular SURTASS LFA sonar transmissions described in paragraph (c)(1) of this section; and
(3) Anytime after the HF/M3 source has been powered down for more than 2 minutes.
(d) The HF/M3 sound pressure level will not be increased once a marine mammal is detected; ramp-up may resume once marine mammals are no longer detected.
(e) The Holder of a Letter of Authorization will not operate the SURTASS LFA sonar, such that:
(1) the SURTASS LFA sonar sound field exceeds 180 dB (re 1 microPa(rms)) at a distance less than 12 nautical miles (nm) (22 kilometers (km)) from any coastline, including offshore islands;
(2) the SURTASS LFA sonar sound field exceeds 180 db (re 1 microPa(rms)) at a distance of 1 km (0.5 nm) seaward of the outer perimeter of any offshore biologically important area designated in 216.184(f) during the biologically important period specified.
(f) The following areas have been designated by NMFS as Offshore Biologically Important Areas (OBIAs) for marine mammals (by season if appropriate):
(a) In order to mitigate the taking of marine mammals by SURTASS LFA sonar to the greatest extent practicable, the Holder of a Letter of Authorization issued pursuant to §§ 216.106 and 216.188 must:
(1) Conduct visual monitoring from the ship's bridge during all daylight hours (30 minutes before sunrise until 30 minutes after sunset);
(2) Use low frequency passive SURTASS sonar to listen for vocalizing marine mammals; and
(3) Use the HF/M3 (high frequency) sonar developed to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array.
(b) Monitoring under paragraph (a) of this section must:
(1) Commence at least 30 minutes before the first SURTASS LFA sonar transmission;
(2) Continue between transmission pings; and
(3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar transmission exercise, or, if marine mammals are exhibiting unusual changes in behavioral patterns, for a period of time until behavior patterns return to normal or conditions prevent continued observations;
(c) Holders of Letters of Authorization for activities described in § 216.180 are required to cooperate with the National Marine Fisheries Service and any other federal agency for monitoring the impacts of the activity on marine mammals.
(d) Holders of Letters of Authorization must designate qualified on-site individuals to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization.
(e) Holders of Letters of Authorization must conduct all monitoring required under the Letter of Authorization.
(a) The Holder of the Letter of Authorization must submit quarterly mission reports to the Director, Office of Protected Resources, NMFS, no later than 30 days after the end of each quarter beginning on the date of effectiveness of a Letter of Authorization or as specified in the appropriate Letter of Authorization. Each quarterly mission report will include all active-mode missions completed during that quarter. At a minimum, each classified mission report must contain the following information:
(1) Dates, times, and location of each vessel during each mission;
(2) Information on sonar transmissions during each mission;
(3) Results of the marine mammal monitoring program specified in the Letter of Authorization; and
(4) Estimates of the percentages of marine mammal species and stocks affected (both for the quarter and cumulatively for the year) covered by the Letter of Authorization.
(b) The Holder of a Letter of Authorization must submit an annual report to the Director, Office of Protected Resources, NMFS, no later than 45 days after the expiration of a Letter of Authorization. This report must contain all the information required by the Letter of Authorization.
(c) A final comprehensive report must be submitted to the Director, Office of Protected Resources, NMFS at least 240 days prior to expiration of these regulations. In addition to containing all the information required by any final year Letter of Authorization, this report must contain an unclassified analysis of new passive sonar technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar.
(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Navy authority conducting the activity identified in § 216.180 must apply for and obtain a Letter of Authorization in accordance with § 216.106.
(b) The application for a Letter of Authorization must be submitted to the Director, Office of Protected Resources, NMFS, at least 60 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar operations or the previous Letter of Authorization is scheduled to expire.
(c) All applications for a Letter of Authorization must include the following information:
(1) The date(s), duration, and the area(s) where the vessel's activity will occur;
(2) The species and/or stock(s) of marine mammals likely to be found within each area;
(3) The type of incidental taking authorization requested (i.e., take by Level A and/or Level B harassment);
(4) The estimated percentage of marine mammal species/stocks potentially affected in each area for the 12-month period of effectiveness of the Letter of Authorization; and
(5) The means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on marine mammal populations.
(d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with § 216.104(b) and, if adequate and complete, issue a Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked will be valid for a period of time not to exceed one year, but may be renewed annually subject to annual renewal conditions in § 216.189.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic areas for incidental takings;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking, their habitat, and the availability of the species for subsistence uses; and
(4) Requirements for monitoring and reporting incidental takes.
(c) Issuance of each Letter of Authorization will be based on a determination that the total number of marine mammals taken by the activity specified in § 216.180 as a whole will have no more than a negligible impact on the species or stocks of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.
(d) Notice of issuance or denial of an application for a Letter of Authorization will be published in the
(a) A Letter of Authorization issued for the activity identified in § 216.180 may be renewed annually upon:
(1) Notification to NMFS that the activity described in the application submitted under § 216.187 will be undertaken and that there will not be a substantial modification to the described activity, mitigation or monitoring undertaken during the upcoming season;
(2) Notification to NMFS of the information identified in § 216.187(c), including the planned geographic area(s), and anticipated duration of each SURTASS LFA sonar operation;
(3) Timely receipt of the monitoring reports required under § 216.185, which have been reviewed by NMFS and determined to be acceptable;
(4) A determination by NMFS that the mitigation, monitoring and reporting measures required under §§ 216.184 and 216.185 and the previous Letter of Authorization were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and
(5) A determination by NMFS that the number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.
(b) If a request for a renewal of a Letter of Authorization indicates that a substantial modification to the described work, mitigation or monitoring will occur, or if NMFS proposes a substantial modification to the Letter of Authorization, NMFS will provide a period of 30 days for public review and comment on the proposed modification. Amending the areas for upcoming SURTASS LFA sonar operations is not considered a substantial modification to the Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(a) Except as provided in paragraph (b) of this section, no substantial modification (including withdrawal or suspension) to a Letter of Authorization subject to the provisions of this subpart shall be made by NMFS until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization, without modification, except for the period of validity and a listing of planned operating areas, or for moving the authorized SURTASS LFA sonar system from one ship to another, is not considered a substantial modification.
(b) If the National Marine Fisheries Service determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.180(b), a Letter of Authorization may be substantially modified without prior notice and opportunity for public comment. Notification will be published in the
(a) Offshore biologically important areas for marine mammals may be nominated under this paragraph by the National Marine Fisheries Service or by members of the public.
(b) Proponents must petition NMFS by requesting an area be added to the list of offshore biologically important areas in § 216.184(f) and submitting the following information:
(1) Geographic region proposed for consideration (including geographic boundaries);
(2) A list of marine mammal species or stocks within the proposed geographic region;
(3) Whether the proposal is for year-round designation or seasonal, and if seasonal, months of years for proposed designation;
(4) Detailed information on the biology of marine mammals within the area, including estimated population size, distribution, density, status, and the principal biological activity during the proposed period of designation sufficient for NMFS to make a preliminary determination that the area is biologically important for marine mammals; and
(5) Detailed information on the area with regard to its importance for feeding, breeding, or migration for those species of marine mammals that have the potential to be affected by low frequency sounds;
(c) Areas within 12 nm (22 km) of any coastline, including offshore islands, or within non-operating areas for SURTASS LFA sonar are not eligible for consideration.
(d) If a petition does not contain sufficient information for the National Marine Fisheries Service to proceed, NMFS will determine whether the nominated area warrants further study. If so, NMFS will begin a scientific review of the area.
(e)(1) If through a petition or independently, NMFS makes a preliminary determination that an offshore area is biologically important for marine mammals and is not located within a previously designated area, NMFS will publish a
(2) The National Marine Fisheries Service will publish its final determination in the